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As Passed by the Senate
122nd General Assembly
Regular Session
1997-1998 | Sub. S. B. No. 45 |
SENATORS CUPP-GILLMOR-SUHADOLNIK-NEIN-LATTA-WHITE-B. JOHNSON-
DRAKE-RAY-SCHAFRATH-GAETH-DIX-FINAN-GARDNER-HORN
A BILL
To amend sections 2913.48, 4121.32, 4121,34, 4121.35, 4121.36, 4121.38,
4121.47,
4121.61, 4121.67, 4123.01, 4123.032, 4123.033,
4123.07, 4123.25, 4123.27, 4123.28, 4123.343, 4123.35, 4123.352,
4123.411, 4123.412, 4123.413, 4123.414, 4123.416, 4123.419,
4123.511, 4123.512, 4123.52, 4123.54, 4123.541, 4123.55,
4123.56, 4123.57, 4123.58, 4123.59, 4123.60, 4123.61, 4123.62,
4123.64, 4123.65, 4123.651, 4123.66, 4123.68, 4123.70, 4123.80,
4123.82, 4123.84, 4123.85, 4123.90, 4127.03, 4127.06,
and 4141.31 and to enact sections 4121.361, 4121.444, 4123.061, 4123.15, and
4123.531 of
the Revised Code to make various changes in the structure, payment, and
determination of benefits, to reduce the number of weeks an employee can
receive
nonworking wage loss, to permit an employer to have an employee excepted from
the Workers' Compensation
Laws for religious reasons, to change the duration of the continuing
jurisdiction of the Industrial Commission to three years, to require hearing
officers to report suspected fraudulent activity, to limit recovery
for aggravation of a preexisting condition, to change the definition of
occupational disease, to permit certain nonattorneys to
represent parties in hearings before the Industrial Commission, to create the
presumption concerning alcohol or a
controlled substance as the cause of an employee's injury, to except buildings
and land used for agricultural production from safety rules that apply to
workshops and factories,
to provide criminal penalties for employers who intentionally misclassify
their employees for workers' compensation purposes, to prohibit kickbacks from
health care providers under the Workers' Compensation Law, to prohibit health
care providers from receiving payments for false claims under the Workers'
Compensation Law, to provide
that records kept by the Division of Safety and Hygiene are confidential, to
specify that records produced by an attorney in connection with a workers'
compensation claim are the property of the claimant, and to make other changes
in the Workers' Compensation Law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2913.48, 4121.32, 4121.34, 4121.35, 4121.36, 4121.38,
4121.47,
4121.61, 4121.67, 4123.01, 4123.032,
4123.033, 4123.07, 4123.25, 4123.27, 4123.28, 4123.343,
4123.35, 4123.352, 4123.411, 4123.412, 4123.413, 4123.414, 4123.416,
4123.419, 4123.511, 4123.512, 4123.52, 4123.54, 4123.541,
4123.55, 4123.56, 4123.57, 4123.58, 4123.59, 4123.60, 4123.61,
4123.62, 4123.64, 4123.65, 4123.651, 4123.66, 4123.68, 4123.70,
4123.80, 4123.82, 4123.84, 4123.85, 4123.90, 4127.03,
4127.06, and 4141.31 be amended and sections 4121.361, 4121.444, 4123.061,
4123.15, and 4123.531 of the Revised Code be enacted to read as
follows:
Sec. 2913.48. (A) No person, with purpose to defraud or
knowing that the person is facilitating a fraud, shall do any of the
following:
(1) Receive workers' compensation benefits to which the person is
not entitled;
(2) Make or present or cause to be made or presented a
false or misleading statement with the purpose to secure payment
for goods or services rendered under Chapter 4121., 4123., 4127.,
or 4131. of the Revised Code or to secure workers' compensation
benefits;
(3) Alter, falsify, destroy, conceal, or remove any record
or document that is necessary to fully establish the validity of
any claim filed with, or necessary to establish the nature and
validity of all goods and services for which reimbursement or
payment was received or is requested from, the bureau of workers'
compensation, or a self-insuring employer under Chapter 4121.,
4123., 4127., or 4131. of the Revised Code;
(4) Enter into an agreement or conspiracy to defraud the
bureau or a self-insuring employer by making or presenting or
causing to be made or presented a false claim for workers'
compensation benefits;
(5) MAKE OR PRESENT OR CAUSE TO BE MADE OR PRESENTED A FALSE OR
MISLEADING STATEMENT OR OTHER MISREPRESENTATION CONCERNING MANUAL CODES,
CLASSIFICATION OF EMPLOYEES, PAYROLL, OR NUMBER OF PERSONNEL, WHEN INFORMATION
OF THAT NATURE IS NECESSARY TO DETERMINE THE ACTUAL WORKERS' COMPENSATION
PREMIUM OR
ASSESSMENT OWED TO THE BUREAU BY AN EMPLOYER;
(6) SOLICIT, OFFER, OR RECEIVE ANY REMUNERATION IN CASH OR IN KIND,
INCLUDING, BUT NOT LIMITED TO, A KICKBACK OR REBATE, IN CONNECTION WITH A
REFERRAL FOR THE FURNISHING OF GOODS OR SERVICES FOR WHICH REIMBURSEMENT MAY
BE MADE PURSUANT TO CHAPTER 4121., 4123., 4127., OR 4131. OF THE
REVISED CODE. DIVISION (A)(6) OF THIS SECTION DOES
NOT APPLY TO ANY CONTRACT TO PROVIDE SERVICES UNDER THE BUREAU'S HEALTH CARE
PARTNERSHIP PROGRAM ENTERED INTO BETWEEN A MANAGED CARE ORGANIZATION AND AN
ORGANIZATION FORMED PURSUANT TO DIVISION (A)(4) OF SECTION 4123.29
of the Revised Code.
(7) ALTER A WORKERS' COMPENSATION CERTIFICATE TO FALSELY SHOW CURRENT OR
CORRECT WORKERS' COMPENSATION COVERAGE;
(8) KNOWINGLY FAIL TO SECURE OR MAINTAIN WORKERS' COMPENSATION COVERAGE AS
REQUIRED BY CHAPTER 4123. of the Revised Code.
(B) Whoever violates this section is guilty of workers'
compensation fraud. Except as
otherwise provided in this division, a
violation of this section is a misdemeanor of the
first degree. If the value of the
PREMIUMS AND ASSESSMENTS UNPAID
PURSUANT TO ACTIONS DESCRIBED IN DIVISION (A)(5) OR (8) OF THIS
SECTION, OR OF
goods, services, property, or
money stolen is five hundred dollars or more and is less than
five thousand dollars, a violation of
this section is a felony of the fifth degree. If
the value of the
PREMIUMS AND ASSESSMENTS UNPAID
PURSUANT TO ACTIONS DESCRIBED IN DIVISION (A)(5) OR (8) OF THIS
SECTION, OR OF
goods, services, property, or money stolen is five thousand
dollars or more and is less than one hundred thousand dollars, a violation of
this section is a felony of the fourth degree. If
the value of the
PREMIUMS AND ASSESSMENTS UNPAID
PURSUANT TO ACTIONS DESCRIBED IN DIVISION (A)(5) OR (8) OF THIS
SECTION, OR OF
goods, services, property, or money stolen is one hundred
thousand dollars or more, a violation of this section is a felony of the third
degree. WHOEVER VIOLATES DIVISION (A)(7) OF THIS SECTION IS
GUILTY OF A FELONY OF THE FIFTH DEGREE.
(C) Upon application of the governmental body that
conducted the investigation and prosecution of a violation of
this section, the court shall order the person who is convicted
of the violation to pay the governmental body its costs of
investigating and prosecuting the case. These costs are in
addition to any other costs or penalty provided in the Revised
Code or any other section of law.
(D) The remedies and penalties provided in this section
are not exclusive remedies and penalties and do not preclude the
use of any other criminal or civil remedy or penalty for any act
that is in violation of this section.
(E) As used in this section:
(1) "False" means wholly or partially untrue or deceptive.
(2) "Goods" includes, but is not limited to, medical
supplies, appliances, rehabilitative equipment, and any other
apparatus or furnishing provided or used in the care, treatment,
or rehabilitation of a claimant for workers' compensation
benefits.
(3) "Services" includes, but is not limited to, any
service provided by any health care provider to a claimant for
workers' compensation benefits AND ANY AND ALL SERVICES PROVIDED BY THE
BUREAU
AS PART OF WORKERS' COMPENSATION INSURANCE COVERAGE.
(4) "Claim" means any attempt to cause the bureau, an
independent third party with whom the administrator or an
employer contracts under section 4121.44 of the Revised Code, or
a self-insuring employer to make payment or reimbursement for
workers' compensation benefits.
(5) "Employment" means participating in any trade,
occupation, business, service, or profession for substantial
gainful remuneration.
(6) "Employer," "employee," and "self-insuring employer"
have the same meanings as in section 4123.01 of the Revised Code.
(7) "Remuneration" includes, but is not limited to, wages,
commissions, rebates, and any other reward or consideration.
(8) "Statement" includes, but is not limited to, any oral,
written, electronic, electronic impulse, or magnetic
communication notice, letter, memorandum, receipt for payment,
invoice, account, financial statement, OR bill for services;
a diagnosis, prognosis, prescription, hospital, medical, or dental
chart or other record; and a computer generated document.
(9) "Records" means any medical, professional, financial,
or business record relating to the treatment or care of any
person, to goods or services provided to any person, or to rates
paid for goods or services provided to any person, or any record
that the administrator of workers' compensation requires pursuant
to rule.
(10) "Workers' compensation benefits" means any
compensation or benefits payable under Chapter 4121., 4123.,
4127., or 4131. of the Revised Code.
Sec. 4121.32. (A) The rules covering operating procedure
and criteria for decision-making that the administrator of
workers' compensation and the industrial commission are required
to adopt pursuant to section 4121.31 of the Revised Code shall be
supplemented with operating manuals setting forth the procedural
steps in detail for performing each of the assigned tasks of each
section of the bureau of workers' compensation and commission.
The administrator and commission jointly shall adopt such
manuals. No employee may deviate from manual procedures without
authorization of the section chief.
(B) Manuals shall set forth the procedure for the
assignment and transfer of claims within sections and be designed
to provide performance objectives and may require employees to
record sufficient data to reasonably measure the efficiency of
functions in all sections. The bureau's division of research and
statistics shall perform periodic cost-effectiveness analyses
which shall be made available to the general assembly, the
governor, and to the public during normal working hours.
(C) The bureau and commission jointly shall develop,
adopt, and use a policy manual setting forth the guidelines and
bases for decision-making for any decision which is the
responsibility of the bureau, district hearing officers, staff
hearing officers, or the commission. Guidelines shall be set
forth in the policy manual by the bureau and commission to the
extent of their respective jurisdictions for deciding at least
the following specific matters:
(1) Reasonable ambulance services;
(2) Relationship of drugs to injury;
(3) Awarding lump-sum advances for creditors;
(4) Awarding lump-sum advances for attorney's fees;
(5) Placing a claimant, INCLUDING A CLAIMANT WHOSE EMPLOYER IS A
SELF-INSURING EMPLOYER, into rehabilitation;
(6) Transferring costs of a claim from employer costs to
the statutory surplus fund pursuant to section 4123.343 of the
Revised Code;
(7) Utilization of physician specialist reports;
(8) Determining the percentage of permanent partial
disability, temporary IMPAIRMENT IN ACCORDANCE WITH THE MOST RECENT
EDITION OF THE AMERICAN MEDICAL ASSOCIATION'S GUIDES TO THE
EVALUATION OF PERMANENT IMPAIRMENT;
(9) DETERMINING THE PERCENTAGE OF TEMPORARY partial disability,
temporary
total
disability, violations of specific safety requirements, an award
under division (B) of section 4123.57 of the Revised Code, and
permanent total disability IMPAIRMENT.
(D) The bureau shall establish, adopt, and implement policy guidelines and
bases for decisions involving reimbursement issues including, but not limited
to, the adjustment of invoices, the reduction of payments for future services
when an internal audit concludes that a health care provider was overpaid or
improperly paid for past services, reimbursement fees, or other adjustments to
payments. These policy guidelines and bases for decisions, and any changes to
the guidelines and bases, shall be set forth in a reimbursement manual and
provider bulletins.
Neither the policy guidelines nor the bases set forth in the reimbursement
manual or provider bulletins referred to in this division is a rule as defined
in section 119.01 of the Revised Code.
(E) With respect to any determination of disability OR IMPAIRMENT
under
Chapter 4123. of the Revised Code, when the physician makes a
determination based upon statements or information furnished by
the claimant or upon subjective evidence, he THE PHYSICIAN shall
clearly
indicate this fact in his THE PHYSICIAN'S report.
(F) The administrator shall publish the manuals and make
copies of all manuals available to interested parties at cost.
Sec. 4121.34. (A) The industrial commission shall appoint
a sufficient number of district hearing officers for the purpose
of hearing the matters listed in division (B) of this section.
District hearing officers are in the classified civil service of
the state, are full-time employees of the commission, and shall
be persons admitted to the practice of law in this
state. District hearing officers shall not engage in any other activity
that interferes with their full-time employment by the commission
during normal working hours.
(B) District hearing officers shall have original
jurisdiction on all of the following matters:
(1) Determinations under section 4123.57 of the Revised
Code;
(2) All appeals from a decision of the administrator of
workers' compensation under division (B) of section 4123.511 of
the Revised Code;
(3) All other contested claims matters under this chapter
and Chapters 4123., 4127., and 4131. of the Revised Code, except
those matters over which staff hearing officers have original
jurisdiction.
(C) The administrator of workers' compensation shall make
available to each district hearing officer the facilities and
assistance of bureau employees and furnish all information
necessary to the performance of the district hearing officer's
duties.
(D) A DISTRICT HEARING OFFICER SHALL REPORT TO THE INSPECTION
DIVISION OF THE BUREAU OF WORKERS' COMPENSATION SUSPECTED FRAUDULENT ACTIVITY
PERTAINING TO THE OPERATION OF THE WORKERS' COMPENSATION SYSTEM AND ITS
SEVERAL INSURANCE FUNDS AS EVIDENCED DURING ANY HEARING IN WHICH THE HEARING
OFFICER IS PRESENT OR AS EVIDENCED BY ANY MATERIAL SUBMITTED FOR USE IN A
HEARING. A DISTRICT HEARING OFFICER SHALL BE HELD HARMLESS FOR SUBMITTING A
REPORT UNDER THIS DIVISION. THE INSPECTION DIVISION SHALL MAINTAIN IN
CONFIDENCE THE IDENTITY OF ANY HEARING OFFICER WHO SUBMITS A REPORT UNDER THIS
DIVISION.
Sec. 4121.35. (A) The industrial commission shall appoint
staff hearing officers to consider and decide all matters
specified in division (B) of this section. All staff hearing
officers are full-time employees of the commission and shall be
admitted to the practice of law in this state. Staff hearing officers
shall not
engage in any other activity that interferes with their full-time
employment by the commission during normal working hours.
(B) Except as provided in division (D) of this section,
staff hearing officers have original jurisdiction to hear and
decide the following matters:
(1) Applications for permanent, total disability
IMPAIRMENT
awards pursuant to section 4123.58 of the Revised Code;
(2) Appeals from an order of a district hearing officer
issued under division (C) of section 4123.511 of the Revised
Code;
(3) Applications for additional awards for violation of a
specific safety rule of the administrator of workers'
compensation pursuant to Section 35 of Article II of the Ohio
Constitution;
(4) Applications for reconsideration pursuant to division
(A) of section 4123.57 of the Revised Code. Decisions of the
staff hearing officers on reconsideration pursuant to division
(A) of section 4123.57 of the Revised Code are final.
(5) Reviews of settlement agreements pursuant to section
4123.65 of the Revised Code. Decisions of the staff hearing
officer under that section are final and not appealable to the
commission or to court under section 4123.511 or 4123.512 of the
Revised Code.
(C) The decision of a staff hearing officer under division
(D) of section 4123.511 of the Revised Code is the decision of
the commission for the purposes of section 4123.512 of the
Revised Code unless the commission hears an appeal under division
(E) of section 4123.511 of the Revised Code.
(D) Staff hearing officers shall hold hearings on all
matters referred to them for hearing. Hearing procedures shall
conform to the rules the commission adopts pursuant to section
4121.36 of the Revised Code.
(E) A STAFF HEARING OFFICER SHALL
REPORT TO THE INSPECTION DIVISION OF THE BUREAU OF WORKERS' COMPENSATION
SUSPECTED FRAUDULENT ACTIVITY PERTAINING TO THE OPERATION OF THE WORKERS'
COMPENSATION SYSTEM AND ITS SEVERAL INSURANCE FUNDS AS EVIDENCED DURING ANY
HEARING IN WHICH THE HEARING OFFICER IS PRESENT OR AS EVIDENCED BY ANY
MATERIAL SUBMITTED FOR USE IN A HEARING. A STAFF HEARING OFFICER SHALL BE
HELD HARMLESS FOR SUBMITTING A REPORT UNDER THIS DIVISION. THE INSPECTION
DIVISION SHALL MAINTAIN IN CONFIDENCE THE IDENTITY OF ANY HEARING OFFICER WHO
SUBMITS A REPORT UNDER THIS DIVISION.
Sec. 4121.36. (A) The industrial commission shall adopt
rules as to the conduct of all hearings before the commission and
its staff and district hearing officers and the rendering of a
decision and shall focus such rules on managing, directing, and
otherwise ensuring a fair, equitable, and uniform hearing
process. These rules shall provide for at least the following
steps and procedures:
(1) Adequate notice to all parties and their
representatives to ensure that no hearing is conducted unless all
parties have the opportunity to be present and to present
evidence and arguments in support of their positions or in
rebuttal to the evidence or arguments of other parties;
(2) A public hearing;
(3) Written decisions;
(4) Impartial assignment of staff and district hearing
officers and assignment of appeals from a decision of the
administrator of workers' compensation to a district hearing
officer located at the commission service office that is the
closest in
geographic proximity to the claimant's residence;
(5) Publication of a docket;
(6) The securing of the attendance or testimony of
witnesses;
(7) Prehearing rules, including rules relative to
discovery, the taking of depositions, and exchange of information
relevant to a claim prior to the conduct of a hearing;
(8) The issuance of orders by the district or staff
hearing officer who renders the decision.
(B) Every decision by a staff or district hearing officer
or the commission shall be in writing and contain all of the
following elements:
(1) A concise statement of the order or award;
(2) A notation as to notice provided and as to appearance
of parties;
(3) Signatures of each commissioner or appropriate hearing
officer on the original copy of the decision only, verifying
the commissioner's or hearing officer's
vote;
(4) Description of the part of the body and nature of the
disability recognized in the claim.
(C) The commission shall adopt rules that require the
regular rotation of district hearing officers with respect to the
types of matters under consideration and that ensure that no
district or staff hearing officer or the commission hears a claim
unless all interested and affected parties have the opportunity
to be present and to present evidence and arguments in support of
their positions or in rebuttal to the evidence or arguments of
other parties.
(D) All matters which, at the request of one of the
parties or on the initiative of the administrator and any
commissioner, are to be expedited, shall require at least
forty-eight hours' notice, a public hearing, and a statement in
any order of the circumstances that justified such expeditious
hearings.
(E) All meetings of the commission and district and staff
hearing officers shall be public with adequate notice, including
if necessary, to the claimant, the employer, their
representatives, and the administrator. Confidentiality of
medical evidence presented at a hearing does not constitute a
sufficient ground to relieve the requirement of a public hearing,
but the presentation of privileged or confidential evidence shall
not create any greater right of public inspection of evidence
than presently exists.
(F) The commission shall compile all of its original
memorandums, orders, and decisions in a journal and make the
journal available to the public with sufficient indexing to allow
orderly review of documents. The journal shall indicate the vote
of each commissioner.
(G)(1) All original orders, rules, and memoranda, and
decisions of the
commission shall contain the signatures of two of the three
commissioners and state whether adopted at a meeting of the
commission or by circulation to individual commissioners. Any
facsimile or secretarial signature, initials of commissioners,
and delegated employees, and any printed record of the "yes" and
"no" vote of a commission member or of a hearing officer on such
original is
invalid.
(2) Written copies of final decisions of district or staff hearing
officers or the commission that are mailed to the administrator,
employee, employer, and their respective representatives need not
contain the signatures of the hearing officer or commission members if the
hearing officer or commission members have complied with divisions
(B)(3) and (G)(1) of this section.
(H) The commission shall do both of the following:
(1) Appoint an individual as a hearing officer trainer who
is in the unclassified civil service of the state and who serves
at the pleasure of the commission. The trainer shall be an
attorney registered to practice law in this state and have
experience in training or education, and the ability to furnish
the necessary training for district and staff hearing officers.
The hearing officer trainer shall develop and periodically
update a training manual and such other training materials and
courses as will adequately prepare district and staff hearing
officers for their duties under this chapter and Chapter 4123. of
the Revised Code. All district and staff hearing officers shall
undergo the training courses developed by the hearing officer
trainer, the cost of which the commission shall pay. The
commission shall make the hearing officer manual and all
revisions thereto available to the public at cost.
The commission shall have the final right of approval over
all training manuals, courses, and other materials the hearing
officer trainer develops and updates.
(2) Appoint a hearing administrator, who shall be in the
classified civil service of the state, for each bureau service
office, and sufficient support personnel for each hearing
administrator, which support personnel shall be under the direct
supervision of the hearing administrator. The hearing
administrator shall do all of the following:
(a) Assist the commission in ensuring that district
hearing officers comply with the time limitations for the holding
of hearings and issuance of orders under section 4123.511 of the
Revised Code. For that purpose, each hearing administrator shall
prepare a monthly report identifying the status of all claims in
its office and identifying specifically the claims which have not
been decided within the time limits set forth in section 4123.511
of the Revised Code. The commission shall submit an annual
report of all such reports to the standing committees of the
house of representatives and of the state to which matters
concerning workers' compensation are normally referred.
(b) Provide information to requesting parties or their
representatives on the status of their claim;
(c) Issue compliance letters, upon a finding of good cause
and without a formal hearing in all of the following areas:
(i) Divisions (B) and (C) of section 4123.651 of the
Revised Code;
(ii) Requests for the taking of depositions of bureau and
commission physicians;
(iii) The issuance of subpoenas;
(iv) The granting or denying of requests for continuances;
(v) Matters involving section 4123.522 of the Revised
Code;
(vi) Requests for conducting telephone pre-hearing
conferences;
(vii) Any other matter that will cause a free exchange of
information prior to the formal hearing.
(d) Ensure that claim files are reviewed by the district
hearing officer prior to the hearing to ensure that there is
sufficient information to proceed to a hearing;
(e) Ensure that for occupational disease claims under
section 4123.68 of the Revised Code that require a medical
examination the medical examination is conducted prior to the
hearing;
(f) Take the necessary steps to prepare a claim to proceed
to a hearing where the parties agree and advise the hearing
administrator that the
claim is not ready for a hearing.
(I) The commission shall permit any person direct access
to information contained in electronic data processing equipment
regarding the status of a claim in the hearing process. The
information shall indicate the number of days that the claim has
been in process, the number of days the claim has been in its
current location, and the number of days in the current point of
the process within that location.
(J)(1) The industrial commission may establish an alternative
dispute resolution process for workers' compensation claims that are within
the
commission's jurisdiction under Chapters
4121., 4123., 4127., and 4131. of the Revised
Code when the commission determines that such
a process is necessary. Notwithstanding sections 4121.34 and 4121.35 of the
Revised Code,
the commission may enter into personal service contracts with individuals who
are qualified because of their education and experience to act as facilitators
in the commission's alternative dispute resolution process.
(2) The parties' use of the alternative dispute resolution process is
voluntary, and requires the agreement of all necessary parties. The use of
the
alternative dispute resolution process does not alter the rights or
obligations
of the parties, nor does it delay the timelines set forth in section 4123.511
of the Revised
Code.
(3) The commission shall prepare monthly reports and submit those
reports to the governor, the president of the senate, and the speaker of the
house of representatives describing all of the following:
(a) The names of each facilitator employed under a
personal service contract;
(b) The hourly amount of money and the total amount
of money paid to each facilitator;
(c) The number of disputed issues resolved during
that month by each facilitator;
(d) The number of decisions of each facilitator that
were appealed by a party;
(e) A certification by the commission that the
alternative dispute resolution process did not delay any hearing timelines as
set forth in section 4123.511 of the Revised
Code for any disputed issue.
(4) The commission may adopt rules in accordance with
chapter 119. of the
Revised Code
for the administration of any alternative dispute resolution process that the
commission establishes.
Sec. 4121.361. THE INDUSTRIAL COMMISSION MAY, BY RULE, AUTHORIZE
PERSONS OTHER THAN PERSONS WHO ARE ADMITTED TO THE PRACTICE OF LAW ALSO TO
APPEAR BEFORE THE COMMISSION OR A DISTRICT OR STAFF HEARING OFFICER IN ANY
KIND
OF PROCEEDING AS REPRESENTATIVES OF EMPLOYERS OR EMPLOYEES. THE COMMISSION
MAY
PRESCRIBE IN A RULE ADOPTED PURSUANT TO THIS SECTION, THE MINIMUM
QUALIFICATIONS FOR SUCH PERSONS AND MINIMUM STANDARDS OF PRACTICE AS THE
COMMISSION DETERMINES TO BE APPROPRIATE.
NOTWITHSTANDING SECTION 119.13 OF THE
REVISED CODE,
THE REPRESENTATION OF PARTIES BEFORE THE COMMISSION OR DISTRICT OR
STAFF HEARING OFFICERS BY A PERSON NOT ADMITTED TO THE PRACTICE OF LAW DOES
NOT
IMPAIR OR INVALIDATE A PROCEEDING FOR THE PURPOSE OF A SUBSEQUENT APPEAL TO A
COURT OR FOR ANY OTHER PURPOSE WHERE A PARTY KNOWINGLY SELECTS REPRESENTATION
BY A PERSON NOT ADMITTED TO THE PRACTICE OF LAW.
AN EMPLOYEE CLAIMING BENEFITS UNDER THIS CHAPTER OR
CHAPTERS 4123., 4127., OR 4131. OF THE
REVISED CODE,
OR AN EMPLOYER MAY REPRESENT SELF PERSONALLY OR BE REPRESENTED BY A PERSON
ADMITTED TO THE PRACTICE OF LAW, OR BY A PERSON NOT ADMITTED TO THE PRACTICE
OF
LAW, IN ANY PROCEEDING BEFORE THE INDUSTRIAL COMMISSION OR A DISTRICT OR STAFF
HEARING OFFICER.
Sec. 4121.38. (A) The industrial commission shall DO ALL OF THE
FOLLOWING:
(1) Implement a program of impairment evaluation training
for its staff physicians;
(2) Issue a manual of commission policy as to impairment
evaluation so as to increase consistency of medical reports,
INCLUDING, BUT NOT LIMITED TO, A POLICY REQUIRING THE USE OF THE MOST
RECENT EDITION OF THE AMERICAN MEDICAL ASSOCIATION'S GUIDES TO THE
EVALUATION OF PERMANENT IMPAIRMENT FOR THE EVALUATION OF PERMANENT PARTIAL
IMPAIRMENT CLAIMS.
This manual shall be available to the public at cost but shall be
provided free to all physicians who treat claimants or to whom
claimants are referred for evaluation. The commission shall take
steps to ensure that the manual receives the widest possible
distribution to physicians.
(3) Develop a method of peer review of medical reports
prepared by the commission referral doctors;
(4) Issue a policy manual as to the basis upon which
referrals to other than commission specialists will be made;
(5) Designate two hearing examiners and two medical staff
members who shall be specially trained in medical-legal analysis.
The specialists shall write evaluations of medical-legal problems
upon assignment by other hearing examiners or the commission.
The director of administrative services upon commission advice
shall assign such employees to a salary schedule commensurate
with expertise required of them.
(6) Require that prior to any examination, a physician to
whom a claimant is referred for examination receives all
necessary medical information in the claim file about the
claimant and a complete statement as to the purpose of the
examination.
(B) The commission may establish a medical section within
the commission to perform the duties assigned to the commission
under this section.
Sec. 4121.444. (A) NO HEALTH CARE PROVIDER, MANAGED CARE
ORGANIZATION, OR OWNER OF A HEALTH CARE PROVIDER OR MANAGED CARE ORGANIZATION
SHALL OBTAIN OR ATTEMPT TO OBTAIN PAYMENTS BY DECEPTION UNDER
CHAPTER 4121., 4123., 4127., OR 4131. of the Revised Code TO WHICH THE HEALTH CARE
PROVIDER, MANAGED CARE ORGANIZATION, OR OWNER IS NOT
ENTITLED UNDER RULES OF THE BUREAU OF WORKERS' COMPENSATION ADOPTED PURSUANT
TO SECTIONS 4121.441 AND 4121.442 OF THE REVISED
CODE.
(B) ANY HEALTH CARE PROVIDER, MANAGED CARE ORGANIZATION, OR OWNER
THAT VIOLATES DIVISION (A) OF THIS SECTION IS
LIABLE, IN ADDITION TO ANY OTHER PENALTIES PROVIDED BY LAW, FOR ALL OF THE
FOLLOWING PENALTIES:
(1) PAYMENT OF INTEREST ON THE AMOUNT OF THE EXCESS PAYMENTS AT THE
MAXIMUM INTEREST RATE ALLOWABLE FOR REAL ESTATE MORTGAGES UNDER SECTION
1343.01 of the Revised Code. THE INTEREST SHALL BE CALCULATED FROM
THE DATE THE PAYMENT WAS MADE TO THE OWNER, HEALTH CARE PROVIDER, OR MANAGED
CARE
ORGANIZATION THROUGH THE DATE UPON WHICH REPAYMENT IS MADE TO THE BUREAU OR
THE
SELF-INSURING EMPLOYER.
(2) PAYMENT OF AN AMOUNT EQUAL TO THREE TIMES THE AMOUNT OF ANY EXCESS
PAYMENTS;
(3) UPON PROOF
OF A SPECIFIC INTENT OF THE HEALTH CARE PROVIDER, MANAGED CARE ORGANIZATION,
OR
OWNER TO DEFRAUD, PAYMENT OF A SUM OF NOT LESS THAN FIVE THOUSAND
DOLLARS AND NOT MORE
THAN TEN THOUSAND DOLLARS FOR EACH ACT OF DECEPTION;
(4) ALL REASONABLE AND NECESSARY EXPENSES THAT THE COURT DETERMINES HAVE
BEEN INCURRED BY THE BUREAU OR THE SELF-INSURING EMPLOYER IN THE ENFORCEMENT
OF
THIS SECTION.
ALL MONEYS COLLECTED BY THE BUREAU PURSUANT TO THIS SECTION SHALL BE
DEPOSITED INTO THE STATE INSURANCE FUND CREATED IN SECTION 4123.30 OF
THE REVISED
CODE. ALL MONEYS COLLECTED BY A SELF-INSURING
EMPLOYER PURSUANT TO THIS SECTION SHALL BE AWARDED TO THE SELF-INSURING
EMPLOYER.
