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Am. H. B. No. 67 As Reported by the Senate Insurance, Commerce and Labor Committee
As Reported by the Senate Insurance, Commerce and Labor Committee
126th General Assembly | Regular Session | 2005-2006 |
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Representatives Schaffer, Beatty, Flowers, Hartnett, Miller, Strahorn, Barrett, Buehrer, Calvert, Cassell, Chandler, Daniels, Distel, Domenick, C. Evans, D. Evans, Fende, Gibbs, Hughes, Kearns, Mason, McGregor, Otterman, Seitz, Setzer, Webster, Williams
Senators Hottinger, Cates, Clancy, Spada, Armbruster
A BILL
To amend sections 121.08, 4121.12, 4121.121, 4121.37, 4123.511, 4167.02, 4167.06, 4167.07, 4167.08, 4167.09, 4167.10, 4167.11, 4167.12, 4167.14, 4167.15, 4167.16, 4167.17, 4167.19, and 4167.27, to enact section 4121.48, and to repeal section 4167.18 of the Revised Code to transfer the Public Employees Risk Reduction Program and the Occupational Safety and Health Act On-site Consultation Program from the Department of Commerce to the Bureau of Workers' Compensation, to make appropriations for the Bureau of Workers' Compensation for the biennium beginning July 1, 2005, and ending June 30, 2007, and to provide authorization and conditions for the operation of the Bureau's programs.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 121.08, 4121.12, 4121.121, 4121.37, 4123.511, 4167.02, 4167.06, 4167.07, 4167.08, 4167.09, 4167.10, 4167.11, 4167.12, 4167.14, 4167.15, 4167.16, 4167.17, 4167.19, and 4167.27 be amended and section 4121.48 of the Revised Code be enacted to read as follows:
Sec. 121.08. (A) There is hereby created in the
department
of commerce the position of deputy director of
administration.
This officer shall be appointed by the director of commerce,
serve
under the director's direction,
supervision, and control, perform
the duties the director
prescribes, and hold office during the
director's pleasure.
The director of commerce may designate an
assistant director of
commerce to serve as the deputy director of
administration. The deputy director of administration shall
perform the
duties prescribed by the director of commerce
in supervising the
activities of the division of administration of
the department of
commerce. (B) Except as provided in section 121.07 of the Revised
Code,
the department of commerce shall have all powers and perform
all
duties vested in the deputy director of administration, the
state fire
marshal,
the superintendent of financial institutions,
the superintendent of real
estate and professional licensing, the
superintendent of liquor control, the superintendent of the
division of
industrial compliance, the superintendent of labor and
worker
safety, and the commissioner of
securities, and shall have
all powers and perform all duties
vested by law in all officers,
deputies, and employees of those
offices. Except as provided in
section 121.07 of the Revised
Code, wherever powers are conferred
or duties imposed upon any of
those officers, the powers and
duties shall be construed as
vested in the department of commerce. (C)(1) There is hereby created in the department of commerce
a
division of financial institutions, which shall have all powers
and perform all
duties vested by law in the superintendent of
financial institutions.
Wherever
powers are conferred or duties
imposed upon the superintendent of
financial institutions, those
powers and duties shall be construed
as vested in the
division of
financial institutions. The division of
financial institutions
shall be administered
by a superintendent of financial
institutions. (2) All provisions of law governing the superintendent of
financial institutions
shall apply to and govern the
superintendent of financial institutions
provided
for in this
section; all authority vested by law in the
superintendent of
financial institutions with respect to the
management of the
division of financial institutions shall be construed as vested in
the
superintendent of financial institutions created by this
section
with respect to
the division of financial institutions
provided for in this
section; and all
rights, privileges, and
emoluments conferred by law upon the
superintendent of financial
institutions shall be construed as
conferred upon the
superintendent of financial institutions as head of the division
of financial institutions. The
director of commerce shall not
transfer from the division of financial
institutions any of the
functions specified in division
(C)(2) of this
section. (D) There is hereby created in
the department of commerce a division of liquor control, which
shall have all
powers and perform all duties vested by law in the
superintendent of liquor
control. Wherever powers are conferred
or duties are imposed upon the
superintendent of liquor
control,
those powers and duties shall be construed as vested in the
division
of liquor control. The division of liquor control shall
be administered by a
superintendent of liquor control. (E) The director of commerce shall not be interested,
directly or indirectly,
in any firm or corporation which is a
dealer in
securities as defined in sections 1707.01 and 1707.14 of
the
Revised Code, or in any firm or corporation licensed under
sections 1321.01 to 1321.19 of the Revised Code. (F) The director of commerce shall not have any official
connection
with a savings and
loan association, a savings bank, a
bank, a bank holding company, a savings
and loan association
holding company, a consumer finance company, or a credit
union
that is under the supervision of the division of financial
institutions, or a subsidiary of any
of the preceding entities, or
be interested in the business thereof. (G) There is hereby created in the state treasury the
division
of administration fund. The fund shall receive
assessments on
the operating funds of the department of commerce
in accordance
with procedures prescribed by the director of
commerce and
approved by the director of budget and management.
All operating
expenses of the division of administration shall be
paid from the
division of administration fund. (H) There is hereby created in the department of commerce a
division of real
estate and professional licensing, which shall be
under the control and
supervision of the director of commerce.
The division of real estate and
professional licensing shall be
administered by a superintendent of real
estate and professional
licensing. The superintendent of real estate and
professional
licensing shall exercise the powers and perform the functions and
duties delegated to the superintendent under Chapters
4735.,
4763., and 4767. of the Revised Code. (I) There is hereby created in the department of commerce a
division
of labor and worker safety, which shall have all powers
and perform all
duties vested by law in the superintendent of
labor and worker safety.
Wherever powers are conferred or duties
imposed upon the superintendent
of labor and worker safety, those
powers and duties shall be
construed as vested in the division of
labor and worker safety.
The division of labor and worker safety
shall be under the control
and supervision of the director of commerce
and be administered by a
superintendent of labor and worker safety.
The superintendent of
labor and worker safety shall exercise the
powers and perform the
duties delegated to the superintendent by
the director under
Chapters
4109.,
4111., and
4115., and
4167. of the
Revised Code.
(J) The department of commerce or a division of the department created by the Revised Code that is acting with authorization on the department's behalf may request from the bureau of criminal identification and
investigation pursuant to section 109.572 of the Revised Code, or
coordinate with appropriate federal, state, and local government
agencies to accomplish, criminal records checks for the persons
whose identities are required to be disclosed by an applicant for
the issuance or transfer of a permit, license, or certification issued or transferred by the department or division. At or before
the time of making a request for a criminal
records check, the
department or division may require any person whose identity is required to be
disclosed by an applicant for the issuance or transfer of
such a license, permit, or certification to submit to
the department or division valid fingerprint
impressions in a format and by any
media or means acceptable to
the bureau of criminal identification
and investigation and, when
applicable, the federal bureau of
investigation. The department or division may
cause the bureau of criminal identification and investigation to
conduct a criminal records check through the federal bureau of
investigation only if the person for whom the criminal records
check would be conducted resides or works outside of this state or
has resided or worked outside of this state during the preceding
five years, or if a criminal records check conducted by the bureau
of criminal identification and investigation within this state
indicates that the person may have a criminal record outside of
this state.
In the case of a criminal records check under section
109.572 of the Revised Code, the department or division shall forward to the
bureau of criminal identification and investigation the requisite
form, fingerprint impressions, and fee described in division (C)
of that section. When requested by the department or division in accordance
with this section, the bureau of
criminal identification and
investigation shall request from the
federal bureau of
investigation any information it has with
respect to the person
who is the subject of the requested criminal
records check and
shall forward the requisite fingerprint
impressions and
information to the federal bureau of investigation
for that
criminal records check. After conducting a criminal
records check
or receiving the results of a criminal records check
from the
federal bureau of investigation, the bureau of criminal
identification and investigation shall provide the results to the
department or division.
The department or division may require any person about whom a criminal
records check is requested to pay to the department or division the amount
necessary to cover the fee charged to the department or division by the bureau
of criminal identification and investigation under division (C)(3)
of section 109.572 of the Revised Code, including, when
applicable, any fee for a
criminal records check conducted by the
federal bureau of
investigation.
Sec. 4121.12. (A) There is hereby created the workers'
compensation oversight commission consisting of nine members, of
which members the governor shall appoint five with the advice and consent of
the senate. Of the five members the governor appoints, two shall be
individuals who, on
account of their previous vocation, employment, or affiliations,
can be classed as representative of employees, at least one of whom is
representative of employees who are members of an employee organization; two
shall be individuals who, on account of their previous vocation, employment,
or affiliations, can be classed as representative of employers, one of whom
represents self-insuring employers and one of whom has experience as an
employer in compliance with section 4123.35 of the Revised Code
other than a self-insuring employer, and one of those two representatives also
shall represent employers whose employees are not members of an employee
organization; and one shall represent the public and also be an individual
who, on account of the individual's previous vocation, employment, or
affiliations, cannot be classed as either predominantly representative of
employees or of employers. The
governor shall select the chairperson of the
commission who shall serve as chairperson at the pleasure of the
governor. No more than three members
appointed by the governor shall belong to or be affiliated with the same
political party. Each of these five members shall have at least three years'
experience in the field of insurance, finance, workers'
compensation, law, accounting, actuarial, personnel, investments,
or data processing, or in the management of an organization whose
size is commensurate with that of the bureau of workers'
compensation. At least one of these five members shall be an
attorney licensed under Chapter 4705. of the Revised Code to practice
law in this state. (B) Of the initial appointments made to the
commission, the governor shall appoint one member who represents
employees to a term ending one year after September 1,
1995, one member who
represents employers to a term ending two
years after September 1, 1995, the member who
represents the public to a term
ending three years after September 1, 1995, one member who represents
employees to a term ending four years after September 1,
1995, and one member who represents employers to a term
ending five years after September 1, 1995. Thereafter, terms of office shall
be for five years, with each term ending on the same day of the same
month as did the term that it succeeds. Each member shall hold office from
the date of the member's appointment until the end of the term for
which the
member was appointed. The governor shall not appoint any person to more than two
full terms of office on the commission. This restriction does
not prevent the governor from appointing a person to fill a
vacancy caused by the death, resignation, or removal of a
commission member and also appointing that person twice to full
terms on the commission, or from appointing a person previously
appointed to fill less than a full term twice to full terms on
the commission. Any member appointed to fill a vacancy occurring
prior to the expiration date of the term for which the
member's predecessor was appointed shall hold office as a member for the
remainder of that term. A member shall continue in office subsequent to the
expiration date of the member's term until a successor takes
office or until a period of sixty days has elapsed, whichever
occurs first. (C) In making appointments to the commission, the governor shall
select the members from the list of names
submitted by the workers' compensation oversight commission
nominating committee pursuant to this division. Within fourteen
days after the governor calls the initial meeting of the nominating committee
pursuant to division (C) of section 4121.123 of the Revised Code, the
nominating committee shall submit to the governor, for the initial
appointments, a list containing four separate names for each of the members on
the commission. Within
fourteen days after the submission of the list, the governor
shall appoint individuals from the list. For the appointment of the member who is representative of employees who
are members of an employee organization, both for initial appointments and for
the filling of vacancies, the list of four names submitted by the nominating
committee shall be comprised of four individuals who are members of the
executive committee of the largest statewide labor federation. Thereafter, within sixty days after a vacancy
occurring as a result of the expiration of a term and within
thirty days after other vacancies occurring on the commission, the nominating
committee shall submit a list containing four names for each vacancy. Within
fourteen days after the submission of the list, the governor shall appoint
individuals from the list. With respect to the filling of
vacancies, the nominating committee shall provide the governor with a list of
four individuals who are, in the judgment of the nominating committee, the
most fully qualified to accede to membership on the
commission. The nominating committee shall not include the name of
an individual upon the list for the filling of vacancies if the appointment of
that individual by the governor would result in more than three members of the
commission belonging to or being affiliated with the same political party.
