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As Reported by the Senate Insurance, Commerce
and Labor Committee
123rd General Assembly
Regular Session
1999-2000 | Am. H. B. No. 611 |
REPRESENTATIVES CATES-CORBIN-WILLIAMS-BUEHRER-TRAKAS-HARRIS-
ROBINSON-YOUNG-HOOD-CALLENDER-HARTNETT-METZGER-AMSTUTZ-VESPER-
WILLAMOWSKI-BUCHY-JONES-SYKES-BARRETT-REDFERN-TERWILLEGER-HOOPS-
AUSTRIA-PATTON-
SENATOR NEIN
A BILL
To amend sections 4121.31, 4123.511, 4123.52, and 4123.84 of the
Revised Code to require the Administrator of Workers' Compensation
and the Industrial Commission jointly to adopt rules governing the
submission and sending of documents via electronic transmission,
to modify the processing requirements for claim applications that
are not written, and to declare an emergency.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4121.31, 4123.511, 4123.52, and 4123.84
of the Revised Code be amended to read as follows:
Sec. 4121.31. (A) The administrator of workers' compensation
and the industrial commission jointly shall adopt rules covering
the following general topics with respect to this chapter and
Chapter 4123. of the Revised Code:
(A)(1) Rules that set forth any general policy and the
principal operating procedures of the bureau of workers'
compensation or commission, including but not limited to:
(1)(a) Assignment to various operational units of any duties
placed upon the administrator or the commission by statute;
(2)(b) Procedures for decision-making;
(3)(c) Procedures governing the appearances of a claimant,
employer, or their representatives before the agency in a
hearing;
(4)(d) Procedures that inform claimants, on request, of the
status of a claim and any actions necessary to maintain the
claim;
(5)(e) Time goals for activities of the bureau or commission;
(6)(f) Designation of the person or persons authorized to
issue directives with directives numbered and distributed from a
central distribution point to persons on a list maintained for
that purpose.
(B)(2) A rule barring any employee of the bureau or
commission from having a workers' compensation claims file in the
employee's possession unless the file is necessary to the
performance of the employee's duties.
(C)(3) All claims, whether of a state fund or self-insuring
employer, be processed in an orderly, uniform, and timely
fashion.
(4) RULES GOVERNING THE SUBMISSION AND SENDING OF APPLICATIONS,
NOTICES, EVIDENCE, AND OTHER DOCUMENTS BY ELECTRONIC MEANS. THE RULES SHALL
PROVIDE THAT WHERE THIS
CHAPTER OR CHAPTER 4123., 4127., OR 4131. OF THE REVISED
CODE REQUIRES THAT A DOCUMENT BE IN WRITING OR REQUIRES A SIGNATURE,
THE
ADMINISTRATOR AND THE COMMISSION, TO THE EXTENT OF THEIR
RESPECTIVE JURISDICTIONS, MAY APPROVE OF AND PROVIDE FOR THE
ELECTRONIC SUBMISSION AND SENDING OF THOSE DOCUMENTS, AND THE USE
OF AN ELECTRONIC SIGNATURE ON THOSE DOCUMENTS.
(B) AS USED IN THIS SECTION:
(1) "ELECTRONIC" INCLUDES ELECTRICAL, DIGITAL, MAGNETIC, OPTICAL,
ELECTROMAGNETIC, FACSIMILE, OR ANY OTHER FORM OF TECHNOLOGY THAT ENTAILS
CAPABILITIES SIMILAR TO THESE TECHNOLOGIES.
(2) "ELECTRONIC RECORD" MEANS A RECORD GENERATED, COMMUNICATED,
RECEIVED, OR STORED BY ELECTRONIC MEANS FOR USE IN AN INFORMATION SYSTEM
OR FOR TRANSMISSION FROM ONE INFORMATION SYSTEM TO ANOTHER.
(3) "ELECTRONIC SIGNATURE" MEANS A SIGNATURE IN ELECTRONIC FORM
ATTACHED TO OR LOGICALLY ASSOCIATED WITH AN ELECTRONIC RECORD.