(C)(1) IN ADDITION TO THE MONETARY
PENALTIES PROVIDED IN DIVISION (B) OF THIS
SECTION AND EXCEPT AS PROVIDED IN DIVISION (C)(3) OF THIS SECTION,
THE ADMINISTRATOR MAY TERMINATE, FOR A PERIOD NOT TO EXCEED FIVE
YEARS FROM THE DATE OF CONVICTION, PLEA OF GUILTY, OR JUDGMENT ENTRY, ANY
AGREEMENT BETWEEN THE BUREAU AND A HEALTH CARE PROVIDER OR MANAGED CARE
ORGANIZATION OR ITS OWNER AND CEASE REIMBURSEMENT TO THAT PROVIDER,
ORGANIZATION, OR OWNER FOR SERVICES RENDERED IF ANY OF THE FOLLOWING
APPLY:
(a) THE HEALTH CARE PROVIDER, MANAGED CARE
ORGANIZATION, OR ITS OWNER, OR AN OFFICER, AUTHORIZED AGENT, ASSOCIATE,
MANAGER, OR EMPLOYEE OF A PROVIDER OR ORGANIZATION IS CONVICTED OF OR
PLEADS
GUILTY TO A VIOLATION OF SECTIONS 2913.48 OR 2923.31 TO 2923.36 of the Revised Code.
(b) THERE EXISTS AN ENTRY OF JUDGMENT AGAINST THE
HEALTH CARE PROVIDER, MANAGED CARE ORGANIZATION, OR ITS OWNER, OR AN OFFICER,
AUTHORIZED AGENT, ASSOCIATE, MANAGER, OR EMPLOYEE OF A PROVIDER OR
ORGANIZATION AND PROOF OF THE SPECIFIC INTENT OF
THE HEALTH CARE PROVIDER, MANAGED CARE ORGANIZATION, OR OWNER TO DEFRAUD, IN A
CIVIL ACTION BROUGHT PURSUANT TO THIS SECTION.
(c) THERE EXISTS AN ENTRY OF JUDGMENT AGAINST THE HEALTH CARE
PROVIDER, MANAGED CARE ORGANIZATION, OR ITS OWNER, OR AN OFFICER, AUTHORIZED
AGENT, ASSOCIATE, MANAGER, OR EMPLOYEE OF A PROVIDER OR ORGANIZATION IN A
CIVIL
ACTION BROUGHT PURSUANT TO SECTIONS
2923.31 TO 2923.36 of the Revised Code.
(2) NO HEALTH CARE PROVIDER OR MANAGED CARE ORGANIZATION THAT HAS HAD ITS
AGREEMENT WITH AND REIMBURSEMENT FROM THE BUREAU TERMINATED BY THE
ADMINISTRATOR PURSUANT TO DIVISION (C)(1) OF THIS SECTION, OR AN
OWNER,
OFFICER, AUTHORIZED AGENT, ASSOCIATE, MANAGER, OR EMPLOYEE OF THAT HEALTH CARE
PROVIDER OR MANAGED CARE ORGANIZATION SHALL DO ANY OF THE FOLLOWING:
(a) DIRECTLY PROVIDE SERVICES TO ANY OTHER BUREAU
PROVIDER OR HAVE AN OWNERSHIP INTEREST IN A PROVIDER OF SERVICES THAT
FURNISHES
SERVICES TO ANY OTHER BUREAU PROVIDER;
(b) ARRANGE FOR, RENDER, OR ORDER SERVICES FOR
CLAIMANTS DURING THE PERIOD THAT THE AGREEMENT OF THE HEALTH CARE PROVIDER,
MANAGED CARE ORGANIZATION, OR ITS OWNER IS TERMINATED AS DESCRIBED IN DIVISION
(C)(1) OF THIS SECTION;
(c) RECEIVE REIMBURSEMENT IN THE FORM OF DIRECT
PAYMENTS FROM THE BUREAU OR INDIRECT PAYMENTS OF BUREAU FUNDS IN THE FORM OF
SALARIES, SHARED FEES, CONTRACTS, KICKBACKS, OR REBATES FROM OR THROUGH ANY
PARTICIPATING PROVIDER.
(3) THE ADMINISTRATOR SHALL NOT TERMINATE THE AGREEMENT OR REIMBURSEMENT
IF THE HEALTH CARE PROVIDER, MANAGED CARE ORGANIZATION, OR OWNER
DEMONSTRATES THAT THE PROVIDER, ORGANIZATION, OR OWNER DID NOT DIRECTLY OR
INDIRECTLY SANCTION THE ACTION OF THE AUTHORIZED AGENT, ASSOCIATE, MANAGER, OR
EMPLOYEE THAT RESULTED
IN THE CONVICTION, PLEA OF GUILTY, OR ENTRY OF JUDGMENT AS DESCRIBED IN
DIVISION (C)(1) OF THIS SECTION.
(4) NOTHING IN DIVISION (C) OF THIS
SECTION PROHIBITS AN OWNER, OFFICER, AUTHORIZED AGENT, ASSOCIATE, MANAGER, OR
EMPLOYEE OF A HEALTH CARE PROVIDER OR MANAGED CARE ORGANIZATION FROM ENTERING
INTO AN AGREEMENT WITH THE BUREAU IF THE PROVIDER, ORGANIZATION, OWNER,
OFFICER, AUTHORIZED AGENT, ASSOCIATE, MANAGER, OR EMPLOYEE DEMONSTRATES
ABSENCE
OF KNOWLEDGE OF THE ACTION OF THE HEALTH CARE PROVIDER OR MANAGED CARE
ORGANIZATION WITH WHICH THAT INDIVIDUAL OR ORGANIZATION WAS FORMERLY
ASSOCIATED THAT RESULTED IN
A CONVICTION, PLEA OF GUILTY, OR ENTRY OF JUDGMENT AS DESCRIBED IN DIVISION
(C)(1) OF THIS SECTION.
(D) THE ATTORNEY GENERAL MAY BRING AN
ACTION ON BEHALF OF THE STATE AND A SELF-INSURING EMPLOYER MAY BRING AN ACTION
ON ITS OWN BEHALF TO ENFORCE THIS SECTION IN ANY COURT OF COMPETENT
JURISDICTION. THE ATTORNEY GENERAL MAY SETTLE OR COMPROMISE ANY ACTION
BROUGHT
UNDER THIS SECTION WITH THE APPROVAL OF THE ADMINISTRATOR.
NOTWITHSTANDING ANY OTHER LAW PROVIDING A SHORTER PERIOD OF
LIMITATIONS, THE ATTORNEY GENERAL OR A SELF-INSURING EMPLOYER MAY BRING AN
ACTION TO ENFORCE THIS SECTION AT ANY TIME WITHIN SIX YEARS AFTER THE CONDUCT
IN VIOLATION OF THIS SECTION TERMINATES.
(E) THE AVAILABILITY OF REMEDIES UNDER
THIS SECTION AND SECTIONS 2913.48 AND 2923.31 TO 2923.36 of the Revised Code
FOR RECOVERING BENEFITS PAID ON BEHALF OF CLAIMANTS FOR MEDICAL ASSISTANCE
DOES NOT LIMIT THE AUTHORITY OF THE BUREAU OR A SELF-INSURING EMPLOYER TO
RECOVER EXCESS PAYMENTS MADE TO AN OWNER, HEALTH CARE PROVIDER, OR MANAGED
CARE ORGANIZATION
UNDER STATE AND FEDERAL LAW.
(F) AS USED IN THIS SECTION:
(1) "DECEPTION" MEANS ACTING WITH ACTUAL KNOWLEDGE OF, IN DELIBERATE
IGNORANCE OF, OR RECKLESS DISREGARD OF THE TRUTH OR FALSITY OF, ANY
REPRESENTATION OR INFORMATION IN ORDER TO DECEIVE ANOTHER OR CAUSE ANOTHER TO
BE DECEIVED BY MEANS OF ANY OF THE FOLLOWING:
(a) A FALSE OR MISLEADING REPRESENTATION;
(b) THE WITHHOLDING OF INFORMATION;
(c) THE PREVENTING OF ANOTHER FROM ACQUIRING
INFORMATION;
(d) ANY OTHER CONDUCT, ACT, OR OMISSION THAT
CREATES, CONFIRMS, OR PERPETUATES A FALSE IMPRESSION AS TO A FACT, THE LAW,
THE
VALUE OF SOMETHING, OR A PERSON'S STATE OF MIND.
EXCEPT AS PROVIDED IN DIVISION
(B)(3)
OF THIS SECTION, FOR PURPOSES OF THIS SECTION PROOF OF SPECIFIC INTENT TO
DEFRAUD IS NOT
REQUIRED IN ORDER TO SHOW THAT AN OWNER, HEALTH CARE PROVIDER, OR MANAGED CARE
ORGANIZATION IS ENGAGING IN OR HAS ENGAGED IN DECEPTION.
(2) "OWNER" MEANS ANY PERSON HAVING AT LEAST A FIVE PER CENT OWNERSHIP
INTEREST IN A HEALTH CARE PROVIDER OR MANAGED CARE ORGANIZATION.
Sec. 4121.47. (A) No employer shall violate a specific
safety rule adopted by the administrator of workers' compensation
pursuant to section 4121.13
of the Revised Code or an act of the general assembly to protect the lives,
health, and safety of employees pursuant to Section 35 of
Article II, Ohio Constitution.
Chapter 4167. of the Revised Code and rules and standards adopted
thereunder UNDER THAT CHAPTER are not the rules or enactment
referred to in this division and shall not be
considered as such for purposes of this section. FOR PURPOSES OF THIS
SECTION, A SPECIFIC SAFETY RULE OF THE ADMINISTRATOR
THAT REFERS TO OR IS INTERPRETED AS APPLYING TO WORKSHOPS AND FACTORIES SHALL
NOT APPLY TO BUILDINGS OR STRUCTURES USED FOR AGRICULTURAL PRODUCTION, OR TO
ANY OF THE FIXTURES, MACHINERY,
EQUIPMENT, TOOLS, OR DEVICES UTILIZED IN THOSE BUILDINGS OR STRUCTURES.
"AGRICULTURAL PRODUCTION" MEANS OPERATIONS UPON FARM PREMISES, INCLUDING
THE PLANTING, CULTIVATING, PRODUCING, GROWING, HARVESTING, DRYING, AND STORING
OF AGRICULTURAL OR HORTICULTURAL COMMODITIES AND PREPARATION FOR MARKET OF
THOSE COMMODITIES ON FARM PREMISES, THE RAISING OF LIVESTOCK, FOR FOOD
PRODUCTS, OR RACING PURPOSES, AND POULTRY ON FARM PREMISES, AND ANY WORK
PERFORMED INCIDENT TO OR IN CONNECTION WITH THOSE FARM OPERATIONS.
"AGRICULTURAL PRODUCTION" DOES NOT INCLUDE THE COMMERCIAL PROCESSING, PACKING,
DRYING, STORING, OR CANNING OF THOSE COMMODITIES FOR MARKET, OR COMMERCIAL
TIMBER HARVESTING BY AN INDEPENDENT CONTRACTOR.
(B) If a staff hearing officer, in the course of his THE HEARING
OFFICER'S determination of a claim for an additional award under Section
35 of Article II, Ohio Constitution, finds the employer guilty of
violating division (A) of this section, he shall THE HEARING
OFFICER, in addition to any award paid to the claimant, SHALL issue
an order to the employer to
correct the violation within the period of time he fixes FIXED BY
THE HEARING OFFICER. For any violation occurring within twenty-four
months of the last
violation, the staff hearing officer shall assess against the
employer a civil penalty in an amount he THE HEARING OFFICER
determines up to a
maximum of fifty thousand dollars for each violation. In fixing
the exact penalty, the staff hearing officer shall base his
THE
decision upon the size of the employer as measured by the number
of employees, assets, and earnings of the employer.
(C) An employer dissatisfied with the imposition of a
civil penalty pursuant to division (B) of this section may appeal
the staff hearing officer's decision, if the commission refuses
to hear the appeal under division (E) of section 4123.511 of the
Revised Code, or a decision of the commission, if the commission
hears the appeal under that division, to a court of common pleas
pursuant to the Rules of Civil Procedure. An appeal operates to
stay the payment of the fine pending the appeal.
(D) The administrator shall deposit all penalties
collected pursuant to this section in the occupational safety
loan program fund established pursuant to section 4121.48 of the
Revised Code.
Sec. 4121.61. (A) The administrator of workers' compensation, with
the advice and
consent of the workers' compensation oversight commission, shall adopt rules,
INCLUDING RULES DESCRIBED IN DIVISION (B) OF THIS
SECTION, take measures, and make expenditures as it THE
ADMINISTRATOR deems necessary to aid claimants who have
sustained compensable injuries or incurred compensable occupational diseases
pursuant to Chapter 4123., 4127., or 4131. of the Revised Code to return to
work or to assist in lessening or removing any resulting handicap.
(B) THE ADMINISTRATOR SHALL ADOPT RULES UNDER THIS SECTION
ESTABLISHING CRITERIA GOVERNING DETERMINATIONS FOR THE PROVISION OF
REHABILITATION SERVICES, COUNSELING, OR TRAINING BY SELF-INSURING EMPLOYERS
WHO PAY DIRECTLY TO A CLAIMANT OR TO THE PROVIDER OF REHABILITATION SERVICES,
COUNSELING, OR TRAINING. THE INDUSTRIAL COMMISSION SHALL ESTABLISH RULES
REGARDING A HEARING PROCEDURE TO
GOVERN DISPUTES BETWEEN A CLAIMANT AND A SELF-INSURING EMPLOYER REGARDING THE
PROVISION OF REHABILITATION SERVICES, COUNSELING, OR TRAINING.
Sec. 4121.67. The administrator of workers' compensation,
with the advice and consent of
the workers' compensation oversight commission, shall
adopt rules:
(A) For the encouragement of reemployment of claimants who
have successfully completed prescribed rehabilitation programs by
payment from the surplus fund established by section 4123.34 of
the Revised Code to employers who employ or reemploy the
claimants. The period or periods of payments shall not exceed
six months in the aggregate, unless the administrator or his THE
ADMINISTRATOR'S designee determines that the claimant will be benefited by
an extension of payments.
(B) Requiring payment, in the same manner as living
maintenance payments are made pursuant to section 4121.63 of the
Revised Code, to the claimant who completes a rehabilitation
training program and returns to employment, but who suffers a
wage loss compared to the wage the claimant was receiving at the
time of injury. Payments per week shall be sixty-six and
two-thirds per cent of the difference, if any, between the
claimant's weekly wage at the time of injury and the weekly wage
received while employed, up to a maximum payment per week equal
to the statewide average weekly wage. The payments may continue
for up to a maximum of two hundred weeks but shall be reduced by
the corresponding number of weeks in which the claimant receives
payments pursuant to division (B)(C) of section 4123.56 of the
Revised Code.
Sec. 4123.01. As used in this chapter:
(A)(1) "Employee" means:
(a) Every person in the service of the state, or of any
county, municipal corporation, township, or school district
therein, including regular members of lawfully constituted police
and fire departments of municipal corporations and townships,
whether paid or volunteer, and wherever serving within the state
or on temporary assignment outside thereof, and executive
officers of boards of education, under any appointment or
contract of hire, express or implied, oral or written, including
any elected official of the state, or of any county, municipal
corporation, or township, or members of boards of education;
(b) Every person in the service of any person, firm, or
private corporation, including any public service corporation,
that (i) employs one or more persons regularly in the same
business or in or about the same establishment under any contract
of hire, express or implied, oral or written, including aliens
and minors, household workers who earn one hundred sixty dollars
or more in cash in any calendar quarter from a single household
and casual workers who earn one hundred sixty dollars or more in
cash in any calendar quarter from a single employer, or (ii) is
bound by any such contract of hire or by any other written
contract, to pay into the state insurance fund the premiums
provided by this chapter.
(c) Every person who performs labor or provides
services pursuant to a construction contract, as defined in
section 4123.79 of the Revised Code, if at least ten of the following criteria apply:
(i) The person is required to comply with
instructions from the other contracting party regarding the
manner or method of performing services;
(ii) The person is required by the other
contracting party to have particular training;
(iii) The person's services are
integrated into the regular functioning of the other contracting
party;
(iv) The person is required to perform the work personally;
(v) The person is hired, supervised, or paid by the other contracting party;
(vi) A continuing relationship exists
between the person and the other contracting party that
contemplates continuing or recurring work even if the work is
not full time;
(vii) The person's hours of work are
established by the other contracting party;
(viii) The person is required to devote full time
to the business of the other contracting party;
(ix) The person is required to perform the work on
the premises of the other contracting party;
(x) The person is required to follow
the order of work set by the other contracting party;
(xi) The person is required to make
oral or written reports of progress to the other contracting
party;
(xii) The person is paid for services
on a regular basis such as hourly, weekly, or monthly;
(xiii) The person's expenses are paid for by the other contracting party;
(xiv) The person's tools and
materials are furnished by the other contracting party;
(xv) The person is provided with the facilities used to perform services;
(xvi) The person does not realize a profit or
suffer a loss as a result of the services provided;
(xvii) The person is not performing
services for a number of employers at the same time;
(xviii) The person does not make the same services available to
the general public;
(xix) The other contracting party has
a right to discharge the person;
(xx) The person has the right to end
the relationship with the other contracting party without
incurring liability pursuant to an employment contract or
agreement.
Every person in the service of any independent contractor
or subcontractor who has failed to pay into the state insurance
fund the amount of premium determined and fixed by the
administrator of workers' compensation for the person's employment or
occupation or if a self-insuring employer has failed to pay
compensation and benefits directly to the employer's injured and to
the dependents of the employer's killed employees as required by
section 4123.35
of the Revised Code, shall be considered as the employee of the
person who has entered into a contract, whether written or
verbal, with such independent contractor unless such employees or
their legal representatives or beneficiaries elect, after injury
or death, to regard such independent contractor as the employer.
(2) "Employee" does not mean:
(a) A duly ordained, commissioned, or licensed minister or
assistant or associate minister of a church in the exercise of
ministry; or
(b) Any officer of a family farm corporation;
(c) AN INDIVIDUAL WHO SIGNS THE WAIVER AND AFFIDAVIT PROVIDED FOR
IN SECTION 4123.15 of the Revised Code, PROVIDED THAT THE ADMINISTRATOR HAS GRANTED A WAIVER
AND EXCEPTION TO THE INDIVIDUAL'S EMPLOYER UNDER THAT SECTION.
Any employer may elect to include as an "employee" within
this chapter, any person excluded from the definition of
"employee" pursuant to division (A)(2) of this section. If an
employer is a partnership, sole proprietorship, or family farm
corporation, such employer may elect to include as an "employee"
within this chapter, any member of such partnership, the owner of
the sole proprietorship, or the officers of the family farm
corporation. In the event of an election, the employer shall
serve upon the bureau of workers' compensation written notice
naming the persons to be covered, include such employee's
remuneration for premium purposes in all future payroll reports,
and no person excluded from the definition of "employee" pursuant
to division (A)(2) of this section, proprietor, or partner shall
be deemed an employee within this division until the employer has
served such notice.
For informational purposes only, the bureau shall prescribe
such language as it considers appropriate, on such of its forms
as it considers appropriate, to advise employers of their right
to elect to include as an "employee" within this chapter a sole
proprietor, any member of a partnership, the officers of a family
farm corporation, or a person excluded from the definition of
"employee" under division (A)(2)(a) of this section, that they
should check any health and disability insurance policy, or other
form of health and disability plan or contract, presently
covering them, or the purchase of which they may be considering,
to determine whether such policy, plan, or contract excludes
benefits for illness or injury that they might have elected to
have covered by workers' compensation.
(B) "Employer" means:
(1) The state, including state hospitals, each county,
municipal corporation, township, school district, and hospital
owned by a political subdivision or subdivisions other than the
state;
(2) Every person, firm, and private corporation, including
any public service corporation, that (a) has in service one or
more employees regularly in the same business or in or about the
same establishment under any contract of hire, express or
implied, oral or written, or (b) is bound by any such contract of
hire or by any other written contract, to pay into the insurance
fund the premiums provided by this chapter.
All such employers are subject to this chapter. Any member
of a firm or association, who regularly performs manual labor in
or about a mine, factory, or other establishment, including a
household establishment, shall be considered an employee in
determining whether such person, firm, or private corporation, or
public service corporation, has in its service, one or more
employees and the employer shall report the income derived from
such labor to the bureau as part of the payroll of such employer,
and such member shall thereupon be entitled to all the benefits
of an employee.
(C) "Injury" includes any injury, whether caused by
external accidental means or accidental in character and result,
received in the course of, and arising out of, the injured
employee's employment. "Injury" does not include:
(1) Psychiatric conditions except where the conditions
have arisen from an injury or occupational disease;
(2) Injury, IMPAIRMENT, or disability caused primarily
by the natural
deterioration of tissue, an organ, or part of the body;
(3) Injury, IMPAIRMENT, or disability incurred in
voluntary
participation in an employer-sponsored recreation or fitness
activity if the employee signs a waiver of the employee's right to
compensation or benefits under this chapter prior to engaging in
the recreation or fitness activity;
(4) A CONDITION,
IMPAIRMENT, OR DISEASE
PROCESS THAT PREEXISTED AN INJURY UNLESS THAT PREEXISTING CONDITION OR
IMPAIRMENT IS SUBSTANTIALLY WORSENED OR THAT DISEASE PROCESS IS SUBSTANTIALLY
ACCELERATED BY AN INJURY AS DOCUMENTED BY OBJECTIVE
CLINICAL FINDINGS AND TEST RESULTS, AND SUBJECTIVE COMPLAINTS
WITHOUT THESE FINDINGS AND RESULTS ARE INSUFFICIENT TO ESTABLISH
A COMPENSABLE INJURY AS DESCRIBED IN DIVISION
(C)(4) OF THIS SECTION;
(5) INJURY, IMPAIRMENT, OR DISABILITY RESULTING FROM
CUMULATIVE OR REPETITIVE TRAUMA.
(D) "Child" includes a posthumous child and a child
legally adopted prior to the injury.
(E) "Family farm corporation" means a corporation founded
for the purpose of farming agricultural land in which the
majority of the voting stock is held by and the majority of the
stockholders are persons or the spouse of persons related to each
other within the fourth degree of kinship, according to the rules
of the civil law, and at least one of the related persons is
residing on or actively operating the farm, and none of whose
stockholders are a corporation. A family farm corporation does
not cease to qualify under this division where, by reason of any
devise, bequest, or the operation of the laws of descent or
distribution, the ownership of shares of voting stock is
transferred to another person, as long as that person is within
the degree of kinship stipulated in this division.
(F) "Occupational disease" means a disease contracted in
the course of employment, which by its causes and the
characteristics of its manifestation or the condition of the
employment results in a hazard which distinguishes the employment
in character from employment generally, and the employment
creates a risk of contracting the disease in greater degree and
in a different manner from the public in general, INCLUDING A
DISEASE OR CONDITION THAT
RESULTS FROM A CUMULATIVE OR REPETITIVE TRAUMA, THAT IS CONTRACTED IN THE
COURSE OF
EMPLOYMENT, THAT RESULTS IN DAMAGE OR HARM TO THE PHYSICAL STRUCTURE OF THE
BODY, AND THAT IS DUE TO
CAUSES AND CONDITIONS THAT ARE CHARACTERISTIC OF OR PECULIAR TO A PARTICULAR
INDUSTRIAL PROCESS, TRADE, OR OCCUPATION. "OCCUPATIONAL DISEASE" DOES NOT
INCLUDE ANY OF THE FOLLOWING:
(1) A DISEASE OR CONDITION TO WHICH THE GENERAL PUBLIC IS EXPOSED
OUTSIDE OF EMPLOYMENT ABSENT A SHOWING, BY A PREPONDERANCE OF THE EVIDENCE,
THAT
THE DISEASE OR CONDITION IS CHARACTERISTIC OF OR PECULIAR TO A
PARTICULAR
INDUSTRIAL PROCESS, TRADE, OR OCCUPATION;
(2) A DISEASE OR CONDITION THAT WOULD HAVE ARISEN WITHOUT THE OCCUPATIONAL
EXPOSURE;
(3) A DISEASE OR CONDITION THAT RESULTS FROM AGGRAVATION OF A
PREEXISTING DISEASE, CONDITION, OR DISEASE PROCESS;
(4) A DISEASE OR CONDITION CAUSED PRIMARILY BY THE NATURAL DETERIORATION
OF THE TISSUE, ORGANS, OR OTHER PARTS OF THE BODY;
(5) PSYCHIATRIC CONDITIONS, EXCEPT WHERE THE CONDITIONS HAVE ARISEN FROM
AN
OCCUPATIONAL DISEASE.
(G) "Self-insuring employer" means any of the following
categories of employers if granted the privilege of paying
compensation and benefits directly under section 4123.35 of the
Revised Code:
(1) Any employer mentioned in division (B)(2) of this
section;
(2) A board of county hospital trustees;
(3) A publicly owned utility.
Sec. 4123.032. Every emergency management worker shall, with respect
to the
performance of his THE WORKER'S duties as such AN
emergency
management worker, SHALL be in the
employment of the state or political subdivision for purposes of sections
4123.01 to 4123.94 of the Revised Code, and every emergency management worker
or, in case of death, his THE EMERGENCY MANAGEMENT WORKERS'
dependents shall be entitled to the benefits payable
on account of total disability OR IMPAIRMENT, loss of member, or death
as accorded by such
sections to employees covered by its THEIR provisions. No
payment for such
disability OR IMPAIRMENT, loss of member, or death shall be made unless
a claim is filed
within one year of the date of the accidental injury causing the total
disability OR IMPAIRMENT, loss of member, or death. If an injury claim
is filed within the
said THAT one-year period and the claimant subsequently
dies, his
THE EMERGENCY MANAGEMENT WORKERS'
dependents shall
file any death claim based on such injury within six months after the death or
be forever barred.
Sec. 4123.033. Any emergency management worker who suffers an accidental
injury while performing emergency management duties,
as defined herein, shall be
compensated for any total disability, IMPAIRMENT, or loss
of member and his THE WORKERS'
dependents shall be compensated for any death resulting from such
an injury on the same basis as provided for workers, employees,
and their dependents under sections 4123.01 to 4123.94 of the
Revised Code.
This section shall not apply in the case of any person who
is otherwise entitled, under sections 4123.01 to 4123.94 of the
Revised Code, to receive workers' compensation benefits for such
accidental injury or death.
Sec. 4123.061. ANY RECORDS, FILES,
PLEADINGS, OR DOCUMENTS GENERATED BY A CLAIMANT'S ATTORNEY WITH RESPECT TO
A CLIENT IN A WORKERS' COMPENSATION CLAIM ARE THE PROPERTY OF
THAT CLIENT. UPON THE CLIENT'S REQUEST, THE ATTORNEY SHALL
CONVEY TO THE CLIENT COPIES OF ALL RECORDS, FILES, PLEADINGS,
AND DOCUMENTS RELATING TO THE CLIENT'S WORKERS' COMPENSATION
CLAIM NO LATER THAN FIFTEEN DAYS AFTER THE CLIENT'S REQUEST.
Sec. 4123.07. The administrator of the bureau of workers'
compensation shall prepare and furnish blank forms of application
for benefits or compensation from the state insurance fund,
reports of injury, disability, IMPAIRMENT, or
occupational disease, notices to
employers and employees, proofs of injury, disease, disability,
IMPAIRMENT, or
death, proofs of medical attendance and hospital and nursing
care, and proofs of employment and wage earnings, and other
necessary blanks, and shall provide in his THE ADMINISTRATOR'S
rules for their preparation and distribution so that they may be readily
available and so prepared that the furnishing of information
required of any person with respect to any aspect of a claim
shall not be delayed by a requirement that information with
respect to another aspect of such claim shall be furnished on the
form by the same or another person. Insured employers shall keep
on hand a sufficient supply of such blanks.
Sec. 4123.15. (A) AN EMPLOYER WHO IS A MEMBER OF A RECOGNIZED
RELIGIOUS SECT OR DIVISION OF A RECOGNIZED RELIGIOUS SECT AND WHO IS AN
ADHERENT OF ESTABLISHED TENETS OR
TEACHINGS OF THAT SECT OR DIVISION BY REASON OF WHICH THE EMPLOYER IS
CONSCIENTIOUSLY OPPOSED TO ACCEPTANCE OF THE BENEFITS OF ANY PUBLIC OR PRIVATE
INSURANCE THAT MAKES PAYMENTS IN THE EVENT OF DEATH, DISABILITY, IMPAIRMENT,
OLD AGE, OR
RETIREMENT OR MAKES PAYMENTS TOWARD THE COST OF, OR PROVIDES SERVICES FOR,
MEDICAL BILLS, INCLUDING THE BENEFITS OF ANY INSURANCE SYSTEM ESTABLISHED BY
THE FEDERAL "SOCIAL SECURITY ACT," 42 U.S.C.A. 301,
ET SEQ., MAY APPLY TO
THE ADMINISTRATOR OF WORKERS' COMPENSATION TO BE EXCEPTED FROM
PAYMENT OF PREMIUMS AND OTHER CHARGES ASSESSED UNDER THIS CHAPTER
AND CHAPTER 4121. OF THE REVISED CODE
WITH RESPECT TO, OR IF THE EMPLOYER IS A SELF-INSURING EMPLOYER,
FROM PAYMENT OF DIRECT COMPENSATION AND BENEFITS TO AND
ASSESSMENTS REQUIRED BY THIS CHAPTER AND CHAPTER 4121. OF
THE REVISED CODE ON ACCOUNT OF, AN INDIVIDUAL WHO
MEETS THE REQUIREMENTS OF THIS SECTION. THE APPLICATION SHALL BE
ON FORMS PROVIDED BY THE BUREAU OF WORKERS' COMPENSATION, WHICH
FORMS MAY BE THOSE USED BY OR SIMILAR TO THOSE USED BY THE
INTERNAL REVENUE SERVICE FOR THE PURPOSE OF GRANTING AN EXEMPTION
FROM THE PAYMENT OF SOCIAL SECURITY TAXES UNDER26
U.S.C.A. 1402(g) OF
THE INTERNAL REVENUE CODE, AND SHALL
INCLUDE A WRITTEN WAIVER, SIGNED BY THE INDIVIDUAL TO BE
EXCEPTED, OF ALL THE BENEFITS AND COMPENSATION PROVIDED FOR IN
THIS CHAPTER AND CHAPTER 4121. OF THE REVISED
CODE.
THE APPLICATION ALSO SHALL INCLUDE AFFIDAVITS
SIGNED BY THE EMPLOYER AND THAT INDIVIDUAL THAT THE EMPLOYER AND THE
INDIVIDUAL ARE MEMBERS OF A
RECOGNIZED RELIGIOUS SECT OR DIVISION OF A RECOGNIZED RELIGIOUS SECT AND ARE
ADHERENTS
OF ESTABLISHED TENETS OR TEACHINGS OF THAT SECT OR DIVISION BY
REASON OF WHICH THE EMPLOYER AND THE INDIVIDUAL ARE CONSCIENTIOUSLY OPPOSED TO
ACCEPTANCE OF
THE BENEFITS OF ANY PUBLIC OR PRIVATE INSURANCE THAT MAKES
PAYMENTS IN THE EVENT OF DEATH, DISABILITY, IMPAIRMENT, OLD AGE, OR
RETIREMENT OR MAKES PAYMENTS TOWARD THE COST OF, OR PROVIDES
SERVICES FOR, MEDICAL BILLS, INCLUDING THE BENEFITS OF ANY
INSURANCE SYSTEM ESTABLISHED BY THE FEDERAL "SOCIAL
SECURITY ACT," 42
U.S.C.A. 301, ET SEQ. IF THE
INDIVIDUAL IS A MINOR, THE GUARDIAN OF THE MINOR SHALL COMPLETE
THE WAIVER AND AFFIDAVIT REQUIRED BY THIS DIVISION.
