As Introduced

129th General Assembly Regular Session 2011-2012

S. B. No. 323

Senator Seitz 

Cosponsors: Senators Jordan, Balderson, Schaffer 

---

A BILL

To amend sections 2743.02, 2744.02, 4123.01, and

1

4123.511 and to enact sections 2307.82 and

2

4123.513 of the Revised Code to prohibit illegal

3

and unauthorized aliens from receiving

4

compensation and certain benefits under Ohio's

5

Workers' Compensation Law.

6

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That sections 2743.02, 2744.02, 4123.01, and	7
4123.511 be amended and sections 2307.82 and 4123.513 of the	8
Revised Code be enacted to read as follows:	9

Sec. 2307.82.  (A) As used in this section, "employer,"	10
"illegal alien," "occupational disease," and "unauthorized alien"	11
have the same meanings as in section 4123.01 of the Revised Code.	12

(B) Except as provided in division (C) of this section, no	13
court in this state has jurisdiction over a claim for damages	14
suffered by an illegal alien or an unauthorized alien by reason of	15
personal injury sustained or occupational disease contracted by	16
the illegal alien or unauthorized alien in the course of	17
employment caused by the wrongful act or omission or neglect of	18
the employer. Except as provided in division (C) of this section,	19
an illegal alien or unauthorized alien assumes the risk of	20
incurring such injury or contracting an occupational disease, and	21
that assumption is a complete bar to a recovery of damages for	22
such injury or occupational disease.	23

(C) A court in this state has jurisdiction over a claim	24
brought by an illegal alien or unauthorized alien against an	25
employer for damages suffered by reason of personal injury	26
sustained or occupational disease contracted in the course of	27
employment caused by the wrongful act or omission or neglect of	28
the employer if the employer employed the illegal alien or	29
unauthorized alien knowing that the illegal alien or unauthorized	30
alien was not authorized to work under section 101(a) of the	31
"Immigration Reform and Control Act of 1986," 100 Stat. 3360, 8	32
U.S.C. 1324a.	33

Nothing in this section shall be construed to prevent an	34
illegal alien or an unauthorized alien from bringing a claim	35
against an employer in a court of competent jurisdiction for an	36
intentional tort allegedly committed by the employer against the	37
illegal alien or unauthorized alien.	38

Sec. 2743.02.  (A)(1) The state hereby waives its immunity	39
from liability, except as provided for the office of the state	40
fire marshal in division (G)(1) of section 9.60 and, division (B)	41
of section 3737.221 of the Revised Code, and division (I) of this	42
section and subject to division (H) of this section, and consents	43
to be sued, and have its liability determined, in the court of	44
claims created in this chapter in accordance with the same rules	45
of law applicable to suits between private parties, except that	46
the determination of liability is subject to the limitations set	47
forth in this chapter and, in the case of state universities or	48
colleges, in section 3345.40 of the Revised Code, and except as	49
provided in division (A)(2) or (3) of this section. To the extent	50
that the state has previously consented to be sued, this chapter	51
has no applicability.	52

Except in the case of a civil action filed by the state,	53
filing a civil action in the court of claims results in a complete	54
waiver of any cause of action, based on the same act or omission,	55
which the filing party has against any officer or employee, as	56
defined in section 109.36 of the Revised Code. The waiver shall be	57
void if the court determines that the act or omission was	58
manifestly outside the scope of the officer's or employee's office	59
or employment or that the officer or employee acted with malicious	60
purpose, in bad faith, or in a wanton or reckless manner.	61

(2) If a claimant proves in the court of claims that an	62
officer or employee, as defined in section 109.36 of the Revised	63
Code, would have personal liability for the officer's or	64
employee's acts or omissions but for the fact that the officer or	65
employee has personal immunity under section 9.86 of the Revised	66
Code, the state shall be held liable in the court of claims in any	67
action that is timely filed pursuant to section 2743.16 of the	68
Revised Code and that is based upon the acts or omissions.	69

(3)(a) Except as provided in division (A)(3)(b) of this	70
section, the state is immune from liability in any civil action or	71
proceeding involving the performance or nonperformance of a public	72
duty, including the performance or nonperformance of a public duty	73
that is owed by the state in relation to any action of an	74
individual who is committed to the custody of the state.	75

(b) The state immunity provided in division (A)(3)(a) of this	76
section does not apply to any action of the state under	77
circumstances in which a special relationship can be established	78
between the state and an injured party. A special relationship	79
under this division is demonstrated if all of the following	80
elements exist:	81

(i) An assumption by the state, by means of promises or	82
actions, of an affirmative duty to act on behalf of the party who	83
was allegedly injured;	84

(ii) Knowledge on the part of the state's agents that	85
inaction of the state could lead to harm;	86

(iii) Some form of direct contact between the state's agents	87
and the injured party;	88

(iv) The injured party's justifiable reliance on the state's	89
affirmative undertaking.	90

(B) The state hereby waives the immunity from liability of	91
all hospitals owned or operated by one or more political	92
subdivisions and consents for them to be sued, and to have their	93
liability determined, in the court of common pleas, in accordance	94
with the same rules of law applicable to suits between private	95
parties, subject to the limitations set forth in this chapter.	96
This division is also applicable to hospitals owned or operated by	97
political subdivisions which have been determined by the supreme	98
court to be subject to suit prior to July 28, 1975.	99