The committee shall include on the list for the filling of vacancies only the
names of attorneys admitted to practice law in this state if, to fulfill the
requirement of division (A) of section 4121.12 of the Revised Code, the
vacancy must be filled by an attorney. In order for the name of an individual to be submitted to the
governor under this division, the nominating committee shall approve the
individual by an affirmative vote of a majority of its members. (D) The remaining four members of the commission
shall be the chairperson and ranking minority member of
the standing committees of the house of representatives and of the senate to
which legislation concerning this chapter and Chapters 4123., 4127., and 4131.
of the Revised Code normally are
referred, or a designee of the chairperson or ranking
minority member, provided
that the designee is a member of the standing committee. Legislative members
shall serve during the session of the general
assembly to which they are elected and for as long as they are members of the
general assembly. Legislative members shall serve in an advisory capacity to
the commission and shall have no voting rights on matters coming before the
commission. Membership on the commission by legislative members shall not be
deemed as holding a public office. (E) All members of the commission shall receive
their reasonable
and necessary expenses pursuant to section 126.31 of the Revised Code while
engaged in the
performance of their duties as members. Legislative members
also shall receive fifty dollars per meeting that they attend. Members
appointed by the governor also shall receive an annual salary as follows: (1) On and before August 31, 1998, not to exceed
six thousand dollars payable at
the rate of five hundred dollars per month. A member shall receive
the monthly five hundred dollar salary only if
the member has attended at least one
meeting of the commission during that month. A member may receive no more
than the monthly five hundred dollar salary regardless of the number of
meetings held by the commission during a month or the number of meetings
in excess of one within a month that the member attends. (2) After August 31, 1998, not to exceed eighteen
thousand dollars payable on the following basis: (a) Except as provided in division
(E)(2)(b) of this section, a member shall receive
two thousand
dollars during a month in which the
member attends one or
more meetings of the commission
and shall receive no payment during a month in which the member attends no
meeting of the commission. (b) A member may receive no more than the annual eighteen
thousand dollar salary
regardless of the number of meetings held by the commission during a
year
or the number of meetings in excess of nine within a
year that the member
attends. The chairperson of the commission shall set the meeting dates of the
commission as necessary to perform the duties of the commission under this
chapter and Chapters 4123., 4127., and 4131. of the Revised
Code. The commission shall meet at least nine times during the
period commencing
on the first day of September and ending on the thirty-first day of
August of the following year. The administrator of
workers' compensation shall
provide professional and
clerical assistance to the commission, as the commission considers
appropriate. (F) The commission shall: (1) Review progress of the bureau in meeting its
cost and quality objectives and in complying with this chapter
and
Chapters 4123., 4127., and 4131. of the Revised Code; (2) Issue an annual report on the cost and quality objectives of the
bureau
to the president of the senate, the speaker of the house of representatives,
and the governor; (3) Review all independent financial audits of the bureau. The
administrator shall provide access to records of the bureau to facilitate the
review required under this division. (4) Study issues as requested by the administrator or the governor; (5) Contract with an independent actuarial firm to assist the commission
in making recommendations to the administrator regarding premium rates; (6) Establish objectives, policies, and
criteria for the
administration of the investment program that include
asset allocation targets and ranges, risk factors, asset class
benchmarks, time horizons, total return objectives, and
performance evaluation guidelines, and
monitor the administrator's progress in implementing the
objectives, policies, and criteria on a quarterly basis. The commission
shall
publish the objectives, policies, and criteria no less than
annually and shall make copies available to interested parties. The
commission shall prohibit, on a prospective basis,
specific investment activity it finds to be contrary to its investment
objectives, policies, and criteria. The investment policy in existence on March 7, 1997,
shall continue until the commission approves objectives, policies, and
criteria for the administration of the investment program pursuant to this
section. (7) Advise and consent on all of the following: (a) Administrative rules the administrator submits
to it pursuant to division (B)(5) of section 4121.121 of the Revised Code for
the
classification of occupations or industries, for premium rates and
contributions, for the amount to be credited to the surplus fund, for rules
and systems of rating, rate revisions, and merit rating; (b) The overall
policy of the bureau of workers' compensation as set by the administrator; (c) The duties and authority conferred upon the
administrator pursuant to section 4121.37 of the Revised Code; (d) Rules the administrator adopts for the health partnership
program and the qualified health plan system, as provided in sections 4121.44,
4121.441, and 4121.442 of the Revised Code; (e) Rules the administrator submits to it pursuant to Chapter 4167. of the Revised Code regarding the public employment risk reduction program and the protection of public health care workers from exposure incidents.
As used in this division, "public health care worker" and "exposure incident" have the same meanings as in section 4167.25 of the Revised Code. (8) Perform all duties required under section 4121.125 of the Revised
Code. (G) As used in this section, "employee organization" means
any
labor or bona fide organization in which employees participate and which
exists
for the purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, hours, terms and other conditions of
employment.
Sec. 4121.121. (A) There is hereby created the bureau of
workers' compensation, which shall be administered by the administrator of
workers' compensation. A person appointed to the position of administrator
shall possess significant management experience in effectively managing an
organization or organizations of substantial size and complexity. The
governor shall appoint the administrator as provided in section 121.03 of the
Revised Code, and the administrator shall
serve at the pleasure of the governor. The governor shall fix the
administrator's salary
on the basis of the administrator's experience and the administrator's
responsibilities and duties under this
chapter and Chapters 4123., 4127., and 4131., and 4167. of
the Revised Code. The governor shall not appoint to the position of
administrator any person who has, or whose spouse
has, given a contribution to the campaign committee of the governor in
an amount greater than one thousand dollars during the two-year period
immediately preceding the date of the appointment of the administrator. The administrator shall hold no other public office and shall devote
full time to the duties of administrator.
Before entering upon the duties of the office, the
administrator shall take an oath of office as required by
sections 3.22 and 3.23 of the Revised Code, and shall file in the office of
the secretary of state, a bond signed by the administrator and by surety
approved by the governor, for the sum of fifty thousand dollars payable to the
state, conditioned upon the faithful performance of the administrator's
duties. (B) The administrator
is responsible for the management of the bureau of workers'
compensation and for the discharge of all administrative duties
imposed upon the administrator in this chapter and Chapters
4123., 4127., and 4131., and 4167. of the Revised Code, and in the discharge thereof
shall do all of the following: (1) Establish the overall administrative policy
of the bureau for the purposes of this chapter and Chapters 4123.,
4127., and 4131., and 4167. of the Revised Code, and perform all acts and exercise all
authorities
and powers, discretionary and otherwise that are required
of or vested in the bureau or any of its employees in this chapter and
Chapters 4123., 4127., and 4131., and 4167. of the Revised Code, except the acts and the
exercise of authority and power that is required of and
vested in the oversight commission or the industrial commission pursuant to
those chapters. The treasurer
of state shall honor all warrants signed by the administrator, or
by one or more of the administrator's employees, authorized
by the administrator
in writing, or bearing the facsimile signature of the
administrator or such employee under sections 4123.42 and 4123.44
of the Revised Code. (2) Employ, direct, and supervise all employees required
in connection with the performance of the duties assigned to the
bureau by this chapter and Chapters 4123., 4127., and 4131., and 4167. of
the Revised Code, and may establish job classification plans and
compensation for all employees of the bureau provided that this
grant of authority shall not be construed as affecting any
employee for whom the state employment relations board has
established an appropriate bargaining unit under section 4117.06
of the Revised Code. All positions of employment in the bureau
are in the classified civil service except those employees the
administrator may appoint to serve at the administrator's
pleasure in the unclassified civil service pursuant to section
124.11 of the Revised Code. The administrator shall fix the salaries of
employees the administrator appoints to serve at
the administrator's pleasure, including the chief operating
officer, staff physicians, and other senior management personnel of the
bureau and shall establish the compensation of staff attorneys of the
bureau's legal section and their immediate supervisors, and take whatever
steps are necessary to provide adequate compensation for other staff
attorneys. The administrator may appoint a person holding a certified
position in the classified service to any state position in the
unclassified service of the bureau of workers' compensation. A
person so appointed shall retain the right to resume the
position and status held by the person in the classified service
immediately prior to the person's appointment in the
unclassified service. If the position the person previously
held has been filled or placed in the unclassified service, or
is otherwise unavailable, the person shall be appointed to a
position in the classified service within the bureau that the
department of administrative services certifies is comparable in compensation
to the position the person previously held. Reinstatement to a
position in the classified service shall be to a position
substantially equal to that held previously, as certified by the
department of administrative services. Service in the position in the
unclassified
service shall be counted as service in the position in the
classified service held by the person immediately prior to the
person's appointment in the unclassified service. When a
person
is reinstated to a position in the classified
service as provided in this section, the person is entitled to
all rights, status, and benefits accruing to the position during
the person's time of service in the position in the unclassified
service. (3) Reorganize the work of the bureau, its sections,
departments, and offices to the extent necessary to achieve the
most efficient performance of its functions and to that end may
establish, change, or abolish positions and assign and reassign
duties and responsibilities of every employee of the bureau. All
persons employed by the commission in positions that, after
November 3, 1989, are supervised and directed by the
administrator under this section are transferred to the bureau in
their respective classifications but subject to reassignment and
reclassification of position and compensation as the
administrator determines to be in the interest of efficient
administration. The civil service status of any person employed
by the commission is not affected by this section. Personnel
employed by the bureau or the commission who are subject to
Chapter 4117. of the Revised Code shall retain all of their
rights and benefits conferred pursuant to that chapter as it
presently exists or is hereafter amended and nothing in this
chapter or Chapter 4123. of the Revised Code shall be construed
as eliminating or interfering with Chapter 4117. of the Revised
Code or the rights and benefits conferred under that chapter to
public employees or to any bargaining unit. (4) Provide offices, equipment, supplies, and other
facilities for the bureau. (5) Prepare and submit to the oversight commission information the
administrator considers pertinent or the oversight commission
requires, together
with the administrator's recommendations, in the form of
administrative rules, for the advice and consent of
the oversight commission, for
classifications of occupations or industries, for premium rates
and contributions, for the amount to be credited to the surplus
fund, for rules and systems of rating, rate revisions, and merit
rating. The administrator shall obtain, prepare, and submit any
other information the oversight commission requires for
