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Sub. S. B. No. 227As Passed by the HouseAs Passed by the House
124th General Assembly | Regular Session | 2001-2002 |
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SENATORS Nein, Wachtmann, Jacobson, Goodman, White, Austria, Spada, Armbruster, Amstutz, Blessing, Carnes, Robert Gardner, Harris, Mumper
REPRESENTATIVES Williams, Collier, Schaffer, Young, Lendrum, Aslanides, Blasdel, Webster, Flowers, Calvert, Gilb, Setzer, Damschroder, Wolpert, Kearns, Cates, Hagan, Buehrer, G. Smith, Fessler, Seitz, Faber
A BILL
To amend sections 4123.35, 4123.66, 4123.93, and
4123.931 of
the Revised Code to modify the
subrogation
provisions of the Workers' Compensation
Law and to increase the workers' compensation
funeral expense benefit cap.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4123.35, 4123.66, 4123.93, and
4123.931 of
the Revised Code be amended to read as follows:
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 this section 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 public employer, except public employers 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) Employers 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 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.
(1) 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:
(a) The employer employs a minimum of five hundred employees
in this state;
(b) 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;
(c) Where the employer previously contributed to the state
insurance fund or is a successor employer as defined by bureau
rules, the amount of the buyout, as defined by bureau rules; (d) The sufficiency of the employer's assets located in this
state to insure the employer's solvency in paying compensation
directly; (e) 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.
(f) The employer's organizational plan for the
administration of the workers' compensation law; (g) 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
(h) 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)(a) and (b) of this section and the requirement of division
(B)(1)(e) 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)(1)(e) 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 the state, except that the administrator may grant the
status of self-insuring employer to a state institution of higher
education, excluding its hospitals, that meets the requirements of
division (B)(2) of this section.
(2) When considering the application of a public employer,
except for a board of county commissioners described in division
(G) of section 4123.01 of the Revised Code, a board of a county
hospital, or a publicly owned utility, the administrator shall
verify that the public employer satisfies all of the following
requirements as the requirements apply to that public employer:
(a) For the two-year period preceding application under this
section, the public employer has maintained an unvoted debt
capacity equal to at least two times the amount of the current
annual premium established by the administrator under this chapter
for that public employer for the year immediately preceding the
year in which the public employer makes application under this
section.
(b) For each of the two fiscal years preceding application
under this section, the unreserved and undesignated year-end fund
balance in the public employer's general fund is equal to at least
five per cent of the public employer's general fund revenues for
the fiscal year computed in accordance with generally accepted
accounting principles. (c) For the five-year period preceding application under
this section, the public employer, to the extent applicable, has
complied fully with the continuing disclosure requirements
established in rules adopted by the United States securities and
exchange commission under 17 C.F.R. 240.15c 2-12. (d) For the five-year period preceding application under
this section, the public employer has not had its local government
fund distribution withheld on account of the public employer being
indebted or otherwise obligated to the state.
(e) For the five-year period preceding application under
this section, the public employer has not been under a fiscal
watch or fiscal emergency pursuant to section 118.023, 118.04, or
3316.03 of the Revised Code.
(f) For the public employer's fiscal year preceding
application under this section, the public employer has obtained
an annual financial audit as required under section 117.10 of the
Revised Code, which has been released by the auditor of state
within seven months after the end of the public employer's fiscal
year. (g) On the date of application, the public employer holds a
debt rating of Aa3 or higher according to Moody's investors
service, inc., or a comparable rating by an independent rating
agency similar to Moody's investors service, inc.
(h) The public employer agrees to generate an annual
accumulating book reserve in its financial statements reflecting
an actuarially generated reserve adequate to pay projected claims
under this chapter for the applicable period of time, as
determined by the administrator.
(i) For a public employer that is a hospital, the public
employer shall submit audited financial statements showing the
hospital's overall liquidity characteristics, and the
administrator shall determine, on an individual basis, whether the
public employer satisfies liquidity standards equivalent to the
liquidity standards of other public employers.
(j) Any additional criteria that the administrator adopts by
rule pursuant to division (E) of this section. The administrator shall not approve the application of a
public employer, except for a board of county commissioners
described in division (G) of section 4123.01 of the Revised Code,
a board of a county hospital, or publicly owned utility, who does
not satisfy all of the requirements listed in division (B)(2) of
this section.