(C) Any hospital, as defined in section 2305.113 of the	100
Revised Code, may purchase liability insurance covering its	101
operations and activities and its agents, employees, nurses,	102
interns, residents, staff, and members of the governing board and	103
committees, and, whether or not such insurance is purchased, may,	104
to such extent as its governing board considers appropriate,	105
indemnify or agree to indemnify and hold harmless any such person	106
against expense, including attorney's fees, damage, loss, or other	107
liability arising out of, or claimed to have arisen out of, the	108
death, disease, or injury of any person as a result of the	109
negligence, malpractice, or other action or inaction of the	110
indemnified person while acting within the scope of the	111
indemnified person's duties or engaged in activities at the	112
request or direction, or for the benefit, of the hospital. Any	113
hospital electing to indemnify such persons, or to agree to so	114
indemnify, shall reserve such funds as are necessary, in the	115
exercise of sound and prudent actuarial judgment, to cover the	116
potential expense, fees, damage, loss, or other liability. The	117
superintendent of insurance may recommend, or, if such hospital	118
requests the superintendent to do so, the superintendent shall	119
recommend, a specific amount for any period that, in the	120
superintendent's opinion, represents such a judgment. This	121
authority is in addition to any authorization otherwise provided	122
or permitted by law.	123

(D) Recoveries against the state shall be reduced by the	124
aggregate of insurance proceeds, disability award, or other	125
collateral recovery received by the claimant. This division does	126
not apply to civil actions in the court of claims against a state	127
university or college under the circumstances described in section	128
3345.40 of the Revised Code. The collateral benefits provisions of	129
division (B)(2) of that section apply under those circumstances.	130

(E) The only defendant in original actions in the court of	131
claims is the state. The state may file a third-party complaint or	132
counterclaim in any civil action, except a civil action for two	133
thousand five hundred dollars or less, that is filed in the court	134
of claims.	135

(F) A civil action against an officer or employee, as defined	136
in section 109.36 of the Revised Code, that alleges that the	137
officer's or employee's conduct was manifestly outside the scope	138
of the officer's or employee's employment or official	139
responsibilities, or that the officer or employee acted with	140
malicious purpose, in bad faith, or in a wanton or reckless manner	141
shall first be filed against the state in the court of claims,	142
which has exclusive, original jurisdiction to determine,	143
initially, whether the officer or employee is entitled to personal	144
immunity under section 9.86 of the Revised Code and whether the	145
courts of common pleas have jurisdiction over the civil action.	146
The officer or employee may participate in the immunity	147
determination proceeding before the court of claims to determine	148
whether the officer or employee is entitled to personal immunity	149
under section 9.86 of the Revised Code.	150

The filing of a claim against an officer or employee under	151
this division tolls the running of the applicable statute of	152
limitations until the court of claims determines whether the	153
officer or employee is entitled to personal immunity under section	154
9.86 of the Revised Code.	155

(G) Whenever a claim lies against an officer or employee who	156
is a member of the Ohio national guard, and the officer or	157
employee was, at the time of the act or omission complained of,	158
subject to the "Federal Tort Claims Act," 60 Stat. 842 (1946), 28	159
U.S.C. 2671, et seq., then the Federal Tort Claims Act is the	160
exclusive remedy of the claimant and the state has no liability	161
under this section.	162

(H) If an inmate of a state correctional institution has a	163
claim against the state for the loss of or damage to property and	164
the amount claimed does not exceed three hundred dollars, before	165
commencing an action against the state in the court of claims, the	166
inmate shall file a claim for the loss or damage under the rules	167
adopted by the director of rehabilitation and correction pursuant	168
to this division. The inmate shall file the claim within the time	169
allowed for commencement of a civil action under section 2743.16	170
of the Revised Code. If the state admits or compromises the claim,	171
the director shall make payment from a fund designated by the	172
director for that purpose. If the state denies the claim or does	173
not compromise the claim at least sixty days prior to expiration	174
of the time allowed for commencement of a civil action based upon	175
the loss or damage under section 2743.16 of the Revised Code, the	176
inmate may commence an action in the court of claims under this	177
chapter to recover damages for the loss or damage.	178

The director of rehabilitation and correction shall adopt	179
rules pursuant to Chapter 119. of the Revised Code to implement	180
this division.	181

(I) The state is not liable in any civil action brought by or	182
on behalf of an illegal alien or an unauthorized alien for damages	183
suffered by reason of personal injury sustained or occupational	184
disease contracted in the course of employment caused by the	185
wrongful act or omission or neglect of the state acting as an	186
employer unless the state employed that illegal alien or	187
unauthorized alien knowing that the illegal alien or unauthorized	188
alien was not authorized to work under section 101(a) of the	189
"Immigration Reform and Control Act of 1986," 100 Stat. 3360, 8	190
U.S.C. 1324a.	191

As used in this division, "illegal alien," "occupational	192
disease," and "unauthorized alien" have the same meanings as in	193
section 4123.01 of the Revised Code.	194

Sec. 2744.02.  (A)(1) For the purposes of this chapter, the	195
functions of political subdivisions are hereby classified as	196
governmental functions and proprietary functions. Except as	197
provided in division (B) of this section, a political subdivision	198
is not liable in damages in a civil action for injury, death, or	199
loss to person or property allegedly caused by any act or omission	200
of the political subdivision or an employee of the political	201
subdivision in connection with a governmental or proprietary	202
function. A political subdivision is not liable in any civil	203
action brought by or on behalf of an illegal alien or an	204
unauthorized alien for damages suffered by reason of personal	205
injury sustained or occupational disease contracted in the course	206
of employment caused by the wrongful act or omission or neglect of	207
the political subdivision acting as an employer unless the	208
political subdivision employed that illegal alien or unauthorized	209
alien knowing that the illegal alien or unauthorized alien was not	210
authorized to work under section 101(a) of the "Immigration Reform	211
and Control Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a.	212

As used in this division, "illegal alien," "occupational	213
disease," and "unauthorized alien" have the same meanings as in	214
section 4123.01 of the Revised Code.	215