the prompt and efficient discharge of its duties. (6) Keep the accounts required by division (A) of section
4123.34 of the Revised Code and all other accounts and records
necessary to the collection, administration, and distribution of
the workers' compensation funds and shall obtain the statistical
and other information required by section 4123.19 of the Revised
Code. (7) Exercise the investment powers vested in the
administrator by section 4123.44 of the Revised Code in
accordance with the investment objectives, policies, and
criteria established by the oversight commission
pursuant to section 4121.12 of the Revised Code. The administrator shall not
engage in any
prohibited investment activity specified by the oversight commission pursuant
to division (F)(6) of section 4121.12 of the Revised Code. All business
shall be transacted, all funds invested, all warrants for money drawn and
payments made, and all cash and securities and other property held, in the
name of the bureau, or in the name of its nominee, provided that nominees are
authorized by the administrator solely for
the purpose of facilitating the transfer of securities, and restricted to
the administrator and designated
employees. (8) Make contracts
for and supervise the construction of any project or improvement
or the construction or repair of buildings under the control of
the bureau. (9) Purchase supplies, materials, equipment, and services; make contracts
for, operate, and superintend the telephone, other telecommunication,
and computer services for the use of the bureau; and make
contracts in connection with office reproduction, forms
management, printing, and other services. Notwithstanding sections 125.12
to 125.14 of the Revised Code, the administrator may transfer surplus computers and computer
equipment directly to an accredited public school within the state. The
computers and computer equipment may be repaired or refurbished prior to the
transfer. (10) Separately from the budget the industrial
commission submits,
prepare and submit to the director of budget and management a
budget for each biennium. The budget submitted shall include
estimates of the costs and necessary expenditures of the bureau
in the discharge of any duty imposed by law. (11) As promptly as possible in the course of efficient
administration, decentralize and relocate such of the personnel
and activities of the bureau as is appropriate to the end that
the receipt, investigation, determination, and payment of claims
may be undertaken at or near the place of injury or the residence
of the claimant and for that purpose establish regional offices,
in such places as the administrator considers proper, capable
of discharging as
many of the functions of the bureau as is practicable so as to
promote prompt and efficient administration in the processing of
claims. All active and inactive lost-time claims files shall be
held at the service office responsible for the claim. A
claimant, at the claimant's request, shall be provided with
information by
telephone as to the location of the file pertaining to the claimant's claim. The
administrator shall ensure that all service office employees
report directly to the director for their service office. (12) Provide a written binder on new coverage where the
administrator considers it to be in the best interest of the risk. The
administrator, or any other person authorized by the
administrator, shall grant
the binder upon submission of a request for coverage by the
employer. A binder is effective for a period of thirty days from
date of issuance and is nonrenewable. Payroll reports and
premium charges shall coincide with the effective date of the
binder. (13) Set standards for the reasonable and maximum handling
time of claims payment functions, ensure, by rules, the impartial
and prompt treatment of all claims and employer risk accounts,
and establish a secure, accurate method of time stamping all
incoming mail and documents hand delivered to bureau employees. (14) Ensure that all employees of the bureau follow the
orders and rules of the commission as such orders and rules
relate to the commission's overall adjudicatory policy-making and
management duties under this chapter and Chapters 4123., 4127.,
and 4131. of the Revised Code. (15) Manage and operate a data processing system with a
common data base for the use of both the bureau and the
commission and, in consultation with the commission, using
electronic data processing equipment, shall develop a claims
tracking system that is sufficient to monitor the status of a
claim at any time and that lists appeals that have been filed and
orders or determinations that have been issued pursuant to
section 4123.511 or 4123.512 of the Revised Code, including the
dates of such filings and issuances. (16) Establish and maintain a medical section within the
bureau. The medical section shall do all of the following: (a) Assist the administrator in establishing standard
medical fees, approving medical procedures, and determining
eligibility and reasonableness of the compensation payments for
medical, hospital, and nursing services, and in establishing
guidelines for payment policies which recognize usual, customary,
and reasonable methods of payment for covered services; (b) Provide a resource to respond to questions from claims
examiners for employees of the bureau; (c) Audit fee bill payments; (d) Implement a program to utilize, to the maximum extent
possible, electronic data processing equipment for storage of
information to facilitate authorizations of compensation payments
for medical, hospital, drug, and nursing services; (e) Perform other duties assigned to it by the
administrator. (17) Appoint, as the administrator determines necessary,
panels to review
and advise the administrator on disputes arising over a
determination that a health care service or supply provided to a
claimant is not covered under this chapter or Chapter 4123. of
the Revised Code or is medically unnecessary. If an individual
health care provider is involved in the dispute, the panel shall
consist of individuals licensed pursuant to the same section of
the Revised Code as such health care provider. (18) Pursuant to section 4123.65 of the Revised Code,
approve applications for the final settlement of claims for
compensation or benefits under this chapter and Chapters 4123.,
4127., and 4131. of the Revised Code as the administrator
determines appropriate, except in regard to the
applications of
self-insuring employers and their employees. (19) Comply with section 3517.13 of the Revised Code, and
except in regard to contracts entered into pursuant to
the authority contained in section 4121.44 of the Revised Code,
comply with the competitive bidding
procedures set forth in the Revised Code for all contracts into
which the administrator enters provided that those contracts
fall within the type of contracts and dollar amounts specified in the Revised
Code for competitive bidding and further provided that those contracts are not
otherwise specifically exempt from the competitive bidding procedures
contained in the Revised Code. (20) Adopt, with the advice and consent of the oversight
commission, rules for the operation of the bureau. (21) Prepare and submit to the oversight commission information the
administrator considers pertinent or the oversight commission requires,
together with the administrator's recommendations, in the form of
administrative rules, for the advice and consent of the oversight commission,
for the health partnership program and the qualified health plan system, as
provided in sections 4121.44, 4121.441, and 4121.442 of the Revised Code. (C) The administrator, with the advice and consent of the senate,
shall appoint a chief operating officer who
has significant experience in the field of workers'
compensation insurance or other similar insurance industry experience if the
administrator does not possess such experience. The chief operating officer
shall not commence the chief operating officer's duties
until after the senate consents to the chief
operating officer's appointment. The chief operating officer
shall serve in the unclassified civil service of the state.
Sec. 4121.37. The administrator of workers' compensation
having, by
virtue of Section 35 of Article II, Ohio Constitution,
the
expenditure of the fund therein created for the investigation
and
prevention of industrial accidents and diseases, shall, with
the advice
and consent of the workers' compensation oversight
commission, in the exercise
of the administrator's authority and
in the performance of the administrator's
duty, employ a
superintendent and the necessary experts, engineers,
investigators, clerks, and stenographers for the efficient
operation of a division of safety and hygiene of the bureau of
workers' compensation, which is hereby created. The administrator of workers' compensation, with the
advice
and consent of the oversight commission, shall pay into the safety
and
hygiene
fund, which is hereby created in the state treasury,
the portion
of the contributions paid by employers, calculated as
though all
employers paid premiums based upon payroll, not to
exceed
one per cent thereof in any year, as is
necessary for the
payment of the salary of the superintendent
of the division of
safety and hygiene and the compensation of the
other employees of
the division of safety and hygiene, and the expenses of
investigations and researches for the prevention of industrial
accidents and diseases, and for operating the long-term care loan fund program established under section 4121.48 of the Revised Code. All investment
earnings of the
fund
shall be
credited to the fund. The administrator has the
same
powers to
invest any of the funds belonging to the fund as
are
delegated to
the administrator under section
4123.44 of the
Revised Code with respect to the state
insurance fund. The
superintendent,
under the direction of the administrator, with the
advice and consent of
the oversight commission, shall conduct
investigations and researches for the
prevention of industrial
accidents and diseases, conduct loss
prevention programs and
courses for employers, establish and
administrate cooperative
programs with employers for the purchase
of individual safety
equipment for employees, and print and
distribute information as
may be of benefit to employers and
employees. The administrator
shall pay from the safety and hygiene fund the
salary of the
superintendent of the division of safety and
hygiene, the
compensation
of the other employees of the division of safety and
hygiene, the
expenses necessary or incidental to investigations
and researches
for the prevention of industrial accidents and
diseases,
and
the cost of printing and distributing such
information. The superintendent, under the direction of the administrator,
shall prepare an
annual report, addressed to the governor, on the
amount of the expenditures
and the purposes for
which they have
been made, and the results of the investigations
and researches.
The administrator shall include the
administrative costs,
salaries, and other expenses of the
division of safety and hygiene
as a part of the budget of the bureau of
workers' compensation
that is submitted to the
director of budget and management and
shall identify those expenditures
separately from other bureau
expenditures. The superintendent shall be a competent person with at
least
five years' experience in industrial accident or disease
prevention work. The superintendent and up to six positions in
the division of safety and hygiene as the administrator, with the
advice and
consent of the oversight commission, designates are in
the unclassified civil service of the state as long as the
administrator, with
the advice and consent of the oversight
commission, determines the positions
subordinate to the
superintendent are
primarily and distinctively administrative,
managerial, or
professional in character. All other full-time
employees of the
division of safety and hygiene are in the
classified civil
service of the state.
Sec. 4121.48. (A) The bureau of workers' compensation shall operate a long-term care loan fund program. The administrator of workers' compensation may adopt rules, employ personnel, and do all things necessary for that purpose. (B) The administrator shall use the long-term care loan fund program to make loans without interest to employers that are nursing homes for the purpose of allowing those employers to purchase, improve, install, or erect sit-to-stand floor lifts, ceiling lifts, other lifts, and fast electric beds, and to pay for the education and training of personnel, in order to implement a facility policy of no manual lifting of residents by employees. The administrator, with the advice and consent of the workers' compensation oversight commission, may adopt rules establishing criteria for loan eligibility, maximum loan amounts, loan periods, default penalties, and any other terms the administrator considers necessary for a loan. (C) There is hereby created in the state treasury the long-term care loan fund. The fund shall consist of money the administrator, with the advice and consent of the oversight commission, requests the director of budget and management to transfer from the safety and hygiene fund created in section 4121.37 of the Revised Code. The fund shall be used solely for purposes identified in this section. All investment earnings of the fund shall be credited to the fund. All money the administrator receives for payment of a default penalty assessed or for repayment of any loan made pursuant to this section shall be credited to the safety and hygiene fund created under section 4121.37 of the Revised Code. (D) As used in this section, "nursing home" has the same meaning as in section 3721.01 of the Revised Code.