(B) THE ADMINISTRATOR SHALL GRANT THE WAIVER
AND EXCEPTION TO THE EMPLOYER FOR A PARTICULAR INDIVIDUAL IF THE ADMINISTRATOR
FINDS THAT THE EMPLOYER AND THE INDIVIDUAL ARE MEMBERS OF A SECT OR DIVISION
HAVING THE ESTABLISHED TENETS OR TEACHINGS DESCRIBED IN DIVISION
(A) OF THIS SECTION, THAT IT IS THE PRACTICE, AND HAS
BEEN FOR A SUBSTANTIAL NUMBER OF YEARS, FOR MEMBERS OF THAT SECT
OR DIVISION OF THAT SECT TO MAKE PROVISION FOR THEIR DEPENDENT MEMBERS
WHICH IN THE ADMINISTRATOR'S JUDGMENT IS REASONABLE IN VIEW OF
THEIR GENERAL LEVEL OF HIRING, AND THAT THAT SECT OR DIVISION
OF THAT SECT HAS BEEN IN EXISTENCE AT ALL TIMES SINCE DECEMBER
31, 1950.
(C) A WAIVER AND EXCEPTION UNDER DIVISION
(B) OF THIS SECTION IS EFFECTIVE ON THE DATE THE
ADMINISTRATOR GRANTS THE WAIVER AND EXCEPTION. AN EMPLOYER WHO
COMPLIES WITH THIS CHAPTER AND THE EMPLOYER'S EMPLOYEES, WITH RESPECT TO AN
INDIVIDUAL FOR WHOM THE ADMINISTRATOR GRANTS THE WAIVER AND
EXCEPTION, ARE ENTITLED, AS TO THAT INDIVIDUAL AND AS TO ALL
INJURIES AND OCCUPATIONAL DISEASES OF THAT INDIVIDUAL THAT
OCCURRED PRIOR TO THE EFFECTIVE DATE OF THE WAIVER AND EXCEPTION,
TO THE PROTECTIONS OF SECTIONS 4123.74 AND 4123.741 OF THE
REVISED CODE. ON AND AFTER THE EFFECTIVE DATE OF
THE WAIVER AND EXCEPTION, THE EMPLOYER IS NOT LIABLE FOR THE
PAYMENT OF ANY PREMIUMS OR OTHER CHARGES ASSESSED UNDER THIS
CHAPTER OR CHAPTER 4121. OF THE REVISED
CODE, OR IF THE INDIVIDUAL IS A SELF-INSURING EMPLOYER,
THE EMPLOYER IS NOT LIABLE FOR THE PAYMENT OF ANY COMPENSATION OR BENEFITS
DIRECTLY OR OTHER CHARGES ASSESSED UNDER THIS CHAPTER OR
CHAPTER 4121. OF THE REVISED CODE, IN
REGARD TO THAT INDIVIDUAL, IS CONSIDERED A COMPLYING EMPLOYER
UNDER THOSE CHAPTERS, AND THE EMPLOYER AND THE EMPLOYER'S EMPLOYEES ARE
ENTITLED TO THE PROTECTIONS OF SECTIONS 4123.74 AND 4123.741 OF
THE REVISED CODE, AS TO THAT INDIVIDUAL, AND AS
TO INJURIES AND OCCUPATIONAL DISEASES OF THAT INDIVIDUAL THAT
OCCUR ON AND AFTER THE EFFECTIVE DATE OF THE WAIVER AND
EXCEPTION.
(D) A WAIVER AND EXCEPTION GRANTED IN REGARD
TO A SPECIFIC INDIVIDUAL IS VALID FOR ALL FUTURE YEARS UNLESS THE
ADMINISTRATOR DETERMINES THAT THE EMPLOYER, INDIVIDUAL, OR SECT OR DIVISION
CEASES TO MEET THE REQUIREMENTS OF THIS SECTION. IF THE
ADMINISTRATOR MAKES THIS DETERMINATION, THE EMPLOYER IS LIABLE
FOR THE PAYMENT OF PREMIUMS AND OTHER CHARGES ASSESSED UNDER THIS
CHAPTER AND CHAPTER 4121. OF THE REVISED
CODE, OR IF THE INDIVIDUAL IS A SELF-INSURING EMPLOYER,
THE EMPLOYER IS LIABLE FOR THE PAYMENT OF COMPENSATION AND BENEFITS
DIRECTLY AND OTHER CHARGES ASSESSED UNDER THOSE CHAPTERS, IN
REGARD TO THAT INDIVIDUAL FOR ALL INJURIES AND OCCUPATIONAL
DISEASES OF THAT INDIVIDUAL THAT OCCUR ON AND AFTER THE DATE OF
THE ADMINISTRATOR'S DETERMINATION AND THE INDIVIDUAL IS ENTITLED
TO ALL OF THE BENEFITS AND COMPENSATION PROVIDED IN THOSE
CHAPTERS FOR AN INJURY OR OCCUPATIONAL DISEASE THAT OCCURS ON OR
AFTER THE DATE OF THE ADMINISTRATOR'S DETERMINATION.
Sec. 4123.25. (A) No employer shall KNOWINGLY misrepresent to the
bureau of workers' compensation the amount OR CLASSIFICATION of payroll
upon which
the premium under this chapter is based. Whoever violates this
division shall be liable to the state in FOR UP TO ten times the
amount of
the difference in BETWEEN THE premium paid and the amount the
employer should
have paid. THE ADMINISTRATOR OF WORKERS' COMPENSATION, WITH THE
ADVICE AND CONSENT OF THE WORKERS' COMPENSATION OVERSIGHT COMMISSION, SHALL
ADOPT RULES IN ACCORDANCE WITH CHAPTER 119. OF THE REVISED
CODE FOR THE ASSESSMENT OF A FINE OR PENALTY AGAINST AN EMPLOYER FOR
A VIOLATION OF THIS DIVISION. The liability to the state under this
division shall MAY be enforced in a civil action in the name of
the state, and all sums collected under this division shall be paid into the
state insurance fund.
(B) No self-insuring employer shall misrepresent the
amount of paid compensation paid by such employer for purposes of
the assessments provided under this chapter and Chapter 4121. of
the Revised Code as required by section 4123.35 of the Revised
Code. Whoever violates this division is liable to the state in
an amount assessed by the self-insuring employers evaluation
board ADMINISTRATOR pursuant to division (C)(B) of
section 4123.352 of the Revised
Code or UP TO ten times the amount of the difference between the
assessment paid and the amount of the assessment that should have
been paid along with any other penalty as determined by the
board. The liability to the state under this division may be
enforced in a civil action in the name of the state and all sums
collected under this division shall be paid into the
self-insurance assessment fund created pursuant to division (J)
of section 4123.35 of the Revised Code.
Sec. 4123.27. Information contained in the annual
statement provided for in section 4123.26 of the Revised Code,
and such other information as may be furnished to the bureau of
workers' compensation by employers in pursuance of that section,
is OR AS THE BUREAU DEVELOPS OR CREATES, AND RECORDS KEPT BY
THE DIVISION OF SAFETY AND HYGIENE PERTAINING TO WORKPLACE
INJURIES AND ILLNESSES OR OCCUPATIONAL SAFETY AND HEALTH
CONDITIONS IN SPECIFIC WORKPLACES, INCLUDING, BUT NOT LIMITED
TO, INDUSTRIAL HYGIENE REPORTS, ERGONOMIC SURVEY REPORTS, TEAM
APPROACH REPORTS, SAFETY CONSULTANT REPORTS, ACCIDENT
INVESTIGATION REPORTS, LOSS CONTROL ANALYSIS REPORTS, AND
ILLNESS AND INJURY DATA PERTAINING TO SPECIFIC
WORKPLACES, ARE for the exclusive use and information of the bureau in the
discharge of its official duties, and shall not be open to the
public nor be used in any court in any action or proceeding
pending therein unless the bureau is a party to the action or
proceeding; but the information contained in the statement may be
tabulated and published by the bureau in statistical form for the
use and information of other state departments and the public. No person in
the employ of the bureau, except those who are authorized by the
administrator of workers' compensation, shall divulge any information secured
by
him THE PERSON while in the employ of the bureau in respect to
the transactions,
property,
claim files, records, or papers of the bureau or in respect to the business or
mechanical,
chemical, or other industrial process of any company, firm,
corporation, person, association, partnership, or public utility
to any person other than the administrator or to the superior of such employee
of the bureau.
Notwithstanding the restrictions imposed by this section,
the governor, select or standing committees of the general
assembly, the auditor of state, the attorney general, or their
designees, pursuant to the authority granted in this chapter and
Chapter 4121. of the Revised Code, may examine any records, claim
files, or papers in possession of the industrial commission or
the bureau. They also are bound by the privilege that attaches
to these papers.
The administrator shall report to the director of human
services or to the county director of human services the name,
address, and social security number or other identification
number of any person receiving workers' compensation whose name
or social security number or other identification number is the
same as that of a person required by a court or child support
enforcement agency to provide support payments to a recipient of
public assistance, and whose name is submitted to the
administrator by the director under section 5101.36 of the
Revised Code. The administrator also shall inform the director
of the amount of workers' compensation paid to the person during
such period as the director specifies.
Within fourteen days after receiving from the director of
human services a list of the names and social security numbers of
recipients of public assistance pursuant to section 5101.181 of
the Revised Code, the administrator shall inform the auditor of
state of the name, current or most recent address, and social
security number of each person receiving workers' compensation
pursuant to this chapter whose name and social security number
are the same as that of a person whose name or social security
number was submitted by the director. The administrator
also shall inform the auditor of state of the amount of workers'
compensation paid to the person during such period as the
director specifies.
The bureau and its employees, except for purposes of
furnishing the auditor of state with information required by this
section, shall preserve the confidentiality of recipients of public
assistance in compliance with division (A) of section 5101.181 of
the Revised Code.
For the purposes of this section, "public assistance" means
medical assistance provided through the medical assistance
program established under section 5111.01 of the Revised Code,
aid to dependent children provided under Chapter 5107. of the
Revised Code, or disability assistance provided under Chapter
5115. of the Revised Code.
Sec. 4123.28. Every employer in this state shall keep a
record of all injuries and occupational diseases, fatal or
otherwise, received or contracted by his THE EMPLOYER'S
employees in the course
of their employment and resulting in seven days or more of total
disability OR IMPAIRMENT. Within a week after acquiring knowledge of
an injury
or death therefrom, and in the event of occupational disease or
death therefrom, within one week after acquiring knowledge of or
diagnosis of or death from an occupational disease or of a report
to the employer of the occupational disease or death, a report
thereof shall be made in writing to the bureau of workers'
compensation upon blanks to be procured from the bureau for that
purpose. The report shall state the name and nature of the
business of the employer, the location of his THE EMPLOYER'S
establishment or
place of work, the name, address, nature and duration of
occupation of the injured, disabled, IMPAIRED, or deceased
employee and the
time, the nature, and the cause of injury, occupational disease,
or death, and such other information as is required by the
bureau.
The employer shall give a copy of each report to the
employee it concerns or his THE EMPLOYEE'S surviving
dependents.
No employer shall refuse or neglect to make any report
required by this section.
Each day that an employer fails to file a report required
by this section constitutes an additional day within the time
period given to a claimant by the applicable statute of
limitations for the filing of a claim based on the injury or
occupational disease, provided that a failure to file a report
shall not extend the applicable statute of limitations for more
than two additional years.
Sec. 4123.343. This section shall be construed liberally
to the end that employers shall be encouraged to employ and
retain in their employment handicapped employees as defined in
this section.
(A) As used in this section, "handicapped employee" means
an employee who is afflicted with or subject to any physical or
mental impairment, or both, whether congenital or due to an
injury or disease of such character that the impairment
constitutes a handicap in obtaining employment or would
constitute a handicap in obtaining reemployment if the employee
should become unemployed and whose handicap is due to any of the
following diseases or conditions:
(1) Epilepsy;
(2) Diabetes;
(3) Cardiac disease;
(4) Arthritis;
(5) Amputated foot, leg, arm, or hand;
(6) Loss of sight of one or both eyes or a partial loss of
uncorrected vision of more than seventy-five per cent
bilaterally;
(7) Residual disability OR IMPAIRMENT from poliomyelitis;
(8) Cerebral palsy;
(9) Multiple sclerosis;
(10) Parkinson's disease;
(11) Cerebral vascular accident;
(12) Tuberculosis;
(13) Silicosis;
(14) Psycho-neurotic disability OR IMPAIRMENT following treatment in a
recognized medical or mental institution;
(15) Hemophilia;
(16) Chronic osteomyelitis;
(17) Ankylosis of joints;
(18) Hyper insulinism;
(19) Muscular dystrophies;
(20) Arterio-sclerosis;
(21) Thrombo-phlebitis;
(22) Varicose veins;
(23) Cardiovascular, pulmonary, or respiratory diseases of
a fire fighter or police officer employed by a municipal
corporation or township as a regular member of a lawfully
constituted police department or fire department;
(24) Coal miners' pneumoconiosis, commonly referred to as
"black lung disease";
(25) Disability OR IMPAIRMENT with respect to which an individual has
completed a rehabilitation program conducted pursuant to sections
4121.61 to 4121.69 of the Revised Code.
(B) Under the circumstances set forth in this section all
or such portion as the administrator determines of the
compensation and benefits paid in any claim arising hereafter
shall be charged to and paid from the statutory surplus fund
created under section 4123.34 of the Revised Code and only the
portion remaining shall be merit-rated or otherwise treated as
part of the accident or occupational disease experience of the
employer. If the employer is a self-insuring employer, the
proportion of such costs whether charged to the statutory surplus
fund in whole or in part shall be by way of direct payment to
such employee or his THE EMPLOYEE'S dependents or by way of
reimbursement to the
self-insuring employer as the circumstances indicate. The
provisions of this section apply only in cases of death, TEMPORARY
total
disability, whether temporary or permanent TOTAL IMPAIRMENT, and
all disabilities IMPAIRMENTS
compensated under division (B) of section 4123.57 of the Revised
Code. The administrator shall adopt rules specifying the grounds
upon which charges to the statutory surplus fund are to be made.
The rules shall prohibit as a grounds any agreement between
employer and claimant as to the merits of a claim and the amount
of the charge.
(C) Any employer who advises the bureau of workers'
compensation prior to the occurrence of an injury or occupational
disease that it has in its employ a handicapped employee is
entitled, in the event the person is injured, to a determination
under this section. Any employer who fails to notify the bureau
but applies for a determination under this section is entitled to
a determination if the bureau finds that there was good cause for
the failure to give notice of the employment of the handicapped
employee. The bureau annually shall require employers to file an
inventory of current handicapped employees.
An employer shall file an application for a determination
with the bureau or commission in the same manner as other claims.
An application only may be made in cases where IN WHICH a
handicapped employee or his THE HANDICAPPED EMPLOYEE'S
dependents claim or is ARE receiving an award of
compensation as a result of an injury OCCURRING or AN occupational
disease
occurring or contracted FIRST DIAGNOSED BY A LICENSED PHYSICIAN
on or after the date on
which division
(A) of this section first included the handicap of such employee.
(D) The circumstances under and the manner in which an
apportionment under this section shall be made are AS FOLLOWS:
(1) Whenever a handicapped employee is injured,
IMPAIRED, or disabled
or dies as the result of an injury or occupational disease
sustained in the course of and arising out of his THE EMPLOYEE'S
employment in
this state and the administrator awards compensation therefor and
when it appears to the satisfaction of the administrator that the
injury or occupational disease or the death resulting therefrom
would not have occurred but for the pre-existing physical or
mental impairment of the handicapped employee, all compensation
and benefits payable on account of the disability,
IMPAIRMENT, or death shall
be paid from the surplus fund.
(2) Whenever a handicapped employee is injured,
IMPAIRED, or disabled
or dies as a result of an injury or occupational disease and the
administrator finds that the injury or occupational disease would
have been sustained or suffered without regard to the employee's
pre-existing impairment but that the resulting IMPAIRMENT,
disability, or
death was caused at least in part through aggravation of the
employee's pre-existing disability IMPAIRMENT, the administrator
shall
determine in a manner that is equitable and, reasonable,
and based
upon medical evidence the amount of disability,
IMPAIRMENT, or proportion of
the cost of the death award that is attributable to the
employee's pre-existing disability IMPAIRMENT and the amount
found shall be
charged to the statutory surplus fund.
(E) The benefits and provisions of this section apply only
to employers who have complied with this chapter either through
insurance with the state fund or as a self-insuring employer.
(F) No employer shall in any year SHALL receive credit under
this section in an amount greater than the premium he THE
EMPLOYER paid if a
state fund employer or greater than his THE EMPLOYER'S
assessments if a
self-insuring employer.
(G) Self-insuring employers may, for all claims made after
January 1, 1987, for compensation and benefits under this
section, MAY pay the compensation and benefits directly to the
employee or the employee's dependents. If such an employer
chooses to pay compensation and benefits directly, he THE
EMPLOYER shall
receive no money or credit from the surplus fund for the payment
under this section, nor shall he THE EMPLOYER be required to pay
any amounts
into the surplus fund that otherwise would be assessed for
handicapped reimbursements for claims made after January 1, 1987.
Where IF a self-insuring employer elects to pay for compensation
and
benefits pursuant to this section, he THE EMPLOYER shall assume
responsibility
for compensation and benefits arising out of claims made prior to
January 1, 1987, and shall not be required to pay any amounts
into the surplus fund and may not receive any money or credit
from that fund on account of this section. The election made
under this division is irrevocable.
(H) An order issued by the administrator pursuant to this
section is appealable under section 4123.511 of the Revised Code
but is not appealable to court under section 4123.512 of the
Revised Code.
Sec. 4123.35. (A) Except as provided in this section,
every employer mentioned in division (B)(2) of section 4123.01 of
the Revised Code, and every publicly owned utility shall pay semiannually
in the months of January and July into
the state insurance fund the amount of annual premium the
administrator of workers' compensation fixes for the employment
or occupation of the employer, the amount of which premium to be
paid by each employer to be determined by the classifications,
rules, and rates made and published by the administrator. The employer shall
pay semiannually a further sum of money into the state insurance
fund as
may be ascertained to be due
from the employer by applying the rules of the
administrator, and a receipt or certificate certifying that payment
has been made
shall be mailed immediately to the employer by the bureau of workers'
compensation. The receipt or certificate is prima facie evidence of the
payment of the premium.
The bureau of workers' compensation shall verify with the
secretary of state the existence of all corporations and
organizations making application for workers' compensation
coverage and shall require every such application to include the
employer's federal identification number.
An employer as defined in division (B)(2) of section
4123.01 of the Revised Code who has contracted with a
subcontractor is liable for the unpaid premium due from any
subcontractor with respect to that part of the payroll of the
subcontractor that is for work performed pursuant to the
contract with the employer.
Division (A) of section 4123.35 of the Revised Code providing for the payment
of premiums semiannually does not apply to any employer who was a subscriber
to the state insurance fund prior to January 1, 1914, or who may first
become a subscriber to the fund in any month other than January or
July. Instead, the semiannual premiums shall be paid by those
employers from time to time upon the expiration of the respective periods for
which payments into the fund have been made by them.
The administrator shall adopt rules to permit employers to
make periodic payments of the semiannual premium due under this
division. The rules shall include provisions for the assessment
of interest charges, where appropriate, and for the assessment of
penalties when an employer fails to make timely premium
payments. An employer who timely pays the amounts due under this
division is entitled to all of the benefits and protections of
this chapter. Upon receipt of payment, the bureau immediately
shall mail a receipt or certificate to the employer certifying that
payment has
been made, which receipt is prima-facie evidence of payment. Workers'
compensation coverage under this chapter continues
uninterrupted upon timely receipt of payment under this division.
Every employer mentioned in division (B)(1) of section
4123.01 of the Revised Code, except boards of county hospital
trustees that are self-insuring employers under this section, shall comply
with sections 4123.38 to 4123.41, and 4123.48 of
the Revised
Code in regard to the contribution of moneys to the public
insurance fund.
(B) Provided, that employers mentioned in division (B)(2)
of section 4123.01 of the Revised Code, boards of county hospital
trustees, and publicly owned utilities who will abide by the
rules of the administrator and who may be of sufficient financial
ability to render certain the payment of compensation to injured
employees or the dependents of killed employees, and the
furnishing of medical, surgical, nursing, and hospital attention
and services and medicines, and funeral expenses, equal to or
greater than is provided for in sections 4123.52, 4123.55 to
4123.62, and 4123.64 to 4123.67 of the Revised Code, and who do
not desire to insure the payment thereof or indemnify themselves
against loss sustained by the direct payment thereof, upon a
finding of such facts by the administrator, may be granted the privilege to pay
individually
compensation, and furnish medical, surgical, nursing, and
hospital services and attention and funeral expenses directly to
injured employees or the dependents of killed employees, thereby
being
granted status as a self-insuring employer. The
administrator may charge employers, boards of county hospital
trustees, or publicly owned utilities who apply for the status as
a self-insuring employer a reasonable application fee to cover
the bureau's costs in connection with processing and making a
determination with respect to an application. All employers
granted such status shall demonstrate sufficient financial and
administrative ability to assure that all obligations under this
section are promptly met. The administrator shall deny the
privilege where the employer is unable to demonstrate the
employer's ability to promptly meet all the obligations imposed on the
employer by this section. The administrator shall consider, but is not
limited
to, the following factors, where applicable, in determining the
employer's ability to meet all of the obligations imposed on the
employer by this section:
(1) The employer employs a minimum of five hundred
employees in this state;
(2) The employer has operated in this state for a minimum
of two years, provided that an employer who has purchased,
acquired, or otherwise succeeded to the operation of a business,
or any part thereof, situated in this state that has operated for
at least two years in this state, also shall qualify;
(3) Where the employer previously contributed to the state
insurance fund or is a successor employer as defined by bureau
rules, the amount of the buy-out, as defined by bureau rules;
(4) The sufficiency of the employer's assets located in
this state to insure the employer's solvency in paying
compensation directly;
(5) The financial records, documents, and data, certified
by a certified public accountant, necessary to provide the
employer's full financial disclosure. The records, documents,
and data include, but are not limited to, balance sheets and
profit and loss history for the current year and previous four
years.
(6) The employer's organizational plan for the
administration of the workers' compensation law;
(7) The employer's proposed plan to inform employees of
the change from a state fund insurer to a self-insuring employer,
the procedures the employer will follow as a self-insuring
employer, and the employees' rights to compensation and benefits;
and
(8) The employer has either an account in a financial
institution in this state, or if the employer maintains an
account with a financial institution outside this state, ensures
that workers' compensation checks are drawn from the same account
as payroll checks or the employer clearly indicates that payment
will be honored by a financial institution in this state.
The administrator may waive the requirements of divisions
(B)(1) and (2) of this section and the requirement of division
(B)(5) of this section that the financial records, documents, and
data be certified by a certified public accountant. The
administrator shall adopt rules establishing the criteria that an
employer shall meet in order for the administrator to waive the
requirement of division (B)(5) of this section. Such rules may
require additional security of that employer pursuant to division
(E) of section 4123.351 of the Revised Code. The administrator
shall not grant the status of self-insuring employer to any
public employer, other than publicly owned utilities and boards
of county hospital trustees.
(C) The administrator shall require a surety bond from all
self-insuring employers, issued pursuant to section 4123.351 of
the Revised Code, that is sufficient to compel, or secure to
injured employees, or to the dependents of employees killed, the
payment of compensation and expenses, which shall in no event be
less than that paid or furnished out of the state insurance fund
in similar cases to injured employees or to dependents of killed
employees whose employers contribute to the fund, except when an
employee of the employer, who has suffered the loss of a hand,
arm, foot, leg, or eye prior to the injury for which compensation
is to be paid, and thereafter suffers the loss of any other of
the members as the result of any injury sustained in the course
of and arising out of the employee's employment, the
compensation to be paid by the self-insuring employer is limited to the
disability OR IMPAIRMENT suffered in the subsequent injury, additional
compensation, if
any, to be paid by the bureau out of the surplus created by
section 4123.34 of the Revised Code.
(D) In addition to the requirements of this section, the
administrator shall make and publish rules governing the manner
of making application and the nature and extent of the proof
required to justify a finding of fact by the administrator as to
granting the status of a self-insuring employer, which rules
shall be general in their application, one of which rules shall
provide that all self-insuring employers shall pay into the state
insurance fund such amounts as are required to be credited to the
surplus fund in division (B) of section 4123.34 of the Revised
Code.
Employers shall secure directly from the bureau central
offices application forms upon which the bureau shall stamp a
designating number. Prior to submission of an application, an
employer shall make available to the bureau, and the bureau shall
review, the information described in divisions (B)(1) to (8) of
this section. An employer shall file the completed application
forms with an application fee, which shall cover the costs of
processing the application, as established by the administrator,
by rule, with the bureau at least ninety days prior to the
effective date of the employer's new status as a self-insuring
employer. The application form is not deemed complete until all
the required information is attached thereto. The bureau shall
only accept applications that contain the required information.
(E) The bureau shall review completed applications within
a reasonable time. If the bureau determines to grant an employer
the status as a self-insuring employer, the bureau shall issue a
statement, containing its findings of fact, that is prepared by
the bureau and signed by the administrator. If the bureau
determines not to grant the status as a self-insuring employer,
the bureau shall notify the employer of the determination and
require the employer to continue to pay its full premium into the
state insurance fund. The administrator also shall adopt rules
establishing a minimum level of performance as a criterion for
granting and maintaining the status as a self-insuring employer
and fixing time limits beyond which failure of the self-insuring
employer to provide for the necessary medical examinations and
evaluations may not delay a decision on a claim.
(F) The administrator shall adopt rules setting forth
procedures for auditing the program of self-insuring employers. The bureau
shall conduct the audit upon a random basis or
whenever the bureau has grounds for believing that an employer is
not in full compliance with bureau rules or this chapter.
The administrator shall monitor the programs conducted by
self-insuring employers, to ensure compliance with bureau
requirements and for that purpose, shall develop and issue to
self-insuring employers standardized forms for use by the
employer in all aspects of the employers' direct compensation
program and for reporting of information to the bureau.
The bureau shall receive and transmit to the employer all
complaints concerning any self-insuring employer. In the case of
a complaint against a self-insuring employer, the administrator
shall handle the complaint through the self-insurance division of
the bureau. The bureau shall maintain a file by employer of all
complaints received that relate to the employer. The bureau
shall evaluate each complaint and take appropriate action.
The administrator shall adopt as a rule a prohibition
against any self-insuring employer from harassing, dismissing, or
otherwise disciplining any employee making a complaint, which
rule shall provide for a financial penalty to be levied by the
administrator payable by the offending employer.
(G) For the purpose of making determinations as to whether
to grant status as a self-insuring employer, the administrator
may subscribe to and pay for a credit reporting service that
offers financial and other business information about individual
employers. The costs in connection with the bureau's
subscription or individual reports from the service about an
applicant may be included in the application fee charged
employers under this section.
(H) The administrator, notwithstanding other
provisions of this chapter, may permit a self-insuring employer to
resume payment of premiums to the state insurance fund with
appropriate credit modifications to the employer's basic premium
rate as such rate is determined pursuant to section 4123.29 of
the Revised Code.
(I) On the first day of July of each year, the
administrator shall calculate separately each self-insuring
employer's assessments for the safety and hygiene fund,
administrative costs pursuant to section 4123.342 of the Revised
Code, and for the portion of the surplus fund under division (B)
of section 4123.34 of the Revised Code that is not used for
handicapped reimbursement, on the basis of the paid compensation
attributable to the individual self-insuring employer according
to the following calculation:
(1) The total assessment against all self-insuring
employers as a class for each fund and for the administrative
costs for the year that the assessment is being made, as
determined by the administrator, divided by the total amount of
paid compensation for the previous calendar year attributable to
all amenable self-insuring employers;
(2) Multiply the quotient in division (I)(1) of this
section by the total amount of paid compensation for the previous
calendar year that is attributable to the individual
self-insuring employer for whom the assessment is being
determined. Each self-insuring employer shall pay the assessment
that results from this calculation, unless the assessment
resulting from this calculation falls below a minimum assessment,
which minimum assessment the administrator shall determine on the
first day of July of each year with the advice and consent of the workers'
compensation oversight commission, in which event, the self-insuring employer
shall pay the minimum assessment.
In determining the total amount due for the total
assessment against all self-insuring employers as a class for
each fund and the administrative assessment, the administrator
shall reduce proportionately the total for each
fund and
assessment by the amount of money in the self-insurance
assessment fund as of the date of the computation of the
assessment.
The administrator shall calculate the assessment for the
portion of the surplus fund under division (B) of section 4123.34
of the Revised Code that is used for handicapped reimbursement in
the same manner as set forth in divisions (I)(1) and (2) of this
section except that the administrator shall calculate the total
assessment for this portion of the surplus fund only on the basis
of those self-insuring employers that retain participation in the
handicapped reimbursement program and the individual
self-insuring employer's proportion of paid compensation shall be
calculated only for those self-insuring employers who retain
participation in the handicapped reimbursement program. The
administrator, as the administrator determines
appropriate, may determine the
total assessment for the handicapped portion of the surplus fund
in accordance with sound actuarial principles.
The administrator shall calculate the assessment for the
portion of the surplus fund under division (B) of section 4123.34
of the Revised Code that under division (D) of section 4121.66 of
the Revised Code is used for rehabilitation costs in the same
manner as set forth in divisions (I)(1) and (2) of this section,
except that the administrator shall calculate the total
assessment for this portion of the surplus fund only on the basis
of those self-insuring employers who have not made the election
to make payments directly under division (D) of section 4121.66
of the Revised Code and an individual self-insuring employer's
proportion of paid compensation only for those self-insuring
employers who have not made that election.
An employer who no longer is a self-insuring employer in
this state or who no longer is operating in this state, shall
continue to pay assessments for administrative costs and for the
portion of the surplus fund under division (B) of section 4123.34
of the Revised Code that is not used for handicapped
reimbursement, based upon paid compensation attributable to
claims that occurred while the employer was a self-insuring
employer within this state.
(J) There is hereby created in the state treasury the
self-insurance assessment fund. All investment earnings of the
fund shall be deposited in the fund. The administrator shall use
the money in the self-insurance assessment fund only for
administrative costs as specified in section 4123.341 of the
Revised Code.
(K) Every self-insuring employer shall certify, in
affidavit form subject to the penalty for perjury, to the bureau
the amount of the self-insuring employer's paid compensation for
the previous calendar year. In reporting paid compensation paid
for the previous year, a self-insuring employer shall exclude
from the total amount of paid compensation any reimbursement the
employer receives in the previous calendar year from the surplus
fund pursuant to section 4123.512 of the Revised Code for any
paid compensation. The self-insuring employer also shall exclude
from the paid compensation reported any amount recovered under
section 4123.93 of the Revised Code and any amount that is
determined not to have been payable to or on behalf of a claimant
in any final administrative or judicial proceeding. The
self-insuring employer shall exclude such amounts from the paid
compensation reported in the reporting period subsequent to the
date the determination is made. The administrator shall adopt
rules, in accordance with Chapter 119. of the Revised Code,
establishing the date by which self-insuring employers must
submit such information and the amount of the assessments
provided for in division (I) of this section for employers who
have been granted self-insuring status within the last calendar
year.
The administrator shall include any assessment that remains
unpaid for previous assessment periods in the calculation and
collection of any assessments due under this division or division
(I) of this section.
(L) As used in this section, "paid compensation" means all
amounts paid by a self-insuring employer for living maintenance
benefits, all amounts for compensation paid pursuant to sections
4121.63, 4121.67, 4123.56, 4123.57, 4123.58, 4123.59, 4123.60,
and 4123.64 of the Revised Code, all amounts paid as wages in
lieu of such compensation, all amounts paid in lieu of such
compensation under a nonoccupational accident and sickness
program fully funded by the self-insuring employer, and all
amounts paid by a self-insuring employer for a violation of a
specific safety standard pursuant to Section 35 of Article II,
Ohio Constitution and section 4121.47 of the Revised Code.