(2) The defenses and immunities conferred under this chapter	216
apply in connection with all governmental and proprietary	217
functions performed by a political subdivision and its employees,	218
whether performed on behalf of that political subdivision or on	219
behalf of another political subdivision.	220

(3) Subject to statutory limitations upon their monetary	221
jurisdiction, the courts of common pleas, the municipal courts,	222
and the county courts have jurisdiction to hear and determine	223
civil actions governed by or brought pursuant to this chapter.	224

(B) Subject to sections 2744.03 and 2744.05 of the Revised	225
Code, a political subdivision is liable in damages in a civil	226
action for injury, death, or loss to person or property allegedly	227
caused by an act or omission of the political subdivision or of	228
any of its employees in connection with a governmental or	229
proprietary function, as follows:	230

(1) Except as otherwise provided in this division, political	231
subdivisions are liable for injury, death, or loss to person or	232
property caused by the negligent operation of any motor vehicle by	233
their employees when the employees are engaged within the scope of	234
their employment and authority. The following are full defenses to	235
that liability:	236

(a) A member of a municipal corporation police department or	237
any other police agency was operating a motor vehicle while	238
responding to an emergency call and the operation of the vehicle	239
did not constitute willful or wanton misconduct;	240

(b) A member of a municipal corporation fire department or	241
any other firefighting agency was operating a motor vehicle while	242
engaged in duty at a fire, proceeding toward a place where a fire	243
is in progress or is believed to be in progress, or answering any	244
other emergency alarm and the operation of the vehicle did not	245
constitute willful or wanton misconduct;	246

(c) A member of an emergency medical service owned or	247
operated by a political subdivision was operating a motor vehicle	248
while responding to or completing a call for emergency medical	249
care or treatment, the member was holding a valid commercial	250
driver's license issued pursuant to Chapter 4506. or a driver's	251
license issued pursuant to Chapter 4507. of the Revised Code, the	252
operation of the vehicle did not constitute willful or wanton	253
misconduct, and the operation complies with the precautions of	254
section 4511.03 of the Revised Code.	255

(2) Except as otherwise provided in sections 3314.07 and	256
3746.24 of the Revised Code, political subdivisions are liable for	257
injury, death, or loss to person or property caused by the	258
negligent performance of acts by their employees with respect to	259
proprietary functions of the political subdivisions.	260

(3) Except as otherwise provided in section 3746.24 of the	261
Revised Code, political subdivisions are liable for injury, death,	262
or loss to person or property caused by their negligent failure to	263
keep public roads in repair and other negligent failure to remove	264
obstructions from public roads, except that it is a full defense	265
to that liability, when a bridge within a municipal corporation is	266
involved, that the municipal corporation does not have the	267
responsibility for maintaining or inspecting the bridge.	268

(4) Except as otherwise provided in section 3746.24 of the	269
Revised Code, political subdivisions are liable for injury, death,	270
or loss to person or property that is caused by the negligence of	271
their employees and that occurs within or on the grounds of, and	272
is due to physical defects within or on the grounds of, buildings	273
that are used in connection with the performance of a governmental	274
function, including, but not limited to, office buildings and	275
courthouses, but not including jails, places of juvenile	276
detention, workhouses, or any other detention facility, as defined	277
in section 2921.01 of the Revised Code.	278

(5) In addition to the circumstances described in divisions	279
(B)(1) to (4) of this section, a political subdivision is liable	280
for injury, death, or loss to person or property when civil	281
liability is expressly imposed upon the political subdivision by a	282
section of the Revised Code, including, but not limited to,	283
sections 2743.02 and 5591.37 of the Revised Code. Civil liability	284
shall not be construed to exist under another section of the	285
Revised Code merely because that section imposes a responsibility	286
or mandatory duty upon a political subdivision, because that	287
section provides for a criminal penalty, because of a general	288
authorization in that section that a political subdivision may sue	289
and be sued, or because that section uses the term "shall" in a	290
provision pertaining to a political subdivision.	291

(C) An order that denies a political subdivision or an	292
employee of a political subdivision the benefit of an alleged	293
immunity from liability as provided in this chapter or any other	294
provision of the law is a final order.	295

Sec. 4123.01.  As used in this chapter:

296

(A)(1) "Employee" means:

297

(a) Every person in the service of the state, or of any	298
county, municipal corporation, township, or school district	299
therein, including regular members of lawfully constituted police	300
and fire departments of municipal corporations and townships,	301
whether paid or volunteer, and wherever serving within the state	302
or on temporary assignment outside thereof, and executive officers	303
of boards of education, under any appointment or contract of hire,	304
express or implied, oral or written, including any elected	305
official of the state, or of any county, municipal corporation, or	306
township, or members of boards of education.	307

As used in division (A)(1)(a) of this section, the term	308
"employee" includes the following persons when responding to an	309
inherently dangerous situation that calls for an immediate	310
response on the part of the person, regardless of whether the	311
person is within the limits of the jurisdiction of the person's	312
regular employment or voluntary service when responding, on the	313
condition that the person responds to the situation as the person	314
otherwise would if the person were on duty in the person's	315
jurisdiction:	316

(i) Off-duty peace officers. As used in division (A)(1)(a)(i)	317
of this section, "peace officer" has the same meaning as in	318
section 2935.01 of the Revised Code.	319

(ii) Off-duty firefighters, whether paid or volunteer, of a	320
lawfully constituted fire department.	321

(iii) Off-duty first responders, emergency medical	322
technicians-basic, emergency medical technicians-intermediate, or	323
emergency medical technicians-paramedic, whether paid or	324
volunteer, of an ambulance service organization or emergency	325
medical service organization pursuant to Chapter 4765. of the	326
Revised Code.	327