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
facsimile information or information
communicated verbally
over
the telephone indicating that an injury or occupational disease
has occurred or been contracted which may be compensable
under this chapter,
the bureau shall notify the
employee and the employer of the information. If the information
is provided 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
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 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.
The administrator of
workers' compensation,
with the
advice and consent of the workers'
compensation oversight
commission, may adopt rules that identify
specified medical
conditions that have a historical record of
being allowed whenever
included in a claim. The administrator
may grant immediate
allowance of any medical condition identified
in those rules upon
the filing of a claim involving that medical
condition and may
make immediate payment of medical bills for any
medical condition
identified in those rules that is included in a
claim. If an
employer contests the allowance of a claim involving
any medical
condition identified in those rules, and the claim is
disallowed,
payment for the medical condition included in that
claim shall be
charged to and paid from the surplus fund created
under section
4123.34 of the Revised Code. (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 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. 4167.02. (A) The director of commerce administrator of worker's compensation shall operate
and
enforce the public employment risk reduction program created
by
this chapter. (B) There is hereby created in the department of
commerce
the public
employment risk reduction
advisory commission
consisting of sixteen members appointed by
the director of
commerce. Eight members of the
commission shall be
representatives of public employers, eight members shall
be
representatives of public employees, all of whom shall have
expertise in the area of occupational safety and health issues. In making appointments to the commission, the
director shall
select the
members representing public employers from a
list of
six names submitted by the Ohio municipal league, six
names
submitted by the Ohio township association, six names
submitted by
the county commissioners association of Ohio, three
names
submitted by the inter-university council of Ohio, and
three names
submitted by the Ohio school board association,
provided that from
the lists submitted, the
director shall appoint two members from
the names submitted by the Ohio
municipal league, one of whom
shall represent a larger municipal
corporation and one of whom
shall represent a smaller municipal
corporation, two members from
the names submitted by the Ohio
township association, one of whom
shall represent a larger
township and one of whom shall represent
a smaller township, two
members from the names submitted by the
county commissioners
association of Ohio, one of whom shall
represent a larger county
and one of whom shall represent a
smaller county, one member from
the names submitted by the
inter-university council of Ohio, and
one member from the names
submitted by the Ohio school board
association.
A member appointed to represent public employers must
represent a jurisdiction that is subject to this chapter and a
member appointed to represent public employees must represent
public employees who are subject to this chapter. No more than
eight members, at any time, may be of the same political party.
(C) The director shall make the initial
appointments to
the
commission within ninety days after April 20, 1993.
Of the
initial
appointments, the
director shall
appoint two public
employer and two public employee members to
serve for a term
ending two years after the appointment date, two
public employer
and two public employee members to serve for a
term ending three
years after the appointment date, two public
employer and two
public employee members to serve for a term
ending four years
after the appointment date, and two public
employer, and two
public employee members to serve a term ending
five years after
the appointment date. Thereafter, terms of
office are for five
years ending on the fifth anniversary of the
appointment date.
Each member shall serve subsequent to the
expiration of the
member's term until the member's
successor is appointed and
qualified or until a period of sixty days has elapsed, whichever
occurs first. Before entering upon the duties of office,
each
member shall take and subscribe to and file with the
secretary of
state the constitutional oath of office. The
director shall fill
all vacancies in the manner
prescribed for
regular appointments to
the commission but such appointments are
limited to the unexpired
terms. Members are eligible for
reappointment to the commission.
The director, after giving the member notice and
an
opportunity for a hearing, may remove a member for misfeasance,
malfeasance, or nonfeasance. Three or more absences by a member
from commission meetings that are not excused by the commission
constitute nonfeasance. If the director removes a
member, the
director promptly shall fill the vacancy created
in accordance
with the requirements of this section.
(D) Annually, upon the appointment and qualification of
the
members appointed in that year, the commission shall organize
by
selecting among its members a chairperson and such
other officers
as the commission considers appropriate. Each member shall
receive actual and necessary expenses incurred in the
performance
of the member's official duties as a commission
member.
(E) The commission shall meet at the call of the
chairperson
or upon the written request of at least seven members of the
commission. A majority of the members of the commission
constitutes a quorum to conduct the business of the commission.
(F) The commission administrator shall do all of the following:
(1) Adopt rules, with the advice and consent of the workers' compensation oversight commission and in accordance with Chapter 119. of the
Revised Code, for the administration and enforcement of this
chapter, including rules covering standards the
director administrator shall
follow in issuing an emergency temporary Ohio employment risk
reduction standard under section 4167.08 of the Revised Code and
a
temporary variance and a variance from an Ohio employment risk
reduction standard or part thereof under section 4167.09 of the
Revised Code; (2) Do all things necessary and appropriate for the
administration and enforcement of this chapter. (G)(C) In carrying out the responsibilities of this chapter,
the
director administrator
may use, with the consent of
any federal, state, or
local agency, the services, facilities,
and personnel of such
agency, with or without reimbursement, and
may retain or contract
with experts, consultants, and
organizations for services or
personnel on such terms as the
director administrator determines appropriate.
Sec. 4167.06. (A) A public employee acting in good faith
has the right to refuse to work under conditions that the public
employee reasonably believes present an imminent danger of death
or serious harm to the public employee, provided that such
conditions are not such as normally exist for or reasonably might
be expected to occur in the occupation of the public employee. A
public employer shall not discriminate against a public employee
for a good faith refusal to perform assigned tasks if the public
employee has requested that the public employer correct the
hazardous conditions but the conditions remain uncorrected, there
was insufficient time to eliminate the danger by resorting to the
enforcement methods provided in this chapter, and the danger was
one that a reasonable person under the circumstances then
confronting the public employee would conclude is an imminent
danger of death or serious physical harm to the public employee.
A public employee who has refused in good faith to perform
assigned tasks and who has not been reassigned to other tasks by
the public employer shall, in addition to retaining a right to
continued employment, receive full compensation for the tasks
that
would have been performed. If the public employer reassigns
the
public employee, the public employer shall pay the
public
employee's full
compensation as if the public employee were not
reassigned. (B) A public employee who exercises the right to refuse to
work under division (A) of this section shall notify by a written
statement that is signed by the public employee, as soon as
practicable after exercising that right, the
director
of commerce administrator of workers' compensation
of the condition that
presents an imminent danger of death or
serious harm to the
public employee. Upon receipt of the
notification, the
director administrator or the director's administrator's
designee immediately
shall inspect the premises of
the public
employer. The director administrator
and the
director's administrator's
designee shall comply
with section 4167.10 of
the Revised Code in conducting the inspection and
investigation
and in issuing orders and citations. (C) A public employee who refuses to perform assigned
tasks
under division (A) of this section and fails to meet all of
the
conditions set forth in that division for the refusal is
subject
to any disciplinary action provided by law or agreement
between
the public employer and public employee for a refusal to
work,
including, but not limited to, suspension, nonpayment of
wages for
the duration of the refusal to work, and discharge.
Sec. 4167.07. (A) The public employment risk reduction
advisory administrator of workers' compensation, with the advice and consent of the workers' compensation oversight commission, shall adopt rules that establish employment
risk reduction standards. Except as provided in division (B) of
this section, in adopting these rules, the commission administrator shall do
both of the following: (1) By no later than July 1, 1994, adopt as a rule and an
Ohio employment risk reduction standard every federal
occupational safety and health standard then adopted by the
United States secretary of labor pursuant to the "Occupational
Safety and Health Act of 1970," 84 Stat. 1590, 29 U.S.C.A. 651,
as amended; (2) By no later than one hundred twenty days after the
United States secretary of labor adopts, modifies, or revokes any
federal occupational safety and health standard, by rule do one
of the following: (a) Adopt the federal occupational safety and health
standard as a rule and an Ohio employment risk reduction
standard; (b) Amend the existing rule and Ohio employment risk
reduction standard to conform to the modification of the federal
occupational safety and health standard; (c) Rescind the existing rule and Ohio employment risk
reduction standard that corresponds to the federal occupational
safety and health standard the United States secretary of labor
revoked. (B) The administrator, with the advice and consent of the workers' compensation oversight commission, may decline to adopt any federal
occupational safety and health standard as a rule and an Ohio
employment risk reduction standard or to modify or rescind any
existing rule and Ohio employment risk reduction standard to
conform to any federal occupational safety and health standard
modified or revoked by the United States secretary of labor or
may adopt as a rule and an Ohio employment risk reduction
standard any occupational safety and health standard that is not
covered under the federal law or that differs from one adopted or
modified by the United States secretary of labor, if the
commission administrator determines that existing rules and Ohio employment
risk reduction standards provide protection at least as effective
as that which would be provided by the existing, new, or modified
federal occupational safety and health standard or if it the administrator
determines that local conditions warrant a different standard
from that of the existing federal occupational safety and health
standard or from standards the United States secretary of labor
adopts, modifies, or revokes. (C) In adopting, modifying, or rescinding any rule or Ohio
employment risk reduction standard dealing with toxic materials
or harmful physical agents, the administrator, with the advice and consent of the workers' compensation oversight commission, shall do all of the
following: (1) Set the employment risk reduction standard to most
adequately assure, to the extent technologically feasible and on
the basis of the best available evidence, that no public employee
will suffer material impairment of health or functional capacity
as a result of the hazards dealt with by the rule or Ohio
employment risk reduction standard for the period of the public
employee's working life; (2) Base the development of these rules and Ohio
employment risk reduction standards on research, demonstrations,
experiments, and other information as is appropriate and upon the
technological feasibility of the rule and standard, using the
latest available scientific data in the field and the experience
gained in the workplace under this chapter and other health and
safety laws, to establish the highest degree of safety and health
for the public employee; (3) Whenever practicable, express the rule and Ohio
employment risk reduction standard in terms of objective criteria
and of the performance desired; (4) Prescribe the use of labels or other appropriate forms
of warning as are necessary to ensure that public employees are
apprised of all hazards to which they are exposed, relevant
symptoms and appropriate emergency treatment, and proper
conditions and precautions of safe use or exposure where
appropriate; (5) Prescribe suitable protective equipment and control
procedures to be used in connection with the hazards; (6) Provide for measuring or monitoring public employee
exposure in a manner necessary for the protection of the public
employees; (7) Where appropriate, prescribe the type and frequency of
medical examinations or other tests the public employer shall
make available, at the cost of the public employer, to the public
employees exposed to the hazards in order to determine any
adverse effect from the exposure. (D) In determining the priority for adopting rules and
Ohio employment risk reduction standards under this section, the
commission administrator shall give due regard to the urgency of need and
recommendations of the department of health regarding that need
for mandatory employment risk reduction standards for particular
trades, crafts, occupations, services, and workplaces. (E)(1) Except for rules adopted under division (A) of this
section, the administrator, with the advice and consent of the workers' compensation oversight commission, shall adopt all rules under this section
in accordance with Chapter 119. of the Revised Code, provided
that notwithstanding that chapter, the commission administrator may delay the
effective date of any rule or Ohio employment risk reduction
standard for the period the commission administrator determines necessary to
ensure that affected public employers and public employees will
be informed of the adoption, modification, or rescission of the
rule and Ohio employment risk reduction standard and have the
opportunity to familiarize themselves with the specific
requirements of the rule and standard. In no case, however,
shall the commission administrator delay the effective date of a rule adopted
pursuant to Chapter 119. of the Revised Code in excess of ninety
days beyond the otherwise required effective date. (2) In regard to the rules for which the commission administrator does
not have to comply with Chapter 119. of the Revised Code, the
commission administrator shall file two certified copies of the rules and Ohio
employment risk reduction standards adopted with the secretary of
state and the director of the legislative service commission.