(M) Should any section of this chapter or Chapter 4121. of
the Revised Code providing for self-insuring employers'
assessments based upon compensation paid be declared
unconstitutional by a final decision of any court, then that
section of the Revised Code declared unconstitutional shall
revert back to the section in existence prior to November 3,
1989, providing for assessments based upon payroll.
(N) The administrator may grant a self-insuring employer the
privilege to self-insure a construction project entered into by the
self-insuring employer that is scheduled for completion within six years after
the date the project begins, and the total cost of which is estimated to
exceed
one hundred million dollars. The administrator may waive such cost and time
criteria and grant a self-insuring employer the privilege to self-insure a
construction project regardless of the time needed to complete
the construction project and provided that the cost of the construction
project is estimated to exceed fifty million dollars. A self-insuring
employer who desires to self-insure
a construction project shall submit to the administrator an application
listing the dates the construction project is scheduled to begin and end, the
estimated
cost of the construction project, the contractors and subcontractors whose
employees are to be self-insured by the self-insuring employer, the
provisions of a safety program that is specifically designed for the
construction project, and a statement as to whether a collective
bargaining agreement governing the rights, duties, and
obligations of each of the parties to the agreement with respect
to the construction project exists between the self-insuring
employer and a labor organization.
A self-insuring employer may apply to self-insure the employees of either
of the following:
(1) All contractors and subcontractors who perform labor or
work or provide materials for the construction project;
(2) All contractors and, at the administrator's discretion, a substantial
number of all the subcontractors who perform labor or work or provide
materials for the construction project.
Upon approval of the application, the administrator shall mail a
certificate granting the privilege to self-insure the construction project to
the self-insuring employer. The certificate shall contain the name of the
self-insuring employer and the name, address, and telephone number of the
self-insuring employer's representatives who are responsible for administering
workers' compensation claims for the construction project. The self-insuring
employer shall post the certificate in a conspicuous place at the site of the
construction project.
The administrator shall maintain a record of the contractors and
subcontractors whose employees are covered under the certificate issued to the
self-insured employer. A self-insuring employer immediately shall notify the
administrator when any contractor or subcontractor is added or eliminated
from inclusion under the certificate.
Upon approval of the application, the self-insuring employer is
responsible for the administration and payment of all claims under this
chapter and Chapter 4121. of the Revised Code
for the employees of the contractor and subcontractors covered under the
certificate who receive injuries or are killed in the course of and arising
out of employment
on the construction project, or who contract an occupational disease in the
course of employment on the construction project. For purposes of this
chapter and Chapter 4121. of the Revised Code,
a claim that is administered and paid in accordance with this division is
considered a claim against the self-insuring employer listed in the
certificate. A contractor or subcontractor included under the certificate
shall report to the self-insuring employer listed in the certificate, all
claims that arise under this chapter and
Chapter 4121. of the Revised Code
in connection with the construction project for which the certificate is
issued.
A self-insuring employer who complies with this division is entitled to
the protections provided under this chapter and
Chapter 4121. of the Revised Code
with respect to the employees of the contractors and subcontractors covered
under a certificate issued under this division for death or injuries that
arise out of, or death, injuries, or occupational diseases that arise in the
course of, those
employees' employment on that construction project, as if the employees were
employees of the self-insuring employer, provided that the self-insuring
employer also complies with this section. No employee of the contractors and
subcontractors covered under a certificate issued under this division shall be
considered the employee of the self-insuring employer listed in that
certificate for any purposes other than this chapter and
Chapter 4121. of the Revised Code. Nothing in this
division gives a self-insuring employer authority to control
the means, manner, or method of employment of the employees of the contractors
and subcontractors covered under a certificate issued under this
division.
The contractors and subcontractors included under a certificate issued
under this division are entitled to the protections provided under this
chapter and Chapter 4121. of the Revised Code
with respect to the contractor's or subcontractor's employees who are employed
on the construction project which is the subject of the certificate, for
death or injuries that arise out of, or death, injuries, or occupational
diseases that arise in
the course of, those employees' employment on that construction project.
The contractors and subcontractors included under a certificate issued
under this division shall identify in their payroll records the employees who
are considered the employees of the self-insuring employer listed in that
certificate for purposes of this chapter and
Chapter 4121. of the
Revised Code, and the amount that those employees earned for
employment on the construction project that is the subject of that
certificate. Notwithstanding any provision to the contrary under this chapter
and
Chapter 4121. of the Revised Code,
the administrator shall exclude the payroll that is reported for employees who
are considered the employees of the self-insuring employer listed in that
certificate, and that the employees earned for employment on the construction
project that is the subject of that certificate, when determining those
contractors' or subcontractors' premiums or assessments required under
this chapter and Chapter 4121. of the Revised Code. A self-insuring employer
issued a certificate under this division shall
include in the amount of paid compensation it reports pursuant to division
(K) of this section, the amount of paid
compensation the self-insuring employer paid pursuant to this division for the
previous calendar year.
Nothing in this division shall be construed as altering the rights of
employees under this chapter and Chapter 4121. of the Revised
Code as those rights existed prior to the
effective date of this amendment SEPTEMBER 17,
1996. Nothing in this division shall be construed
as altering the rights devolved under sections 2305.31 and 4123.82 of the
Revised Code
as those rights existed prior to the effective date of this amendment
SEPTEMBER 17, 1996.
As used in this division, "privilege to self-insure a construction
project" means privilege to pay individually compensation, and to furnish
medical, surgical, nursing, and hospital services and attention and funeral
expenses directly to injured employees or the dependents of killed
employees.
(O) A self-insuring employer whose application is granted under
division (N) of this section shall designate a safety professional to
be responsible for the administration and enforcement of the safety program
that is specifically designed for the construction project that is the subject
of the application.
A self-insuring employer whose application is granted under division (N) of
this section shall employ an ombudsperson for the construction project that is
the subject of the application. The ombudsperson shall have experience in
workers' compensation or the construction industry, or both. The ombudsperson
shall perform all of the following duties:
(1) Communicate with and provide information to employees who are
injured in the course of, or whose injury arises out of employment on the
construction project, or who contract an occupational disease in the course of
employment on the construction project;
(2) Investigate the status of a claim upon the request of an employee to
do so;
(3) Provide information to claimants, third party administrators,
employers, and other persons to assist those persons in protecting their
rights under this chapter and Chapter 4121. of the
Revised Code.
A self-insuring employer whose application is granted under division
(N) of this section shall post the name of the
safety professional and the ombudsperson and instructions for contacting the
safety professional and the ombudsperson in a conspicuous
place at the site of the construction project.
(P) The administrator may consider all of the
following when deciding whether to grant a self-insuring
employer the privilege to self-insure a construction project as
provided under division (N) of
this section:
(1) Whether the self-insuring employer has an
organizational plan for the administration of the workers'
compensation law;
(2) Whether the safety program that is specifically
designed for the construction project provides for the safety of
employees employed on the construction project, is applicable
to all contractors and subcontractors who perform labor or work
or provide materials for the construction project, and has a component, a
safety training program that complies with standards adopted pursuant to the
"Occupational Safety and Health Act of
1970," 84 Stat. 1590, 29 U.S.C.A. 651, and provides for continuing
management and employee involvement;
(3) Whether granting the privilege to self-insure the
construction project will reduce the costs of the construction
project;
(4) Whether the self-insuring employer has employed an
ombudsperson as required under division
(O) of this section;
(5) Whether the self-insuring employer has sufficient
surety to secure the payment of claims for which the
self-insuring employer would be responsible pursuant to the
granting of the privilege to self-insure a construction project
under division (N) of this
section.
Sec. 4123.352. (A) There is hereby created the
self-insuring employers evaluation board consisting of three
members. The member of the industrial commission representing
the public shall be a member of the self-insuring employers
evaluation board and shall serve, ex officio, as chairman
CHAIRPERSON. The governor shall appoint the remaining two members with
the advice and consent of the senate. One member shall be a member of the
Ohio self-insurance association and one member shall be a
representative of labor. Not more than two of the three members
of the board may be of the same political party.
Of the two members originally appointed by the governor
pursuant to this section, one shall serve an initial term of two
years and one an initial term of four years. Thereafter, terms
of office of the two members are for four years, each term ending
on the same date as the original date of appointment. Any member
appointed to fill a vacancy occurring prior to the expiration of
the term for which his THE MEMBER'S predecessor was appointed
shall hold office for the remainder of such term. Any member shall continue
in office subsequent to the expiration date of his THE MEMBER'S
term until his A successor takes office, or until a period of
sixty days has
elapsed, whichever occurs first. A vacancy in an unexpired term
shall be filled in the same manner as the original appointment.
The governor may remove any member pursuant to section 3.05 of
the Revised Code.
The board member who also is a member of the commission
shall receive no additional compensation but shall be reimbursed
for actual and necessary expenses in the performance of his THE
MEMBER'S duties AS A MEMBER OF THE BOARD. The two remaining
members of the board shall receive per diem compensation fixed pursuant to
division (J) of section 124.15 of the Revised Code and actual and necessary
expenses incurred in the performance of their duties.
For administrative purposes, the board is a part of the
bureau of workers' compensation, and the bureau shall furnish the
board with necessary office space, staff, and supplies. The
board shall meet as required by the administrator of workers'
compensation.
(B) In addition to the grounds listed in section 4123.35
of the Revised Code pertaining to criteria for being granted the
status as a self-insuring employer, the grounds upon which the
administrator may ASSESS A FINE OR PENALTY AGAINST, OR revoke or refuse
to renew the SELF-INSURING status includes OF A SELF-INSURING
EMPLOYER INCLUDE failure to comply with any rules or orders of the
administrator
or to pay contributions to the self-insuring employers' guaranty
fund established by section 4123.351 of the Revised Code,
continued failure to file medical reports bearing upon the injury
of the claimant, and failure to pay compensation or benefits in
accordance with law in a timely manner. A deficiency in any of
the grounds listed in this division is sufficient to justify the
administrator's ASSESSMENT OF A FINE OR PENALTY AGAINST A SELF-INSURING
EMPLOYER, OR THE revocation or refusal to renew the employer's
status as a self-insuring employer. THE ADMINISTRATOR, OR THE
ADMINISTRATOR'S DESIGNEE, SHALL HOLD A HEARING, AFTER NOTICE TO THE
SELF-INSURING EMPLOYER OF THE HEARING, BEFORE ASSESSING A FINE OR PENALTY
AGAINST A SELF-INSURING EMPLOYER OR REVOKING OR REFUSING TO RENEW AN
EMPLOYER'S STATUS AS A SELF-INSURING EMPLOYER. The administrator
need not ASSESS A
FINE OR PENALTY AGAINST A SELF-INSURING EMPLOYER, OR
revoke or refuse to renew an employer's status as a self-insuring
employer if adequate corrective action is taken by the employer
pursuant to division (C) of this section. THE ADMINISTRATOR, WITH THE
ADVICE AND CONSENT OF THE WORKERS' COMPENSATION OVERSIGHT
COMMISSION, SHALL ADOPT RULES IN ACCORDANCE WITH
CHAPTER 119. OF THE
REVISED
CODE FOR THE ASSESSMENT OF A
FINE OR PENALTY UNDER THIS SECTION AGAINST A SELF-INSURING EMPLOYER. ALL
SUMS COLLECTED UNDER THIS DIVISION SHALL BE PAID INTO THE
SELF-INSURANCE ASSESSMENT FUND CREATED PURSUANT TO DIVISION
(J) OF SECTION 4123.35 OF THE
REVISED
CODE.
(C) The administrator shall refer to the board all
complaints or allegations of misconduct against a self-insuring
employer or questions as to whether a self-insuring employer
continues to meet minimum standards. The board shall investigate
and may order the employer to take corrective action in
accordance with the schedule the board fixes. The board's
determination in this regard need not be made by formal hearing
but shall be issued in written form and contain the signature of
at least two board members. If the board determines, after
A SELF-INSURING EMPLOYER MAY APPEAL THE ADMINISTRATOR'S
ASSESSMENT OF A FINE OR PENALTY AGAINST A SELF-INSURING
EMPLOYER, OR THE REVOCATION OF OR REFUSAL TO RENEW THE
SELF-INSURING STATUS OF A SELF-INSURING EMPLOYER UNDER THIS
SECTION, WITHIN THIRTY DAYS AFTER RECEIPT OF NOTICE OF THE FINE,
PENALTY, REVOCATION, OR RENEWAL REFUSAL, TO THE SELF-INSURING
EMPLOYERS EVALUATION BOARD. THE FILING OF AN APPEAL SHALL STAY THE
ADMINISTRATOR'S ORDER. AFTER a hearing conducted pursuant to Chapter 119.
of the Revised Code
and the rules of the bureau, that the employer has failed to
correct the deficiencies within the time fixed by the board or is
otherwise in violation of this chapter, the board shall
recommend to the administrator revocation of an employer's status as a
self-insuring employer or such other penalty which may include,
but is not limited to, probation, or a civil penalty not to
exceed ten thousand dollars for each failure. A board
recommendation to revoke an employer's status as a self-insuring
employer shall be by unanimous vote. A recommendation for any
other penalty shall be by majority vote. Where the board makes
recommendations to the administrator for disciplining a
self-insuring employer, the administrator promptly and fully
shall implement the recommendations
AFFIRM OR VACATE THE ASSESSMENT OF A FINE OR PENALTY
AGAINST A SELF-INSURING EMPLOYER BY MAJORITY VOTE OF THE BOARD.
IF THE ADMINISTRATOR DECIDES TO REVOKE OR REFUSE TO RENEW THE
EMPLOYER'S STATUS AS A SELF-INSURING EMPLOYER, THE BOARD'S
DECISION TO AFFIRM THE ADMINISTRATOR'S DECISION SHALL BE BY
UNANIMOUS VOTE.
Sec. 4123.411. (A) For the purpose of carrying out
sections 4123.412 to 4123.418 of the Revised Code, the
administrator of workers' compensation, with the
advice and consent
of the workers' compensation oversight commission, shall
levy an assessment
against all employers at a rate, of at least five but not to
exceed ten cents per one hundred dollars of payroll, such rate to
be determined annually for each employer group listed in
divisions (A)(1) to (3) of this section, which will produce an
amount no greater than the amount the administrator estimates to
be necessary to carry out such sections for the period for which
the assessment is levied. In the event the amount produced by
the assessment is not sufficient to carry out such sections the
additional amount necessary shall be provided from the income
produced as a result of investments made pursuant to section
4123.44 of the Revised Code.
Assessments shall be levied according to the following
schedule:
(1) Private fund employers, except self-insuring
employers--in January and July of each year upon gross payrolls
of the preceding six months;
(2) Counties and taxing district employers therein, except
county hospitals that are self-insuring employers--in January of
each year upon gross payrolls of the preceding twelve months;
(3) The state as an employer--in January, April, July, and
October of each year upon gross payrolls of the preceding three
months.
Amounts assessed in accordance with this section shall be
collected from each employer as prescribed in rules the
administrator adopts.
The moneys derived from the assessment provided for in this
section shall be credited to the disabled workers' relief fund
created by section 4123.412 of the Revised Code. The
administrator shall establish by rule classifications of
employers within divisions (A)(1) to (3) of this section and
shall determine rates for each class so as to fairly apportion
the costs of carrying out sections 4123.412 to 4123.418 of the
Revised Code.
(B) For all injuries and disabilities
occurring on or
after January 1, 1987, AND FOR ALL INJURIES, IMPAIRMENTS, AND DISABILITIES
ARISING ON OR AFTER THE EFFECTIVE DATE OF THIS AMENDMENT, the
administrator, for the purposes of
carrying out sections 4123.412 to 4123.418 of the Revised Code,
shall levy an assessment against all employers at a rate per one
hundred dollars of payroll, such rate to be determined annually
for each classification of employer in each employer group listed
in divisions (A)(1) to (3) of this section, which will produce an
amount no greater than the amount the administrator estimates to
be necessary to carry out such sections for the period for which
the assessment is levied.
Amounts assessed in accordance with this division shall be
billed at the same time premiums are billed and credited to the
disabled workers' relief fund created by section 4123.412 of the
Revised Code. The administrator shall determine the rates for
each class in the same manner as he THE ADMINISTRATOR fixes the
rates for premiums
pursuant to section 4123.29 of the Revised Code.
(C) For a self-insuring employer, the bureau of workers'
compensation shall pay to employees who are participants
regardless of the date of injury, any amounts due to the
participants under section 4123.414 of the Revised Code and shall
bill the self-insuring employer, semiannually, for all amounts
paid to a participant.
Sec. 4123.412. For the relief of persons who are
permanently and totally disabled IMPAIRED as the result of
injury or
disease sustained in the course of their employment and who are
receiving workers' compensation which is payable to them by
virtue of and under the laws of this state in amounts, the total
of which, when combined with disability benefits received
pursuant to the Social Security Act is less than three hundred
forty-two dollars per month adjusted annually as provided in
division (B) of section 4123.62 of the Revised Code, there is
hereby created a separate fund to be known as the disabled
workers' relief fund, which fund shall consist of the sums that
are from time to time appropriated by the general assembly and
made available to the order of the bureau of workers'
compensation to carry out the objects and purposes of sections
4123.412 to 4123.418 of the Revised Code. The fund shall be in
the custody of the treasurer of the state. Disbursements from
the fund shall be made by the bureau to those persons entitled to
participate therein and in amounts to each participant as is
provided in section 4123.414 of the Revised Code. All investment
earnings of the fund shall be credited to the fund.
Sec. 4123.413. To be eligible to participate in said THE DISABLED
WORKERS' RELIEF fund, a participant must
be permanently and totally disabled IMPAIRED and be receiving
workers' compensation
payments, the total of which, when combined with disability benefits received
pursuant to The THE Social Security Act is less than three
hundred forty-two
dollars per month adjusted annually as provided in division (B) of section
4123.62 of the Revised Code.
Sec. 4123.414. Each person determined eligible, pursuant
to section 4123.413 of the Revised Code, to participate in the
disabled workers' relief fund is entitled to receive payments,
without application, from the fund of a monthly amount equal to
the lesser of the difference between three hundred forty-two
dollars, adjusted annually pursuant to division (B) of section
4123.62 of the Revised Code, and:
(1)(A) The amount he THE PERSON is receiving
per month as the
disability
monthly benefits award pursuant to The Social Security Act; or
(2)(B) The amount he THE PERSON is receiving
monthly under the
workers'
compensation laws for permanent and total disability IMPAIRMENT.
In
determining such difference, a participant shall be considered as
receiving the amount of such participant's compensation which
shall have been commuted under the provisions of section 4123.64
of the Revised Code. Such payments shall be made monthly during
the period in which such participant is permanently and totally
disabled IMPAIRED.
Sec. 4123.416. The administrator of workers' compensation
shall promptly require of each employer who has elected to pay
compensation direct under the provisions of section 4123.35 of
the Revised Code SELF-INSURING EMPLOYER a verified list of the
names and addresses of
all persons to whom the employer is paying workers' compensation
on account of permanent and total disability IMPAIRMENT and the
evidence
respecting such persons as the administrator reasonably deems
necessary to determine the eligibility of any such person to
participate in the disabled workers' relief fund. The
superintendent of insurance shall promptly require of each
insurance company which is organized or licensed to do business
in this state and which has at any time written workers'
compensation insurance in this state a like verified list and
like evidence respecting persons to whom the insurance companies
are paying workers' compensation under the Ohio workers'
compensation laws and contracts of insurance in respect thereof;
and the superintendent of insurance shall promptly transmit all
such lists and evidence to the bureau of workers' compensation.
Any person claiming the right to participate in the fund may file
his AN application therefor with the bureau and shall be
accorded a hearing thereon.
Sec. 4123.419. The assessment rate established pursuant to
section 4123.411 of the Revised Code, subject to the limits set
forth in that section, shall be adequate to provide the amounts
estimated as necessary by the administrator of workers'
compensation to carry out the provisions of sections 4123.412 to
4123.418 of the Revised Code, and in addition to provide moneys
to reimburse the general revenue fund for moneys appropriated by
Section 2 of H.B. No. 1131 of the 103rd general assembly or by
the 104th and succeeding general assemblies for disabled OR IMPAIRED
workers'
relief. When the additional moneys are available in whole or
part for the purpose of making the reimbursement, the director of
budget and management shall certify the amount to the bureau of
workers' compensation which shall thereupon cause the moneys to
be paid to the general revenue fund from the disabled workers'
relief fund except that any amounts due because of the state's
obligation as an employer pursuant to section 4123.411 of the
Revised Code and not paid to the disabled workers' relief fund
shall be deducted from any such reimbursement.
Sec. 4123.511. (A) Within seven days after receipt of
any claim under this chapter, the bureau of workers' compensation
shall notify the claimant and the employer of the claimant of the
receipt of the claim and of the facts alleged therein. If the
bureau receives from a person other than the claimant written or
telecommunicated information indicating that an injury HAS OCCURRED or
AN occupational disease has occurred or been contracted
which THAT may be
compensable under this chapter HAS BEEN DIAGNOSED BY A LICENSED
PHYSICIAN, the bureau shall notify the
employee and the employer of the information. If the information
is provided by any method of telecommunication, the person
providing the information shall provide written verification of
the information to the bureau according to division (E) of
section 4123.84 of the Revised Code. The receipt of the
information in writing, or if by a method of telecommunications,
the written verification, and the notice by the bureau shall be
considered an application for compensation under section 4123.84
or 4123.85 of the Revised Code provided that the conditions of
division (E) of section 4123.84 of the Revised Code apply to
information provided by a method of telecommunication. Upon
receipt of a claim, the bureau shall advise the claimant of the
claim number assigned and the claimant's right to representation
in the processing of a claim or to elect no representation. If
the bureau determines that a claim is determined to be a
compensable lost time claim, the bureau shall notify the claimant
and the employer of the availability of rehabilitation services.
No bureau or industrial commission employee shall directly or
indirectly convey any information in derogation of this right.
This section shall in no way abrogate the bureau's responsibility
to aid and assist a claimant in the filing of a claim and to
advise the claimant of the claimant's rights under the law.
The administrator of workers' compensation shall assign all
claims and investigations to the bureau service office from which
investigation and determination may be made most expeditiously.
The bureau shall investigate the facts concerning an injury or
occupational disease and ascertain such facts in whatever manner
is most appropriate and may obtain statements of the employee,
employer, attending physician, and witnesses in whatever manner
is most appropriate.
(B)(1) Except as provided in division (B)(2) of this
section, in claims other than those in which the employer is a
self-insuring employer, if the administrator determines under
division (A) of this section that a claimant is or is not
entitled to an award of compensation or benefits, the
administrator shall issue an order, no sooner than twenty-one days but
no later than
twenty-eight days after the sending of the notice under division
(A) of this section, granting or denying the payment of the
compensation or benefits, or both as is appropriate to the
claimant. Notwithstanding the time limitation specified in this division for
the issuance of an order, if a medical examination of the claimant is required
by statute, the administrator promptly shall schedule the claimant for that
examination and shall issue an order no later than twenty-eight days after
receipt of the report of the examination. The administrator shall notify the
claimant and the
employer of the claimant and their respective representatives in
writing of the nature of the order and the amounts of
compensation and benefit payments involved. The employer or
claimant may appeal the order pursuant to division (C) of this
section within fourteen days after the date of the receipt of the
order. The employer and claimant may waive, in writing, their
rights to an appeal under this division.
(2) Notwithstanding the time limitation specified in
division (B)(1) of this section for the issuance of an order, if
the employer certifies a claim for payment of compensation or
benefits, or both, to a claimant, and the administrator has
completed the investigation of the claim, the payment of
benefits
or compensation, or both, as is appropriate, shall commence upon
the later of the date of the certification or completion of the
investigation and issuance of the order by the administrator,
provided that the administrator shall issue the order no later
than the time limitation specified in division (B)(1) of this
section.
(3) If an appeal is made under division (B)(1) or (2) of
this section, the administrator shall forward the claim file to
the appropriate district hearing officer within seven days of the
appeal. In contested claims other than state fund claims, the
administrator shall forward the claim within seven days of the administrator's
receipt of the claim to the commission,
which shall refer
the claim to an appropriate district hearing officer for a
hearing in accordance with division (C) of this section.
(C) If an employer or claimant timely appeals the order of
the administrator issued under division (B) of this section or in
the case of other contested claims other than state fund claims,
the commission shall refer the claim to an appropriate district
hearing officer according to rules the commission adopts under
section 4121.36 of the Revised Code. The district hearing
officer shall notify the parties and their respective
representatives of the time and place of the hearing.
The district hearing officer shall hold a hearing on a
disputed issue or claim within
forty-five days after the filing of the appeal under this division and
issue a decision within seven days after holding the hearing. The
district hearing officer shall notify the parties and their respective
representatives in writing of the order. Any party may
appeal an
order issued under this division pursuant to division (D) of this
section within fourteen days after receipt of the order under
this division.
(D) Upon the timely filing of an appeal of the order of
the district hearing officer issued under division (C) of this
section, the commission shall refer the claim file to an
appropriate staff hearing officer according to its rules adopted
under section 4121.36 of the Revised Code. The staff hearing
officer shall hold a hearing within forty-five days after the
filing of an appeal under this division and issue a decision
within seven days after holding the
hearing under this
division. The staff hearing officer shall notify the parties and
their respective representatives in writing of his THE STAFF HEARING
OFFICER'S order. Any
party may appeal an order issued under this division pursuant to
division (E) of this section within fourteen days after receipt
of the order under this division.
(E) Upon the filing of a timely appeal of the order of the
staff hearing officer issued under division (D) of this section,
the commission or a designated staff hearing officer, on behalf of the
commission, shall determine whether the commission
will hear the appeal. If the commission or the designated staff
hearing officer decides to hear the appeal, the
commission or the designated staff hearing officer shall notify the
parties and their respective representatives in
writing of the time and place of the hearing. The commission
shall hold the hearing within forty-five days after the filing of
the notice of appeal and, within seven days after the conclusion
of the hearing, the commission shall issue its order affirming,
modifying, or reversing the order issued under division (D) of
this section. The commission shall notify the parties and their
respective representatives in writing of the order. If the
commission or the designated staff hearing officer determines not to
hear the appeal, within fourteen days after the filing of
the notice of appeal, the commission or the designated staff hearing
officer shall issue an order to that effect and notify the parties and
their respective representatives in writing of that order.
Except as otherwise provided in this chapter and Chapters
4121., 4127., and 4131. of the Revised Code, any party may appeal
an order issued under this division to the court pursuant to
section 4123.512 of the Revised Code within sixty days after
receipt of the order, subject to the limitations contained in
that section.
(F) Every notice of an appeal from an order issued under
divisions (B), (C), (D), and (E) of this section shall state the
names of the claimant and employer, the number of the claim, the
date of the decision appealed from, and the fact that the
appellant appeals therefrom.
(G) All of the following apply to the proceedings under
divisions (C), (D), and (E) of this section:
(1) The parties shall proceed promptly and without
continuances except for good cause;
(2) The parties, in good faith, shall engage in the free
exchange of information relevant to the claim prior to the
conduct of a hearing according to the rules the commission adopts
under section 4121.36 of the Revised Code;
(3) The administrator is a party and may appear and participate at all
administrative proceedings on behalf of the state insurance fund.
However, in cases in which the employer is represented, the administrator
shall neither present arguments nor introduce testimony that is cumulative to
that presented or introduced by the employer or the employer's representative.
The administrator may file an appeal under this section on behalf of the
state insurance fund; however, except in cases arising under section 4123.343
of the Revised Code, the administrator only may appeal questions of law or
issues of fraud when the employer appears in person or by representative.
(H) Except as provided in division (J) of this section,
payments of compensation to a claimant or on behalf of a claimant
as a result of any order issued under this chapter shall commence
upon the earlier of the following:
(1) Fourteen days after the date the administrator issues
an order under division (B) of this section, unless that order is
appealed;
(2) The date when the employer has waived the right to
appeal a decision issued under division (B) of this section;
(3) If no appeal of an order has been filed under this
section or to a court under section 4123.512 of the Revised Code,
the expiration of the time limitations for the filing of an
appeal of an order;
(4) The TWENTY-ONE DAYS AFTER THE date of receipt by the
employer of an order of a district hearing officer, a staff hearing officer,
or
the industrial commission issued under division (C), (D),
or (E) of this section.
(I) No medical benefits payable under this chapter or
Chapter 4121., 4127., or 4131. of the Revised Code are payable
until the earlier of the following:
(1) The date of the issuance of the staff hearing
officer's order under division (D) of this section;
(2) The date of the final administrative or judicial
determination.
(J) Upon the final administrative or judicial
determination, if a claimant is found to have received
compensation to which the claimant was not entitled,
the claimant's employer, if a self-insuring
employer, or the bureau, shall withhold from any
amount to which the claimant becomes entitled pursuant to any
claim, past, present, or future, under Chapter 4121., 4123.,
4127., or 4131. of the Revised Code, the amount to which the
claimant was not entitled pursuant to the following criteria:
(1) No withholding for the first twelve weeks of temporary
total disability compensation pursuant to section 4123.56 of the
Revised Code shall be made;
(2) Forty per cent of all awards of compensation paid
pursuant to sections 4123.56 and 4123.57 of the Revised Code,
until the amount overpaid is refunded;
(3) Twenty-five per cent of any compensation paid pursuant
to section 4123.58 of the Revised Code until the amount overpaid
is refunded;
(4) If, pursuant to an appeal under section 4123.512 of
the Revised Code, the court of appeals or the supreme court
reverses the allowance of the claim, then no amount of any
compensation will be withheld.
(K) If a staff hearing officer or the commission fails to
issue a decision or the commission fails to refuse to hear an
appeal within the time periods required by this section, payments
to a claimant shall cease until the staff hearing officer or
commission issues a decision or hears the appeal, unless the
failure was due to the fault or neglect of the employer or the
employer agrees that the payments should continue for a longer
period of time.
(L) Except as provided in section 4123.522 of the Revised
Code, no appeal is timely filed under this section unless the
appeal is filed with the time limits set forth in this section.
(M) No person who is not an employee of the bureau or
commission or who is not by law given access to the contents of a
claims file shall have a file in the person's possession.
Sec. 4123.512. (A) The claimant or the employer may
appeal an order of the industrial commission made under division
(E) of section 4123.511 of the Revised Code in any injury or
occupational disease case, other than a decision as to the extent
of disability OR IMPAIRMENT, to the court of common pleas of the county
in
which the injury was inflicted or in which the contract of
employment was made if the injury occurred outside the state, or
in which the contract of employment was made if the exposure
occurred outside the state. If no common pleas court has
jurisdiction for the purposes of an appeal by the use of the
jurisdictional requirements described in this division, the
appellant may use the venue provisions in the Rules of Civil
Procedure to vest jurisdiction in a court. If the claim is for
an occupational disease the appeal shall be to the court of
common pleas of the county in which the exposure which caused the
disease occurred. Like appeal may be taken from an order of a
staff hearing officer made under division (D) of section 4123.511
of the Revised Code from which the commission has refused to hear
an appeal. The appellant shall file the notice of appeal with a
court of common pleas within sixty days after the date of the
receipt of the order appealed from or the date of receipt of the
order of the commission refusing to hear an appeal of a staff
hearing officer's decision under division (D) of section 4123.511
of the Revised Code. The filing of the notice of the appeal with
the court is the only act required to perfect the appeal.
