As Introduced

130th General Assembly Regular Session 2013-2014

S. B. No. 368

Senator Schiavoni 

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A BILL

To amend sections 4123.57 and 4123.58 of the Revised

1

Code to make an individual who has lost the use of

2

a body part due to a brain injury or spinal cord

3

injury eligible for partial disability and

4

permanent total disability compensation under the

5

Workers' Compensation Law.

6

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

Section 1. That sections 4123.57 and 4123.58 of the Revised	7
Code be amended to read as follows:	8

Sec. 4123.57.  Partial disability compensation shall be paid	9
as follows.	10

Except as provided in this section, not earlier than	11
twenty-six weeks after the date of termination of the latest	12
period of payments under section 4123.56 of the Revised Code, or	13
not earlier than twenty-six weeks after the date of the injury or	14
contraction of an occupational disease in the absence of payments	15
under section 4123.56 of the Revised Code, the employee may file	16
an application with the bureau of workers' compensation for the	17
determination of the percentage of the employee's permanent	18
partial disability resulting from an injury or occupational	19
disease.	20

Whenever the application is filed, the bureau shall send a	21
copy of the application to the employee's employer or the	22
employer's representative and shall schedule the employee for a	23
medical examination by the bureau medical section. The bureau	24
shall send a copy of the report of the medical examination to the	25
employee, the employer, and their representatives. Thereafter, the	26
administrator of workers' compensation shall review the employee's	27
claim file and make a tentative order as the evidence before the	28
administrator at the time of the making of the order warrants. If	29
the administrator determines that there is a conflict of evidence,	30
the administrator shall send the application, along with the	31
claimant's file, to the district hearing officer who shall set the	32
application for a hearing.	33

The administrator shall notify the employee, the employer,	34
and their representatives, in writing, of the tentative order and	35
of the parties' right to request a hearing. Unless the employee,	36
the employer, or their representative notifies the administrator,	37
in writing, of an objection to the tentative order within twenty	38
days after receipt of the notice thereof, the tentative order	39
shall go into effect and the employee shall receive the	40
compensation provided in the order. In no event shall there be a	41
reconsideration of a tentative order issued under this division.	42

If the employee, the employer, or their representatives	43
timely notify the administrator of an objection to the tentative	44
order, the matter shall be referred to a district hearing officer	45
who shall set the application for hearing with written notices to	46
all interested persons. Upon referral to a district hearing	47
officer, the employer may obtain a medical examination of the	48
employee, pursuant to rules of the industrial commission.	49

(A) The district hearing officer, upon the application, shall	50
determine the percentage of the employee's permanent disability,	51
except as is subject to division (B) of this section, based upon	52
that condition of the employee resulting from the injury or	53
occupational disease and causing permanent impairment evidenced by	54
medical or clinical findings reasonably demonstrable. The employee	55
shall receive sixty-six and two-thirds per cent of the employee's	56
average weekly wage, but not more than a maximum of thirty-three	57
and one-third per cent of the statewide average weekly wage as	58
defined in division (C) of section 4123.62 of the Revised Code,	59
per week regardless of the average weekly wage, for the number of	60
weeks which equals the percentage of two hundred weeks. Except on	61
application for reconsideration, review, or modification, which is	62
filed within ten days after the date of receipt of the decision of	63
the district hearing officer, in no instance shall the former	64
award be modified unless it is found from medical or clinical	65
findings that the condition of the claimant resulting from the	66
injury has so progressed as to have increased the percentage of	67
permanent partial disability. A staff hearing officer shall hear	68
an application for reconsideration filed and the staff hearing	69
officer's decision is final. An employee may file an application	70
for a subsequent determination of the percentage of the employee's	71
permanent disability. If such an application is filed, the bureau	72
shall send a copy of the application to the employer or the	73
employer's representative. No sooner than sixty days from the date	74
of the mailing of the application to the employer or the	75
employer's representative, the administrator shall review the	76
application. The administrator may require a medical examination	77
or medical review of the employee. The administrator shall issue a	78
tentative order based upon the evidence before the administrator,	79
provided that if the administrator requires a medical examination	80
or medical review, the administrator shall not issue the tentative	81
order until the completion of the examination or review.	82