(b) Every person in the service of any person, firm, or	328
private corporation, including any public service corporation,	329
that (i) employs one or more persons regularly in the same	330
business or in or about the same establishment under any contract	331
of hire, express or implied, oral or written, including aliens and	332
authorized to work by the United States department of homeland	333
security or its successor; minors,; household workers who earn one	334
hundred sixty dollars or more in cash in any calendar quarter from	335
a single household; and casual workers who earn one hundred sixty	336
dollars or more in cash in any calendar quarter from a single	337
employer,; or (ii) is bound by any such contract of hire or by any	338
other written contract, to pay into the state insurance fund the	339
premiums provided by this chapter.	340

(c) Every person who performs labor or provides services	341
pursuant to a construction contract, as defined in section 4123.79	342
of the Revised Code, if at least ten of the following criteria	343
apply:	344

(i) The person is required to comply with instructions from	345
the other contracting party regarding the manner or method of	346
performing services;	347

(ii) The person is required by the other contracting party to	348
have particular training;	349

(iii) The person's services are integrated into the regular	350
functioning of the other contracting party;	351

(iv) The person is required to perform the work personally;

352

(v) The person is hired, supervised, or paid by the other	353
contracting party;	354

(vi) A continuing relationship exists between the person and	355
the other contracting party that contemplates continuing or	356
recurring work even if the work is not full time;	357

(vii) The person's hours of work are established by the other	358
contracting party;	359

(viii) The person is required to devote full time to the	360
business of the other contracting party;	361

(ix) The person is required to perform the work on the	362
premises of the other contracting party;	363

(x) The person is required to follow the order of work set by	364
the other contracting party;	365

(xi) The person is required to make oral or written reports	366
of progress to the other contracting party;	367

(xii) The person is paid for services on a regular basis such	368
as hourly, weekly, or monthly;	369

(xiii) The person's expenses are paid for by the other	370
contracting party;	371

(xiv) The person's tools and materials are furnished by the	372
other contracting party;	373

(xv) The person is provided with the facilities used to	374
perform services;	375

(xvi) The person does not realize a profit or suffer a loss	376
as a result of the services provided;	377

(xvii) The person is not performing services for a number of	378
employers at the same time;	379

(xviii) The person does not make the same services available	380
to the general public;	381

(xix) The other contracting party has a right to discharge	382
the person;	383

(xx) The person has the right to end the relationship with	384
the other contracting party without incurring liability pursuant	385
to an employment contract or agreement.	386

Every person in the service of any independent contractor or	387
subcontractor who has failed to pay into the state insurance fund	388
the amount of premium determined and fixed by the administrator of	389
workers' compensation for the person's employment or occupation or	390
if a self-insuring employer has failed to pay compensation and	391
benefits directly to the employer's injured and to the dependents	392
of the employer's killed employees as required by section 4123.35	393
of the Revised Code, shall be considered as the employee of the	394
person who has entered into a contract, whether written or verbal,	395
with such independent contractor unless such employees or their	396
legal representatives or beneficiaries elect, after injury or	397
death, to regard such independent contractor as the employer.	398

(d) Every person to whom all of the following apply:

399

(i) The person is a resident of a state other than this state	400
and is covered by that other state's workers' compensation law;	401

(ii) The person performs labor or provides services for that	402
person's employer while temporarily within this state;	403

(iii) The laws of that other state do not include the	404
provisions described in division (H)(4) of section 4123.54 of the	405
Revised Code.	406

(2) "Employee" does not mean any of the following:

407

(a) A duly ordained, commissioned, or licensed minister or	408
assistant or associate minister of a church in the exercise of	409
ministry;	410

(b) Any officer of a family farm corporation;

411

(c) An individual incorporated as a corporation; or

412

(d) An individual who otherwise is an employee of an employer	413
but who signs the waiver and affidavit specified in section	414
4123.15 of the Revised Code on the condition that the	415
administrator has granted a waiver and exception to the	416
individual's employer under section 4123.15 of the Revised Code;	417

(e) An illegal alien or an unauthorized alien.

418

Any employer may elect to include as an "employee" within	419
this chapter, any person excluded from the definition of	420
"employee" pursuant to divisiondivisions (A)(2)(a) to (d) of this	421
section. If an employer is a partnership, sole proprietorship,	422
individual incorporated as a corporation, or family farm	423
corporation, such employer may elect to include as an "employee"	424
within this chapter, any member of such partnership, the owner of	425
the sole proprietorship, the individual incorporated as a	426
corporation, or the officers of the family farm corporation. In	427
the event of an election, the employer shall serve upon the bureau	428
of workers' compensation written notice naming the persons to be	429
covered, include such employee's remuneration for premium purposes	430
in all future payroll reports, and no person excluded from the	431
definition of "employee" pursuant to divisiondivisions (A)(2)(a)	432
to (d) of this section, proprietor, individual incorporated as a	433
corporation, or partner shall be deemed an employee within this	434
division until the employer has served such notice.	435

For informational purposes only, the bureau shall prescribe	436
such language as it considers appropriate, on such of its forms as	437
it considers appropriate, to advise employers of their right to	438
elect to include as an "employee" within this chapter a sole	439
proprietor, any member of a partnership, an individual	440
incorporated as a corporation, the officers of a family farm	441
corporation, or a person excluded from the definition of	442
"employee" under divisiondivisions (A)(2)(a) to (d) of this	443
section, that they should check any health and disability	444
insurance policy, or other form of health and disability plan or	445
contract, presently covering them, or the purchase of which they	446
may be considering, to determine whether such policy, plan, or	447
contract excludes benefits for illness or injury that they might	448
have elected to have covered by workers' compensation.	449

(B) "Employer" means:

450

(1) The state, including state hospitals, each county,	451
municipal corporation, township, school district, and hospital	452
owned by a political subdivision or subdivisions other than the	453
state;	454