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 FACSIMILE information OR INFORMATION
COMMUNICATED VERBALLY
OVER
THE TELEPHONE indicating that an injury or occupational disease
has occurred or been contracted with WHICH may be compensable
under this chapter,
the bureau shall notify the
employee and the employer of the information. If the information
is provided by any method of telecommunication VERBALLY OVER THE
TELEPHONE, 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 FACSIMILE, or if INITIALLY by a
method of
telecommunications TELEPHONE, the
SUBSEQUENT 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 VERBALLY OVER
THE TELEPHONE. 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 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 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 section 4121.63 of the Revised Code and 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 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 under this section or section 4123.512 of the Revised Code of an
appeal of an order to pay compensation, if a claimant is found to have
received compensation pursuant to a prior order which is reversed upon
subsequent appeal, 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 of previously paid
compensation to the claimant which, due to
reversal upon appeal, the claimant is 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.
The administrator and self-insuring employers, as appropriate, are subject
to the repayment schedule of this division only with respect to an order to pay
compensation that was properly paid under a previous order, but which is
subsequently reversed upon an administrative or judicial appeal. The
administrator and self-insuring employers are not subject to, but may utilize,
the repayment schedule of this division, or any other lawful means, to collect
payment of compensation made to a person who was not entitled to the
compensation due to fraud as determined by the administrator or the industrial
commission.
(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 otherwise provided in this section or 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.
(N) Upon application of a party who resides in
an area in which an emergency or disaster is declared, the
industrial commission and hearing officers of the commission may
waive the time frame within which claims and appeals of claims
set forth in this section must be filed upon a finding that the
applicant was unable to comply with a filing deadline due to an
emergency or a disaster.
As used in this division:
(1) "Emergency" means any occasion or instance for which
the governor of Ohio or the president of the United
States
publicly declares an emergency and orders state or federal
assistance to save lives and protect property, the public health
and safety, or to lessen or avert the threat of a catastrophe.
(2) "Disaster" means any natural catastrophe or fire,
flood, or explosion, regardless of the cause, that causes damage
of sufficient magnitude that the governor of Ohio or the
President PRESIDENT of the United States, through a public
declaration,
orders state or federal assistance to alleviate damage, loss,
hardship, or suffering that results from the occurrence.
Sec. 4123.52. 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
modification or change nor any finding or award in respect of
any claim shall be made with respect to disability, compensation,
dependency, or benefits, after six 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. This section
does not affect the right of a claimant to compensation accruing subsequent to
the filing of any such application, provided the application is filed within
the time limit provided in this section.
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.
The commission may, by general rules, 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, 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 PROCEEDINGS BEFORE THE INDUSTRIAL
COMMISSION, STAFF HEARING OFFICERS, AND DISTRICT HEARING OFFICERS, AND IN
any court where the original
record could have been introduced.
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 OR FACSIMILE 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;
(3) In the event the employer is a self-insuring employer,
one of the following has occurred:
(a) Written OR FACSIMILE 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.
(4) Written OR FACSIMILE 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 OR FACSIMILE, the bureau may accept,
assign a
claim number, and process a CLAIM WHEN notice IS provided by
any method of
telecommunication VERBALLY OVER THE TELEPHONE. Immediately upon
receipt of the
telecommunicated notice PROVIDED VERBALLY OVER THE TELEPHONE, the
bureau shall send a written OR FACSIMILE notice
to the employer of the bureau's receipt of the telecommunicated
VERBAL notice. Within fifteen days after receipt of the BUREAU'S
WRITTEN OR FACSIMILE notice, the
employer may in writing OR FACSIMILE either verify or not verify the
telecommunicated VERBAL notice. If the bureau does not receive
the
written OR FACSIMILE notification from the employer or receives a
written OR FACSIMILE
notification verifying the telecommunicated VERBAL notice within
such
time period, the claim is validly filed and such telecommunicated
VERBAL notice tolls the statute of limitations in regard to the claim
filed and is considered to meet the requirements of written OR
FACSIMILE
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.
Section 2. That existing sections 4121.31, 4123.511, 4123.52, and
4123.84 of the Revised Code are hereby repealed.
Section 3. This act is hereby declared to be an emergency measure
necessary for the immediate preservation of the public peace,
health, and safety. The reason for such necessity is to enable
the Bureau of Workers' Compensation to continue processing claims
and the Industrial Commission to continue adjudicating claims in a
timely and efficient manner and to ensure that unnecessary lapses
and avoidable delays do not interfere with the continuing care and
treatment of claimants throughout the state. Therefore, this act
shall go into immediate effect.
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