Sec. 4167.08. (A) In the event of an emergency or unusual
situation, the director of commerce administrator of workers' compensation shall
issue an emergency
temporary Ohio employment risk
reduction standard to take
immediate effect upon publication in
newspapers of general
circulation in Cleveland, Columbus,
Cincinnati, and Toledo if the
director administrator finds both
of the following: (1) Public employees are exposed to grave danger from
exposure to substances or agents determined to be toxic or
physically harmful or from new hazards; (2) The emergency temporary Ohio employment risk reduction
standard is necessary to protect employees from the danger. (B)(1) Except as provided in division (B)(2) of this
section
an emergency temporary Ohio employment risk reduction
standard
issued by the director administrator under division (A)
of
this
section
shall be
in effect no longer than fifteen days, unless the
commission
approves the emergency temporary Ohio employment risk
reduction
standard as issued by the director administrator, in
which case, the
emergency
temporary Ohio employment risk reduction standard shall
be in
effect no longer than one hundred twenty days after the
date the
director administrator issues it. (2) The director administrator may renew an emergency temporary
Ohio
employment risk reduction standard that has been approved by the
public employment risk reduction advisory workers' compensation oversight commission for an
additional time period not to exceed one hundred days if the
director administrator finds
that the conditions identified in divisions (A)(1)
and (2) of
this section continue to exist. On or before the expiration date of the emergency temporary
Ohio employment risk reduction standard or renewal thereof, if
the
conditions identified in divisions (A)(1) and (2) of this
section
continue to exist, the administrator, with the advice and consent of the oversight commission, shall adopt a permanent
Ohio
employment risk reduction standard pursuant to section
4167.07 of
the Revised Code as a rule to replace the emergency
temporary Ohio
employment risk reduction standard.
Sec. 4167.09. (A) Any public employer affected by a
proposed rule or Ohio employment risk reduction standard or any
provision of a standard proposed under section 4167.07 or
4167.08 of
the Revised Code may apply to the director of
commerce administrator of workers' compensation for an
order granting a temporary
variance from the standard or provision. The application
for the order and any extension of the order shall contain a
reasonable application fee, as determined by the public
employment risk reduction advisory workers' compensation oversight commission, and all of the
following information: (1) A specification of the Ohio public employment risk
reduction standard or provision of it from which the public
employer seeks the temporary variance; (2) A representation by the public employer, supported by
representations from qualified persons having firsthand knowledge
of the facts represented, that the public employer is unable to
comply with the Ohio employment risk reduction standard or
provision of it and a detailed statement of the reasons for the inability to comply; (3) A statement of the steps that the public employer has
taken and will take, with dates specified, to protect employees
against the hazard covered by the standard; (4) A statement of when the public employer expects to be
able to comply fully with the Ohio employment risk reduction
standard and what steps the public employer has taken and
will take, with dates
specified, to come into full compliance with the standard; (5) A certification that the public employer has informed
the public employer's public employees of the application by
giving a copy of the
application to the public employee representative, if any, and by
posting a statement giving a summary of the application and
specifying where a copy of the application may be examined at the
place or places where notices to public employees are normally
posted, and by any other appropriate means of public employee
notification. The public employer also shall inform the public
employer's public
employees of their rights to a hearing under section 4167.15 of
the Revised Code. The certification also shall contain a
description of how public employees have been informed of the
application and of their rights to a hearing. (B) The director administrator shall issue an order providing
for
a temporary variance if the public employer files an application
that meets the requirements of division (A) of this section and
establishes that all of the following pertaining to the public
employer are true: (1) The public employer is unable to comply with the Ohio
employment risk
reduction standard or a provision of it by its effective date
because of the unavailability of professional or technical
personnel or of materials and equipment needed to come into
compliance with the Ohio employment risk reduction standard or
provision of it or because necessary construction or alteration
of facilities cannot be completed by the effective date of the
standard. (2) The public employer is taking all available steps to
safeguard the public employer's public employees against the
hazards covered by the Ohio
employment risk reduction standard. (3) The public employer has an effective program for coming
into compliance
with the Ohio employment risk reduction standard as quickly as
practicable. (4) The granting of the variance will not create an
imminent danger of death or serious physical harm to public
employees. (C)(1) If the director administrator issues an order providing
for
a temporary variance under division (B) of this section, the
director administrator shall prescribe the practices, means,
methods,
operations, and
processes that the public employer must adopt and use while the
order is in effect and state in detail the public employer's
program for coming into compliance with the Ohio employment risk
reduction standard. The director administrator may issue the
order
only after
providing notice to affected public employees and their public
employee representative, if any, and an opportunity for a hearing
pursuant to section 4167.15 of the Revised Code, provided that
the director administrator may issue one interim order granting
a
temporary
order
to be effective until a decision on a hearing is made. Except as
provided in division (C)(2) of this section, no temporary
variance may be in effect for longer than the period needed by
the public employer to achieve compliance with the Ohio
employment risk reduction standard or one year, whichever is
shorter. (2) The director administrator may renew an order issued under
division (C)
of this section up to two times provided that the requirements of
divisions (A), (B), and (C)(1) of this section and section
4167.15 of the Revised Code are met and the public employer files
an application for renewal with the director administrator at
least
ninety days
prior to the expiration date of the order. (D) Any public employer affected by an Ohio employment
risk reduction standard or any provision of it proposed,
adopted, or otherwise issued under section 4167.07 or
4167.08 of
the Revised Code may apply to the director administrator for an
order granting a variance from the standard or provision. The
director administrator shall provide affected public employees
and
their public employee
representative, if any, notice of the application and shall
provide an opportunity for a hearing pursuant to section 4167.15
of the Revised Code. The director administrator shall issue the
order granting
the variance if the public employer files an application that
meets the requirements of division (B) of this section, and after
an opportunity for a hearing pursuant to section 4167.15 of the
Revised Code, and if the public employer establishes to the
satisfaction of the director administrator that the conditions,
practices, means, methods, operations, or processes used or proposed to be
used by the public employer will provide employment and
places of employment to the public employer's public
employees that are as safe and healthful as those that
would prevail if the public employer complied with the Ohio
employment risk
reduction standard. The director administrator shall prescribe
in
the order
granting the variance the conditions the public employer must
maintain, and the practices, means, methods, operations, and
processes the public employer must adopt and utilize in lieu
of the Ohio
employment risk reduction standard that would otherwise apply. The
director administrator may modify or revoke the order upon
application of the
public employer, public employee, or public employee
representative, or upon the director's administrator's own motion in
the manner prescribed
for the issuance of an order under this division at any time
during six months after the date of issuance of the order.
Sec. 4167.10. (A) In order to carry out the purposes of
this chapter, the director of commerce administrator of workers' compensation or the
director's administrator's designee
shall, as provided in
this section,
inspect and investigate any
plant, facility, establishment,
construction site, or any other
area, workplace, or environment
where work is being performed by a
public employee of a public
employer, and any place of employment
and all pertinent
conditions, structures, machines, apparatus,
devices, equipment,
and materials therein, and question privately
any public
employer, administrator, department head, operator,
agent, or
public employee. The authority to inspect and
investigate
includes the taking of environmental samples, the
taking and
obtaining of photographs related to the purposes of the
inspection or investigation, the examination of records required
to be kept under section 4167.11 of the Revised Code and other
documents and records relevant to the inspection and
investigation, the issuance of subpoenas, and the conducting of
tests and other studies reasonably calculated to serve the
purposes of implementing and enforcing this chapter. Except as
provided in this section, the director administrator or the
director's administrator's designee
shall conduct
inspections and investigations only pursuant to a
request to do
so by a public employee or public employee
representative, or the notification
the director administrator receives pursuant
to division (B) of section 4167.06 of the Revised Code and only
if
the director administrator or the
director's administrator's designee complies with this
section. The director administrator or the
director's administrator's designee shall conduct
all requested
or
required inspections within a reasonable amount
of time following
receipt of the request or notification. (B)(1) Any public employee or public employee
representative
who believes that a violation of an Ohio
employment risk reduction
standard exists that threatens physical
harm, or that an imminent
danger exists, may request an
inspection by giving written notice
to the
director administrator or the
director's administrator's designee
of the violation or
danger. The notice shall set forth with
reasonable particularity
the grounds for the notice, and shall be
signed by the public
employee or public employee representative. The names of
individual public employees making the notice or
referred to
therein shall not appear in the copy provided to the
public
employer pursuant to division (B)(2) of this section and
shall be
kept confidential. (2) If, upon receipt of a notification pursuant to
division
(B)(1) of this section, the director administrator
determines that there
are no
reasonable grounds to believe that a violation or danger
exists,
the director administrator shall inform the public
employee or public
employee
representative in writing of the determination. If,
upon receipt
of a notification, the director administrator
determines that there
are
reasonable grounds to believe that a violation or danger
exists,
the director administrator shall, within one week,
excluding Saturdays, Sundays,
and any legal
holiday as defined in section 1.14 of the Revised
Code, after receipt
of the notification, notify the public
employer, by certified mail,
return receipt requested, of the
alleged violation or danger. The notice
provided to the public
employer or the public employer's agent shall
contain a copy of
the notice provided to the
director administrator by the public
employee or the
public employee representative under division
(B)(1) of this
section and shall inform the public employer of
the alleged
violation or danger and that the
director administrator or the
director's administrator's
designee will investigate and inspect
the public employer's
workplace as provided in this section. The public employer must
respond to the director administrator, in a method determined by
the
director administrator,
concerning the alleged violation or
danger,
within thirty days
after receipt of the notice. If the public
employer does not
correct the violation or danger within the
thirty-day period or if
the public employer fails to respond
within that time period, the
director administrator or the
director's administrator's designee shall
investigate and inspect
the public employer's workplace as
provided in this section. The
director administrator or the
director's administrator's designee shall not conduct any
inspection prior to the
end of the thirty-day period
unless
requested or permitted by the public employer. The
director administrator may,
at any time upon the request of the public employer, inspect and
investigate
any violation or danger alleged to exist at the public
employer's place of
employment. (3) The authority of the director administrator or the
director's administrator's designee
to
investigate and inspect a premises pursuant to a public
employee
or public employee representative notification is not
limited to
the alleged violation or danger contained in the
notification.