(2) Every person, firm, professional employer organization as	455
defined in section 4125.01 of the Revised Code, and private	456
corporation, including any public service corporation, that (a)	457
has in service one or more employees or shared employees regularly	458
in the same business or in or about the same establishment under	459
any contract of hire, express or implied, oral or written, or (b)	460
is bound by any such contract of hire or by any other written	461
contract, to pay into the insurance fund the premiums provided by	462
this chapter.	463

All such employers are subject to this chapter. Any member of	464
a firm or association, who regularly performs manual labor in or	465
about a mine, factory, or other establishment, including a	466
household establishment, shall be considered an employee in	467
determining whether such person, firm, or private corporation, or	468
public service corporation, has in its service, one or more	469
employees and the employer shall report the income derived from	470
such labor to the bureau as part of the payroll of such employer,	471
and such member shall thereupon be entitled to all the benefits of	472
an employee.	473

(C) "Injury" includes any injury, whether caused by external	474
accidental means or accidental in character and result, received	475
in the course of, and arising out of, the injured employee's	476
employment. "Injury" does not include:	477

(1) Psychiatric conditions except where the claimant's	478
psychiatric conditions have arisen from an injury or occupational	479
disease sustained by that claimant or where the claimant's	480
psychiatric conditions have arisen from sexual conduct in which	481
the claimant was forced by threat of physical harm to engage or	482
participate;	483

(2) Injury or disability caused primarily by the natural	484
deterioration of tissue, an organ, or part of the body;	485

(3) Injury or disability incurred in voluntary participation	486
in an employer-sponsored recreation or fitness activity if the	487
employee signs a waiver of the employee's right to compensation or	488
benefits under this chapter prior to engaging in the recreation or	489
fitness activity;	490

(4) A condition that pre-existed an injury unless that	491
pre-existing condition is substantially aggravated by the injury.	492
Such a substantial aggravation must be documented by objective	493
diagnostic findings, objective clinical findings, or objective	494
test results. Subjective complaints may be evidence of such a	495
substantial aggravation. However, subjective complaints without	496
objective diagnostic findings, objective clinical findings, or	497
objective test results are insufficient to substantiate a	498
substantial aggravation.	499

(D) "Child" includes a posthumous child and a child legally	500
adopted prior to the injury.	501

(E) "Family farm corporation" means a corporation founded for	502
the purpose of farming agricultural land in which the majority of	503
the voting stock is held by and the majority of the stockholders	504
are persons or the spouse of persons related to each other within	505
the fourth degree of kinship, according to the rules of the civil	506
law, and at least one of the related persons is residing on or	507
actively operating the farm, and none of whose stockholders are a	508
corporation. A family farm corporation does not cease to qualify	509
under this division where, by reason of any devise, bequest, or	510
the operation of the laws of descent or distribution, the	511
ownership of shares of voting stock is transferred to another	512
person, as long as that person is within the degree of kinship	513
stipulated in this division.	514

(F) "Occupational disease" means a disease contracted in the	515
course of employment, which by its causes and the characteristics	516
of its manifestation or the condition of the employment results in	517
a hazard which distinguishes the employment in character from	518
employment generally, and the employment creates a risk of	519
contracting the disease in greater degree and in a different	520
manner from the public in general.	521

(G) "Self-insuring employer" means an employer who is granted	522
the privilege of paying compensation and benefits directly under	523
section 4123.35 of the Revised Code, including a board of county	524
commissioners for the sole purpose of constructing a sports	525
facility as defined in section 307.696 of the Revised Code,	526
provided that the electors of the county in which the sports	527
facility is to be built have approved construction of a sports	528
facility by ballot election no later than November 6, 1997.	529

(H) "Public employer" means an employer as defined in	530
division (B)(1) of this section.	531

(I) "Sexual conduct" means vaginal intercourse between a male	532
and female; anal intercourse, fellatio, and cunnilingus between	533
persons regardless of gender; and, without privilege to do so, the	534
insertion, however slight, of any part of the body or any	535
instrument, apparatus, or other object into the vaginal or anal	536
cavity of another. Penetration, however slight, is sufficient to	537
complete vaginal or anal intercourse.	538

(J) "Other-states' insurer" means an insurance company that	539
is authorized to provide workers' compensation insurance coverage	540
in any of the states that permit employers to obtain insurance for	541
workers' compensation claims through insurance companies.	542

(K) "Other-states' coverage" means insurance coverage	543
purchased by an employer for workers' compensation claims that	544
arise in a state or states other than this state and that are	545
filed by the employees of the employer or those employee's	546
dependents, as applicable, in that other state or those other	547
states.	548

(L) "Illegal alien" means an alien who is deportable if	549
apprehended because of one of the following:	550

(1) The alien entered the United States illegally without the	551
proper authorization and documents.	552

(2) The alien once entered the United States legally and has	553
since violated the terms of the status under which the alien	554
entered the United States, making that alien an "out of status"	555
alien.	556

(3) The alien once entered the United States legally but has	557
overstayed the time limits of the original legal status.	558

(M) "Unauthorized alien" means an alien who is not authorized	559
to be employed as determined in accordance with section 101(a) of	560
the "Immigration Reform and Control Act of 1986," 100 Stat. 3360,	561
8 U.S.C. 1324a.	562