If an action has been commenced in a court of a county
other than a court of a county having jurisdiction over the
action, the court, upon notice by any party or upon its own
motion, shall transfer the action to a court of a county having
jurisdiction.
Notwithstanding anything to the contrary in this section,
if the commission determines under section 4123.522 of the
Revised Code that an employee, employer, or their respective
representatives have not received written notice of an order or
decision which is appealable to a court under this section and
which grants relief pursuant to section 4123.522 of the Revised
Code, the party granted the relief has sixty days from receipt of
the order under section 4123.522 of the Revised Code to file a
notice of appeal under this section.
(B) The notice of appeal shall state the names of the
claimant and the employer, the number of the claim, the date of
the order appealed from, and the fact that the appellant appeals
therefrom.
The administrator, the claimant, and the employer shall be
parties to the appeal and the court, upon the application of the
commission, shall make the commission a party. The administrator
shall notify the employer that, if he THE EMPLOYER fails
to
become an active
party to the appeal, then the administrator may act on behalf of
the employer and the results of the appeal could have an adverse
effect upon the employer's premium rates.
(C) The attorney general or one or more of his THE ATTORNEY
GENERAL'S assistants
or special counsel designated by him THE ATTORNEY GENERAL shall
represent the
administrator and the commission. In the event IF the attorney
general or his THE ATTORNEY GENERAL'S designated assistants or
special counsel are
absent, the administrator or the commission shall select one or
more of the attorneys in the employ of the administrator or the
commission as his THE ADMINISTRATOR'S ATTORNEY or its
THE COMMISSION'S attorney in the
appeal. Any attorney so
employed shall continue his THE representation during the entire
period of the appeal and in all hearings thereof except where the
continued representation becomes impractical.
(D) Upon receipt of notice of appeal the clerk of courts
shall provide notice to all parties who are appellees and to the
commission.
The claimant shall, within thirty days after the filing of
the notice of appeal, SHALL file a petition containing a statement of
facts in ordinary and concise language showing a cause of action
to participate or to continue to participate in the fund and
setting forth the basis for the jurisdiction of the court over
the action. Further pleadings shall be had in accordance with
the Rules of Civil Procedure, provided that service of summons on
such petition shall not be required. The clerk of the court
shall, upon receipt thereof, SHALL transmit by certified mail a
copy
thereof to each party named in the notice of appeal other than
the claimant. Any party may file with the clerk prior to the
trial of the action a deposition of any physician taken in
accordance with the provisions of the Revised Code, which
deposition may be read in the trial of the action even though the
physician is a resident of or subject to service in the county in
which the trial is had. The bureau of workers' compensation
shall pay the cost of the deposition filed in court and of copies
of the deposition for each party from the surplus fund and charge
the costs thereof against the unsuccessful party if the
claimant's right to participate or continue to participate is
finally sustained or established in the appeal. In the event the
deposition is taken and filed, the physician whose deposition is
taken is not required to respond to any subpoena issued in the
trial of the action. The court, or the jury under the
instructions of the court, if a jury is demanded, shall determine
the right of the claimant to participate or to continue to
participate in the fund upon the evidence adduced at the hearing
of the action.
(E) The court shall certify its decision to the commission
and the certificate shall be entered in the records of the court.
Appeals from the judgment are governed by the law applicable to
the appeal of civil actions.
(F) The cost of any legal proceedings authorized by this
section, including an attorney's fee to the claimant's attorney
to be fixed by the trial judge, based upon the effort expended,
in the event the claimant's right to participate or to continue
to participate in the fund is established upon the final
determination of an appeal, shall be taxed against the employer
or the commission if the commission or the administrator rather
than the employer contested the right of the claimant to
participate in the fund. The attorney's fee shall not exceed
twenty-five hundred dollars.
(G) If the finding of the court or the verdict of the jury
is in favor of the claimant's right to participate in the fund,
the commission and the administrator shall thereafter proceed in
the matter of the claim as if the judgment were the decision of
the commission, subject to the power of modification provided by
section 4123.52 of the Revised Code.
(H) An appeal from an order issued under division (E) of
section 4123.511 of the Revised Code or any action filed in court
in a case in which an award of compensation has been made shall
not stay the payment of compensation under the award or payment
of compensation for subsequent periods of total disability OR
IMPAIRMENT during
the pendency of the appeal. If, in a final administrative or
judicial action, it is determined that payments of compensation
or benefits, or both, made to or on behalf of a claimant should
not have been made, the amount thereof shall be charged to the
surplus fund under division (B) of section 4123.34 of the Revised
Code. In the event the employer is a state risk, the amount
shall not be charged to the employer's experience. In the event
the employer is a self-insuring employer, the self-insuring
employer shall deduct the amount from the paid compensation he
reports to the administrator under division (K) of section
4123.35 of the Revised Code. All actions and proceedings under
this section which are the subject of an appeal to the court of
common pleas or the court of appeals shall be preferred over all
other civil actions except election causes, irrespective of
position on the calendar.
This section applies to all decisions of the commission or
the administrator on November 2, 1959, and all claims filed
thereafter are governed by sections 4123.511 and 4123.512 of the
Revised Code.
Any action pending in common pleas court or any other court
on January 1, 1986, under this section is governed by former
sections 4123.514, 4123.515, 4123.516, and 4123.519 and section
4123.522 of the Revised Code.
Sec. 4123.52. The (A)(1) EXCEPT AS OTHERWISE PROVIDED IN
DIVISION (B) OF THIS SECTION, THE jurisdiction of the industrial
commission and the authority of the administrator of workers'
compensation over each case is continuing, and the commission may
make such modification or change with respect to former findings
or orders with respect thereto, as, in its opinion is justified.
No EXCEPT AS PROVIDED IN DIVISIONS (A)(1), (B),
AND (C) OF THIS SECTION, THE COMMISSION SHALL MAKE NO
modification
or,
change nor any, finding, or award in ANY CLAIM
WITH respect of
any claim shall be made with respect to disability, compensation,
dependency, or MEDICAL benefits, after six FIVE years
from the date of
injury in the absence of the payment of medical benefits under this
chapter, in which event the modification, change, finding, or
award shall be made within six years after the payment of
medical
benefits, or in the absence of payment of compensation under
section 4123.57, 4123.58, or division (A) or
(B) of section 4123.56 of the Revised Code or wages in lieu of compensation in
a
manner so as to satisfy the requirements of section 4123.84 of
the Revised Code, in which event the modification, change,
finding, or award shall be made within ten years from the
date of
the last payment of compensation or from the date of death, nor
unless written notice of claim for the specific part or parts of
the body injured or disabled has been given as
provided in
section 4123.84 or 4123.85 of the Revised Code, and the
commission shall not make any modification, change, finding, or
award which shall award compensation for a back period in excess
of two years prior to the date of filing application therefor
OR THE DATE OF FIRST DIAGNOSIS OF AN OCCUPATIONAL DISEASE, UNLESS
COMPENSATION UNDER SECTION 4123.56
OF THE REVISED CODE, WAGES IN LIEU OF THAT COMPENSATION IN A
MANNER THAT SATISFIES THE REQUIREMENTS OF SECTION 4123.84 OF THE
REVISED CODE, COMPENSATION UNDER DIVISION (B) OF
SECTION
4123.57 OR SECTION 4123.58 OR 4123.59
OF THE REVISED CODE, OR MEDICAL BENEFITS HAVE BEEN PAID, IN
WHICH EVENT, IN CASES IN WHICH COMPENSATION OR WAGES IN LIEU OF THAT
COMPENSATION HAS BEEN
PAID UNDER SECTION 4123.56 of the Revised Code, OR IN CASES IN WHICH COMPENSATION HAS BEEN
PAID UNDER DIVISION (B) OF SECTION 4123.57 OR SECTION 4123.58 OR
4123.59 OF THE REVISED CODE,
THE COMMISSION MAY ONLY MAKE A MODIFICATION, CHANGE, FINDING, OR AWARD IN A
CLAIM WITH RESPECT TO COMPENSATION, DEPENDENCY, OR MEDICAL BENEFITS WITHIN
FIVE YEARS AFTER THE DATE OF THE LAST PAYMENT OF COMPENSATION UNDER SECTION
4123.56, WAGES IN LIEU OF THAT COMPENSATION, OR COMPENSATION UNDER DIVISION
(B) OF SECTION 4123.57 OR SECTION 4123.58 OR
4123.59 OF THE REVISED
CODE.
(2) THE
COMMISSION MAY MAKE A MODIFICATION, CHANGE, FINDING, OR AWARD IN ANY CLAIM
WITH RESPECT TO MEDICAL BENEFITS WITHIN FIVE YEARS AFTER THE DATE OF THE LAST
TREATMENT FOR WHICH MEDICAL BENEFITS HAVE BEEN PAID OR ORDERED TO BE PAID.
(B) IN ALL CASES FOR A CLAIM INVOLVING AN OCCUPATIONAL DISEASE
DESCRIBED IN
DIVISIONS (A) THROUGH (AA) OF SECTION 4123.68 of the Revised Code OR OTHER
OCCUPATIONAL DISEASE THAT RESULTS FROM EXPOSURE TO FIBROSIS-PRODUCING OR TOXIC
DUSTS, FUMES, MISTS, VAPORS, GASES, OR LIQUIDS, OR OTHER TOXIC MATERIALS, OR A
COMBINATION OF THOSE, THE JURISDICTION OF THE COMMISSION AND THE AUTHORITY OF
THE ADMINISTRATOR OVER EACH CASE IS CONTINUING PURSUANT TO DIVISION
(A) OF THIS SECTION, EXCEPT THAT THE JURISDICTION TO MAKE A
MODIFICATION, CHANGE, FINDING, OR AWARD IN THE CLAIM WITH RESPECT TO
COMPENSATION, DEPENDENCY, OR MEDICAL BENEFITS MAY EXTEND BEYOND THE TIME
LIMITATIONS CONTAINED IN THAT DIVISION, UP TO A MAXIMUM OF SIX MONTHS AFTER
THE DATE AN EMPLOYEE FIRST BECOMES TOTALLY DISABLED AS A RESULT OF THE
OCCUPATIONAL DISEASE THAT IS THE SUBJECT OF THE EMPLOYEE'S CLAIM, AND
THEREAFTER, THE TIME LIMITATIONS CONTAINED IN DIVISION (A) OF THIS
SECTION APPLY TO THAT CASE.
(C)(1) IN ALL CASES FOR A CLAIM DESCRIBED IN DIVISION
(C)(2) OF THIS SECTION, THE JURISDICTION OF THE COMMISSION AND THE
AUTHORITY OF THE ADMINISTRATOR OVER EACH CASE IS CONTINUING, EXCEPT THAT THE
COMMISSION MAY ONLY MAKE A MODIFICATION, CHANGE,
FINDING, OR AWARD IN THAT CLAIM WITH RESPECT TO MEDICAL BENEFITS AND
COMPENSATION UNDER SECTION 4123.56 of the Revised Code OR WAGES IN LIEU OF THAT COMPENSATION,
SUBJECT TO THE LIMITATION DESCRIBED IN DIVISION (C)(3) OF THIS
SECTION.
(2) THIS DIVISION APPLIES ONLY TO A CLAIM INVOLVING AN EMPLOYEE TO WHOM
EITHER OF THE FOLLOWING APPLIES:
(a) THE EMPLOYEE HAS AN INTERNAL OR EXTERNAL PROSTHETIC DEVICE
THAT WAS PROVIDED UNDER AN ALLOWED CLAIM UNDER THIS CHAPTER OR
CHAPTERS 4121., 4127., OR 4131. of the Revised Code;
(b) A DETERMINATION IS MADE THAT THE EMPLOYEE REQUIRES AN
INTERNAL OR EXTERNAL PROSTHETIC DEVICE AS A DIRECT RESULT OF AN ALLOWED
CONDITION IN A CLAIM UNDER THIS CHAPTER OR CHAPTERS 4121., 4127., OR
4131. of the Revised Code, REGARDLESS OF WHEN THAT CLAIM WAS ALLOWED.
(3) COMPENSATION UNDER SECTION 4123.56 of the Revised Code OR WAGES IN LIEU OF THAT
COMPENSATION ALLOWED UNDER THIS DIVISION SHALL BE FOR A PERIOD NOT TO EXCEED
NINE MONTHS AFTER THE DATE OF THE MODIFICATION, CHANGE, FINDING, OR AWARD.
(D) UNLESS WRITTEN NOTICE HAS BEEN
GIVEN AS PROVIDED IN SECTION 4123.84 OR 4123.85 OF THE
REVISED CODE,
THE COMMISSION SHALL MAKE NO MODIFICATION, CHANGE, FINDING, OR AWARD THAT
AWARDS COMPENSATION FOR A BACK PERIOD IN EXCESS OF TWO YEARS PRIOR TO THE DATE
OF FILING AN APPLICATION FOR THAT COMPENSATION. This section does not
affect the right of a claimant to
compensation accruing subsequent to the filing of any such
application, provided IF the application is filed within the
time limit provided in this section.
(E) This section does not deprive the commission of its
continuing jurisdiction to determine the questions raised by any
application for modification of award which has been filed with
the commission after June 1, 1932, and prior to the expiration of
the applicable period but in respect to which no award has been
granted or denied during the applicable period.
(F) The commission may, by general rules, MAY provide
for the
destruction of files of cases in which no further action may be
taken.
The commission and administrator of workers' compensation
each may, by general rules, MAY provide for the retention and
destruction of all other records in their possession or under
their control pursuant to section 121.211 and sections 149.34 to
149.36 of the Revised Code. The bureau of workers' compensation
may purchase or rent required equipment for the document
retention media, as determined necessary to preserve the records.
Photographs, microphotographs, microfilm, films, or other direct
document retention media, when properly identified, have the same
effect as the original record and may be offered in like manner
and may be received as evidence in any court where the original
record could have been introduced.
(G) AS USED IN DIVISION (A) OF THIS SECTION, "MEDICAL
BENEFITS" MEANS PAYMENTS TO, OR ON BEHALF OF, AN EMPLOYEE FOR A HOSPITAL BILL,
MEDICAL BILL FOR A LICENSED PHYSICIAN OR HOSPITAL, AN ORTHOPEDIC OR PROSTHETIC
DEVICE, OR A PRESCRIPTION MEDICATION.
Sec. 4123.531. THE ADMINISTRATOR OF WORKERS' COMPENSATION
OR THE INDUSTRIAL COMMISSION MAY REQUIRE ANY EMPLOYEE CLAIMING
THE RIGHT TO RECEIVE COMPENSATION TO SUBMIT TO A VOCATIONAL
REHABILITATION EVALUATION. IF THE PERSON WHO CONDUCTS THE
EVALUATION RECOMMENDS A VOCATIONAL REHABILITATION PLAN FOR THE
EMPLOYEE, THE EMPLOYEE SHALL COMPLY WITH THE REHABILITATION
PLAN.
IF AN EMPLOYEE REFUSES TO SUBMIT TO ANY VOCATIONAL
REHABILITATION EVALUATION SCHEDULED PURSUANT TO THIS SECTION OR
OBSTRUCTS THE EVALUATION, THE EMPLOYEE'S RIGHT TO HAVE THE
EMPLOYEE'S CLAIM FOR COMPENSATION CONSIDERED, IF THE CLAIM IS
PENDING BEFORE THE BUREAU OR COMMISSION, OR TO RECEIVE ANY
PAYMENT FOR COMPENSATION THAT HAS BEEN GRANTED, IS SUSPENDED
DURING THE PERIOD OF THE REFUSAL OR OBSTRUCTION.
Sec. 4123.54. Every employee, who is injured or who
contracts an occupational disease, and the dependents of each
employee who is killed, or dies as the result of an occupational
disease contracted in the course of employment, wherever such
injury has occurred or occupational disease has been contracted,
provided the same were not:
(A) Purposely self-inflicted; or
(B) Caused by the employee being intoxicated or under the
influence of a controlled substance not prescribed by a physician
where the intoxication or being under the influence of the
controlled substance not prescribed by a physician was the
proximate cause of the injury, is entitled to receive, either directly from
his THE EMPLOYEE'S self-insuring employer as
provided in section
4123.35 of the Revised Code, or from the state insurance fund,
the compensation for loss sustained on account of the injury,
occupational disease, or death, and the medical, nurse, and
hospital services and medicines, and the amount of funeral
expenses in case of death, as are provided by this chapter.
FOR THE PURPOSE OF THIS DIVISION, IF THE EMPLOYEE, THROUGH A CHEMICAL TEST
OR A
TEST OF THE EMPLOYEE'S BLOOD, BREATH, OR URINE ADMINISTERED WITHIN A
REASONABLE TIME AFTER THE OCCURRENCE OF THE EMPLOYEE'S INJURY, IS DETERMINED
TO HAVE AN
ALCOHOL CONTENT EQUAL TO OR IN EXCESS OF THAT SPECIFIED IN SECTION 4511.19
of the Revised Code OR HAVE A CONTROLLED SUBSTANCE NOT PRESCRIBED BY THE EMPLOYEE'S PHYSICIAN
FOR THE EMPLOYEE'S USE IN THE EMPLOYEE'S SYSTEM, IT IS A REBUTTABLE
PRESUMPTION THAT THE EMPLOYEE WAS INTOXICATED OR UNDER THE INFLUENCE OF THE
CONTROLLED SUBSTANCE AND THAT THAT INTOXICATION OR BEING UNDER THE INFLUENCE
IS THE PROXIMATE
CAUSE OF THE INJURY. AN EMPLOYEE'S REFUSAL TO SUBMIT TO A CHEMICAL TEST OR A
TEST OF THE EMPLOYEE'S BLOOD, BREATH, OR URINE IS ADMISSIBLE AS EVIDENCE
OF THE EMPLOYEE'S INTOXICATION OR BEING UNDER THE INFLUENCE OF A CONTROLLED
SUBSTANCE NOT PRESCRIBED BY A PHYSICIAN AT ANY HEARING PURSUANT TO SECTION
4123.511 of the Revised Code TO DETERMINE THE ALLOWANCE OF THE EMPLOYEE'S CLAIM AND ON ANY
APPEAL TO COURT PURSUANT TO SECTION 4123.512 of the Revised Code.
IF AN INJURY DESCRIBED IN DIVISION
(C)(4) OF SECTION 4123.01 OF THE REVISED
CODE OCCURS, COMPENSATION AND MEDICAL
BENEFITS ARE PAYABLE ONLY FOR THE IMPAIRMENT OR DISABILITY THAT
RESULTS FROM THE SUBSTANTIAL WORSENING OF THE PREEXISTING
CONDITION OR IMPAIRMENT OR THE SUBSTANTIAL ACCELERATION OF THE DISEASE
PROCESS. NO COMPENSATION OR BENEFITS ARE PAYABLE BECAUSE OF
THE PREEXISTING CONDITION, IMPAIRMENT, OR DISEASE PROCESS ONCE THAT CONDITION,
IMPAIRMENT, OR DISEASE PROCESS HAS RETURNED TO A LEVEL THAT WOULD HAVE EXISTED
WITHOUT THE INJURY.
Whenever, with respect to an employee of an employer who is
subject to and has complied with this chapter, there is
possibility of conflict with respect to the application of
workers' compensation laws because the contract of employment is
entered into and all or some portion of the work is or is to be
performed in a state or states other than Ohio, the employer and
the employee may agree to be bound by the laws of this state or
by the laws of some other state in which all or some portion of
the work of the employee is to be performed. The agreement shall
be in writing and shall be filed with the bureau of workers'
compensation within ten days after it is executed and shall
remain in force until terminated or modified by agreement of the
parties similarly filed. If the agreement is to be bound by the
laws of this state and the employer has complied with this
chapter, then the employee is entitled to compensation and
benefits regardless of where the injury occurs or the disease is
contracted and the rights of the employee and his THE EMPLOYEE'S
dependents
under the laws of this state are the exclusive remedy against the
employer on account of injury, disease, or death in the course of
and arising out of his THE EMPLOYEE'S employment. If the
agreement is to be
bound by the laws of another state and the employer has complied
with the laws of that state, the rights of the employee and his THE
EMPLOYEE'S
dependents under the laws of that state are the exclusive remedy
against the employer on account of injury, disease, or death in
the course of and arising out of his THE EMPLOYEE'S employment
without regard to
the place where the injury was sustained or the disease
contracted.
If any employee or his THE EMPLOYEE'S dependents are awarded
workers'
compensation benefits or recover damages from the employer under
the laws of another state, the amount awarded or recovered,
whether paid or to be paid in future installments, shall be
credited on the amount of any award of compensation or benefits
made to the employee or his THE EMPLOYEE'S dependents by the
bureau.
If an employee is a resident of a state other than this
state and is insured under the workers' compensation law or
similar laws of a state other than this state, the employee and
his THE EMPLOYEE'S dependents are not entitled to receive
compensation or
benefits under this chapter, on account of injury, disease, or
death arising out of or in the course of employment while
temporarily within this state and the rights of the employee and
his THE EMPLOYEE'S dependents under the laws of the other state
are the
exclusive remedy against the employer on account of the injury,
disease, or death.
Compensation or benefits are not payable to a claimant
during the period of confinement of the claimant in any state or
federal correctional institution whether in this or any other state for
conviction of violation of any state or federal criminal law.
Sec. 4123.541. In the event that IF any person who is entitled
to receive
benefits for TEMPORARY total disability OR PERMANENT TOTAL
IMPAIRMENT, loss of member, or death
through the
application of section 4123.033 of the Revised Code, receives, in connection
with the injury giving rise to such entitlement, benefits under an act of
congress or federal program providing benefits for civil defense workers and
their survivors, the benefits payable hereunder, shall be reduced in
proportion to the benefits received under such other act or program.
Sec. 4123.55. No compensation shall be allowed for the first week after an
injury is received or occupational disease contracted IS FIRST
DIAGNOSED
and no compensation
shall be allowed for the first week of total disability OR IMPAIRMENT,
whenever it may
occur, unless and until the employee is totally disable DISABLED OR
IMPAIRED for a continuous
period of two weeks or more, in which event compensation for the first week of
total disability OR IMPAIRMENT, whenever it has occurred, shall be
paid, in addition to any
other weekly benefits which are due, immediately following the second week of
total disability OR IMPAIRMENT. There shall be no waiting period in
connection with the
disbursements provided by section 4123.66 of the Revised Code.
Sec. 4123.56. (A) Except as provided in division (D)(E) of
this section, in the case of temporary disability, an employee
shall receive sixty-six and two-thirds per cent of his THE
EMPLOYEE'S average
weekly wage so long as such disability is total, not to exceed a
maximum amount of weekly compensation which is equal to the
statewide average weekly wage as defined in division (C) of
section 4123.62 of the Revised Code, and not less than a minimum
amount of compensation which is equal to thirty-three and
one-third per cent of the statewide average weekly wage as
defined in division (C) of section 4123.62 of the Revised Code
unless the employee's wage is less than thirty-three and
one-third per cent of the minimum statewide average weekly wage,
in which event he THE EMPLOYEE shall receive compensation equal
to his THE EMPLOYEE'S full
wages; provided that for the first twelve weeks of total
disability the employee shall receive seventy-two per cent of his
THE EMPLOYEE'S
full weekly wage, but not to exceed a maximum amount of weekly
compensation which is equal to the lesser of the statewide
average weekly wage as defined in division (C) of section 4123.62
of the Revised Code or one hundred per cent of the employee's net
take home weekly wage. In the case of a self-insuring employer,
payments
AS USED IN THIS DIVISION, "NET TAKE HOME WEEKLY WAGE"
MEANS THE AMOUNT OBTAINED BY DIVIDING AN EMPLOYEE'S TOTAL
REMUNERATION, AS DEFINED IN SECTION 4141.01 OF THE
REVISED
CODE, PAID TO OR EARNED BY THE
EMPLOYEE DURING THE FIRST FOUR OF THE LAST FIVE COMPLETED
CALENDAR QUARTERS WHICH IMMEDIATELY PRECEDE THE FIRST DAY OF THE
EMPLOYEE'S ENTITLEMENT TO BENEFITS UNDER THIS DIVISION, BY THE
NUMBER OF WEEKS DURING WHICH THE EMPLOYEE WAS PAID OR EARNED
REMUNERATION DURING THOSE FOUR QUARTERS, LESS THE AMOUNT OF
LOCAL, STATE, AND FEDERAL INCOME TAXES DEDUCTED FOR EACH SUCH
WEEK.
(B)(1) IF THE PAYMENT OF COMPENSATION
FOR TEMPORARY DISABILITY IS COMMENCED
VOLUNTARILY BY A SELF-INSURING EMPLOYER,
PAYMENTS OF COMPENSATION SHALL BE CONTINUED
AT THE DISCRETION OF THE
SELF-INSURING EMPLOYER.
WHEN A SELF-INSURING EMPLOYER MAKES ITS FIRST PAYMENT OF
COMPENSATION TO AN EMPLOYEE UNDER THIS DIVISION, THE
SELF-INSURING EMPLOYER SHALL NOTIFY THE EMPLOYEE, IN WRITING,
OF ALL OF THE FOLLOWING:
(a) THAT THE SELF-INSURING EMPLOYER VOLUNTARILY HAS COMMENCED THE
PAYMENTS;
(b) THAT THE SELF-INSURING EMPLOYER MAY TERMINATE THE PAYMENTS
AT ANY TIME;
(c) THAT THE EMPLOYEE HAS A RIGHT TO A HEARING ON THE
EMPLOYEE'S CLAIM;
(d) IF THE EMPLOYEE'S CLAIM THAT IS THE SUBJECT OF THE PAYMENTS
COMMENCED UNDER THIS DIVISION IS DETERMINED TO
BE VALID, THAT ANY COMPENSATION TO WHICH THE EMPLOYEE IS OR BECOMES
ENTITLED UNDER THIS SECTION FOR THAT CLAIM SHALL BE OFFSET BY THE PAYMENTS THE
EMPLOYEE RECEIVES FROM THE SELF-INSURING EMPLOYER UNDER THIS
DIVISION.
A SELF-INSURING EMPLOYER EITHER SHALL CERTIFY OR CONTEST
THE CLAIM FOR WHICH IT VOLUNTARILY IS MAKING PAYMENTS UNDER THIS DIVISION
WITHIN SEVENTY-FIVE
DAYS AFTER THE SELF-INSURING EMPLOYER MAKES THE FIRST PAYMENT OF
COMPENSATION TO AN EMPLOYEE UNDER THIS DIVISION. A CLAIM IS
DEEMED CONTESTED IF THE SELF-INSURING EMPLOYER FAILS EITHER TO
CERTIFY OR CONTEST THE CLAIM WITHIN SEVENTY-FIVE DAYS AFTER MAKING
THE FIRST PAYMENT OF COMPENSATION UNDER THIS DIVISION TO AN EMPLOYEE.
(2) PAYMENT OF COMPENSATION FOR ALL CLAIMS FOR TEMPORARY DISABILITY OTHER
THAN THOSE DESCRIBED IN
DIVISION (B)(1) OF THIS SECTION, shall be for a duration
based upon the medical reports
of the attending physician. If the employer disputes the
attending physician's report, payments may be terminated only
upon application and hearing by a district hearing officer
pursuant to division (C) of section 4123.511 of the Revised Code.
Payments shall continue pending the determination of the matter,
however, payment shall not be made for the period when any
employee has returned to work, when an employee's treating
physician has made a written statement that the employee is
capable of returning to his THE EMPLOYEE'S former position of
employment, when
work within the physical capabilities of the employee is made
available by the employer or another employer, or when the
employee has reached the maximum medical improvement. Where IF
the
employee is capable of work activity, but his THE
EMPLOYEE'S
employer is unable
to offer him THE EMPLOYEE any employment, the employee shall
register with the
bureau of employment services, which shall assist the employee in
finding suitable employment. The
(3) THE termination of temporary total
disability, whether by order or otherwise, does not preclude the
commencement of temporary total disability at another point in
time if the employee again becomes temporarily totally disabled.
(4) IF A DISTRICT HEARING OFFICER, STAFF HEARING OFFICER, OR THE
INDUSTRIAL
COMMISSION DETERMINES, BASED UPON THE EVIDENCE, THAT AN EMPLOYEE WAS NOT
ENTITLED PURSUANT TO THIS CHAPTER OR CHAPTER 4121., 4127., OR 4131.
of the Revised Code TO RECEIVE TEMPORARY TOTAL DISABILITY COMPENSATION PRIOR TO THE
DATE OF THE HEARING IN WHICH THAT DETERMINATION IS MADE, THE HEARING OFFICER
OR THE COMMISSION SHALL DECLARE AN
OVERPAYMENT EFFECTIVE FROM THE DATE THE EMPLOYEE WAS NOT ENTITLED TO RECEIVE
THAT COMPENSATION. IF THE EMPLOYER PAYS PREMIUMS TO THE STATE INSURANCE FUND,
THE AMOUNT OF THE OVERPAYMENT SHALL NOT BE
CHARGED TO THE EMPLOYER'S EXPERIENCE. IF THE EMPLOYER IS A SELF-INSURING
EMPLOYER, THE SELF-INSURING EMPLOYER SHALL DEDUCT THE AMOUNT OF THE
OVERPAYMENT FROM THE PAID
COMPENSATION IT REPORTS TO THE ADMINISTRATOR UNDER DIVISION (K) OF
SECTION 4123.35 of the Revised Code. THE SELF-INSURING EMPLOYER OR THE BUREAU, AS
APPROPRIATE, SHALL
WITHHOLD THE AMOUNT OF THE OVERPAYMENT FROM ANY AMOUNT TO WHICH THE EMPLOYEE
BECOMES ENTITLED UNDER ANY CLAIM PAST, PRESENT, OR FUTURE UNDER
CHAPTER 4121., 4123., 4127., OR 4131. of the Revised Code PURSUANT TO DIVISION
(J) OF SECTION 4123.511 of the Revised Code.
(5) After two hundred weeks of temporary total disability
benefits, the bureau medical section shall schedule the claimant
EMPLOYEE for an examination for an evaluation to determine whether or
not
the temporary disability has become permanent. A self-insuring
employer shall notify the bureau of workers' compensation
immediately after payment of two hundred weeks of temporary total
disability and request that the bureau of workers' compensation
schedule the claimant EMPLOYEE for such an examination.
(6) When the employee is awarded compensation for temporary
total disability for a period for which he THE EMPLOYEE has
received benefits
under Chapter 4141. of the Revised Code, the bureau of workers'
compensation shall pay an amount equal to the amount received
from the award to the bureau of employment services and the
administrator OF THE BUREAU of employment services shall credit the
amount to
the accounts of the employers to whose accounts the payment of
benefits was charged or is chargeable to the extent it was
charged or is chargeable.
(7) If any compensation under this section has been paid for
the same period or periods for which temporary nonoccupational
accident and sickness insurance is or has been paid pursuant to
an insurance policy or program to which the employer has made the
entire contribution or payment for providing insurance or under a
nonoccupational accident and sickness program fully funded by the
employer, compensation paid under this section for the period or
periods shall be paid only to the extent by which the payment or
payments exceeds the amount of the nonoccupational insurance or
program paid or payable. Offset of the compensation shall be
made only upon the prior order of the bureau of workers'
compensation or industrial commission or agreement of the
claimant.
As used in this division, "net take home weekly wage" means
the amount obtained by dividing an employee's total remuneration,
as defined in section 4141.01 of the Revised Code, paid to or
earned by the employee during the first four of the last five
completed calendar quarters which immediately precede the first
day of the employee's entitlement to benefits under this
division, by the number of weeks during which the employee was
paid or earned remuneration during those four quarters, less the
amount of local, state, and federal income taxes deducted for
each such week.