The employer may obtain a medical examination of the employee	83
and may submit medical evidence at any stage of the process up to	84
a hearing before the district hearing officer, pursuant to rules	85
of the commission. The administrator shall notify the employee,	86
the employer, and their representatives, in writing, of the nature	87
and amount of any tentative order issued on an application	88
requesting a subsequent determination of the percentage of an	89
employee's permanent disability. An employee, employer, or their	90
representatives may object to the tentative order within twenty	91
days after the receipt of the notice thereof. If no timely	92
objection is made, the tentative order shall go into effect. In no	93
event shall there be a reconsideration of a tentative order issued	94
under this division. If an objection is timely made, the	95
application for a subsequent determination shall be referred to a	96
district hearing officer who shall set the application for a	97
hearing with written notice to all interested persons. No	98
application for subsequent percentage determinations on the same	99
claim for injury or occupational disease shall be accepted for	100
review by the district hearing officer unless supported by	101
substantial evidence of new and changed circumstances developing	102
since the time of the hearing on the original or last	103
determination.	104

No award shall be made under this division based upon a	105
percentage of disability which, when taken with all other	106
percentages of permanent disability, exceeds one hundred per cent.	107
If the percentage of the permanent disability of the employee	108
equals or exceeds ninety per cent, compensation for permanent	109
partial disability shall be paid for two hundred weeks.	110

Compensation payable under this division accrues and is	111
payable to the employee from the date of last payment of	112
compensation, or, in cases where no previous compensation has been	113
paid, from the date of the injury or the date of the diagnosis of	114
the occupational disease.	115

When an award under this division has been made prior to the	116
death of an employee, all unpaid installments accrued or to accrue	117
under the provisions of the award are payable to the surviving	118
spouse, or if there is no surviving spouse, to the dependent	119
children of the employee, and if there are no children surviving,	120
then to other dependents as the administrator determines.	121

(B) For purposes of this division, "payable per week" means	122
the seven-consecutive-day period in which compensation is paid in	123
installments according to the schedule associated with the	124
applicable injury as set forth in this division.	125

Compensation paid in weekly installments according to the	126
schedule described in this division may only be commuted to one or	127
more lump sum payments pursuant to the procedure set forth in	128
section 4123.64 of the Revised Code.	129

In cases included in the following schedule the compensation	130
payable per week to the employee is the statewide average weekly	131
wage as defined in division (C) of section 4123.62 of the Revised	132
Code per week and shall be paid in installments according to the	133
following schedule:	134

For the loss of a first finger, commonly known as a thumb,	135
sixty weeks.	136

For the loss of a second finger, commonly called index	137
finger, thirty-five weeks.	138

For the loss of a third finger, thirty weeks.

139

For the loss of a fourth finger, twenty weeks.

140

For the loss of a fifth finger, commonly known as the little	141
finger, fifteen weeks.	142

The loss of a second, or distal, phalange of the thumb is	143
considered equal to the loss of one half of such thumb; the loss	144
of more than one half of such thumb is considered equal to the	145
loss of the whole thumb.	146

The loss of the third, or distal, phalange of any finger is	147
considered equal to the loss of one-third of the finger.	148

The loss of the middle, or second, phalange of any finger is	149
considered equal to the loss of two-thirds of the finger.	150

The loss of more than the middle and distal phalanges of any	151
finger is considered equal to the loss of the whole finger. In no	152
case shall the amount received for more than one finger exceed the	153
amount provided in this schedule for the loss of a hand.	154

For the loss of the metacarpal bone (bones of the palm) for	155
the corresponding thumb, or fingers, add ten weeks to the number	156
of weeks under this division.	157

For ankylosis (total stiffness of) or contractures (due to	158
scars or injuries) which makes any of the fingers, thumbs, or	159
parts of either useless, the same number of weeks apply to the	160
members or parts thereof as given for the loss thereof.	161

If the claimant has suffered the loss of two or more fingers	162
by amputation or ankylosis and the nature of the claimant's	163
employment in the course of which the claimant was working at the	164
time of the injury or occupational disease is such that the	165
handicap or disability resulting from the loss of fingers, or loss	166
of use of fingers, exceeds the normal handicap or disability	167
resulting from the loss of fingers, or loss of use of fingers, the	168
administrator may take that fact into consideration and increase	169
the award of compensation accordingly, but the award made shall	170
not exceed the amount of compensation for loss of a hand.	171

For the loss of a hand, one hundred seventy-five weeks.