Sec. 4123.511.  (A) Within seven days after receipt of any	563
claim under this chapter, the bureau of workers' compensation	564
shall notify the claimant and the employer of the claimant of the	565
receipt of the claim and of the facts alleged therein. If the	566
bureau receives from a person other than the claimant written or	567
facsimile information or information communicated verbally over	568
the telephone indicating that an injury or occupational disease	569
has occurred or been contracted which may be compensable under	570
this chapter, the bureau shall notify the employee and the	571
employer of the information. If the information is provided	572
verbally over the telephone, the person providing the information	573
shall provide written verification of the information to the	574
bureau according to division (E) of section 4123.84 of the Revised	575
Code. The receipt of the information in writing or facsimile, or	576
if initially by telephone, the subsequent written verification,	577
and the notice by the bureau shall be considered an application	578
for compensation under section 4123.84 or 4123.85 of the Revised	579
Code, provided that the conditions of division (E) of section	580
4123.84 of the Revised Code apply to information provided verbally	581
over the telephone. Upon receipt of a claim, the bureau shall	582
advise the claimant of the claim number assigned and the	583
claimant's right to representation in the processing of a claim or	584
to elect no representation. If	585

To be considered eligible for compensation or benefits paid	586
under this chapter or Chapter 4121., 4127., or 4131. of the	587
Revised Code other than medical benefits as described in section	588
4123.66 of the Revised Code, the claimant shall submit to the	589
administrator of workers' compensation a signed attestation that	590
the claimant is an eligible "employee" as that term is defined in	591
section 4123.01 of the Revised Code or, if the claimant is a	592
dependent of an individual who died as a result of suffering an	593
injury or contracting an occupational disease, that the individual	594
who is the subject of the claim was such an employee. The	595
administrator shall not pay compensation or benefits, other than	596
medical benefits described in section 4123.66 of the Revised Code,	597
unless the administrator receives the signed attestation. The	598
administrator, if the administrator has reason to believe that a	599
submitted attestation is not valid, may request the claimant to	600
submit proof to the administrator that the attestation is valid.	601
The administrator shall make the request in writing and shall	602
state in the request the type of proof necessary to determine	603
validity and the date by which the claimant shall submit the	604
proof. If a claimant fails to comply with the request, the	605
administrator shall deny the claim for compensation or benefits	606
other than medical benefits and the claimant is barred from	607
refiling that claim for compensation or benefits. A denial of a	608
claim for compensation or benefits for failing to comply with the	609
written request may be appealed under this section and section	610
4123.512 of the Revised Code. In the event a claimant provides a	611
signed attestation required under this division and it is later	612
determined that the claimant is or the deceased individual who is	613
the subject of the claim was an illegal or unauthorized alien, the	614
claimant shall be subject to prosecution for a violation of	615
section 2913.48 of the Revised Code.	616

If the bureau determines that a claim is determined to be a	617
compensable lost-time claim, the bureau shall notify the claimant	618
and the employer of the availability of rehabilitation services.	619
No bureau or industrial commission employee shall directly or	620
indirectly convey any information in derogation of this right.	621
This section shall in no way abrogate the bureau's responsibility	622
to aid and assist a claimant in the filing of a claim and to	623
advise the claimant of the claimant's rights under the law.	624

The administrator of workers' compensation shall assign all	625
claims and investigations to the bureau service office from which	626
investigation and determination may be made most expeditiously.	627

The bureau shall investigate the facts concerning an injury	628
or occupational disease and ascertain such facts in whatever	629
manner is most appropriate and may obtain statements of the	630
employee, employer, attending physician, and witnesses in whatever	631
manner is most appropriate.	632

The administrator, with the advice and consent of the bureau	633
of workers' compensation board of directors, may adopt rules that	634
identify specified medical conditions that have a historical	635
record of being allowed whenever included in a claim. The	636
administrator may grant immediate allowance of any medical	637
condition identified in those rules upon the filing of a claim	638
involving that medical condition and may make immediate payment of	639
medical bills for any medical condition identified in those rules	640
that is included in a claim. If an employer contests the allowance	641
of a claim involving any medical condition identified in those	642
rules, and the claim is disallowed, payment for the medical	643
condition included in that claim shall be charged to and paid from	644
the surplus fund account created under section 4123.34 of the	645
Revised Code.	646

(B)(1) Except as provided in division (B)(2) of this section,	647
in claims other than those in which the employer is a	648
self-insuring employer, if the administrator determines under	649
division (A) of this section that a claimant is or is not entitled	650
to an award of compensation or benefits, the administrator shall	651
issue an order no later than twenty-eight days after the sending	652
of the notice under division (A) of this section, granting or	653
denying the payment of the compensation or benefits, or both as is	654
appropriate to the claimant. Notwithstanding the time limitation	655
specified in this division for the issuance of an order, if a	656
medical examination of the claimant is required by statute, the	657
administrator promptly shall schedule the claimant for that	658
examination and shall issue an order no later than twenty-eight	659
days after receipt of the report of the examination. The	660
administrator shall notify the claimant and the employer of the	661
claimant and their respective representatives in writing of the	662
nature of the order and the amounts of compensation and benefit	663
payments involved. The employer or claimant may appeal the order	664
pursuant to division (C) of this section within fourteen days	665
after the date of the receipt of the order. The employer and	666
claimant may waive, in writing, their rights to an appeal under	667
this division.	668

(2) Notwithstanding the time limitation specified in division	669
(B)(1) of this section for the issuance of an order, if the	670
employer certifies a claim for payment of compensation or	671
benefits, or both, to a claimant, and the administrator has	672
completed the investigation of the claim, the payment of benefits	673
or compensation, or both, as is appropriate, shall commence upon	674
the later of the date of the certification or completion of the	675
investigation and issuance of the order by the administrator,	676
provided that the administrator shall issue the order no later	677
than the time limitation specified in division (B)(1) of this	678
section.	679

(3) If an appeal is made under division (B)(1) or (2) of this	680
section, the administrator shall forward the claim file to the	681
appropriate district hearing officer within seven days of the	682
appeal. In contested claims other than state fund claims, the	683
administrator shall forward the claim within seven days of the	684
administrator's receipt of the claim to the industrial commission,	685
which shall refer the claim to an appropriate district hearing	686
officer for a hearing in accordance with division (C) of this	687
section.	688