(C) A board of county commissioners described in division
(G) of section 4123.01 of the Revised Code, as an employer, that
will abide by the rules of the administrator and that 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 that does not desire to insure the payment thereof or
indemnify itself 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 a board
of county commissioners described in division (G) of section
4123.01 of the Revised Code that applies 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 board as an employer by this section: (1) The board as an employer employs a minimum of five
hundred employees in this state;
(2) The board has operated in this state for a minimum of
two years;
(3) Where the board previously contributed to the state
insurance fund or is a successor employer as defined by bureau
rules, the amount of the buyout, as defined by bureau rules; (4) The sufficiency of the board's assets located in this
state to insure the board's solvency in paying compensation
directly;
(5) The financial records, documents, and data, certified by
a certified public accountant, necessary to provide the board'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 board's organizational plan for the administration
of the workers' compensation law;
(7) The board's proposed plan to inform employees of the
proposed self-insurance, the procedures the board will follow as a
self-insuring employer, and the employees' rights to compensation
and benefits;
(8) The board has either an account in a financial
institution in this state, or if the board 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 board clearly indicates that payment will be
honored by a financial institution in this state;
(9) The board shall provide the administrator a surety bond
in an amount equal to one hundred twenty-five per cent of the
projected losses as determined by the administrator.
(D) 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
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.
(E) 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. The administrator may adopt rules establishing requirements
in addition to the requirements described in division (B)(2) of
this section that a public employer shall meet in order to qualify
for self-insuring status. 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 division (B)(1) of this
section, and public employers shall make available, and the bureau
shall review, the information necessary to verify whether the
public employer meets the requirements listed in division (B)(2)
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.
(F) 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.
(G) 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 a self-insuring 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
self-insuring employer in all aspects of the self-insuring
employers' direct compensation program and for reporting of
information to the bureau.
The bureau shall receive and transmit to the self-insuring
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 self-insuring employer.
(H) 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.
(I) 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. (J) 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 (J)(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 (J)(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 (J)(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. (K) 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.
(L) 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
self-insuring 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
4123.931 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 (J) 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
(J) of this section.
(M) 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. (N) 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.
(O) 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 (L) 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 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 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.
(P) A self-insuring employer whose application is granted
under division (O) 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 (O) 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 (O) 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. (Q) 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
(O) 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 (P) 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 (O)
of this section. (R) As used in this section: (1) "Unvoted debt capacity" means the amount of money that a
public employer may borrow without voter approval of a tax levy;
(2) "State institution of higher education" means the state
universities listed in section 3345.011 of the Revised Code,
community colleges created pursuant to Chapter 3354. of the
Revised Code, university branches created pursuant to Chapter
3355. of the Revised Code, technical colleges created pursuant to
Chapter 3357. of the Revised Code, and state community colleges
created pursuant to Chapter 3358. of the Revised Code.
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
fifty-five 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 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. (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. 4123.93. As used in sections 4123.93 and 4123.931 of
the
Revised Code: (A) "Claimant" means a person who is eligible to receive
compensation
or,
medical benefits, or death benefits under this
chapter or Chapter 4121., 4127., or 4131. of the
Revised Code,
including any dependent or person whose eligibility is the
result
of an injury to or occupational disease of another person. (B) "Statutory subrogee" means
the administrator of
the
bureau of workers' compensation, a self-insuring
employer, or an
employer that contracts for the direct payment of medical
services
pursuant to division (L) of section 4121.44 of the
Revised Code. (C)
"Subrogated amounts" include, but are not limited to, the
following: (1) Amounts recoverable from any third party,
notwithstanding any
limitations by the third party concerning its
responsibility to make payments
in cases involving workers'
compensation under Chapter 4121., 4123., 4127., or
4131. of the
Revised Code;
(2) Amounts recoverable from a claimant's insurer in
connection with
underinsured or uninsured motorist coverage,
notwithstanding any limitation
contained in
Chapter 3937. of the
Revised Code;
(3) Amounts that a claimant would be entitled to recover
from a
political subdivision, notwithstanding any limitations
contained in
Chapter 2744. of the Revised Code.
(D) "Third party" means an individual,
private insurer,
public or private entity, or public or private program that
is or
may be liable to make payments to a person without regard to any
statutory duty contained in this chapter or Chapter 4121., 4127.,
or 4131. of
the Revised Code.
(D) "Subrogation interest" includes past, present, and
estimated future payments of compensation, medical benefits,
rehabilitation costs, or death benefits, and any other costs or
expenses paid to or on behalf of the claimant by the statutory
subrogee pursuant to this chapter
or Chapter 4121., 4127., or
4131. of the Revised Code.
(E) "Net amount recovered" means the amount of any award,
settlement, compromise, or recovery by a claimant against a third
party, minus the attorney's fees, costs, or other expenses
incurred by the claimant in securing the award, settlement,
compromise, or recovery. "Net amount recovered" does not include
any punitive damages that may be awarded by a judge or jury.