172

For the loss of an arm, two hundred twenty-five weeks.

173

For the loss of a great toe, thirty weeks.

174

For the loss of one of the toes other than the great toe, ten	175
weeks.	176

The loss of more than two-thirds of any toe is considered	177
equal to the loss of the whole toe.	178

The loss of less than two-thirds of any toe is considered no	179
loss, except as to the great toe; the loss of the great toe up to	180
the interphalangeal joint is co-equal to the loss of one-half of	181
the great toe; the loss of the great toe beyond the	182
interphalangeal joint is considered equal to the loss of the whole	183
great toe.	184

For the loss of a foot, one hundred fifty weeks.

185

For the loss of a leg, two hundred weeks.

186

For the loss of the sight of an eye, one hundred twenty-five	187
weeks.	188

For the permanent partial loss of sight of an eye, the	189
portion of one hundred twenty-five weeks as the administrator in	190
each case determines, based upon the percentage of vision actually	191
lost as a result of the injury or occupational disease, but, in no	192
case shall an award of compensation be made for less than	193
twenty-five per cent loss of uncorrected vision. "Loss of	194
uncorrected vision" means the percentage of vision actually lost	195
as the result of the injury or occupational disease.	196

For the permanent and total loss of hearing of one ear,	197
twenty-five weeks; but in no case shall an award of compensation	198
be made for less than permanent and total loss of hearing of one	199
ear.	200

For the permanent and total loss of hearing, one hundred	201
twenty-five weeks; but, except pursuant to the next preceding	202
paragraph, in no case shall an award of compensation be made for	203
less than permanent and total loss of hearing.	204

In case an injury or occupational disease results in serious	205
facial or head disfigurement which either impairs or may in the	206
future impair the opportunities to secure or retain employment,	207
the administrator shall make an award of compensation as it deems	208
proper and equitable, in view of the nature of the disfigurement,	209
and not to exceed the sum of ten thousand dollars. For the purpose	210
of making the award, it is not material whether the employee is	211
gainfully employed in any occupation or trade at the time of the	212
administrator's determination.	213

For purposes of this section, the loss of use of a body part	214
specified in division (B) of this section includes when the loss	215
is caused by loss of function of or injury to the brain or spinal	216
cord.	217

When an award under this division has been made prior to the	218
death of an employee all unpaid installments accrued or to accrue	219
under the provisions of the award shall be payable to the	220
surviving spouse, or if there is no surviving spouse, to the	221
dependent children of the employee and if there are no such	222
children, then to such dependents as the administrator determines.	223

When an employee has sustained the loss of a member by	224
severance, but no award has been made on account thereof prior to	225
the employee's death, the administrator shall make an award in	226
accordance with this division for the loss which shall be payable	227
to the surviving spouse, or if there is no surviving spouse, to	228
the dependent children of the employee and if there are no such	229
children, then to such dependents as the administrator determines.	230

(C) Compensation for partial impairment under divisions (A)	231
and (B) of this section is in addition to the compensation paid	232
the employee pursuant to section 4123.56 of the Revised Code. A	233
claimant may receive compensation under divisions (A) and (B) of	234
this section.	235

In all cases arising under division (B) of this section, if	236
it is determined by any one of the following: (1) the amputee	237
clinic at University hospital, Ohio state university; (2) the	238
opportunities for Ohioans with disabilities agency; (3) an amputee	239
clinic or prescribing physician approved by the administrator or	240
the administrator's designee, that an injured or disabled employee	241
is in need of an artificial appliance, or in need of a repair	242
thereof, regardless of whether the appliance or its repair will be	243
serviceable in the vocational rehabilitation of the injured	244
employee, and regardless of whether the employee has returned to	245
or can ever again return to any gainful employment, the bureau	246
shall pay the cost of the artificial appliance or its repair out	247
of the surplus created by division (B) of section 4123.34 of the	248
Revised Code.	249