(B) Where (C)(1) IF an employee in a claim allowed
under this
chapter suffers a wage loss as a DIRECT result of returning to
employment other than his THE EMPLOYEE'S former position of
employment or as a
result of being unable to find employment consistent with DUE TO A
LIMITATION IN the
claimant's physical capabilities CAUSED SOLELY BY THE ALLOWED CONDITION OR
CONDITIONS IN THE EMPLOYEE'S CLAIM, he THE EMPLOYEE shall
receive compensation
at sixty-six and two-thirds per cent of his THE DIFFERENCE BETWEEN
THE EMPLOYEE'S AVERAGE weekly wage loss AT THE TIME OF THE
INJURY OR DATE OF DISEASE AND THE EMPLOYEE'S PRESENT EARNINGS not
to exceed the statewide average weekly wage for a period not to
exceed two hundred weeks. THE PAYMENTS MAY CONTINUE FOR UP TO A
MAXIMUM OF TWO HUNDRED WEEKS, BUT THE PAYMENTS SHALL BE REDUCED BY THE
CORRESPONDING NUMBER OF WEEKS IN WHICH THE EMPLOYEE RECEIVES PAYMENTS PURSUANT
TO DIVISION (B) OF SECTION 4121.67 of the Revised Code.
(2) IF AN EMPLOYEE IN A CLAIM ALLOWED UNDER THIS
CHAPTER SUFFERS A WAGE LOSS AS A DIRECT RESULT OF BEING UNABLE
TO FIND EMPLOYMENT CONSISTENT WITH THE EMPLOYEE'S PHYSICAL
CAPABILITIES RESULTING FROM THE EMPLOYEE'S INJURY OR OCCUPATIONAL DISEASE, THE
EMPLOYEE SHALL RECEIVE
COMPENSATION AT
SIXTY-SIX AND TWO-THIRDS PER CENT OF THE DIFFERENCE BETWEEN THE
EMPLOYEE'S AVERAGE WEEKLY WAGE AT THE TIME OF THE INJURY OR DATE OF DISEASE
AND
THE
EMPLOYEE'S PRESENT EARNINGS, NOT TO EXCEED THE STATEWIDE AVERAGE
WEEKLY WAGE. THE PAYMENTS MAY CONTINUE FOR UP TO A MAXIMUM OF
TWENTY-SIX WEEKS; HOWEVER, AN EMPLOYEE IN A CLAIM ALLOWED UNDER
THIS CHAPTER MAY RECEIVE COMPENSATION UNDER DIVISION
(C)(2) OF THIS SECTION FOR UP
TO A MAXIMUM OF FIFTY-TWO WEEKS IF, AT ANY TIME DURING THE PERIOD IN WHICH THE
EMPLOYEE IS RECEIVING COMPENSATION UNDER DIVISION (C)(2) OF THIS
SECTION, THE BENEFIT PERIOD FOR UNEMPLOYMENT IS IN EXTENSION PURSUANT TO
SECTION 4141.301 OF THE
REVISED CODE. NEITHER THE FILING OF A REQUEST
FOR NOR THE RECEIPT OF COMPENSATION PURSUANT TO DIVISION
(C)(2) OF THIS SECTION SHALL AFFECT AN INJURED
EMPLOYEE'S APPLICATION FOR COMPENSATION PROVIDED UNDER SECTION 4123.58 OF THE
REVISED
CODE.
(3) THE NUMBER OF WEEKS OF WAGE LOSS PAYABLE TO AN EMPLOYEE UNDER
DIVISIONS (C)(1) AND (2) OF THIS SECTION SHALL NOT EXCEED TWO HUNDRED
WEEKS IN THE AGGREGATE.
(4) AS USED IN THIS DIVISION, "DATE OF DISEASE" MEANS THE DATE AN
OCCUPATIONAL DISEASE IS FIRST DIAGNOSED BY A LICENSED PHYSICIAN, OR FOR AN
OCCUPATIONAL DISEASE DESCRIBED IN DIVISIONS
(A) THROUGH
(AA) OF SECTION 4123.68 OF THE
REVISED CODE,
OR OTHER OCCUPATIONAL DISEASE THAT RESULTS FROM EXPOSURE TO FIBROSIS-PRODUCING
OR TOXIC DUSTS, FUMES, MISTS, VAPORS, GASES, OR LIQUIDS, OR OTHER TOXIC
MATERIALS, OR A COMBINATION OF THOSE, THE DATE THAT THE EMPLOYEE
FIRST MISSES WORK AS A RESULT OF THE OCCUPATIONAL DISEASE.
(C)(D) In the event an employee of a professional sports
franchise domiciled in this state is disabled OR IMPAIRED as the result
of an
injury or occupational disease, the total amount of payments made
under a contract of hire or collective bargaining agreement to
the employee during a period of disability OR IMPAIRMENT is deemed an
advanced
payment of compensation payable under sections 4123.56 to 4123.58
of the Revised Code. The employer shall be reimbursed the total
amount of the advanced payments out of any award of compensation
made pursuant to sections 4123.56 to 4123.58 of the Revised Code.
(D)(E) If an employee receives temporary total disability
benefits pursuant to division (A) of this section and social
security retirement benefits pursuant to the "Social Security
Act," the weekly benefit amount under division (A) of this
section shall not exceed sixty-six and two-thirds per cent of the
statewide average weekly wage as defined in division (C) of
section 4123.62 of the Revised Code.
(F) THE COMMENCEMENT OF THE PAYMENT
OF COMPENSATION UNDER DIVISION
(B) OF THIS SECTION SHALL NOT
CONSTITUTE A RECOGNITION BY A SELF-INSURING EMPLOYER OF A CLAIM
OR OF A CONDITION IN THE CLAIM AS COMPENSABLE, BUT SHALL DO NO
MORE THAN SATISFY THE REQUIREMENTS OF SECTION 4123.84 OF THE
REVISED
CODE.
Sec. 4123.57. Partial disability compensation shall
be paid as follows.
(A)(1) Except as provided in DIVISION (A)(2) OF this
section, not earlier than forty
weeks after the date of termination of the latest period of
payments under section 4123.56 of the Revised Code, or not
earlier than forty weeks after the date of the injury or
contraction THE DATE OF FIRST DIAGNOSIS of an occupational
disease BY A LICENSED PHYSICIAN in the absence of payments
under section 4123.56 of the Revised Code, the AN employee may
file an application with the bureau of workers' compensation for
the
determination of the percentage of his THE EMPLOYEE'S permanent
partial
disability IMPAIRMENT resulting from the AN injury
or occupational disease.
(2) AN
EMPLOYEE MAY FILE THE APPLICATION SPECIFIED IN DIVISION (A)(1) OF
THIS SECTION WITHOUT
WAITING FORTY WEEKS WHEN EITHER OF THE FOLLOWING OCCURS:
(a) THE RECEIPT OF PAYMENTS UNDER DIVISION (A) OF
SECTION
4123.56 OF THE REVISED
CODE IS TERMINATED BY A HEARING OFFICER
BECAUSE THE EMPLOYEE HAS REACHED MAXIMUM MEDICAL
IMPROVEMENT.
(b) THE RECEIPT OF BENEFITS UNDER DIVISION (A) OF
SECTION
4123.56 of the Revised Code IS TERMINATED BECAUSE THE EMPLOYEE'S ATTENDING PHYSICIAN
CERTIFIES THAT THE EMPLOYEE HAS REACHED MAXIMUM MEDICAL IMPROVEMENT.
(3) Whenever the AN application is filed UNDER
DIVISION (A)(1) OR (2) OF THIS SECTION, the bureau shall send a
copy of the application to the employee's employer or the
employer's representative and shall schedule the employee for a
medical examination by the bureau medical section. The bureau
shall send a copy of the report of the medical examination to the
employee, the employer, and their representatives. Thereafter,
the administrator of workers' compensation shall review the
employee's claim file and make a tentative order as the evidence
before him at the time of the making of the order warrants. If
the administrator determines that there is a conflict of
evidence, he shall send the application, along with the
claimant's file, to the district hearing officer who shall set
the application for a hearing THE REPORT OF THE MEDICAL EXAMINATION
SHALL CONTAIN A
STATEMENT OF THE EXAMINER'S FINDING ON THE EMPLOYEE'S PERCENTAGE
OF PERMANENT PARTIAL IMPAIRMENT RESULTING FROM ALLOWED
CONDITIONS IN THE CLAIM UNDER THE MOST RECENT EDITION OF THE
AMERICAN MEDICAL ASSOCIATION'S
GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT. AFTER
RECEIVING THE REPORT OF THE MEDICAL EXAMINATION, THE
ADMINISTRATOR OF WORKERS' COMPENSATION SHALL MAKE A TENTATIVE
ORDER FINDING THAT THE EMPLOYEE'S PERCENTAGE OF PERMANENT
PARTIAL IMPAIRMENT IS THE SAME PERCENTAGE SHOWN BY THE REPORT OF
THE MEDICAL EXAMINATION, UNLESS THE ADMINISTRATOR DETERMINES
THAT THE REPORT CLEARLY IS ERRONEOUS. IF THE ADMINISTRATOR
DETERMINES THAT THE REPORT CLEARLY IS ERRONEOUS, THE ADMINISTRATOR SHALL
DISREGARD THE REPORT,
SCHEDULE THE EMPLOYEE FOR ANOTHER EXAMINATION BY THE BUREAU
MEDICAL SECTION, AND ISSUE A TENTATIVE ORDER THAT FINDS THAT THE
EMPLOYEE'S PERCENTAGE OF PERMANENT PARTIAL IMPAIRMENT IS THE
SAME PERCENTAGE SHOWN BY THE SECOND MEDICAL EXAMINATION
REPORT.
(4) The administrator shall notify the employee, the employer,
and their representatives, in writing, of the tentative order and
of the parties' right to request a hearing. Unless the employee,
the employer, or their representative notifies the administrator,
in writing, of an objection to the tentative order within twenty
days after receipt of the notice thereof, the tentative order
shall go into effect and the employee shall receive the
compensation provided in the order. In no event shall there be a
reconsideration of a tentative order issued under this division
WITHIN FOURTEEN DAYS AFTER RECEIPT OF THE TENTATIVE ORDER,
THE EMPLOYEE, THE EMPLOYER, OR THEIR REPRESENTATIVES, MAY FILE WITH THE
BUREAU
AN OBJECTION TO THE
TENTATIVE ORDER. THE OPPOSING PARTY MUST BE SERVED BY THE
FILING PARTY WITH A COPY OF THE OBJECTION TO THE TENTATIVE ORDER NOT
LATER THAN THE DAY OF FILING. PROPER MAILING OF
THE OBJECTION TO THE TENTATIVE
ORDER TO THE OPPOSING PARTY CONSTITUTES SERVICE. IF
AN OBJECTION TO THE TENTATIVE ORDER IS NOT FILED BY A PARTY BY THE
DEADLINE ESTABLISHED BY DIVISION (A)(4) OF THIS SECTION, THE ORDER
BECOMES FINAL.
(5) If the employee, the employer, or their representatives
timely notify the administrator of an objection to the tentative
order,
EITHER PARTY, WITHIN FOURTEEN DAYS
AFTER THE DATE OF FILING OR OF RECEIPT OF AN OBJECTION, WHICHEVER IS LATER,
MAY
REQUEST ANOTHER EXAMINATION BY THE BUREAU MEDICAL SECTION. THE PARTY
REQUESTING THAT EXAMINATION SHALL PAY THE COST OF THAT EXAMINATION. UPON THAT
REQUEST, THE BUREAU SHALL SCHEDULE THE EMPLOYEE FOR ANOTHER MEDICAL
EXAMINATION
BY THE BUREAU MEDICAL SECTION. ALL PROVISIONS OF DIVISION
(A)(3) OF THIS SECTION APPLICABLE TO THE FIRST
MEDICAL EXAMINATION APPLY TO A SUBSEQUENT MEDICAL EXAMINATION REQUESTED
PURSUANT TO DIVISION (A)(5) OF THIS SECTION.
THE BUREAU SHALL SEND A COPY OF THE REPORT OF THE MEDICAL EXAMINATION TO THE
EMPLOYEE, THE EMPLOYER, AND THEIR REPRESENTATIVES.
UPON THE FILING OF AN OBJECTION TO THE TENTATIVE ORDER OR UPON THE
COMPLETION OF THE MEDICAL EXAMINATION REQUESTED PURSUANT TO DIVISION
(A)(5) OF THIS SECTION, WHICHEVER IS
LATER,
the matter shall be referred to a district hearing officer
who shall set the application for hearing with written notices to
all interested persons. Upon referral to a district hearing
officer, the employer may obtain a medical examination of the
employee, pursuant to rules of the industrial commission AT THE
HEARING, THE DISTRICT HEARING OFFICER FIRST SHALL MAKE A FINDING AS TO WHETHER
ANY OF THE FOLLOWING HAS
OCCURRED:
(a) THE BUREAU MEDICAL SECTION BASED ITS REPORT, AT
LEAST IN PART, ON CONDITIONS NOT ALLOWED IN THE CLAIM;
(b) THE BUREAU MEDICAL SECTION FAILED TO CONSIDER ALL
OF THE ALLOWED CONDITIONS IN THE CLAIM;
(c) THE BUREAU MEDICAL SECTION'S EXAMINER WAS
PREJUDICED AGAINST THE EMPLOYER OR THE EMPLOYEE;
(d) THE TENTATIVE ORDER PROVIDES FOR THE PAYMENT OF
COMPENSATION UNDER A CIRCUMSTANCE IN WHICH THAT COMPENSATION IS
BARRED BY THIS SECTION OR ANY OTHER PROVISION OF LAW.
(A) The district hearing officer, upon the
application, shall determine the percentage of the employee's permanent
disability, except as is subject to division (B) of this section,
based upon that condition of the employee resulting from the
injury or occupational disease and causing permanent impairment
evidenced by medical or clinical findings reasonably
demonstrable. The employee shall receive sixty-six and
two-thirds per cent of his average weekly wage, but not more than
a maximum of thirty-three and one-third per cent of the statewide
average weekly wage as defined in division (C) of section 4123.62
of the Revised Code, per week regardless of the average weekly
wage, for the number of weeks which equals the percentage of two
hundred weeks. Except on application for reconsideration,
review, or modification, which is filed within ten days after the
date of receipt of the decision of the district hearing officer,
in no instance shall the former award be modified unless it is
found from medical or clinical findings that the condition of the
claimant resulting from the injury has so progressed as to have
increased the percentage of permanent partial disability. A
staff hearing officer shall hear an application for
reconsideration filed and his decision is final. An IF THE
DISTRICT HEARING OFFICER FINDS ONE OF THE SITUATIONS DESCRIBED
IN DIVISION (A)(5)(a), (b), OR
(c) OF THIS SECTION, THE DISTRICT HEARING OFFICER SHALL ISSUE AN
ORDER REJECTING THE REPORT OF THE MEDICAL EXAMINATION AND
REQUIRING THE BUREAU MEDICAL SECTION TO PERFORM A NEW MEDICAL
EXAMINATION. ALL PROVISIONS OF THIS DIVISION APPLICABLE TO THE FIRST
MEDICAL EXAMINATION
AND THE DETERMINATION OF THE PERCENTAGE OF PERMANENT PARTIAL IMPAIRMENT APPLY
TO ANY SUBSEQUENT MEDICAL EXAMINATION THAT IS ORDERED UNDER THIS DIVISION. IF
THE
DISTRICT HEARING OFFICER FINDS THE SITUATION DESCRIBED IN
DIVISION (A)(5)(d) OF THIS
SECTION, THE DISTRICT HEARING OFFICER SHALL ISSUE AN ORDER
DENYING THE APPLICATION. IF
THE DISTRICT HEARING OFFICER FINDS NONE OF THE SITUATIONS DESCRIBED IN
DIVISION
(A)(5)(A),
(B), (C), OR (D) OF
THIS SECTION, THE DISTRICT HEARING OFFICER SHALL ISSUE AN ORDER FINDING THAT
THE EMPLOYEE'S PERCENTAGE OF PERMANENT PARTIAL IMPAIRMENT IS THE SAME
PERCENTAGE SHOWN BY EITHER THE FIRST OR ANY SUBSEQUENT BUREAU MEDICAL
EXAMINATION REPORT.
(6) AN employee may
file an application for a subsequent determination of the
percentage of his THE EMPLOYEE'S permanent disability
IMPAIRMENT. NO APPLICATION FOR SUBSEQUENT
PERCENTAGE DETERMINATIONS ON THE SAME CLAIM FOR INJURY OR OCCUPATIONAL DISEASE
SHALL BE ACCEPTED UNLESS SUPPORTED BY SUBSTANTIAL EVIDENCE OF NEW AND CHANGED
CIRCUMSTANCES DEVELOPING SINCE THE TIME OF THE LAST DETERMINATION.
If such an application
is filed UNDER DIVISION (A)(6) OF THIS SECTION, the bureau
shall send a copy of the application to the
employer or the employer's representative. No sooner than sixty
days from the date of the mailing of the application to the
employer or the employer's representative, the administrator
shall review the application. The administrator may require a
medical examination or medical review of the employee. The
administrator shall issue a tentative order based upon the
evidence before him, provided that if he requires a medical
examination or medical review, the administrator shall not issue
the tentative order until the completion of the examination or
review.
The employer may obtain a medical examination of the
employee and may submit medical evidence at any stage of the
process up to a hearing before the district hearing officer,
pursuant to rules of the commission. The administrator shall
notify the employee, the employer, and their representatives, in
writing, of the nature and amount of any tentative order issued
on an application requesting a subsequent determination of the
percentage of an employee's permanent disability. An employee,
employer, or their representatives may object to the tentative
order within twenty days after the receipt of the notice thereof.
If no timely objection is made, the tentative order shall go into
effect. In no event shall there be a reconsideration of a
tentative order issued under this division. If an objection is
timely made, the application for a subsequent determination shall
be referred to a district hearing officer who shall set the
application for a hearing with written notice to all interested
persons. No application for subsequent percentage determinations
on the same claim for injury or occupational disease shall be
accepted for review by the district hearing officer unless
supported by substantial evidence of new and changed
circumstances developing since the time of the hearing on the
original or last determination.
No award shall be made under this division
based upon a
percentage of disability which, when taken with
all other percentages of permanent disability,
exceeds one
hundred per cent. If the percentage of the permanent disability
of the employee equals or exceeds ninety per cent, compensation for
permanent partial disability shall be paid for
two
hundred weeks.TREAT THE APPLICATION AS THOUGH
IT WAS AN ORIGINAL APPLICATION FOR THE DETERMINATION OF THE PERCENTAGE OF
PERMANENT PARTIAL IMPAIRMENT. IN NO INSTANCE SHALL THE FORMER AWARD BE
MODIFIED UNLESS IT IS FOUND FROM MEDICAL OR CLINICAL FINDINGS THAT THE
CONDITION OF THE EMPLOYEE RESULTING FROM THE INJURY OR OCCUPATIONAL DISEASE
HAS
SO PROGRESSED AS TO HAVE INCREASED THE PERCENTAGE OF PERMANENT PARTIAL
IMPAIRMENT. ALL PROVISIONS OF THIS DIVISION APPLICABLE TO AN ORIGINAL
APPLICATION APPLY TO AN APPLICATION FOR SUBSEQUENT DETERMINATION. THE
DECISION
OF A DISTRICT HEARING OFFICER ON AN EMPLOYEE'S APPLICATION FILED UNDER
DIVISION
(A)(1), (2), AND (6) OF THIS SECTION IS
FINAL.
(7) Compensation payable under this division (A)
OF THIS
SECTION accrues and is
payable to the employee from the date of last payment of
compensation, or, in cases where no previous compensation has
been paid, from the date of the injury or the date of the
FIRST diagnosis of the occupational disease BY A LICENSED
PHYSICIAN. THE EMPLOYEE SHALL RECEIVE SIXTY-SIX AND TWO-THIRDS PER
CENT OF THE EMPLOYEE'S AVERAGE WEEKLY WAGE, BUT NOT MORE THAN A MAXIMUM OF
THIRTY-THREE AND ONE-THIRD PER CENT OF THE STATEWIDE
AVERAGE WEEKLY WAGE AS DEFINED IN DIVISION
(C) OF SECTION 4123.62 OF THE
REVISED CODE, PER WEEK REGARDLESS OF THE AVERAGE WEEKLY WAGE
FOR THE NUMBER OF WEEKS THAT EQUALS THE PERCENTAGE OF
TWO
HUNDRED WEEKS. IF THE PERCENTAGE OF THE PERMANENT IMPAIRMENT OF THE EMPLOYEE
EQUALS OR EXCEEDS NINETY PER CENT, COMPENSATION FOR PERMANENT PARTIAL
IMPAIRMENT SHALL BE PAID FOR TWO HUNDRED WEEKS. NO AWARD SHALL BE MADE UNDER
DIVISION (A) OF THIS SECTION BASED UPON A
PERCENTAGE OF IMPAIRMENT THAT, WHEN TAKEN WITH ALL OTHER PERCENTAGES OF
PERMANENT IMPAIRMENT, EXCEEDS ONE HUNDRED PER CENT.
NOTWITHSTANDING DIVISION (H) OF SECTION
4123.511 OF THE REVISED
CODE, THE BUREAU OR A SELF-INSURING EMPLOYER
SHALL PAY A PERMANENT PARTIAL IMPAIRMENT AWARD WITHIN TWENTY-ONE DAYS AFTER
THE
DATE ON WHICH AN ORDER FIXING THE EMPLOYEE'S PERCENTAGE OF PERMANENT PARTIAL
IMPAIRMENT BECOMES FINAL.
(8) When an award under this division (A) OF THIS
SECTION
has been made prior to
the death of an employee, all unpaid installments accrued or to
accrue under the provisions of the award are payable to the
surviving spouse, or if there is no surviving spouse, to the
dependent children of the employee, and if there are no children
surviving, then to other dependents as the administrator
determines.
(B) In cases included in the following schedule the
compensation payable per week to the employee is the statewide
average weekly wage as defined in division (C) of section 4123.62
of the Revised Code per week and shall continue during the
periods provided in the following schedule:
For the loss of a thumb, sixty weeks.
For the loss of a first finger, commonly called index
finger, thirty-five weeks.
For the loss of a second finger, thirty weeks.
For the loss of a third finger, twenty weeks.
For the loss of a fourth finger, commonly known as the
little finger, fifteen weeks.
The loss of a second, or distal, phalange of the thumb is
considered equal to the loss of one half of such thumb; the loss
of more than one half of such thumb is considered equal to the
loss of the whole thumb.
The loss of the third, or distal, phalange of any finger is
considered equal to the loss of one-third of the finger.
The loss of the middle, or second, phalange of any finger
is considered equal to the loss of two-thirds of the finger.
The loss of more than the middle and distal phalanges of
any finger is considered equal to the loss of the whole finger.
In no case shall the amount received for more than one finger
exceed the amount provided in this schedule for the loss of a
hand.
For the loss of the metacarpal bone (bones of the palm) for
the corresponding thumb, or fingers, add ten weeks to the number
of weeks under this division.
For ankylosis (total stiffness of) or contractures (due to
scars or injuries) which makes any of the fingers, thumbs, or
parts of either useless, the same number of weeks apply to the
members or parts thereof as given for the loss thereof.
If the claimant has suffered the loss of two or more
fingers by amputation or ankylosis and the nature of his THE
CLAIMANT'S
employment in the course of which the claimant was working at the
time of the injury or occupational disease is such that the
handicap or disability IMPAIRMENT resulting from the loss of
fingers, or
loss of use of fingers, exceeds the normal handicap or disability
IMPAIRMENT
resulting from the loss of fingers, or loss of use of fingers,
the administrator may take that fact into consideration and
increase the award of compensation accordingly, but the award
made shall not exceed the amount of compensation for loss of a
hand.
For the loss of a hand, one hundred seventy-five weeks.
For the loss of an arm, two hundred twenty-five weeks.
For the loss of a great toe, thirty weeks.
For the loss of one of the toes other than the great toe,
ten weeks.
The loss of more than two-thirds of any toe is considered
equal to the loss of the whole toe.
The loss of less than two-thirds of any toe is considered
no loss, except as to the great toe; the loss of the great toe up
to the interphalangeal joint is co-equal to the loss of one-half
of the great toe; the loss of the great toe beyond the
interphalangeal joint is considered equal to the loss of the
whole great toe.
For the loss of a foot, one hundred fifty weeks.
For the loss of a leg, two hundred weeks.
For the loss of the sight of an eye, one hundred
twenty-five weeks.
For the permanent partial loss of sight of an eye, the
portion of one hundred twenty-five weeks as the administrator in
each case determines, based upon the percentage of vision
actually lost as a result of the injury or occupational disease,
but, in no case shall an award of compensation be made for less
than twenty-five per cent loss of uncorrected vision. "Loss of
uncorrected vision" means the percentage of vision actually lost
as the result of the injury or occupational disease.
For the permanent and total loss of hearing of one ear,
twenty-five weeks; but in no case shall an award of compensation
be made for less than permanent and total loss of hearing of one
ear.
For the permanent and total loss of hearing, one hundred
twenty-five weeks; but, except pursuant to the next preceding
paragraph, in no case shall an award of compensation be made for
less than permanent and total loss of hearing.
In case an injury or occupational disease results in
serious facial or head disfigurement which either impairs or may
in the future impair the opportunities to secure or retain
employment, the administrator shall make an award of compensation
as it THE ADMINISTRATOR deems proper and equitable, in view of
the nature of the
disfigurement, and not to exceed the sum of five thousand
dollars. For the purpose of making the award, it is not material
whether the employee is gainfully employed in any occupation or
trade at the time of the administrator's determination.
When an award under this division has been made prior to
the death of an employee all unpaid installments accrued or to
accrue under the provisions of the award shall be payable to the
surviving spouse, or if there is no surviving spouse, to the
dependent children of the employee and if there are no such
children, then to such dependents as the administrator
determines.
When an employee has sustained the loss of a member by
severance, but no award has been made on account thereof prior to
his THE EMPLOYEE'S death, the administrator shall make an award
in accordance
with this division for the loss which shall be payable to the
surviving spouse, or if there is no surviving spouse, to the
dependent children of the employee and if there are no such
children, then to such dependents as the administrator
determines.
(C) Compensation for partial disability IMPAIRMENT under
divisions
(A) and (B) of this section is in addition to the compensation
paid the employee pursuant to section 4123.56 of the Revised
Code. A claimant may receive compensation under divisions (A)
and (B) of this section. NO EMPLOYEE MAY RECEIVE
COMPENSATION UNDER DIVISION (A) OF THIS
SECTION OR RECEIVE A MEDICAL EXAMINATION PROVIDED FOR BY THIS SECTION DURING
THE TIME IN WHICH THAT EMPLOYEE IS RECEIVING COMPENSATION UNDER SECTION
4123.58
OF THE REVISED
CODE IN ANY CLAIM OR IS RECEIVING COMPENSATION
UNDER SECTION 4123.56 OF THE REVISED
CODE ON THE SAME CLAIM IN WHICH THE EMPLOYEE
IS SEEKING COMPENSATION UNDER THIS SECTION. THE EMPLOYEE SHALL LIST ON THE
APPLICATION SPECIFIED IN DIVISIONS (A)(1) AND
(2) OF THIS SECTION THE CLAIM NUMBERS OF ALL OTHER CLAIMS FOR WHICH THE
EMPLOYEE IS A CLAIMANT.
In all cases arising under division (B) of this section, if
it is determined by any one of the following: (1) the amputee
clinic at University hospital, Ohio state university; (2) the
rehabilitation services commission; (3) an amputee clinic or
prescribing physician approved by the administrator or his THE
ADMINISTRATOR'S
designee, that an injured or disabled IMPAIRED employee is in
need of an
artificial appliance, or in need of a repair thereof, regardless
of whether the appliance or its repair will be serviceable in the
vocational rehabilitation of the injured employee, and regardless
of whether the employee has returned to or can ever again return
to any gainful employment, the bureau shall pay the cost of the
artificial appliance or its repair out of the surplus created by
division (B) of section 4123.34 of the Revised Code.
In those cases where a rehabilitation services commission
recommendation that an injured or disabled IMPAIRED employee is
in need of
an artificial appliance would conflict with their state plan,
adopted pursuant to the "Rehabilitation Act of 1973," 87 Stat.
355, 29 U.S.C.A. 701, the administrator or his THE
ADMINISTRATOR'S designee or the
bureau may obtain a recommendation from an amputee clinic or
prescribing physician that they determine appropriate.
(D) If an employee of a state fund employer makes
application for a finding and the administrator finds that he
has IS FOUND TO HAVE
contracted silicosis as defined in division (X), or coal miners'
pneumoconiosis as defined in division (Y), or asbestosis as
defined in division (AA) of section 4123.68 of the Revised Code,
and IT IS FOUND that a change of such employee's occupation is
medically
advisable in order to decrease substantially further exposure to
silica dust, asbestos, or coal dust and if the employee, after
the finding, has changed or shall change his THE EMPLOYEE'S
occupation to an
occupation in which the exposure to silica dust, asbestos, or
coal dust is substantially decreased, the administrator shall
allow to the employee SHALL RECEIVE an amount equal to fifty per
cent of the
statewide average weekly wage per week for a period of thirty
weeks, commencing as of the date of the discontinuance or change,
and for a period of one hundred weeks immediately following the
expiration of the period of thirty weeks the administrator shall
allow, the employee SHALL RECEIVE sixty-six and two-thirds
per cent of the loss
of wages resulting directly and solely from the change of
occupation but not to exceed a maximum of an amount equal to
fifty per cent of the statewide average weekly wage per week. No
such employee is entitled to receive more than one allowance on
account of discontinuance of employment or change of occupation
and benefits shall cease for any period during which the employee
is employed in an occupation in which the exposure to silica
dust, asbestos, or coal dust is not substantially less than the
exposure in the occupation in which he THE EMPLOYEE was formerly
employed or
for any period during which the employee may be entitled to
receive compensation or benefits under section 4123.68 of the
Revised Code on account of disability from silicosis, asbestosis,
or coal miners' pneumoconiosis. An award for change of
occupation for a coal miner who has contracted coal miners'
pneumoconiosis may be granted under this division even though he THE
COAL MINER
continues his employment with the same employer, so long as his
THE COAL MINER'S
employment subsequent to the change is such that his THE COAL
MINER'S exposure to
coal dust is substantially decreased and a change of occupation
is certified by the claimant as permanent. The administrator may
accord to the employee medical MEDICAL and other benefits SHALL
BE PAID TO THE EMPLOYEE in accordance
with section 4123.66 of the Revised Code.