The director administrator or the
director's administrator's designee may
investigate and
inspect any other
area of the premises where there
is reason to believe
that a
violation or danger exists. In
addition, if the
director administrator or the
director's administrator's designee detects any
obvious or
apparent
violation at any
temporary place of employment
while en route to the premises to
be inspected or investigated,
and that violation presents a
substantial probability that the
condition or practice could
result in death or serious physical
harm, the
director administrator or the
director's administrator's designee may use any of the
enforcement
mechanisms provided in
this section to correct or
remove the condition or practice. (4) If, during an inspection or investigation, the
director administrator
or the
director's administrator's designee finds any condition or
practice
in
any
place of
employment that presents a substantial probability that
the
condition or practice could result in death or serious
physical
harm, after notifying the employer of the
director's administrator's
intent to issue an order, the
director administrator shall issue
an order, or
the director's administrator's designee shall
issue an order after consultation
either by telephone or in
person with the director administrator and upon the
recommendation of the
director administrator,
which prohibits the employment of
any public employee or any
continuing operation or process under
such condition or practice
until necessary steps are taken to
correct or remove the
condition or practice. The order shall not
be effective for more
than fifteen days, unless a court of
competent jurisdiction
otherwise orders as provided in section
4167.14 of the Revised
Code. (C) In making any inspections or investigations under this
chapter, the director administrator or the
director's administrator's
designee may administer
oaths and require, by subpoena, the attendance and
testimony of
witnesses
and the production of evidence under oath. Witnesses
shall
receive the same fees and mileage provided for witnesses in
civil
cases in the court of common pleas. In the case of
contumacy,
failure, or refusal of any person to comply with an
order or any
subpoena lawfully issued, or upon the refusal of any
witness to
testify to any matter regarding which the witness may
lawfully be
interrogated, a judge of the court of common pleas of
any county
in this state, on the application of the director administrator
or
the
director's administrator's designee,
shall issue an order requiring the person
to appear and to
produce evidence if, as, and when so ordered, and
to give
testimony relating to the matter under investigation or in
question. The court may punish any failure to obey the order of
the court as a contempt thereof. (D) If, upon inspection or investigation, the
director administrator or
the
director's administrator's designee believes that a public
employer
has
violated any
requirement of this chapter or any rule, Ohio
employment risk
reduction standard, or order adopted or issued
pursuant thereto,
the director administrator or the
director's administrator's designee shall,
with reasonable
promptness, issue a citation to the
public
employer. The citation shall be in writing and describe
with
particularity the nature of the alleged violation, including
a
reference to the provision of law, Ohio employment risk
reduction
standard, rule, or order alleged to have been violated. In
addition, the citation shall fix a time for the abatement of
the
violation, as provided in division (H) of this section. The
director administrator
may prescribe procedures for the issuance of a notice
with
respect to minor violations and for enforcement of minor
violations that have no direct or immediate relationship to
safety
or health. (E) Upon receipt of any citation under this section, the
public employer shall immediately post the citation, or a copy
thereof, at or near each place an alleged violation referred to
in
the citation occurred. (F) The director administrator may not issue a citation under
this section
after the expiration of six months following the final occurrence
of any violation. (G) If the director administrator issues a citation pursuant to
this
section, the director administrator shall mail the citation to
the
public
employer by certified mail, return receipt requested. The public
employer
has fourteen days after receipt of the citation within
which to
notify the director administrator that the employer wishes to
contest
the citation. If
the employer notifies the director administrator within the
fourteen days that the
employer wishes to contest the citation, or
if within fourteen days after
the issuance of a citation a public
employee or public employee
representative files notice that the
time period fixed in the
citation for the abatement of the
violation is unreasonable, the
director administrator shall hold an adjudication
hearing in
accordance with Chapter 119. of the Revised Code. (H) In establishing the time limits in which a public
employer must abate a violation under this section, the
director administrator
shall
consider the costs to the public employer, the size and
financial resources of the public employer, the severity of the
violation, the technological feasibility of the public employer's
ability to comply with requirements of the citation, the possible
present and future detriment to the health and safety of any
public employee for failure of the public employer to comply with
requirements of the citation, and such other factors as the
director administrator
determines appropriate. The director administrator may, after
considering the above
factors, permit the public employer to
comply with the citation over a period
of up
to two years and may
extend that period an additional one year, as
the director administrator
determines appropriate. (I) Any public employer may request the director administrator
to
conduct
an
employment risk reduction inspection of the public employer's
place of
employment. The director administrator or the
director's administrator's designee
shall conduct the inspection
within a reasonable amount of time
following the request. Neither the
director administrator nor any
other person
may use any information obtained from the inspection for a period
not to exceed three years in any proceeding for a violation of
this chapter or
any rule or order issued thereunder nor in any
other action in any court in
this state.
Sec. 4167.11. (A) In order to further the purposes of
this
chapter, the director of commerce administrator of workers' compensation shall
develop and maintain, for
public employers and
public employees, an effective program of
collection,
compilation, and analysis of employment risk reduction
statistics. (B) To implement and maintain division (A) of this
section,
the public employment risk reduction advisory administrator, with the advice and consent of the workers' compensation oversight commission,
shall
adopt rules in accordance with Chapter 119. of the Revised
Code
that extend to all of the following: (1) Requiring each public employer to make, keep, and
preserve, and make available to the director administrator,
reports and records
regarding the public employer's activities, as determined by the
rule that are necessary or appropriate for the enforcement of
this
chapter or for developing information regarding the causes
and
prevention of occupational accidents and illnesses. The rule
shall prescribe which of these reports and records shall or may
be
furnished to public employees and public employee
representatives. (2) Requiring every public employer, through posting of
notices or other appropriate means, to keep their public
employees
informed of public employees' rights and obligations
under this
chapter, including the provisions of applicable Ohio
employment
risk reduction standards; (3) Requiring public employers to maintain accurate
records
of public employee exposure to potentially toxic
materials,
carcinogenic materials, and harmful physical agents
that are
required to be monitored or measured under rules adopted
under the
guidelines of division (C) of section 4167.07 of the
Revised Code.
The rule shall provide public employees or public
employee
representatives an opportunity to observe the monitoring
or
measuring, and to have access on request to the records
thereof,
and may provide public employees or public employee
representatives an opportunity to participate in and to undertake
their own monitoring or measuring. The rules also shall permit
each current or former public employee to have access to the
records that indicate their own exposure to toxic materials,
carcinogenic materials, or harmful agents. (C) The director administrator shall obtain any information
under division
(B) of this section with a minimum burden upon the public
employer
and shall, to the maximum extent feasible, reduce
unnecessary
duplication of efforts in obtaining the information.
Sec. 4167.12. All information reported to or otherwise
obtained by the
director
of commerce administrator of workers' compensation or
the director's administrator's designee in
connection with any investigation, inspection, or proceeding under
this
chapter
that reveals a trade secret of any person is
confidential, except that the
information may be disclosed to
other agents or authorized representatives
of the director administrator
concerned with fulfilling the
requirements
of this chapter, or
when relevant, to any proceeding under this chapter. In any
proceeding, the
director administrator or the court shall issue orders as
appropriate to
protect the
confidentiality of trade secrets.
Sec. 4167.14. (A) Any court of common pleas has
jurisdiction, upon petition of the director of
commerce administrator of workers' compensation,
to
restrain any conditions or
practices in any places of employment
that present a danger that
could reasonably be expected to cause
death or serious harm or
contribute significantly to
occupationally related illness
immediately or before the imminence
of the danger can be
eliminated through the enforcement procedures
provided in this
chapter. Any order issued under this section may
require that
steps be taken as necessary to avoid, correct,
or
remove the imminent danger and prohibit the employment or presence
of any
individual in locations or under conditions where the
imminent danger exists,
except individuals whose presence is
necessary to avoid, correct, or remove
the imminent danger. (B) Upon the filing of a petition under division (A) of
this
section, the court of common pleas may grant injunctive
relief or
a temporary restraining order pending the outcome of an
enforcement proceeding pursuant to this chapter, except that no
temporary restraining order issued without notice is effective
for
a period longer than five calendar days. (C) If the director administrator or the
director's administrator's designee
responsible
for
inspections determines that the imminent danger as described
in
division (A) of this section is such that immediate action is
necessary, and further determines that there is not sufficient
time in light of the nature, severity, and imminence of the
danger
to seek and obtain a temporary restraining order or
injunction,
the director administrator or the
director's administrator's
designee immediately
shall file a
petition with the court under division (A) of this section and
issue an order requiring action to be taken as is necessary to
avoid, correct, or remove the imminent danger. The public employment risk reduction advisory administrator, with the advice and consent of the workers' compensation oversight commission,
shall adopt rules, in accordance with Chapter 119. of the Revised
Code, to permit a public employer expeditious informal
reconsideration of any order issued by the
director administrator
under this
division. Unless the director administrator reverses
an order pursuant
to the
informal reconsideration, the order remains in effect pending the
court's determination under this section. If the
director administrator
modifies an order
pursuant to the informal
reconsideration, the
director administrator shall provide the court with whom the
director administrator filed the
petition
under this section with a copy of the modified order.
The
modified order remains in effect pending the court's
determination under this section.