In those cases where an opportunities for Ohioans with	250
disabilities agencyagency's recommendation that an injured or	251
disabled employee is in need of an artificial appliance would	252
conflict with their state plan, adopted pursuant to the	253
"Rehabilitation Act of 1973," 87 Stat. 355, 29 U.S.C.A. 701, the	254
administrator or the administrator's designee or the bureau may	255
obtain a recommendation from an amputee clinic or prescribing	256
physician that they determine appropriate.	257

(D) If an employee of a state fund employer makes application	258
for a finding and the administrator finds that the employee has	259
contracted silicosis as defined in division (X), or coal miners'	260
pneumoconiosis as defined in division (Y), or asbestosis as	261
defined in division (AA) of section 4123.68 of the Revised Code,	262
and that a change of such employee's occupation is medically	263
advisable in order to decrease substantially further exposure to	264
silica dust, asbestos, or coal dust and if the employee, after the	265
finding, has changed or shall change the employee's occupation to	266
an occupation in which the exposure to silica dust, asbestos, or	267
coal dust is substantially decreased, the administrator shall	268
allow to the employee an amount equal to fifty per cent of the	269
statewide average weekly wage per week for a period of thirty	270
weeks, commencing as of the date of the discontinuance or change,	271
and for a period of one hundred weeks immediately following the	272
expiration of the period of thirty weeks, the employee shall	273
receive sixty-six and two-thirds per cent of the loss of wages	274
resulting directly and solely from the change of occupation but	275
not to exceed a maximum of an amount equal to fifty per cent of	276
the statewide average weekly wage per week. No such employee is	277
entitled to receive more than one allowance on account of	278
discontinuance of employment or change of occupation and benefits	279
shall cease for any period during which the employee is employed	280
in an occupation in which the exposure to silica dust, asbestos,	281
or coal dust is not substantially less than the exposure in the	282
occupation in which the employee was formerly employed or for any	283
period during which the employee may be entitled to receive	284
compensation or benefits under section 4123.68 of the Revised Code	285
on account of disability from silicosis, asbestosis, or coal	286
miners' pneumoconiosis. An award for change of occupation for a	287
coal miner who has contracted coal miners' pneumoconiosis may be	288
granted under this division even though the coal miner continues	289
employment with the same employer, so long as the coal miner's	290
employment subsequent to the change is such that the coal miner's	291
exposure to coal dust is substantially decreased and a change of	292
occupation is certified by the claimant as permanent. The	293
administrator may accord to the employee medical and other	294
benefits in accordance with section 4123.66 of the Revised Code.	295

(E) If a firefighter or police officer makes application for	296
a finding and the administrator finds that the firefighter or	297
police officer has contracted a cardiovascular and pulmonary	298
disease as defined in division (W) of section 4123.68 of the	299
Revised Code, and that a change of the firefighter's or police	300
officer's occupation is medically advisable in order to decrease	301
substantially further exposure to smoke, toxic gases, chemical	302
fumes, and other toxic vapors, and if the firefighter, or police	303
officer, after the finding, has changed or changes occupation to	304
an occupation in which the exposure to smoke, toxic gases,	305
chemical fumes, and other toxic vapors is substantially decreased,	306
the administrator shall allow to the firefighter or police officer	307
an amount equal to fifty per cent of the statewide average weekly	308
wage per week for a period of thirty weeks, commencing as of the	309
date of the discontinuance or change, and for a period of	310
seventy-five weeks immediately following the expiration of the	311
period of thirty weeks the administrator shall allow the	312
firefighter or police officer sixty-six and two-thirds per cent of	313
the loss of wages resulting directly and solely from the change of	314
occupation but not to exceed a maximum of an amount equal to fifty	315
per cent of the statewide average weekly wage per week. No such	316
firefighter or police officer is entitled to receive more than one	317
allowance on account of discontinuance of employment or change of	318
occupation and benefits shall cease for any period during which	319
the firefighter or police officer is employed in an occupation in	320
which the exposure to smoke, toxic gases, chemical fumes, and	321
other toxic vapors is not substantially less than the exposure in	322
the occupation in which the firefighter or police officer was	323
formerly employed or for any period during which the firefighter	324
or police officer may be entitled to receive compensation or	325
benefits under section 4123.68 of the Revised Code on account of	326
disability from a cardiovascular and pulmonary disease. The	327
administrator may accord to the firefighter or police officer	328
medical and other benefits in accordance with section 4123.66 of	329
the Revised Code.	330