(F) "Uncompensated damages" means the claimant's
demonstrated or proven damages minus the statutory subrogee's
subrogation interest.
Sec. 4123.931. (A) The payment of
compensation or benefits
pursuant to this chapter or
Chapter 4121., 4127., or 4131., of the
Revised Code
creates a right of
subrogation
recovery in favor of a
statutory subrogee against a
third
party. A statutory subrogee's
subrogation interest includes past payments of
compensation and
medical benefits and estimated future values of compensation
and
medical benefits arising out of an injury to or disability or
disease of a
claimant, and the statutory subrogee is subrogated to
the rights of a claimant against that third party. The net amount
recovered is subject to a statutory subrogee's right of recovery. (B)
If a claimant, statutory subrogee, and third party settle
or attempt to settle a claimant's claim against a third party, the
claimant shall receive an amount equal to the uncompensated
damages divided by the sum of the subrogation interest plus the
uncompensated damages, multiplied by the net amount recovered, and
the statutory subrogee shall receive an amount equal to the
subrogation interest divided by the sum of the subrogation
interest plus the uncompensated damages, multiplied by the net
amount recovered, except that the net amount recovered may instead
be divided and paid on a more fair
and reasonable basis that is
agreed to by the claimant and
statutory subrogee. If while
attempting to settle, the claimant
and statutory subrogee cannot
agree to the allocation of the net
amount recovered, the claimant
and statutory subrogee may file a
request with the administrator
of workers' compensation for a
conference to be conducted by a
designee appointed by the
administrator, or the claimant and
statutory subrogee may agree to
utilize any other binding or
non-binding alternative dispute
resolution process.
The claimant and statutory subrogee shall pay equal shares
of the fees and expenses of utilizing an alternative dispute
resolution process, unless they agree to pay those fees and
expenses in another manner. The administrator shall not assess
any fees to a claimant or statutory subrogee for a conference
conducted by the administrator's designee. (C) If a claimant and statutory subrogee request that a
conference be conducted by the administrator's designee pursuant
to division (B) of this section, both of the following apply: (1) The administrator's designee shall schedule a conference
on or before sixty days after the date that the claimant and
statutory subrogee filed a request for the conference. (2) The determination made by the administrator's designee
is not subject to Chapter 119. of the Revised Code. (D) When a claimant's action against a third party proceeds
to trial and damages are awarded, both of the following apply: (1) The claimant shall receive an amount equal to the
uncompensated damages divided by the sum of the subrogation
interest plus the uncompensated damages, multiplied by the net
amount recovered, and the statutory subrogee shall receive an
amount equal to the subrogation interest divided by the sum of the
subrogation interest plus the uncompensated damages, multiplied by
the net amount recovered. (2) The court in a nonjury action shall make findings of
fact, and the jury in a jury action shall return a general verdict
accompanied by answers to interrogatories that specify the
following: (a) The total amount of the compensatory damages; (b) The portion of the compensatory damages specified
pursuant to division (D)(2)(a) of this section that represents
economic loss; (c) The portion of the compensatory damages specified
pursuant to division (D)(2)(a) of this section that represents
noneconomic loss. (E)(1) After a claimant and statutory subrogee know the net
amount recovered, and after the means for dividing it has been
determined under division (B) or (D) of this section, a claimant
may establish an interest-bearing trust account for the full
amount of the subrogation interest that represents estimated
future payments of compensation, medical benefits, rehabilitation
costs, or death benefits, reduced to present value, from which the
claimant shall make reimbursement payments to the statutory
subrogee for the future payments of compensation, medical
benefits, rehabilitation costs, or death benefits. If the
workers'
compensation claim associated with the subrogation
interest is
settled, or if the claimant dies, or if any other
circumstance
occurs that would preclude any future payments of
compensation,
medical benefits, rehabilitation costs, and death
benefits by the
statutory subrogee, any amount remaining in the
trust account
after final reimbursement is paid to the statutory
subrogee for
all payments made by the statutory subrogee before
the ending of
future payments shall be paid to the claimant or the
claimant's
estate. (2) A claimant may use interest that accrues on the trust
account to pay the expenses of establishing and maintaining the
trust account, and all remaining interest shall be credited to the
trust account.