Sec. 4167.15. Any public employer, public employee, or
public
employee representative affected by an order, rule, or Ohio
employment risk reduction standard proposed, adopted, or
otherwise
issued pursuant to this chapter, may request, within
fourteen days
after the proposal, adoption, or issuance of
the order, rule, or
standard, a hearing from the
director of commerce administrator of workers' compensation. The
director administrator,
within fourteen days after receipt of a request for a hearing,
shall appoint a
hearing officer to make a determination as to the
request. The
hearing officer, within fourteen days
after the
hearing officer's appointment, shall hold a
hearing in accordance
with Chapter 119. of the Revised Code and, within
fourteen days
after the hearing, render a decision. A
public employer, public
employee, or public employee representative may appeal
the
decision of the hearing officer to the
director administrator, provided that
the
appeal is made within thirty days after the hearing officer
issues
the decision. The decision of the
hearing officer is
final unless
appealed to the director administrator within the
time period set in this
section or unless the director administrator, on the
director's administrator's
own motion,
modifies
or reverses the decision within that time period. If a
party fails to appeal
the decision
of the hearing officer, the
decision of the hearing
officer is not, for purposes of section
4167.16 of the Revised Code, a final
order of the director administrator and is
not appealable to
court as provided in
section 4167.16 of the
Revised Code, except that if the party fails to
appeal the
decision of the hearing officer, and the
director administrator modifies or
reverses the decision under
this
section, the decision of the
director administrator is
appealable
to court pursuant to section 4167.16 of the
Revised Code.
Sec. 4167.16. (A) Any party who is adversely affected by
a
final order of the director of commerce administrator of workers' compensation issued pursuant to
division
(G) of section 4167.10 or section 4167.15 of the Revised
Code, and who has exhausted all administrative appeals
from such
order may appeal the order, within thirty days
after the
issuance
of a final order, to the court of common pleas of
Franklin county
or to the court of common pleas of the county in
which the alleged
violation occurred. If the court finds an
undue hardship to the
appellant will result from the enforcement
of the order pending
determination of the appeal, the court may
grant a suspension of
the order and fix the terms thereof. (B)(1) The court shall conduct a hearing on the appeal
filed
under division (A) of this section and shall give
preference to
all proceedings under this section over all other
civil cases,
irrespective of the position of the proceedings on
the calendar of
the court. The hearing shall proceed as in the
case of a civil
action, and the court shall determine the rights
of the parties in
accordance with the laws applicable to the
action. (2) The court shall affirm the order of the
director administrator
if it
finds, upon consideration of the record as a whole, and additional
evidence as the court has admitted, that the order is supported by
reliable,
probative, and substantial evidence and is in accordance
with law. In absence
of that finding, the court shall reverse,
vacate, or modify the order or make
such other ruling as is
supported by reliable, probative, and substantial
evidence and is
in accordance with law. The judgment of the
court is final and
conclusive, unless reversed, vacated, or
modified on appeal. Any
party may appeal as provided in Chapter
2505. of the Revised Code. (C) No person who has failed to exhaust all of the
administrative appeals
provided in this chapter may file an appeal
of a final order of the
director administrator under division (A) of this
section.
Sec. 4167.17. (A) If a public employer, public employee,
or
public employee representative willfully fails to comply with
any
final order of the director of commerce administrator of workers' compensation issued pursuant to this
chapter, the director administrator may apply to the court
of common pleas of
Franklin county
or the court of common pleas of the
county in
which the violation occurred, for an injunction,
restraining
order, or any other appropriate relief compelling the
public
employer, public employee, or public employee
representative to
comply with such order. The court shall order
such relief as it
considers appropriate and shall, in addition,
impose a civil
penalty of not more than five hundred dollars per
day per
violation and not to exceed a total of ten thousand
dollars per
violation. (B) The director administrator shall not seek to enforce this
chapter, or
any Ohio employment risk reduction standard, rule, or order
adopted or issued pursuant thereto, in any manner that derogates
from the immunity offered to a public employer by variances
obtained under this chapter, or by variations, tolerance, or
exemption allowed a public employer for reasons of national
defense by the United States secretary of labor pursuant to
section 16 of the
"Occupational Safety and Health Act of 1970,"
84
Stat. 1590, 29 U.S.C.A. 651, as amended.
Sec. 4167.19. (A) A public employer, other than a state
agency, may apply to the
director of commerce administrator of workers' compensation for an order
exempting the public employer from
compliance with this chapter, except as provided in division (K) of
this section, if the public employer satisfies both of
the following criteria: (1) The public employer is a member of a group that qualifies for a
group rating plan pursuant to division (A)(4) of section
4123.29 of the Revised Code or
the public employer's premium rate is at least fifty per cent
less than the base rate for its workers' compensation premiums; (2) The public employer establishes and maintains a safety committee
with both public employees and representatives of the public
employer as members if the public employer does not qualify for a group
rating plan. A public employer that employs five or fewer public
employees need not have a safety committee. (B) The application shall be on a form prescribed by the
director administrator and shall be transmitted to the
director administrator by certified mail, return receipt
requested. The application shall contain a certification of all of the
following: (1) The public employer has adopted an ordinance or resolution requesting
an
exemption from this chapter; (2) At least ten working days prior to passage of an ordinance or
resolution described in division (B)(1) of this section, the public
employer has informed its public employees of
the
application by giving a copy of the application to the public employee
representative, if any; (3) The public employer has informed its public employees by
posting
a statement for thirty consecutive days giving a summary of the application
and specifying where a copy of the application may be examined at the place or
places where notices to public employees are normally posted, and by any other
appropriate means of public employee notification; (4) The public employer has informed its public employees of
their
rights to a hearing under section 4167.15 of the Revised Code. The certification also shall contain a description of how public employees
have been informed of the application and of their rights to a hearing. (C) Except as provided in this section, the
director administrator
shall issue
an order providing for an exemption if the public employer meets the
requirements of division (A) of this section and files an application
that meets the requirements of division
(B) of this section. (D) The director administrator shall not grant an exemption
under
division
(C) of this section until after the superintendent
of the division of safety and hygiene in the bureau of workers' compensation
conducts an employment risk reduction inspection of
the public employer's place of employment to determine the presence of
any hazardous or unsafe conditions. The director administrator
shall not cite
the public employer for a violation of this chapter during this
inspection. (E) The superintendent shall provide a copy of the report of the
inspection conducted pursuant to division (D) of this section and any
findings to the public employer. Within six months after receipt of the
report, the public employer shall submit the report to the
director administrator, if
the public
employer wishes to proceed with the exemption request. If the report does not
contain a description of any hazardous or unsafe conditions, the
director administrator shall
grant the public employer an exemption from this chapter, except as provided
in division (K) of this section. If the report contains a
description of any
hazardous or unsafe conditions, the public employer shall submit to
the director administrator a plan that describes how it intends
to
remedy, within
a one-year period of time, the hazardous or unsafe conditions. Within thirty days after receipt of the plan from the public
employer, the director administrator may approve or disapprove
the
plan as
submitted. If the director administrator approves the plan as
submitted, the
director administrator shall grant the public employer an
exemption
from this
chapter, except as provided in division (K) of this section. If the director administrator disapproves the plan, the
director administrator shall return
it and the reasons for its rejection to the public employer.
The public employer may submit a revised plan, which corrects the
deficiencies for which the original plan was rejected, within thirty
days after receipt of the disapproved plan from the
director administrator. The
director administrator has thirty days
after receipt of the revised plan
to review it, and if it remedies the director's administrator's
objections, to approve it and grant the exemption. The public employer shall
be exempted from this chapter,
except as provided in division (K) of this section, if the
director administrator fails to act within the
thirty-day period. (F) Within ten working days after completing implementation of
the plan, the public employer shall certify to the
director administrator, by certified mail,
return receipt requested, that the hazardous or unsafe conditions have been
abated. If a public employer fails to complete the plan within the one-year period
of time, the director administrator may do either of the
following: (1) Terminate the exemption; (2) Grant to the public employer a sixty-day extension to the one-year
period of time, provided that the director administrator
determines
that the public employer is
making significant progress in completing implementation of the plan. The director administrator shall terminate the exemption of a
public employer who
does not
complete implementation of the plan within the sixty-day extension granted by
the director administrator under division (F)(2) of this
section. (G) The director administrator shall inspect a public
employer's place of
employment
immediately after either of the following occur: (1) A public employee of the public employer is killed
due to an incident that is related to the public employee's
employment; (2) Three or more public employees of the public employer
are hospitalized due to an incident that is related to the
public employees' employment. After reviewing the inspection report, the
director administrator
may require the public employer to submit to the
director administrator, within a
reasonable amount of time as determined by the
director administrator, a plan that describes how the public
employer intends to
remedy any
conditions described in the report that the
director administrator
determines need to be remedied. Nothing in this division constitutes the granting of a new
exemption for purposes of determining the seven-year expiration
date pursuant to division (H)
of this section. (H) Except as provided in division (F) of this section, an exemption
granted pursuant to this section
expires seven years after the date of its issuance. A public employer may
apply for a subsequent exemption in the same manner provided in this
section for the grant of an original exemption. (I) Each public employer granted an exemption under this section
may request the superintendent of the division of safety
and hygiene in
the bureau of workers' compensation to conduct a safety inspection of the
public employer's place of employment
any time during the exemption period. Based on this inspection, the
superintendent shall note any hazards or unsafe conditions and recommend
abatement of these hazards and unsafe conditions. The superintendent shall
provide a copy of the report of the inspection conducted pursuant to this
division and any resulting recommendations to the public employer. The
director administrator shall not cite the public employer for a violation of this
chapter due to a hazardous or unsafe condition identified by the
superintendent pursuant to this inspection. (J) Notwithstanding any other provision of this chapter, a public
employer who meets the requirements of division (A) of this section
and files an application that meets the requirements of division (B)
of this section is not subject to this chapter, except section 4167.06 of the
Revised Code and division (G) of this section, after the date
on which the public employer meets the requirements of division
(A) of this section and files an application that meets the
requirements of division (B) of this section until the
director administrator
determines whether to grant the exemption under this section. (K) Nothing in this section limits, or shall
be construed as
limiting, a public employee's rights as provided in section 4167.06 of the
Revised Code. Nothing in this section limits, or shall be construed as
limiting, a public
employer's right to adopt reasonable safety rules and require a public
employee's compliance with those rules. A public employer who is granted an exemption under this section shall not
be exempt from divisions (G), (H), and (I) of this
section.
Sec. 4167.27. (A) The public employment risk reduction advisory
commission administrator of workers' compensation shall adopt a rule and Ohio employment risk reduction
standard for the prevention of exposure incidents. The initial rule and
standard shall be adopted not later than one hundred eighty days after October 5, 2000. (B) The commission administrator shall provide advice to public employers
with
regard to their implementation of the requirements established by the rule and
standard adopted
under this section and the requirements of section 4167.28 of the
Revised Code.
Section 2. That existing sections 121.08, 4121.12, 4121.121, 4121.37, 4123.511, 4167.02, 4167.06, 4167.07, 4167.08, 4167.09, 4167.10, 4167.11, 4167.12, 4167.14, 4167.15, 4167.16, 4167.17, 4167.19, and 4167.27 and section 4167.18 of the Revised Code are hereby repealed.