(C) If an employer or claimant timely appeals the order of	689
the administrator issued under division (B) of this section or in	690
the case of other contested claims other than state fund claims,	691
the commission shall refer the claim to an appropriate district	692
hearing officer according to rules the commission adopts under	693
section 4121.36 of the Revised Code. The district hearing officer	694
shall notify the parties and their respective representatives of	695
the time and place of the hearing.	696

The district hearing officer shall hold a hearing on a	697
disputed issue or claim within forty-five days after the filing of	698
the appeal under this division and issue a decision within seven	699
days after holding the hearing. The district hearing officer shall	700
notify the parties and their respective representatives in writing	701
of the order. Any party may appeal an order issued under this	702
division pursuant to division (D) of this section within fourteen	703
days after receipt of the order under this division.	704

(D) Upon the timely filing of an appeal of the order of the	705
district hearing officer issued under division (C) of this	706
section, the commission shall refer the claim file to an	707
appropriate staff hearing officer according to its rules adopted	708
under section 4121.36 of the Revised Code. The staff hearing	709
officer shall hold a hearing within forty-five days after the	710
filing of an appeal under this division and issue a decision	711
within seven days after holding the hearing under this division.	712
The staff hearing officer shall notify the parties and their	713
respective representatives in writing of the staff hearing	714
officer's order. Any party may appeal an order issued under this	715
division pursuant to division (E) of this section within fourteen	716
days after receipt of the order under this division.	717

(E) Upon the filing of a timely appeal of the order of the	718
staff hearing officer issued under division (D) of this section,	719
the commission or a designated staff hearing officer, on behalf of	720
the commission, shall determine whether the commission will hear	721
the appeal. If the commission or the designated staff hearing	722
officer decides to hear the appeal, the commission or the	723
designated staff hearing officer shall notify the parties and	724
their respective representatives in writing of the time and place	725
of the hearing. The commission shall hold the hearing within	726
forty-five days after the filing of the notice of appeal and,	727
within seven days after the conclusion of the hearing, the	728
commission shall issue its order affirming, modifying, or	729
reversing the order issued under division (D) of this section. The	730
commission shall notify the parties and their respective	731
representatives in writing of the order. If the commission or the	732
designated staff hearing officer determines not to hear the	733
appeal, within fourteen days after the expiration of the period in	734
which an appeal of the order of the staff hearing officer may be	735
filed as provided in division (D) of this section, the commission	736
or the designated staff hearing officer shall issue an order to	737
that effect and notify the parties and their respective	738
representatives in writing of that order.	739

Except as otherwise provided in this chapter and Chapters	740
4121., 4127., and 4131. of the Revised Code, any party may appeal	741
an order issued under this division to the court pursuant to	742
section 4123.512 of the Revised Code within sixty days after	743
receipt of the order, subject to the limitations contained in that	744
section.	745

(F) Every notice of an appeal from an order issued under	746
divisions (B), (C), (D), and (E) of this section shall state the	747
names of the claimant and employer, the number of the claim, the	748
date of the decision appealed from, and the fact that the	749
appellant appeals therefrom.	750

(G) All of the following apply to the proceedings under	751
divisions (C), (D), and (E) of this section:	752

(1) The parties shall proceed promptly and without	753
continuances except for good cause;	754

(2) The parties, in good faith, shall engage in the free	755
exchange of information relevant to the claim prior to the conduct	756
of a hearing according to the rules the commission adopts under	757
section 4121.36 of the Revised Code;	758

(3) The administrator is a party and may appear and	759
participate at all administrative proceedings on behalf of the	760
state insurance fund. However, in cases in which the employer is	761
represented, the administrator shall neither present arguments nor	762
introduce testimony that is cumulative to that presented or	763
introduced by the employer or the employer's representative. The	764
administrator may file an appeal under this section on behalf of	765
the state insurance fund; however, except in cases arising under	766
section 4123.343 of the Revised Code, the administrator only may	767
appeal questions of law or issues of fraud when the employer	768
appears in person or by representative.	769

(H) Except as provided in section 4121.63 of the Revised Code	770
and division (K) of this section, payments of compensation to a	771
claimant or on behalf of a claimant as a result of any order	772
issued under this chapter shall commence upon the earlier of the	773
following:	774

(1) Fourteen days after the date the administrator issues an	775
order under division (B) of this section, unless that order is	776
appealed;	777

(2) The date when the employer has waived the right to appeal	778
a decision issued under division (B) of this section;	779

(3) If no appeal of an order has been filed under this	780
section or to a court under section 4123.512 of the Revised Code,	781
the expiration of the time limitations for the filing of an appeal	782
of an order;	783

(4) The date of receipt by the employer of an order of a	784
district hearing officer, a staff hearing officer, or the	785
industrial commission issued under division (C), (D), or (E) of	786
this section.	787

(I) Payments of medical benefits payable under this chapter	788
or Chapter 4121., 4127., or 4131. of the Revised Code shall	789
commence upon the earlier of the following:	790

(1) The date of the issuance of the staff hearing officer's	791
order under division (D) of this section;	792

(2) The date of the final administrative or judicial	793
determination.	794

(J) The administrator shall charge the compensation payments	795
made in accordance with division (H) of this section or medical	796
benefits payments made in accordance with division (I) of this	797
section to an employer's experience immediately after the employer	798
has exhausted the employer's administrative appeals as provided in	799
this section or has waived the employer's right to an	800
administrative appeal under division (B) of this section, subject	801
to the adjustment specified in division (H) of section 4123.512 of	802
the Revised Code.	803