(3) If a claimant establishes a trust account, the
statutory subrogee
shall provide payment notices to the claimant
on or before the
thirtieth day of June and the thirty-first day of
December every
year listing the total
amount that the statutory
subrogee has paid
for compensation,
medical benefits,
rehabilitation costs, or death
benefits during
the half of the
year preceding the notice. The
claimant shall
make reimbursement
payments to the statutory
subrogee from the
trust account on or
before the thirty-first day
of July every year for a
notice
provided by the thirtieth day of
June, and on or before the
thirty-first day of January every year
for a notice provided by
the thirty-first day of December. The claimant's reimbursement
payment shall be in an amount
that equals the total amount listed
on the notice the claimant
receives from the statutory subrogee.
(F) If a claimant does not establish a trust account as
described in division (E)(1) of this section, the claimant shall
pay to the statutory subrogee, on or before thirty days after
receipt of funds from the third party, the full amount of the
subrogation interest that represents estimated future payments of
compensation, medical benefits, rehabilitation costs, or death
benefits.
(G) A claimant shall notify a statutory
subrogee
and the
attorney general of the identity of all third parties against whom
the claimant has or
may have a right of recovery, except that when
the statutory subrogee is a self-insuring employer, the claimant
need not notify the attorney general. No settlement, compromise,
judgment, award, or
other recovery in any action or claim by a
claimant shall be final unless the
claimant provides the statutory
subrogee
and, when required, the attorney general, with prior
notice and a reasonable
opportunity to assert its subrogation
rights. If a statutory subrogee
is
and, when required, the
attorney general are not
given that notice,
or if a settlement or
compromise excludes any amount paid by the statutory subrogee, the
third party and the claimant shall be jointly and
severally liable
to pay the statutory subrogee the full amount of the
subrogation
interest. (C)(H) The right of subrogation under this
chapter is
automatic, regardless of whether a statutory subrogee is joined as
a party in an action by a claimant against a third party. A
statutory
subrogee
may assert its subrogation rights through
correspondence with the claimant and
the third party or their
legal representatives.
A statutory
subrogee may
institute and
pursue legal proceedings against a
third party
either by itself
or
in conjunction with a claimant. If a statutory subrogee institutes
legal proceedings against a third party, the statutory subrogee
shall provide notice of that fact to the claimant. If the
statutory subrogee joins the claimant as a necessary party, or if
the claimant elects to participate in the proceedings as a party,
the claimant may present the
claimant's case first if the matter
proceeds to trial. If a
claimant disputes the validity or
amount
of an asserted
subrogation interest, the claimant shall join the
statutory
subrogee as a necessary party to the action against the
third
party.
(D) The entire amount of any settlement
or compromise of an
action or claim is subject to the subrogation right of a
statutory
subrogee, regardless of the manner in which the settlement or
compromise is characterized. Any settlement or compromise that
excludes the
amount of compensation or medical benefits shall not
preclude a statutory
subrogee from enforcing its rights under this
section. The entire amount of
any award or judgment is presumed
to represent compensation and medical
benefits and future
estimated values of compensation and medical benefits that
are
subject to a statutory subrogee's subrogation rights unless the
claimant
obtains a special verdict or jury interrogatories
indicating that the award or
judgment represents different types
of damages.
(E) Subrogation does not apply to the
portion of any
judgment, award, settlement, or compromise of a claim to the
extent of a claimant's attorney's fees, costs, or other expenses
incurred by a
claimant in securing the judgment, award,
settlement, or compromise, or the
extent of medical, surgical, and
hospital expenses paid by a claimant from the
claimant's own
resources for which reimbursement is not sought. No additional
attorney's fees, costs, or other expenses in securing any recovery
may be
assessed against any subrogated claims of a statutory
subrogee
(I) The statutory subrogation right of recovery applies
to, but is not limited to, all of the following:
(1) Amounts recoverable from a claimant's insurer in
connection with underinsured or uninsured motorist coverage,
notwithstanding any limitation contained in Chapter 3937. of the
Revised Code;
(2) Amounts that a claimant would be entitled to recover
from a political subdivision, notwithstanding any limitations
contained in Chapter 2744. of the Revised Code;
(3) Amounts recoverable from an intentional tort action.
(J) If a claimant's claim against a third party is for
wrongful death or the claim involves any minor beneficiaries,
amounts
allocated under this section are subject to the approval
of
probate court.
(K) The administrator shall deposit any money collected under
this section into the public fund or the private fund of the state
insurance fund, as appropriate. If a self-insuring employer
collects money under this section of the Revised Code, the
self-insuring employer shall deduct the amount collected, in the
year collected, from the amount of paid compensation the
self-insured employer is required to report under section 4123.35
of the Revised Code.
Section 2. That existing sections 4123.35, 4123.66,
4123.93, and
4123.931 of the Revised Code are hereby repealed.
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