Section 3. All items in this section are hereby appropriated
out
of
any moneys
in the state treasury to the credit of the
designated
fund. For all
appropriations made in this act, those
in the first
column are for fiscal year
2006, and those in the
second column
are for fiscal year 2007.
FND |
AI |
|
AI TITLE |
|
|
|
Appropriations |
BWC BUREAU OF WORKERS' COMPENSATION
Workers' Compensation Fund Group
023 |
855-401 |
|
William Green Lease Payments to OBA |
|
$ |
19,736,600 |
|
$ |
20,125,900 |
023 |
855-407 |
|
Claims, Risk
& Medical Management |
|
$ |
140,052,037 |
|
$ |
140,052,037 |
023 |
855-408 |
|
Fraud Prevention |
|
$ |
11,713,797 |
|
$ |
11,713,797 |
023 |
855-409 |
|
Administrative Services |
|
$ |
119,246,553 |
|
$ |
119,246,553 |
023 |
855-410 |
|
Attorney General Payments |
|
$ |
4,314,644 |
|
$ |
4,314,644 |
822 |
855-606 |
|
Coal Workers' Fund |
|
$ |
91,894 |
|
$ |
91,894 |
823 |
855-608 |
|
Marine Industry |
|
$ |
53,952 |
|
$ |
53,952 |
825 |
855-605 |
|
Disabled Workers Relief Fund |
|
$ |
693,764 |
|
$ |
693,764 |
826 |
855-609 |
|
Safety
& Hygiene Operating |
|
$ |
20,130,820 |
|
$ |
20,130,820 |
826 |
855-610 |
|
Safety Grants Program |
|
$ |
4,000,000 |
|
$ |
4,000,000 |
TOTAL WCF Workers' Compensation |
|
|
|
|
|
|
Fund Group |
|
$ |
320,034,061 |
|
$ |
320,423,361 |
Federal Special Revenue Fund Group
349 |
855-601 |
|
OSHA Enforcement |
|
$ |
1,527,750 |
|
$ |
1,604,140 |
TOTAL FED Federal Special Revenue Fund Group |
|
$ |
1,527,750 |
|
$ |
1,604,140 |
TOTAL ALL BUDGET FUND GROUPS |
|
$ |
321,561,811 |
|
$ |
322,027,501 |
WILLIAM GREEN LEASE PAYMENTS The foregoing appropriation item 855-401, William Green Lease
Payments to OBA,
shall be used for lease payments to the Ohio
Building Authority, and these
appropriations shall be used to meet
all payments at the times they are
required to be made during the
period from July 1, 2005, to June 30, 2007, by
the Bureau of
Workers' Compensation to the Ohio Building Authority pursuant to
leases and agreements made under Chapter 152. of the Revised Code
and Section
6 of Am. Sub. H.B. 743 of the 118th General Assembly.
Of the amounts received
in Fund 023, appropriation item 855-401,
up to $39,862,500 shall be
restricted for lease rental payments to
the Ohio Building Authority. If it is
determined that additional
appropriations are necessary for such purpose, such
amounts are
hereby appropriated. Notwithstanding any other provision of law to the contrary,
all tenants of the
William Green Building not funded by the
Workers' Compensation Fund (Fund 023)
shall pay their fair share
of the costs of lease payments to the Workers'
Compensation Fund
(Fund 023) by intrastate transfer voucher. WORKERS' COMPENSATION FRAUD UNIT The Workers' Compensation Section Fund (Fund 195) shall
receive payments from
the Bureau of Workers' Compensation at the
beginning of each quarter of each
fiscal year to fund expenses of
the Workers' Compensation Fraud Unit of the
Attorney General's
Office. Of the foregoing appropriation item 855-410,
Attorney
General Payments, $773,151 in fiscal year 2006 and $773,151 in
fiscal
year 2007 shall be used to provide these payments. Notwithstanding section 4121.37 of the Revised Code, the
Administrator of Workers' Compensation shall
transfer moneys from
the State Insurance
Fund so that
appropriation item 855-609,
Safety and Hygiene Operating, is
provided
$20,130,820 in fiscal
year 2006 and $20,130,820 in fiscal
year 2007.
Upon the request of the Administrator of the Bureau of Workers' Compensation and with the advice and consent of the Bureau of Workers' Compensation Oversight Commission, the Director of Budget and Management shall transfer cash in the amounts requested from the Safety and Hygiene Operating Fund (Fund 826) to the Long-Term Care Loan Fund (Fund 829) created in section 4121.48 of the Revised Code. The amounts transferred are hereby appropriated. OSHA ON-SITE CONSULTATION PROGRAM
The Bureau of Workers' Compensation may designate a portion of appropriation item 855-609, Safety and Hygiene Operating, to be used to match federal funding for the federal Occupational Safety and Health Administration's (OSHA) on-site consultation program. VOCATIONAL REHABILITATION The Bureau of Workers' Compensation and the Rehabilitation
Services Commission
shall enter into an interagency agreement for
the provision of vocational
rehabilitation services and staff to
mutually eligible clients. The bureau
shall provide $587,774 in
fiscal year 2006 and $605,407 in fiscal year 2007
from the State
Insurance Fund to
fund vocational rehabilitation services and
staff in accordance with the
interagency agreement. Any unencumbered cash balance in excess of $45,000,000 in the
Workers'
Compensation Fund (Fund 023) on the thirtieth day of June
of each fiscal year
shall be used to reduce the administrative
cost rate charged to employers to
cover
appropriations for Bureau
of Workers' Compensation
operations.
OSHA ENFORCEMENT FUND TRANSFER
On July 1, 2005, or as soon thereafter as possible, the Director of Budget and Management shall transfer the OSHA Enforcement Fund (Fund 349) from the Department of Commerce to the Bureau of Workers' Compensation. At the request of the Director of the Department of Commerce, the Director of Budget and Management may cancel encumbrances in this fund from appropriation item 800-626, OSHA Enforcement, within the budget of the Department of Commerce, and reestablish those encumbrances or parts of those encumbrances in fiscal year 2006 for the same purpose and to the same vendor to appropriation item 855-601, OSHA Enforcement, within the budget of the Bureau of Workers' Compensation. As determined by the Director of Budget and Management, the appropriation authority necessary to reestablish encumbrances or parts of encumbrances in fiscal year 2006 for the Bureau of Workers' Compensation is hereby granted.
Section 4. (A) Notwithstanding any provision of law to the contrary, the Director of Budget and Management is authorized to take the actions described under this section. The Director of Budget and Management may make any transfers of cash balances between funds made necessary by the administrative reorganization, program transfers, creation of new funds, and the consolidation of funds that are authorized by this act. At the request of the Office of Budget and Management, the administering agency head shall certify to the Director of Budget and Management the amount or an estimate of the amount of the cash balance to be transferred to the receiving fund. The Director may transfer the amount or the estimate of the amount when needed to make payments. Not more than thirty days after certifying an estimated amount, the administering agency head shall certify the final amount to the Director. The Director shall then transfer the difference between any estimated amount previously transferred and the certified final amount.
(1) The functions of the Department of Commerce, Division of Labor and Worker Safety, conducted pursuant to Chapter 4167. of the Revised Code, and all agreements with the federal Occupational Safety and Health Administration's (OSHA) on-site consultation program, are transferred to the Bureau of Workers' Compensation, together with all assets, liabilities, capital spending authority, equipment, and records, regardless of their form or medium, that relate to those functions and agreements. The Bureau of Workers' Compensation assumes these functions.
(2) Business commenced but not completed pursuant to Chapter 4167. of the Revised Code by the Director or the Department of Commerce, Division of Labor and Worker Safety, and any agreements with OSHA's on-site consultation program that are in effect, shall be completed by the Administrator or the Bureau of Workers' Compensation in the same manner, and with the same effect, as if completed by the Director or the Department of Commerce, Division of Labor and Worker Safety.
(3) All of the rules, orders, and determinations enacted or adopted by the Department of Commerce, Division of Labor and Worker Safety, that relate to the transfer of functions required by this section shall continue in effect as rules, orders, and determinations of the Bureau of Workers' Compensation until modified or rescinded by the Bureau of Workers' Compensation. If necessary to ensure the integrity of the numbering of the Administrative Code, the Director of the Legislative Service Commission shall renumber the rules of the Department of Commerce, Division of Labor and Worker Safety, enacted or adopted pursuant to Chapter 4167. of the Revised Code to reflect their transfer to the Bureau of Workers' Compensation.
(4) Subject to the layoff provisions of sections 124.321 to 124.328 of the Revised Code, all employees of the Department of Commerce, Division of Labor and Worker Safety, who perform functions pursuant to Chapter 4167. of the Revised Code or to agreements with the federal Occupational Safety and Health Administration related to OSHA's on-site consultation program, are hereby transferred to the Bureau of Workers' Compensation. The vehicles and equipment assigned to these employees are also transferred to the Bureau of Workers' Compensation.
(C) No validation, cure, right, privilege, remedy, obligation, or liability is lost or impaired by reason of the transfer of functions required by this section, and all shall be administered by the Bureau of Workers' Compensation.
(D) No action or proceeding pending as of the effective date of this section is affected by the transfer of functions required by this section, and shall be recognized, prosecuted, or defended in the name of the Administrator of Workers' Compensation. In all such actions, the Administrator or the Bureau of Workers' Compensation, upon application to the court, shall be substituted as a party.
(E) Whenever the Director or the Department of Commerce, or the Superintendent or the Division of Labor and Worker Safety is referred to in any law, contract, or other document relating to the functions transferred under this section, the reference shall be deemed to refer to the Administrator or the Bureau of Workers' Compensation, whichever is appropriate.
Section 5. Law contained in the main operating appropriations act of the 126th General Assembly that applies generally to the appropriations made in that act also applies generally to the appropriations made in this act. Section 6. If any item of law that constitutes the whole or part of a codified or uncodified section of law contained in this act, or if any application of any item of law that constitutes the whole or part of a codified or uncodified section of law contained in this act, is held invalid, the invalidity does not affect the other items of law or applications of items of law that can be given effect without the invalid item of law or application. To this end, the items of law of which the codified and uncodified sections of law contained in this act are composed, and their applications, are independent and severable. Section 7. The uncodified sections of law contained in this act, and the items of law of which the uncodified sections of law contained in this act are composed, are not subject to the referendum. Therefore, under Ohio Constitution, Article II, Section 1d and section 1.471 of the Revised Code, the uncodified sections of law contained in this act, and the items of law of which the uncodified sections of law contained in this act are composed, go into immediate effect when this act becomes law. Section 8. An item that composes the whole or part of an uncodified section contained in this act has no effect after June 30, 2007, unless the context clearly indicates otherwise.
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