(E) If a fire fighter FIREFIGHTER or police officer makes
application
for a finding and the administrator finds that he THE FIREFIGHTER OR
POLICE OFFICER has contracted
a cardiovascular and pulmonary disease as defined in division (W)
of section 4123.68 of the Revised Code, and that a change of the
fire fighter's FIREFIGHTER'S or police officer's occupation is
medically
advisable in order to decrease substantially further exposure to
smoke, toxic gases, chemical fumes, and other toxic vapors, and
if the fire fighter FIREFIGHTER, or police officer, after the
finding, has
changed or changes his occupation to an occupation in which the
exposure to smoke, toxic gases, chemical fumes, and other toxic
vapors is substantially decreased, the administrator shall allow
to the fire fighter FIREFIGHTER or police officer an amount
equal to fifty
per cent of the statewide average weekly wage per week for a
period of thirty weeks, commencing as of the date of the
discontinuance or change, and for a period of seventy-five weeks
immediately following the expiration of the period of thirty
weeks the administrator shall allow the fire fighter FIREFIGHTER
or police
officer sixty-six and two-thirds per cent of the loss of wages
resulting directly and solely from the change of occupation but
not to exceed a maximum of an amount equal to fifty per cent of
the statewide average weekly wage per week. No such fire fighter
FIREFIGHTER
or police officer is entitled to receive more than one allowance
on account of discontinuance of employment or change of
occupation and benefits shall cease for any period during which
the fire fighter FIREFIGHTER or police officer is employed in an
occupation
in which the exposure to smoke, toxic gases, chemical fumes, and
other toxic vapors is not substantially less than the exposure in
the occupation in which he THE FIREFIGHTER OR POLICE OFFICER was
formerly employed or for any
period during which the fire fighter FIREFIGHTER or police
officer may be
entitled to receive compensation or benefits under section
4123.68 of the Revised Code on account of disability from a
cardiovascular and pulmonary disease. The administrator may
accord to the fire fighter FIREFIGHTER or police officer medical
and other
benefits in accordance with section 4123.66 of the Revised Code.
(F) An order issued under DIVISION (B), (D), OR
(E) OF this section is appealable
pursuant to section 4123.511 of the Revised Code but is not
appealable to court under section 4123.512 of the Revised Code.
Sec. 4123.58. (A) In cases of permanent total disability
IMPAIRMENT,
the employee shall receive an award to continue until his death
in the amount of sixty-six and two-thirds per cent of his THE
EMPLOYEE'S average
weekly wage, but, except as otherwise provided in division (B) of
this section, not more than a maximum amount of weekly
compensation which is equal to sixty-six and two-thirds per cent
of the statewide average weekly wage as defined in division (C)
of section 4123.62 of the Revised Code, nor not less than a
minimum amount of weekly compensation which is equal to fifty per
cent of the statewide average weekly wage as defined in division
(C) of section 4123.62 of the Revised Code, unless the employee's
average weekly wage is less than fifty per cent of the statewide
average weekly wage at the time of the injury, in which event he THE
EMPLOYEE shall receive compensation in an amount equal to his
THE EMPLOYEE'S average weekly wage. PERMANENT TOTAL
IMPAIRMENT MEANS THAT THE PHYSICAL OR MENTAL LIMITATIONS THAT
DIRECTLY RESULT FROM THE ALLOWED CONDITIONS IN THE EMPLOYEE'S
CLAIM OR CLAIMS PREVENT THE EMPLOYEE FROM ENGAGING IN
SUSTAINED REMUNERATIVE EMPLOYMENT. A STAFF HEARING OFFICER MAY CONSIDER AN
EMPLOYEE'S AGE IN
DETERMINING WHETHER THE EMPLOYEE IS PREVENTED FROM ENGAGING IN
SUSTAINED REMUNERATIVE EMPLOYMENT OR FROM ACQUIRING THE CAPACITY TO
ENGAGE IN SUSTAINED REMUNERATIVE EMPLOYMENT THROUGH TRAINING,
REHABILITATION, EDUCATION, OR OTHER SIMILAR EFFORTS, SUBJECT TO BOTH OF THE
FOLLOWING:
(1) AN EMPLOYEE IS NOT ENTITLED TO COMPENSATION FOR PERMANENT TOTAL
IMPAIRMENT WHEN THE EMPLOYEE'S AGE IS
THE PRIMARY REASON THAT THE
EMPLOYEE IS PREVENTED FROM ENGAGING IN OR FROM ACQUIRING THE
CAPACITY TO ENGAGE IN SUSTAINED REMUNERATIVE EMPLOYMENT;
(2) A STAFF HEARING OFFICER MAY DETERMINE WHETHER AN EMPLOYEE IS
ENTITLED TO COMPENSATION FOR PERMANENT TOTAL IMPAIRMENT WHEN THE EMPLOYEE'S
AGE
IS A REASON, BUT NOT THE PRIMARY REASON, THAT THE EMPLOYEE IS PREVENTED FROM
ENGAGING IN OR FROM ACQUIRING THE CAPACITY TO ENGAGE IN SUSTAINED REMUNERATIVE
EMPLOYMENT.
(B) In the event the weekly workers' compensation amount
when combined with disability benefits received pursuant to the
Social Security Act is less than the statewide average weekly
wage as defined in division (C) of section 4123.62 of the Revised
Code, then the maximum amount of weekly compensation shall be the
statewide average weekly wage as defined in division (C) of
section 4123.62 of the Revised Code. At any time that social
security disability benefits terminate or are reduced, the
workers' compensation award shall be recomputed to pay the
maximum amount permitted under this division.
(C) The loss or loss of use of both hands or both arms, or
both feet or both legs, or both eyes, or of any two thereof,
constitutes total and permanent disability IMPAIRMENT, to be
compensated
according to this section. Compensation payable under this
section for permanent total disability IMPAIRMENT is in addition
to benefits
payable under division (B) of section 4123.57 of the Revised
Code.
Sec. 4123.59. In case an injury to or an occupational
disease contracted by an employee causes his THE EMPLOYEE'S
death, benefits
shall be in the amount and to the persons following:
(A) If there are no dependents, the disbursements from the
state insurance fund is limited to the expenses provided for in
section 4123.66 of the Revised Code.
(B) If there are wholly dependent persons at the time of
the death, the weekly payment is sixty-six and two-thirds per
cent of the average weekly wage, but not to exceed a maximum
aggregate amount of weekly compensation which is equal to
sixty-six and two-thirds per cent of the statewide average weekly
wage as defined in division (C) of section 4123.62 of the Revised
Code, and not in any event less than a minimum amount of weekly
compensation which is equal to fifty per cent of the statewide
average weekly wage as defined in division (C) of section 4123.62
of the Revised Code, regardless of the average weekly wage;
provided however, that if the death is due to injury received or
occupational disease first diagnosed after January 1, 1976, the
weekly payment is sixty-six and two-thirds per cent of the
average weekly wage but not to exceed a maximum aggregate amount
of weekly compensation which is equal to the statewide average
weekly wage as defined in division (C) of section 4123.62 of the
Revised Code; provided that when any claimant is receiving total
disability OR IMPAIRMENT compensation at the time of death the wholly
dependent
person is eligible for the maximum compensation provided for in
this section. Where there is more than one person who is wholly
dependent at the time of the death of the employee, the
administrator of workers' compensation shall promptly apportion
the weekly amount of compensation payable under this section
among the dependent persons as provided in division (D) of this
section.
(1) The payment as provided in this section shall continue
from the date of death of an injured, IMPAIRED, or
disabled employee
until
the death or remarriage of such dependent spouse. If the
dependent spouse remarries, an amount equal to two years of
compensation benefits at the weekly amount determined to be
applicable to and being paid to the dependent spouse shall be
paid in a lump sum to such spouse and no further compensation
shall be paid to such spouse.
(2) That portion of the payment provided in division (B)
of this section applicable to wholly dependent persons other than
a spouse shall continue from the date of death of an injured,
IMPAIRED, or
disabled employee to a dependent as of the date of death, other
than a spouse, at the weekly amount determined to be applicable
and being paid to such dependent other than a spouse, until he THE
DEPENDENT:
(a) Reaches eighteen years of age;
(b) If pursuing a full time educational program while
enrolled in an accredited educational institution and program,
reaches twenty-five years of age;
(c) If mentally or physically incapacitated from having
any earnings, is no longer so incapacitated.
(C) If there are partly dependent persons at the time of
the death the weekly payment is sixty-six and two-thirds per cent
of the employee's average weekly wage, not to exceed sixty-six
and two-thirds per cent of the statewide average weekly wage as
defined in division (C) of section 4123.62 of the Revised Code,
and shall continue for such time as the administrator in each
case determines.
(D) The following persons are presumed to be wholly
dependent for their support upon a deceased employee:
(1) A surviving spouse who was living with the employee at
the time of death or a surviving spouse who was separated from
the employee at the time of death because of the aggression of
the employee;
(2) A child under the age of eighteen years, or
twenty-five years if pursuing a full-time educational program
while enrolled in an accredited educational institution and
program, or over said THAT age if physically or mentally
incapacitated
from earning, upon only the one parent who is contributing more
than one-half of the support for such child and with whom he THAT
CHILD is
living at the time of the death of such parent, or for whose
maintenance such parent was legally liable at the time of his THE
PARENT'S
death.
It is presumed that there is sufficient dependency to
entitle a surviving natural parent or surviving natural parents,
share and share alike, with whom the decedent was living at the
time of his death, to a total minimum award of three thousand
dollars.
The administrator may take into consideration any
circumstances which, at the time of the death of the decedent,
clearly indicate prospective dependency on the part of the
claimant and potential support on the part of the decedent. No
person shall be considered a prospective dependent unless such
person is a member of the family of the deceased employee and
bears to him THE DECEDENT the relation of surviving spouse,
lineal descendant,
ancestor, or brother, or sister. The total award for any or all
prospective dependency to all such claimants, except to a natural
parent or natural parents of the deceased, shall not exceed three
thousand dollars to be apportioned among them as the
administrator orders.
In all other cases, the question of dependency, in whole or
in part, shall be determined in accordance with the facts in each
particular case existing at the time of the injury resulting in
the death of such employee, but no person shall be considered as
dependent unless such person is a member of the family of the
deceased employee, or bears to him THE DECEDENT the relation of
surviving
spouse, lineal descendant, ancestor, or brother, or sister.
(E) An order issued by the administrator under this
section is appealable pursuant to sections 4123.511 to 4123.512
of the Revised Code.
Sec. 4123.60. (A) Benefits in case of death shall be paid to
such one or more of the dependents of the decedent, for the
benefit of all the dependents as the administrator of workers'
compensation determines. The administrator may apportion the
benefits among the dependents in such manner as he THE
ADMINISTRATOR deems just and
equitable. Payment to a dependent subsequent in right may be
made, if the administrator deems it proper, and operates to
discharge all other claims therefor. The dependents or person to
whom benefits are paid shall apply the same to the use of the
several beneficiaries thereof according to their respective
claims upon the decedent for support, in compliance with the
finding and direction of the administrator.
In all cases of death where the dependents are a surviving
spouse and one or more children, it is sufficient for the
surviving spouse to apply to the administrator on behalf of the
spouse and minor children. In cases where all the dependents are
minors, a guardian or next friend of such minor dependents shall
apply.
In all cases where an award had been made on account of
temporary DISABILITY, or permanent partial IMPAIRMENT, or
total
disability OR IMPAIRMENT, in which
there remains an unpaid balance, representing payments accrued
and due to the decedent at the time of his death, the
administrator may, after satisfactory proof has been made
warranting such action, MAY award or pay any unpaid balance of such
award to such of the dependents of the decedent, or for services
rendered on account of the last illness or death of such THAT
decedent, as the administrator determines in accordance with the
circumstances in each such case. If the decedent would have been
lawfully entitled to have applied for an award at the time of his
death, the administrator may, after satisfactory proof to
warrant
an award and payment, MAY award and pay an amount, not exceeding the
compensation which the decedent might have received, but for his THE
DECEDENT'S
death, for the period prior to the date of his death, to such of
the dependents of the decedent, or for services rendered on
account of the last illness or death of such decedent, as the
administrator determines in accordance with the circumstances in
each such case, but such payments may be made only in cases in
which application for compensation was made in the manner
required by this chapter, during the lifetime of such injured,
IMPAIRED, or
disabled person, or within one year after the death of such THAT
injured, IMPAIRED, or disabled person.
An order issued by the administrator under this section DIVISION
is
appealable pursuant to section 4123.511 of the Revised Code but
is not appealable to court under section 4123.512 of the Revised
Code.
(B) THE DEATH OF A CLAIMANT WHO IS ENTITLED TO PAYMENT UNDER A
SETTLEMENT AGREED TO AND EFFECTIVE IN ACCORDANCE WITH SECTION 4123.65 of the Revised Code
DOES NOT ABATE THAT SETTLEMENT. PAYMENT OF THAT SETTLEMENT SHALL BE MADE TO
THE CLAIMANT'S ESTATE.
Sec. 4123.61. The average weekly wage of an injured
employee at the time of the injury or at the time disability
due to the occupational disease begins is the basis upon which to
compute benefits. FOR OCCUPATIONAL DISEASE CLAIMS, THE AVERAGE WEEKLY WAGE
AT THE DATE OF DISEASE
IS THE BASIS UPON WHICH TO COMPUTE BENEFITS.
In cases of temporary total disability the compensation for
the first twelve weeks for which compensation is payable shall be
based on the full weekly wage of the claimant at the time of the
injury or at the time disability due to occupational DATE OF
disease begins; when a
factory, mine, or other place of employment is
working short time in order to divide work among the employees,
the bureau of workers' compensation shall take that fact into
consideration when determining the wage for the first twelve
weeks of temporary total disability.
Compensation for all further temporary total disability
shall be based as provided for permanent disability IMPAIRMENT
claims.
In death, permanent total disability IMPAIRMENT CLAIMS,
permanent
partial
disability IMPAIRMENT claims, and impairment of earnings claims,
the
claimant's or the decedent's average weekly wage for the year
preceding the injury or AT the date the disability due to the
occupational OF disease begins is the
weekly wage upon which
compensation shall be based. In ascertaining the average weekly
wage for the year previous to the injury, or the date the
disability due to the occupational OF disease
begins, any period of
unemployment due to sickness, industrial depression, strike,
lockout, or other cause beyond the employee's control shall be
eliminated.
In cases where there are special circumstances under which
the average weekly wage cannot justly be determined by applying
this section, the administrator of workers' compensation, in
determining the average weekly wage in such cases, shall use such
method as will enable him THE ADMINISTRATOR to do substantial
justice to the
claimants.
FOR PURPOSES OF THIS SECTION, "SPECIAL CIRCUMSTANCES" DOES NOT
INCLUDE AND THE ADMINISTRATOR SHALL NOT ADJUST THE AVERAGE
WEEKLY WAGE FOR A CLAIMANT FOR ANY PERIOD OF TIME IN WHICH THE
CLAIMANT IS ENROLLED AS A FULL- OR PART-TIME STUDENT IN A PUBLIC
OR PRIVATE COLLEGE OR UNIVERSITY, INCLUDING A TECHNICAL COLLEGE CREATED
PURSUANT TO CHAPTER 3357. of the Revised Code OR A COMMUNITY COLLEGE
AS DEFINED IN SECTION 3354.01 OF THE
REVISED
CODE.
A DETERMINATION MADE BY THE ADMINISTRATOR UNDER THIS SECTION IS APPEALABLE
PURSUANT TO SECTION 4123.511 of the Revised Code, BUT IT IS NOT APPEALABLE TO COURT UNDER
SECTION 4123.512 of the Revised Code.
AS USED IN THIS SECTION, "DATE OF DISEASE" MEANS THE DATE
AN OCCUPATIONAL DISEASE IS FIRST DIAGNOSED BY A LICENSED PHYSICIAN, OR FOR AN
OCCUPATIONAL DISEASE DESCRIBED IN DIVISIONS
(A) THROUGH
(AA) OF SECTION 4123.68 OF THE
REVISED CODE
OR OTHER OCCUPATIONAL DISEASE THAT RESULTS FROM EXPOSURE TO FIBROSIS-PRODUCING
OR TOXIC DUSTS, FUMES, MISTS, VAPORS, GASES, OR LIQUIDS, OR OTHER TOXIC
MATERIALS, OR A COMBINATION OF THOSE, THE DATE THAT THE EMPLOYEE
FIRST MISSES WORK AS A RESULT OF THE OCCUPATIONAL DISEASE.
Sec. 4123.62. (A) If it is established that an injured,
IMPAIRED, or
disabled employee was of such age and experience when injured,
IMPAIRED, or
disabled as that under natural conditions his THE EMPLOYEE'S
wages would be
expected to increase, the administrator of workers' compensation
may consider that fact in arriving at his THE EMPLOYEE'S average
weekly wage,
EXCEPT THAT THE ADMINISTRATOR SHALL NOT CONSIDER AND SHALL
NOT ADJUST THE AVERAGE WEEKLY WAGE FOR AN EMPLOYEE FOR ANY
PERIOD OF TIME IN WHICH THE EMPLOYEE IS ENROLLED AS A FULL- OR
PART-TIME STUDENT IN A PUBLIC OR PRIVATE COLLEGE OR UNIVERSITY,
INCLUDING A TECHNICAL COLLEGE CREATED PURSUANT TO CHAPTER 3357. of the Revised Code
OR A COMMUNITY COLLEGE AS DEFINED IN SECTION 3354.01 OF
THE REVISED
CODE.
(B) On each first day of January, the current maximum
monthly benefit amounts provided in sections 4123.412, 4123.413,
and 4123.414 of the Revised Code in injury cases shall be
adjusted based on the United States department of labor's
national consumer price index. The percentage increase in the
cost of living using the index figure for the first day of
September of the preceding year and the first day of September of
the year preceding that year shall be applied to the maximums in
effect on the preceding thirty-first day of December to obtain
the increase in the cost of living during that year.
In determining the increase in the maximum benefits for any
year after 1972, the base shall be the national consumer price
index on the first day of September of the preceding year. The
increase in the index for the applicable twelve-month period
shall be determined and shall be divided by the base used. The
resulting percentage shall be applied to the existing maximums to
arrive at the new maximums.
(C) Effective January 1, 1974, and each first day of
January thereafter, the current maximum weekly benefit amounts
provided in sections 4123.56, 4123.58, and 4123.59, and division
(B) of section 4123.57 of the Revised Code shall be adjusted
based on the increase or decrease in the statewide average weekly
wage.
"Statewide average weekly wage" means the average weekly
earnings of all workers in Ohio employment subject to Chapter
4141. of the Revised Code as determined as of the first day of
September for the four full calendar quarters preceding the first
day of July of each year, by the administrator of the bureau of
employment services.
The statewide average weekly wage to be used for the
determination of compensation for any employee who sustains an
injury, or death WHO DIES, or who contracts
an occupational disease WITH A DATE OF DISEASE THAT ARISES during
the subsequent calendar year beginning with the first day of
January, shall be the statewide average weekly wage so determined
as of the prior first day of September adjusted to the next
higher even multiple of one dollar.
Any change in benefit amounts is effective with respect to
injuries sustained, occupational diseases contracted,
and deaths
occurring during the calendar year for which adjustment is made.
In determining the change in the maximum benefits for any
year after 1978, the base shall be the statewide average weekly
wage on the first day of September of the preceding year.
AS USED IN THIS DIVISION, "DATE OF DISEASE" MEANS THE DATE AN
OCCUPATIONAL DISEASE IS FIRST DIAGNOSED BY A LICENSED PHYSICIAN, OR FOR AN
OCCUPATIONAL DISEASE DESCRIBED IN DIVISIONS
(A) THROUGH
(AA) OF SECTION 4123.68 OF THE
REVISED CODE,
OR OTHER OCCUPATIONAL DISEASE THAT RESULTS FROM EXPOSURE TO FIBROSIS-PRODUCING
OR TOXIC DUSTS, FUMES, MISTS, VAPORS, GASES, OR LIQUIDS, OR OTHER TOXIC
MATERIALS, OR A COMBINATION OF THOSE, THE DATE THAT THE EMPLOYEE
FIRST MISSES WORK AS A RESULT OF THE OCCUPATIONAL DISEASE.
Sec. 4123.64. (A) The administrator of workers'
compensation, under special circumstances, and when the same is
deemed advisable for the purpose of rendering the injured,
IMPAIRED, or
disabled employee financial relief or for the purpose of
furthering his THE EMPLOYEE'S rehabilitation, may commute
payments of
compensation or benefits to one or more lump-sum payments.
(B) The administrator shall adopt rules which set forth
the policy for awarding lump sum payments. The rules shall:
(1) Enumerate the allowable purposes for payments and the
conditions for making such awards;
(2) Enumerate the maximum reduction in compensation
allowable;
(3) Enumerate the documentation necessary to award a
lump-sum payment;
(4) Require that all checks include the claimant as a
payee, except where the check is for the payment of attorney's
fees in accordance with section 4123.06 of the Revised Code, in
which case the attorney shall be named as the only payee on the
check;
(5) Require a fully completed and current application
including notary and seal; and
(6) Specify procedures to make a claimant aware of the
reduction in amount of compensation which will occur.
(C) An order of the administrator issued under this
section is appealable pursuant to section 4123.551 of the Revised
Code but is not appealable to court under section 4123.512 of the
Revised Code.
Sec. 4123.65. (A) A state fund employer or the employee
of such an employer may file an application with the
administrator of workers' compensation for approval of a final
settlement of a claim under this chapter. The application shall
include the settlement agreement, AND EXCEPT AS OTHERWISE PROVIDED IN THIS
DIVISION, be signed by the claimant and
employer, and clearly set forth the circumstances by reason of
which the proposed settlement is deemed desirable and that the
parties agree to the terms of the settlement agreement provided
that the. A CLAIMANT MAY FILE AN APPLICATION
FOR AN AGREEMENT WITHOUT AN EMPLOYER'S SIGNATURE. IF A CLAIMANT
FILES AN AGREEMENT WITHOUT AN EMPLOYER'S SIGNATURE, AND THE
EMPLOYER STILL IS DOING BUSINESS IN THIS STATE, THE ADMINISTRATOR
SHALL SEND WRITTEN NOTICE OF THE APPLICATION TO THE EMPLOYER
IMMEDIATELY UPON RECEIPT OF THE APPLICATION, AND A SECOND WRITTEN NOTICE
WITHIN FORTY-FIVE DAYS AFTER THE FIRST NOTICE IS SENT, IF THE EMPLOYER DOES
NOT RESPOND TO THE FIRST NOTICE. IF THE EMPLOYER
FAILS TO RESPOND TO THE NOTICE WITHIN SIXTY DAYS AFTER RECEIPT
OF THE NOTICE, OR IF THE CLAIM THAT IS THE SUBJECT OF THE AGREEMENT NO LONGER
REMAINS IN THE ACCIDENT OR OCCUPATIONAL DISEASE EXPERIENCE OF THE EMPLOYER,
THE AGREEMENT NEED NOT CONTAIN THE EMPLOYER'S
SIGNATURE. AN agreement need not be signed by the AN
employer if the
employer WHO is no longer doing business in Ohio THIS
STATE. If a state fund
employer or an employee of such an employer has not filed an
application for a final settlement under this division, the
administrator may file an application on behalf of the employer
or the employee, provided that the administrator gives notice of
the filing to the employer and the employee and to the
representative of record of the employer and of the employee
immediately upon the filing. An application filed by the
administrator shall contain all of the information and signatures
required of an employer or an employee who files an application
under this division. Every self-insuring employer that enters
into a final settlement agreement with an employee shall mail,
within seven days of executing the agreement, a copy of the
agreement to the administrator and the employee's representative.
The administrator shall place the agreement into the claimant's
file.
(B) Except as provided in divisions (C) and (D) of this
section, a settlement agreed to under this section is binding
upon all parties thereto and as to items, injuries, and
occupational diseases to which the settlement applies.
(C) No settlement agreed to under division (A) of this
section or agreed to by a self-insuring employer and the
self-insuring employer's employee shall take effect until thirty days
after the administrator approves the settlement for state fund employees and
employers, or after the self-insuring employer and employee sign the final
settlement agreement. During the thirty-day period, the
employer, employee, or administrator, for state fund settlements,
and the employer or employee, for self-insuring settlements, may
withdraw consent to OR MAY OBJECT TO the settlement by an employer
providing
written notice to the employer's employee and the
administrator or by an
employee providing written notice to the employee's employer
and the administrator, or by the administrator providing written notice to the
state fund employer and employee.
(D) At the time of agreement to any final settlement
agreement under division (A) of this section or agreement between
a self-insuring employer and the self-insuring employer's
employee, IN CASES IN WHICH ONE OR MORE PARTIES TO THE AGREEMENT ARE
UNREPRESENTED, the administrator, for state fund settlements, and
the self-insuring
employer, for self-insuring settlements, immediately shall send a copy of the
agreement to the industrial commission who shall assign the
matter to a staff hearing officer. The staff hearing officer
shall determine, within the time limitations specified in
division (C) of this section, whether the settlement agreement is
or is not a gross miscarriage of justice CLEARLY UNFAIR. If the
staff hearing
officer determines within that time period that the settlement
agreement is clearly unfair, the staff hearing officer shall issue an order
disapproving the settlement agreement. If
the staff hearing officer determines that the settlement agreement is not
clearly unfair or fails to act within those time limits, the settlement
agreement is approved.
(E) A settlement entered into under this section may
pertain to one or more claims of a claimant, or one or more parts
of a claim, or the compensation or benefits pertaining to either,
or any combination thereof, provided that nothing in this section
shall be interpreted to require a claimant to enter into a
settlement agreement for every claim that has been filed with the
bureau of workers' compensation by that claimant under Chapter
4121., 4123., 4127., or 4131. of the Revised Code.
(F) A settlement entered into under this section is not
appealable under section 4123.511 or 4123.512 of the Revised
Code.
(G) FOR PURPOSES OF DETERMINING WHETHER A PARTY IS
UNREPRESENTED AS SPECIFIED IN DIVISION
(D) OF THIS SECTION, A PARTY IS
CONSIDERED REPRESENTED ONLY IF THE PARTY HAS THE SERVICES OF ONE
OF THE FOLLOWING PERSONS:
(1) AN ATTORNEY ADMITTED TO THE PRACTICE OF LAW IN THIS STATE;
(2) A DULY AUTHORIZED REPRESENTATIVE OF AN EMPLOYEE
ORGANIZATION RECOGNIZED BY THE EMPLOYER FOR COLLECTIVE
BARGAINING PURPOSES;
(3) A PERSON REGULARLY ENGAGED IN THE BUSINESS OF
PROVIDING WORKERS' COMPENSATION-RELATED SERVICES TO EMPLOYERS;
(4) AN EMPLOYEE OF THE SELF-INSURING EMPLOYER WHOSE JOB DUTIES OR
RESPONSIBILITIES INCLUDE PARTICIPATION IN THE ADMINISTRATION OF THE
SELF-INSURING EMPLOYER'S WORKERS' COMPENSATION PROGRAM.
Sec. 4123.651. (A) The employer of a claimant who is
injured, IMPAIRED, or disabled in the course of
his THE CLAIMANT'S employment may require,
without the approval of the administrator or the industrial
commission, that the claimant be examined by a physician of the
employer's choice one time upon any issue asserted by the
employee or a physician of the employee's choice or which is to
be considered by the commission. Any further requests for
medical examinations shall be made to the commission which shall
consider and rule on the request. The employer shall pay the
cost of any examinations initiated by the employer.
(B) The bureau of workers' compensation shall prepare a
form for the release of medical information, records, and reports
relative to the issues necessary for the administration of a
claim under this chapter. The claimant promptly shall provide a
current signed release of the information, records, and reports
when requested by the employer. The employer promptly shall
provide copies of all medical information, records, and reports
to the bureau and to the claimant or his THE CLAIMANT'S
representative upon
request.
(C) If, without good cause, an employee refuses to submit
to any examination scheduled under this section or refuses to
release or execute a release for any medical information, record,
or report that is required to be released under this section and
involves an issue pertinent to the condition alleged in the
claim, his THE EMPLOYEE'S right to have his THE
claim for compensation or benefits
considered, if his THE claim is pending before the
administrator,
THE commission, or a district or staff hearing officer, or to receive
any payment for compensation or benefits previously granted, is
suspended during the period of refusal.
(D) No bureau or commission employee shall alter any
medical report obtained from a health care provider the bureau or
commission has selected or cause or request the health care
provider to alter or change a report. The bureau and commission
shall make any request for clarification of a health care
provider's report in writing and shall provide a copy of the
request to the affected parties and their representatives at the
time of making the request.
Sec. 4123.66. (A) In addition to the compensation
provided for in this chapter, the administrator of workers'
compensation shall disburse and pay from the state insurance fund
the amounts for medical, nurse, and hospital services and
medicine as he THE ADMINISTRATOR deems proper, and, in
case death
ensues from the
injury or occupational disease, he THE ADMINISTRATOR shall
disburse and pay from
the fund reasonable funeral expenses in an amount not to exceed
thirty-two hundred dollars. The bureau of workers' compensation
shall reimburse anyone, whether dependent, volunteer, or
otherwise, who pays the funeral expenses of any employee whose
death ensues from any injury or occupational disease as provided
in this section. The administrator may adopt rules, with
the advice and consent of the workers' compensation
oversight commission, with respect to
furnishing medical, nurse, and hospital service and medicine to
injured, IMPAIRED, or disabled employees entitled
thereto, and for the
payment therefor. In case an injury or industrial accident
that
injures an employee also causes damage to the employee's
eyeglasses, artificial teeth or other denture, or hearing aid, or
in the event an injury or occupational disease makes it necessary
or advisable to replace, repair, or adjust the same, the bureau
shall disburse and pay a reasonable amount to repair or replace
the same. IF AN EMPLOYEE'S ATTENDING PHYSICIAN DETERMINES THAT IT IS IN
THE
EMPLOYEE'S BEST INTEREST TO RECEIVE HEALTH CARE IN THE EMPLOYEE'S HOME, THE
ADMINISTRATOR SHALL DISBURSE AND PAY FROM THE STATE INSURANCE FUND, AND A
SELF-INSURING EMPLOYER SHALL PAY THE AMOUNTS NECESSARY FOR IN-HOME HEALTH
CARE,
INCLUDING THE COST OF SERVICES NECESSARY ON A CONTINUOUS BASIS, UP TO AND
INCLUDING TWENTY-FOUR HOURS A DAY, PROVIDED THAT THE ESTIMATED COST OF THAT
IN-HOME HEALTH CARE DOES NOT EXCEED THE ESTIMATED COST OF RECEIVING THE
NECESSARY HEALTH CARE OUTSIDE OF THE EMPLOYEE'S HOME.
(B)(1) If an employer or a welfare plan has provided to or
on behalf of an employee any benefits or compensation for an
injury or occupational disease and that injury or occupational
disease is determined compensable under this chapter, the
employer or a welfare plan may request that the administrator
reimburse the employer or welfare plan for the amount the
employer or welfare plan paid to or on behalf of the employee in
compensation or benefits. The administrator shall reimburse the
employer or welfare plan for the compensation and benefits paid
if, at the time the employer or welfare plan provides the
benefits or compensation to or on behalf of employee, the injury
or occupational disease had not been determined to be compensable
under this chapter and if the employee was not receiving
compensation or benefits under this chapter for that injury or
occupational disease. The administrator shall reimburse the
employer or welfare plan in the amount that the administrator
would have paid to or on behalf of the employee under this
chapter if the injury or occupational disease originally would
have been determined compensable under this chapter. If the
employer is a merit-rated employer, the administrator shall
adjust the amount of premium next due from the employer according
to the amount the administrator pays the employer. The
administrator shall adopt rules, in accordance with Chapter 119.
of the Revised Code, to implement this division.
(2) As used in this division, "welfare plan" has the same
meaning as in division (1) of 29 U.S.C.A. 1002.
Sec. 4123.68. Every employee who is disabled OR IMPAIRED because of
the contraction of an occupational disease or the dependent of an
employee whose death is caused by an occupational disease, is
entitled to the compensation provided by sections 4123.55 to
4123.59 and 4123.66 of the Revised Code subject to the
modifications relating to occupational diseases contained in this
chapter. An order of the administrator issued under this section
is appealable pursuant to sections 4123.511 and 4123.512 of the
Revised Code.
The following diseases are occupational diseases and
compensable as such when contracted by an employee in the course
of the employment in which such employee was engaged and due to
the nature of any process described in this section. A disease
which meets the definition of an occupational disease is
compensable pursuant to this chapter EVEN though it is not
specifically listed in this section.