(F) An order issued under this section is appealable pursuant	331
to section 4123.511 of the Revised Code but is not appealable to	332
court under section 4123.512 of the Revised Code.	333

Sec. 4123.58.  (A) In cases of permanent total disability,	334
the employee shall receive an award to continue until the	335
employee's death in the amount of sixty-six and two-thirds per	336
cent of the employee's average weekly wage, but, except as	337
otherwise provided in division (B) of this section, not more than	338
a maximum amount of weekly compensation which is equal to	339
sixty-six and two-thirds per cent of the statewide average weekly	340
wage as defined in division (C) of section 4123.62 of the Revised	341
Code in effect on the date of injury or on the date the disability	342
due to the occupational disease begins, nor not less than a	343
minimum amount of weekly compensation which is equal to fifty per	344
cent of the statewide average weekly wage as defined in division	345
(C) of section 4123.62 of the Revised Code in effect on the date	346
of injury or on the date the disability due to the occupational	347
disease begins, unless the employee's average weekly wage is less	348
than fifty per cent of the statewide average weekly wage at the	349
time of the injury, in which event the employee shall receive	350
compensation in an amount equal to the employee's average weekly	351
wage.	352

(B) In the event the weekly workers' compensation amount when	353
combined with disability benefits received pursuant to the Social	354
Security Act is less than the statewide average weekly wage as	355
defined in division (C) of section 4123.62 of the Revised Code,	356
then the maximum amount of weekly compensation shall be the	357
statewide average weekly wage as defined in division (C) of	358
section 4123.62 of the Revised Code. At any time that social	359
security disability benefits terminate or are reduced, the	360
workers' compensation award shall be recomputed to pay the maximum	361
amount permitted under this division.	362

(C)(1) Permanent total disability shall be compensated	363
according to this section only when at least one of the following	364
applies to the claimant:	365

(1)(a) The claimant has lost, or lost the use of both hands	366
or both arms, or both feet or both legs, or both eyes, or of any	367
two thereof; however, the loss or loss of use of one limb does not	368
constitute the loss or loss of use of two body parts;	369

(2)(b) The impairment resulting from the employee's injury or	370
occupational disease prevents the employee from engaging in	371
sustained remunerative employment utilizing the employment skills	372
that the employee has or may reasonably be expected to develop.	373

(2) For purposes of this section, the loss of use of a body	374
part specified in division (C)(1) of this section includes when	375
the loss is caused by loss of function of or injury to the brain	376
or spinal cord.	377

(D) Permanent total disability shall not be compensated when	378
the reason the employee is unable to engage in sustained	379
remunerative employment is due to any of the following reasons,	380
whether individually or in combination:	381

(1) Impairments of the employee that are not the result of an	382
allowed injury or occupational disease;	383

(2) Solely the employee's age or aging;

384

(3) The employee retired or otherwise voluntarily abandoned	385
the workforce for reasons unrelated to the allowed injury or	386
occupational disease.	387

(4) The employee has not engaged in educational or	388
rehabilitative efforts to enhance the employee's employability,	389
unless such efforts are determined to be in vain.	390

(E) Compensation payable under this section for permanent	391
total disability is in addition to benefits payable under division	392
(B) of section 4123.57 of the Revised Code.	393

(F) If an employee is awarded compensation for permanent	394
total disability under this section because the employee sustained	395
a traumatic brain injury, the employee is entitled to that	396
compensation regardless of the employee's employment in a	397
sheltered workshop subsequent to the award, on the condition that	398
the employee does not receive income, compensation, or	399
remuneration from that employment in excess of two thousand	400
dollars in any calendar quarter. As used in this division,	401
"sheltered workshop" means a state agency or nonprofit	402
organization established to carry out a program of rehabilitation	403
for handicapped individuals or to provide these individuals with	404
remunerative employment or other occupational rehabilitating	405
activity.	406

Section 2. That existing sections 4123.57 and 4123.58 of the	407
Revised Code are hereby repealed.	408

Section 3. This act shall apply to claims arising under	409
Chapters 4121., 4123., 4127., and 4131. of the Revised Code on or	410
after the effective date of this act.	411