(K) Upon the final administrative or judicial determination	804
under this section or section 4123.512 of the Revised Code of an	805
appeal of an order to pay compensation, if a claimant is found to	806
have received compensation pursuant to a prior order which is	807
reversed upon subsequent appeal, the claimant's employer, if a	808
self-insuring employer, or the bureau, shall withhold from any	809
amount to which the claimant becomes entitled pursuant to any	810
claim, past, present, or future, under Chapter 4121., 4123.,	811
4127., or 4131. of the Revised Code, the amount of previously paid	812
compensation to the claimant which, due to reversal upon appeal,	813
the claimant is not entitled, pursuant to the following criteria:	814

(1) No withholding for the first twelve weeks of temporary	815
total disability compensation pursuant to section 4123.56 of the	816
Revised Code shall be made;	817

(2) Forty per cent of all awards of compensation paid	818
pursuant to sections 4123.56 and 4123.57 of the Revised Code,	819
until the amount overpaid is refunded;	820

(3) Twenty-five per cent of any compensation paid pursuant to	821
section 4123.58 of the Revised Code until the amount overpaid is	822
refunded;	823

(4) If, pursuant to an appeal under section 4123.512 of the	824
Revised Code, the court of appeals or the supreme court reverses	825
the allowance of the claim, then no amount of any compensation	826
will be withheld.	827

The administrator and self-insuring employers, as	828
appropriate, are subject to the repayment schedule of this	829
division only with respect to an order to pay compensation that	830
was properly paid under a previous order, but which is	831
subsequently reversed upon an administrative or judicial appeal.	832
The administrator and self-insuring employers are not subject to,	833
but may utilize, the repayment schedule of this division, or any	834
other lawful means, to collect payment of compensation made to a	835
person who was not entitled to the compensation due to fraud as	836
determined by the administrator or the industrial commission.	837

(L) If a staff hearing officer or the commission fails to	838
issue a decision or the commission fails to refuse to hear an	839
appeal within the time periods required by this section, payments	840
to a claimant shall cease until the staff hearing officer or	841
commission issues a decision or hears the appeal, unless the	842
failure was due to the fault or neglect of the employer or the	843
employer agrees that the payments should continue for a longer	844
period of time.	845

(M) Except as otherwise provided in this section or section	846
4123.522 of the Revised Code, no appeal is timely filed under this	847
section unless the appeal is filed with the time limits set forth	848
in this section.	849

(N) No person who is not an employee of the bureau or	850
commission or who is not by law given access to the contents of a	851
claims file shall have a file in the person's possession.	852

(O) Upon application of a party who resides in an area in	853
which an emergency or disaster is declared, the industrial	854
commission and hearing officers of the commission may waive the	855
time frame within which claims and appeals of claims set forth in	856
this section must be filed upon a finding that the applicant was	857
unable to comply with a filing deadline due to an emergency or a	858
disaster.	859

As used in this division:

860

(1) "Emergency" means any occasion or instance for which the	861
governor of Ohio or the president of the United States publicly	862
declares an emergency and orders state or federal assistance to	863
save lives and protect property, the public health and safety, or	864
to lessen or avert the threat of a catastrophe.	865

(2) "Disaster" means any natural catastrophe or fire, flood,	866
or explosion, regardless of the cause, that causes damage of	867
sufficient magnitude that the governor of Ohio or the president of	868
the United States, through a public declaration, orders state or	869
federal assistance to alleviate damage, loss, hardship, or	870
suffering that results from the occurrence.	871

Sec. 4123.513.  (A) Except as otherwise provided in divisions	872
(B) and (C) of this section, if a claim is denied because the	873
claimant is, or if the claimant is a dependent of an individual	874
who died as a result of suffering an injury or contracting an	875
occupational disease, that individual was an unauthorized alien,	876
the claimant's employer or the individual's employer is not liable	877
to that claimant for damages suffered by reason of personal injury	878
sustained or occupational disease contracted in the course of	879
employment caused by the wrongful act or omission or neglect of	880
the employer. For such a claimant, filing a claim under Chapter	881
4121., 4123., 4127., or 4131. of the Revised Code is the exclusive	882
remedy against the employer on account of injury, disease, or	883
death in the course of and arising out of the claimant's or	884
deceased employee's employment. Notwithstanding section 4123.77 of	885
the Revised Code and except as provided in division (B) of this	886
section, an irrebuttable presumption exists that the individual	887
assumed the risk of incurring an injury or contracting an	888
occupational disease at the workplace, or dying as a result of	889
such an injury or occupational disease, when performing services	890
or providing labor for that employer.	891

(B) An employer is liable to a claimant whose claim is denied	892
because the claimant is or the deceased individual who is the	893
subject of the claim was an unauthorized alien for damages	894
suffered by reason of personal injury sustained or occupational	895
disease contracted in the course of employment caused by the	896
wrongful act or omission or neglect of the employer if the	897
employer employed the claimant or the deceased individual knowing	898
that the claimant or deceased individual was not authorized to	899
work under section 101(a) of the "Immigration Reform and Control	900
Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a, on the date the	901
claimant or deceased individual suffered the injury or contracted	902
the occupational disease.	903

(C) Nothing in this section shall be construed to prevent a	904
claimant whose claim is denied because the claimant is or the	905
deceased individual who is the subject of the claim was an	906
unauthorized alien from bringing a claim against an employer in a	907
court of competent jurisdiction for an intentional tort allegedly	908
committed by the employer against the claimant or deceased	909
individual who was the subject of the claim.	910

Section 2.  That existing sections 2743.02, 2744.02, 4123.01,	911
and 4123.511 of the Revised Code are hereby repealed.	912

Section 3.  This act applies to claims arising on or after	913
the effective date of this act.	914