SCHEDULE
Description of disease or injury and description of
process:
(A) Anthrax: Handling of wool, hair, bristles, hides, and
skins.
(B) Glanders: Care of any equine animal suffering from
glanders; handling carcass of such animal.
(C) Lead poisoning: Any industrial process involving the
use of lead or its preparations or compounds.
(D) Mercury poisoning: Any industrial process involving
the use of mercury or its preparations or compounds.
(E) Phosphorous poisoning: Any industrial process
involving the use of phosphorous or its preparations or
compounds.
(F) Arsenic poisoning: Any industrial process involving
the use of arsenic or its preparations or compounds.
(G) Poisoning by benzol or by nitro-derivatives and
amido-derivatives of benzol (dinitro-benzol, anilin, and others):
Any industrial process involving the use of benzol or
nitro-derivatives or amido-derivatives of benzol or its
preparations or compounds.
(H) Poisoning by gasoline, benzine, naphtha, or other
volatile petroleum products: Any industrial process involving
the use of gasoline, benzine, naphtha, or other volatile
petroleum products.
(I) Poisoning by carbon bisulphide: Any industrial
process involving the use of carbon bisulphide or its
preparations or compounds.
(J) Poisoning by wood alcohol: Any industrial process
involving the use of wood alcohol or its preparations.
(K) Infection or inflammation of the skin on contact
surfaces due to oils, cutting compounds or lubricants, dust,
liquids, fumes, gases, or vapors: Any industrial process
involving the handling or use of oils, cutting compounds or
lubricants, or involving contact with dust, liquids, fumes,
gases, or vapors.
(L) Epithelion cancer or ulceration of the skin or of the
corneal surface of the eye due to carbon, pitch, tar, or tarry
compounds: Handling or industrial use of carbon, pitch, or tarry
compounds.
(M) Compressed air illness: Any industrial process
carried on in compressed air.
(N) Carbon dioxide poisoning: Any process involving the
evolution or resulting in the escape of carbon dioxide.
(O) Brass or zinc poisoning: Any process involving the
manufacture, founding, or refining of brass or the melting or
smelting of zinc.
(P) Manganese dioxide poisoning: Any process involving
the grinding or milling of manganese dioxide or the escape of
manganese dioxide dust.
(Q) Radium poisoning: Any industrial process involving
the use of radium and other radioactive substances in luminous
paint.
(R) Tenosynovitis and prepatellar bursitis: Primary
tenosynovitis characterized by a passive effusion or crepitus
into the tendon sheath of the flexor or extensor muscles of the
hand, due to frequently repetitive motions or vibrations, or
prepatellar bursitis due to continued pressure.
(S) Chrome ulceration of the skin or nasal passages: Any
industrial process involving the use of or direct contact with
chromic acid or bichromates of ammonium, potassium, or sodium or
their preparations.
(T) Potassium cyanide poisoning: Any industrial process
involving the use of or direct contact with potassium cyanide.
(U) Sulphur dioxide poisoning: Any industrial process in
which sulphur dioxide gas is evolved by the expansion of liquid
sulphur dioxide.
(V) Berylliosis: Berylliosis means a disease of the lungs
caused by breathing beryllium in the form of dust or fumes,
producing characteristic changes in the lungs and demonstrated by
x-ray examination, by biopsy or by autopsy.
This chapter does not entitle an employee or his THE EMPLOYEE'S
dependents
to compensation, medical treatment, or payment of funeral
expenses for disability, IMPAIRMENT, or death from
berylliosis unless the
employee has been subjected to injurious exposure to beryllium
dust or fumes in his THE EMPLOYEE'S employment in this state
preceding his THE EMPLOYEE'S
disablement OR IMPAIRMENT and only in the event of such
disability,
IMPAIRMENT, or death
resulting within eight years after the last injurious exposure;
provided that such eight-year limitation does not apply to
disability, IMPAIRMENT, or death from exposure occurring
after January 1,
1976. In the event of death following continuous total
disability OR IMPAIRMENT commencing within eight years
after the last injurious
exposure, the requirement of death within eight years after the
last injurious exposure does not apply.
Before awarding compensation for partial or total
disability OR IMPAIRMENT or death due to berylliosis, the administrator
of
workers' compensation shall refer the claim to a qualified MEDICAL
SPECIALIST FOR EXAMINATION AND RECOMMENDATION WITH REGARD
to the diagnosis, the extent of the disability OR IMPAIRMENT, the
nature of the disability OR IMPAIRMENT, whether permanent or temporary,
the cause of death,
and other medical questions connected with the claim. An
employee shall submit to such examinations, including clinical
and x-ray examinations, as the administrator requires. In the
event that an employee refuses to submit to examinations,
including clinical and x-ray examinations, after notice from the
administrator, or in the event that a claimant for compensation
for death due to berylliosis fails to produce necessary consents
and permits, after notice from the administrator, so that such
autopsy examination and tests may be performed, then all rights
for compensation are forfeited. The reasonable compensation of
such specialist and the expenses of examinations and tests shall
be paid, if the claim is allowed, as part of the expenses of the
claim, otherwise they shall be paid from the surplus fund.
(W) Cardiovascular, pulmonary, or respiratory diseases
incurred by fire fighters FIREFIGHTERS or police officers
following exposure
to heat, smoke, toxic gases, chemical fumes and other toxic
substances: Any cardiovascular, pulmonary, or respiratory
disease of a fire fighter FIREFIGHTERS or police
officer OFFICERS caused or induced by
the cumulative effect of exposure to heat, the inhalation of
smoke, toxic gases, chemical fumes and other toxic substances in
the performance of his THEIR duty constitutes a presumption,
which may
be refuted by affirmative evidence, that such occurred in the
course of and arising out of his THEIR employment. For the
purpose of
this section, "fire fighter FIREFIGHTER" means any regular
member of a
lawfully constituted fire department of a municipal corporation
or township, whether paid or volunteer, and "police officer"
means any regular member of a lawfully constituted police
department of a municipal corporation, township or county,
whether paid or volunteer.
This chapter does not entitle a fire fighter FIREFIGHTER, or
police
officer, or his THE FIREFIGHTER'S OR POLICE OFFICER'S
dependents to compensation, medical treatment, or
payment of funeral expenses for disability, IMPAIRMENT,
or death from a
cardiovascular, pulmonary, or respiratory disease, unless the
fire fighter FIREFIGHTER or police officer has been subject to
injurious
exposure to heat, smoke, toxic gases, chemical fumes, and other
toxic substances in his THE FIREFIGHTER'S OR POLICE OFFICER'S
employment in this state preceding his THE
disablement OR IMPAIRMENT, some portion of which has been after January
1,
1967, except as provided in division (E) of section 4123.57 of
the Revised Code.
Compensation on account of cardiovascular, pulmonary, or
respiratory diseases of fire fighters FIREFIGHTERS and police
officers is
payable only in the event of temporary total disability,
permanent total disability IMPAIRMENT, or death, in accordance
with section
4123.56, 4123.58, or 4123.59 of the Revised Code. Medical,
hospital, and nursing expenses are payable in accordance with
this chapter. Compensation, medical, hospital, and nursing
expenses are payable only in the event of such disability,
IMPAIRMENT, or
death resulting within eight years after the last injurious
exposure; provided that such eight-year limitation does not apply
to disability, IMPAIRMENT, or death from exposure
occurring after January 1,
1976. In the event of death following continuous total
disability OR IMPAIRMENT commencing within eight years after the last
injurious
exposure, the requirement of death within eight years after the
last injurious exposure does not apply.
This chapter does not entitle a fire fighter FIREFIGHTER or
police
officer, or his THE dependents OF A FIREFIGHTER OR POLICE
OFFICER, to compensation, medical,
hospital,
and nursing expenses, or payment of funeral expenses for
disability, IMPAIRMENT, or death due to a cardiovascular,
pulmonary, or
respiratory disease in the event of failure or omission on the
part of the fire fighter FIREFIGHTER or police officer
truthfully to state,
when seeking employment, the place, duration, and nature of
previous employment in answer to an inquiry made by the employer.
Before awarding compensation for disability, IMPAIRMENT,
or death under
this division, the administrator shall refer the claim to a
qualified medical specialist for examination and recommendation
with regard to the diagnosis, the extent of disability OR IMPAIRMENT,
the cause
of death, and other medical questions connected with the claim.
A fire fighter FIREFIGHTER or police officer shall submit to
such
examinations, including clinical and x-ray examinations, as the
administrator requires. In the event that a fire fighter
FIREFIGHTER or
police officer refuses to submit to examinations, including
clinical and x-ray examinations, after notice from the
administrator, or in the event that a claimant for compensation
for death under this division fails to produce necessary consents
and permits, after notice from the administrator, so that such
autopsy examination and tests may be performed, then all rights
for compensation are forfeited. The reasonable compensation of
such specialists and the expenses of examination and tests shall
be paid, if the claim is allowed, as part of the expenses of the
claim, otherwise they shall be paid from the surplus fund.
(X) Silicosis: Silicosis means a disease of the lungs
caused by breathing silica dust (silicon dioxide) producing
fibrous nodules distributed through the lungs and demonstrated by
x-ray examination, by biopsy or by autopsy.
(Y) Coal miners' pneumoconiosis: Coal miners'
pneumoconiosis, commonly referred to as "black lung disease,"
resulting from working in the coal mine industry and due to
exposure to the breathing of coal dust, and demonstrated by x-ray
examination, biopsy, autopsy or other medical or clinical tests.
This chapter does not entitle an employee or his THE EMPLOYEE'S
dependents
to compensation, medical treatment, or payment of funeral
expenses for disability, IMPAIRMENT, or death from
silicosis, asbestosis, or
coal miners' pneumoconiosis unless the employee has been subject
to injurious exposure to silica dust (silicon dioxide), asbestos,
or coal dust in his THE EMPLOYEE'S employment in this state
preceding his THE
disablement OR IMPAIRMENT, some portion of which has been after October
12,
1945, except as provided in division (E) of section 4123.57 of
the Revised Code.
Compensation on account of silicosis, asbestosis, or coal
miners' pneumoconiosis are payable only in the event of temporary
total disability, permanent total disability IMPAIRMENT, or
death, in
accordance with sections 4123.56, 4123.58, and 4123.59 of the
Revised Code. Medical, hospital, and nursing expenses are
payable in accordance with this chapter. Compensation, medical,
hospital, and nursing expenses are payable only in the event of
such disability, IMPAIRMENT, or death resulting within
eight years after the
last injurious exposure; provided that such eight-year limitation
does not apply to disability, IMPAIRMENT, or death
occurring after January 1,
1976, and further provided that such eight-year limitation does
not apply to any asbestosis cases. In the event of death
following continuous total disability OR IMPAIRMENT commencing within
eight
years after the last injurious exposure, the requirement of death
within eight years after the last injurious exposure does not
apply.
This chapter does not entitle an employee or his THE EMPLOYEE'S
dependents
to compensation, medical, hospital, and nursing expenses, or
payment of funeral expenses for disability, IMPAIRMENT,
or death due to
silicosis, asbestosis, or coal miners' pneumoconiosis in the
event of the failure or omission on the part of the employee
truthfully to state, when seeking employment, the place,
duration, and nature of previous employment in answer to an
inquiry made by the employer.
Before awarding WHEN compensation IS REQUESTED for
disability, IMPAIRMENT,
or death due to
silicosis, asbestosis, or coal miners' pneumoconiosis, the
administrator shall refer MAY DETERMINE WHETHER THERE IS SUFFICIENT
LIKELIHOOD THAT ANY OF THOSE DISEASES EXISTS, CAUSES DISABILITY OR IMPAIRMENT,
OR
CAUSED DEATH TO WARRANT REFERRING the claim to a qualified medical
specialist for examination and recommendation with regard to the
diagnosis, the extent of disability OR IMPAIRMENT, the cause of death,
and
other medical questions connected with the claim. IN NO EVENT SHALL
COMPENSATION FOR DISABILITY, IMPAIRMENT, OR DEATH DUE TO SILICOSIS,
ASBESTOSIS, OR COAL MINERS' PNEUMOCONIOSIS BE AWARDED WITHOUT THE CLAIM BEING
REFERRED TO A QUALIFIED MEDICAL SPECIALIST FOR THAT EXAMINATION AND
RECOMMENDATION. An employee
shall submit to such examinations, including clinical and x-ray
examinations, as the administrator requires. In the event that
an employee refuses to submit to examinations, including clinical
and x-ray examinations, after notice from the administrator, or
in the event that a claimant for compensation for death due to
silicosis, asbestosis, or coal miners' pneumoconiosis fails to
produce necessary consents and permits, after notice from the
commission, so that such autopsy examination and tests may be
performed, then all rights for compensation are forfeited. The
reasonable compensation of such specialist and the expenses of
examinations and tests shall be paid, if the claim is allowed, as
a part of the expenses of the claim, otherwise they shall be paid
from the surplus fund.
(Z) Radiation illness: Any industrial process involving
the use of radioactive materials.
Claims for compensation and benefits due to radiation
illness are payable only in the event death, IMPAIRMENT,
or disability
occurred within eight years after the last injurious exposure
provided that such eight-year limitation does not apply to
disability, IMPAIRMENT, or death from exposure occurring
after January 1,
1976. In the event of death following continuous disability OR
IMPAIRMENT
which commenced within eight years of the last injurious exposure,
the requirement of death within eight years after the last
injurious exposure does not apply.
(AA) Asbestosis: Asbestosis means a disease caused by
inhalation or ingestion of asbestos, demonstrated by x-ray
examination, biopsy, autopsy, or other objective medical or
clinical tests.
All conditions, restrictions, limitations, and other
provisions of this section, with reference to the payment of
compensation or benefits on account of silicosis or coal miners'
pneumoconiosis apply to the payment of compensation or benefits
on account of any other occupational disease of the respiratory
tract resulting from injurious exposures to dust.
The refusal to produce the necessary consents and permits
for autopsy examination and testing shall not result in
forfeiture of compensation provided the administrator finds that
such refusal was the result of bona fide religious convictions or
teachings to which the claimant for compensation adhered prior to
the death of the decedent.
Sec. 4123.70. No compensation shall be awarded on account
of disability, IMPAIRMENT, or death from disease suffered
by an employee who,
at the time of entering into the employment from which the
disease is claimed to have resulted, willfully and falsely
represented himself THE EMPLOYEE as not having previously
suffered from such
disease. Compensation shall not be awarded on account of both
injury and disease, except when the disability OR IMPAIRMENT is caused
by a disease and an injury, in which event the administrator of
workers' compensation may apportion the payment of compensation
provided for in sections 4123.56 to 4123.59 of the Revised Code
between the funds as in his THE ADMINISTRATOR'S judgment seems
just and proper.
If an employee is suffering from both occupational disease
and an injury, and the administrator can determine which is
causing his THE EMPLOYEE'S disability OR IMPAIRMENT, the
administrator shall pay compensation
therefor from the proper fund.
Compensation for loss sustained on account of occupational
disease by an employee mentioned in division (A)(1) of section
4123.01 of the Revised Code, or the dependents of such employee,
shall be paid from the fund provided for in sections 4123.38 to
4123.41 and 4123.48 of the Revised Code.
Compensation for loss sustained on account of a disease by
an employee mentioned in division (A)(2) of section 4123.01 of
the Revised Code, or the dependents of the employee, shall be
paid from the occupational disease fund or by the employer of the
employee, if the employer is a self-insuring employer.
Sec. 4123.80. No agreement by an employee to waive his THE
EMPLOYEE'S rights to
compensation under this chapter is valid, except that:
(A) An employee who is blind may waive the compensation that may
become due him TO THE EMPLOYEE for injury,
IMPAIRMENT, or disability in cases where the injury,
IMPAIRMENT, or
disability may be
directly caused by or due to his THAT blindness. The
administrator of
workers' compensation, with the
advice and consent of the workers'
compensation oversight commission, may adopt and enforce
rules governing the
employment of such persons and the
inspection of their places of employment.
(B) An employee may waive his THE EMPLOYEE'S rights to
compensation or benefits as authorized pursuant to division (C)(3) of section
4123.01 OR SECTION
4123.15 of the Revised Code.
No agreement by an employee to pay any portion of the premium
paid by his THE EMPLOYEE'S
employer into the state insurance fund is valid.
Sec. 4123.82. (A) All contracts and agreements are void
which undertake to indemnify or insure an employer against loss
or liability for the payment of compensation to workers or their
dependents for death, injury, or occupational disease occasioned
in the course of the workers' employment, or which provide that
the insurer shall pay the compensation, or which indemnify the
employer against damages when the injury, disease, or death
arises from the failure to comply with any lawful requirement for
the protection of the lives, health, and safety of employees, or
when the same is occasioned by the willful act of the employer or
any of his THE EMPLOYER'S officers or agents, or by which it is
agreed that the
insurer shall pay any such damages. No license or authority to
enter into any such agreements or issue any such policies of
insurance shall be granted or issued by any public authority in
this state. Any corporation organized or admitted under the laws
of this state to transact liability insurance as defined in
section 3929.01 of the Revised Code may by amendment of its
articles of incorporation or by original articles of
incorporation, provide therein for the authority and purpose to
make insurance in states, territories, districts, and counties,
other than the state of Ohio, and in the state of Ohio in respect
of contracts permitted by division (B) of this section,
indemnifying employers against loss or liability for payment of
compensation to workers and employees and their dependents for
death, injury, or occupational disease occasioned in the course
of the employment and to insure and indemnify employers against
loss, expense, and liability by risk of bodily injury or death by
accident, disability, IMPAIRMENT, sickness, or disease suffered
by workers
and employees for which the employer may be liable or has assumed
liability.
(B) Notwithstanding division (A) of this section:
(1) No contract because of that division is void which
undertakes to indemnify a self-insuring employer against all or
part of such employer's loss in excess of at least fifty thousand
dollars from any one disaster or event arising out of the
employer's liability under this chapter, but no insurance
corporation shall, directly or indirectly, SHALL represent an employer
in the settlement, adjudication, determination, allowance, or
payment of claims. The superintendent of insurance shall enforce
this prohibition by such disciplinary orders directed against the
offending insurance corporation as the superintendent of
insurance deems appropriate in the circumstances and the
administrator of workers' compensation shall enforce this
prohibition by such disciplinary orders directed against the
offending employer as the administrator deems appropriate in the
circumstances, which orders may include revocation of the
insurance corporation's right to enter into indemnity contracts
and revocation of the employer's status as a self-insuring
employer.
(2) The administrator may enter into a contract of
indemnity with any such employer upon such terms, payment of such
premium, and for such amount and form of indemnity as the
administrator determines and the administrator may procure
reinsurance of the liability of the public and private funds
under this chapter, or any part of the liability in respect of
either or both of the funds, upon such terms and premiums or
other payments from the fund or funds as the administrator deems
prudent in the maintenance of a solvent fund or funds from year
to year. When making the finding of fact which the administrator
is required by section 4123.35 of the Revised Code to make with
respect to the financial ability of an employer, no contract of
indemnity, or the ability of the employer to procure such a
contract, shall be considered as increasing the financial ability
of the employer.
Sec. 4123.84. (A) In all cases of injury or death, claims
for compensation or benefits for the specific part or parts of
the body injured shall be forever barred unless, within two years
after the injury or death:
(1) Written notice of the specific part or parts of the
body claimed to have been injured has been made to the industrial
commission or the bureau of workers' compensation;
(2) The employer, with knowledge of a claimed compensable
injury or occupational disease, has paid wages in lieu of
compensation for total disability OR IMPAIRMENT;
(3) In the event the employer is a self-insuring employer,
one of the following has occurred:
(a) Written notice of the specific part or parts of the
body claimed to have been injured has been given to the
commission or bureau or the employer has furnished treatment by a
licensed physician in the employ of an employer, provided,
however, that the furnishing of such treatment shall not
constitute a recognition of a claim as compensable, but shall do
no more than satisfy the requirements of this section;
(b) Compensation or benefits have been paid or furnished
equal to or greater than is provided for in sections 4123.52,
4123.55 to 4123.62, and 4123.64 to 4123.67 of the Revised Code,
PROVIDED THAT THE PAYMENT OR FURNISHING OF THE COMPENSATION OR BENEFITS
SHALL NOT CONSTITUTE A RECOGNITION OF A CLAIM OR ANY CONDITION IN A CLAIM AS
COMPENSABLE. THAT PAYMENT, THAT COMPENSATION, OR THOSE BENEFITS SHALL DO NO
MORE
THAN SATISFY THE REQUIREMENTS OF THIS SECTION.
(4) Written notice of death has been given to the commission or bureau.
(B) The bureau shall provide printed notices quoting in
full division (A) of this section, and every self-insuring
employer shall post and maintain at all times one or more of the
notices in conspicuous places in the workshop or places of
employment.
(C) The commission has continuing jurisdiction as set
forth in section 4123.52 of the Revised Code over a claim which
meets the requirement of this section, including jurisdiction to
award compensation or benefits for loss or impairment of bodily
functions developing in a part or parts of the body not specified
pursuant to division (A)(1) of this section, if the commission
finds that the loss or impairment of bodily functions was due to
and a result of or a residual of the injury to one of the parts
of the body set forth in the written notice filed pursuant to
division (A)(1) of this section.
(D) Any claim pending before the administrator, the
commission, or a court on December 11, 1967, in which the remedy
is affected by this section is governed by this section.
(E) Notwithstanding the requirement that the notice
required to be given to the bureau, commission, or employer under
this section is to be in writing, the bureau may accept, assign a
claim number, and process a notice provided by any method of
telecommunication. Immediately upon receipt of the
telecommunicated notice, the bureau shall send a written notice
to the employer of the bureau's receipt of the telecommunicated
notice. Within fifteen days after receipt of the notice, the
employer may in writing either MAY verify or not verify the
telecommunicated notice. If the bureau does not receive the
written notification from the employer or receives a written
notification verifying the telecommunicated notice within such
time period, the claim is validly filed and such telecommunicated
notice tolls the statute of limitations in regard to the claim
filed and is considered to meet the requirements of written
notice required by this section.
(F) As used in division (A)(3)(b) of this section,
"benefits" means payments by a self-insuring employer to, or on
behalf of, an employee for a hospital bill, a medical bill to a
licensed physician or hospital, or an orthopedic or prosthetic
device.
Sec. 4123.85. In all cases of occupational disease, or death resulting from
occupational disease, claims for compensation or benefits are forever barred
unless, within two years after the disability due to the
disease began, or
within such longer period as does not exceed six months after FIRST
diagnosis of the occupational disease by a licensed physician or within two
years after death occurs, application is made to the industrial commission or
the bureau of workers' compensation or to the employer if he THE
EMPLOYER is a
self-insuring employer.
Sec. 4123.90. (A) The bureau ADMINISTRATOR of
workers' compensation,
industrial commission WORKERS' COMPENSATION HEARING OFFICERS, or
any other PERSON OR body constituted by the
statutes of this state, or any court of this state, in awarding
compensation to the dependents of employees, or others killed in
Ohio THIS STATE, shall not make any discrimination against the
widows SURVIVING SPOUSES,
children, or other dependents who reside in a foreign country.
The bureau ADMINISTRATOR, commission HEARING
OFFICER, or any
other board, PERSON, or court, in
determining the amount of compensation to be paid to the
dependents of killed employees, shall pay to the alien dependents
residing in foreign countries the same benefits as to those
dependents residing in this state.
(B) No employer shall discharge, demote, reassign, or take any
punitive action against any employee because the employee filed a
claim or instituted, pursued, or testified in any proceedings
under the workers' compensation act THIS CHAPTER OR CHAPTER
4126., 4127., OR 4131. of the Revised Code for an injury or occupational
disease which occurred in the course of and arising out of his
employment with that employer. Any such
AN employee AFFECTED BY A VIOLATION OF THIS DIVISION may file an
action in the COURT OF common pleas court of the county of such
employment
in which the relief which may be granted shall be limited to
reinstatement with back pay, if the action is based upon
discharge, or an award for wages lost if based upon demotion,
reassignment, or punitive action taken, offset by earnings
subsequent to discharge, demotion, reassignment, or punitive
action taken, and payments received pursuant to section 4123.56
and Chapter 4141. of the Revised Code plus reasonable attorney
fees. The action shall be IS forever barred unless filed within
one hundred eighty days immediately following the discharge,
demotion, reassignment, or punitive action taken, and no action
may be instituted or maintained unless the employer has received
written notice of a claimed violation of this paragraph within
the ninety days immediately following the discharge, demotion,
reassignment, or punitive action taken.
Sec. 4127.03. Every work-relief employee who sustains an
injury and the dependents of such as are killed, in the course of
and arising out of employment, wheresoever such WHEREVER THAT
injury or death
occurs, except when such injury or death is caused by willful
misconduct or intent to bring about such injury or death, or when
the use of intoxicating liquors or drugs is the proximate cause
of such injury or death, is entitled to receive out of the public
work-relief employees' compensation fund, compensation, death
benefits, medical, nurse, and hospital services, medicine, and
funeral expenses, for loss sustained on account of such injury or
death, as is provided for by Chapter 4123. of the Revised Code.
Except as provided in section 4127.06 of the Revised Code,
no compensation shall be paid from the work-relief employees'
compensation fund for or on account of any temporary disability
or partial disability IMPAIRMENT; except that in the cases
included in the
schedule of loss of specific members or sight, set forth in
section 4123.57 of the Revised Code, the disability OR IMPAIRMENT is
deemed to
continue for the periods mentioned for each of such cases in that
section. In cases where the injury results in the total or
partial loss of use of any such member, the disability OR IMPAIRMENT is
deemed
to continue for such proportion of the period fixed for the total
loss of a member as the administrator of workers' compensation
finds that the actual physical disability OR IMPAIRMENT bears to the
total loss
of such members.
All compensation payable under this chapter shall be paid
on the basis of computation provided for in this chapter.
Sec. 4127.06. During periods of temporary disability and partial
disability IMPAIRMENT
other than that resulting from loss of a member or sight or total or partial
loss of use of a member, an injured work-relief employee shall be paid
directly out of the fund from which the employee was receiving relief, the
amounts required to meet the budgetary needs of the employee and his
THE EMPLOYEE'S
dependents, and in the manner determined by the person or agency having
control over or supervision of the fund.
When all of the funds for relief purposes which are available to any employer
are exhausted, or when, disability OR IMPAIRMENT as a result of
the
injury is continuous
beyond a period of six months, the injured work-relief employee shall be
compensated for temporary DISABILITY and partial disability
IMPAIRMENT out of the public work-relief
employees' compensation fund by the bureau of workers' compensation in the
same manner and amount as is provided in sections 4127.01 to 4127.14 of the
Revised Code for other disabilities AND IMPAIRMENTS.
Sec. 4141.31. (A) Benefits otherwise payable for any week
shall be reduced by the amount of remuneration a claimant
receives with respect to such week as follows:
(1) Remuneration in lieu of notice;
(2) Compensation for wage loss under division (B)(C) of
section 4123.56 of the Revised Code or temporary partial
disability under the workers' compensation law of any state or
under a similar law of the United States;
(3) Except as provided in section 4141.312 of the Revised
Code, payments in the form of retirement, or pension allowances
under a plan wholly financed by an employer which payments are
paid either directly by the employer, or indirectly through a
trust, annuity, insurance fund, or under an insurance contract
whether payable upon retirement, termination, or separation from
employment, provided that if the claimant has twenty-six weeks or
more of employment with a subsequent employer or employers who
are not paying him a pension or retirement allowance, then such
pension or retirement payments shall not reduce the benefits
payable for the week, and provided further that no benefits shall
thereafter be charged to the account of the employer who is
paying the pension, but instead such benefits shall be charged to
the mutualized account except as provided in division (B)(1)(b)
of section 4141.241 of the Revised Code if the claimant's
separation from the employer was disqualifying under division
(D)(2)(a) of section 4141.29 of the Revised Code.
(4) Remuneration in the form of separation or termination
pay paid to an employee at the time of his THE EMPLOYEE'S
separation from
employment;
(5) Vacation pay or allowance payable under the terms of a
labor-management contract or agreement, or other contract of
hire, which payments are allocated to designated weeks.
If payments under this division are paid with respect to a
month then the amount of remuneration deemed to be received with
respect to any week during such month shall be computed by
multiplying such monthly amount by twelve and dividing the
product by fifty-two. If there is no designation of the period
with respect to which payments to an individual are made under
this section then an amount equal to such individual's normal
weekly wage shall be attributed to and deemed paid with respect
to the first and each succeeding week following his THE
EMPLOYEE'S separation or
termination from the employment of the employer making the
payment until such amount so paid is exhausted.
If benefits for any week, when reduced as provided in this
division, result in an amount not a multiple of one dollar, such
benefits shall be rounded to the next lower multiple of one
dollar.
Any payment allocated by the employer or the administrator
of the bureau of employment services to weeks under division
(A)(1), (4), or (5) of this section shall be deemed to be
remuneration for the purposes of establishing a qualifying week
and a benefit year under divisions (O)(1) and (R) of section
4141.01 of the Revised Code.
(B) Benefits payable for any week shall not be reduced by
the amount of remuneration a claimant receives with respect to
such week in the form of drill or reserve pay received by a
member of the Ohio national guard or the armed forces reserve for
attendance at a regularly scheduled drill or meeting.
(C) No benefits shall be paid for any week with respect to
which or a part of which an individual has received or is seeking
unemployment benefits under an unemployment compensation law of
any other state or of the United States, provided the
disqualifications shall not apply if the appropriate agency of
such other state or of the United States finally determines that
he is not entitled to such unemployment benefits. A law of the
United States providing any payment of any type and in any
amounts for periods of unemployment due to lack of work shall be
considered an unemployment compensation law of the United States.
(D) Notwithstanding any other provision in this chapter,
benefits otherwise payable shall not be reduced by payments that
were made to an individual on or after August 1, 1991, pursuant
to "The National Defense Authorization Act for Fiscal Years 1992
and 1993," Public Law 102-190, 105 Stat. 1394, 1396, 10 U.S.C.A.
1174a, 1175, in the form of voluntary separation incentive
payments and special separation pay.
Section 2. That existing sections 2913.48, 4121.32, 4121.34, 4121.35,
4121.36, 4121.38, 4121.47, 4121.61, 4121.67, 4123.01,
4123.032, 4123.033, 4123.07, 4123.25, 4123.27, 4123.28,
4123.343, 4123.35, 4123.352, 4123.411, 4123.412, 4123.413, 4123.414,
4123.416, 4123.419, 4123.511, 4123.512, 4123.52, 4123.54,
4123.541, 4123.55, 4123.56, 4123.57, 4123.58, 4123.59, 4123.60,
4123.61, 4123.62, 4123.64, 4123.65, 4123.651, 4123.66, 4123.68,
4123.70. 4123.80, 4123.82, 4123.84, 4123.85, 4123.90,
4127.03, 4127.06, and 4141.31 of the Revised Code are hereby
repealed.
Section 3. The provisions of this act apply to all claims arising on and after
the effective date of this act.
Section 4. The penalties provided for in divisions (B) and (C) of section
4121.444 of the Revised Code apply to any overpayment, billing, or
falsification occurring on or after the effective date of this act.
Section 5. The amendments to the definition of "occupational disease" made by
this act contained in division (F) of section 4123.01 of the Revised Code are
not intended and shall not be construed as altering a firefighter's or police
officer's rights to compensation pursuant to division (W) of section 4123.68
of
the Revised Code as those rights existed on the effective date of this act by
virtue of statute, administrative rule, or judicial decision or a combination
of statutes, rules, or decisions.
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