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S. B. No. 176 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Senators Burke, Schaffer
A BILL
To amend sections 2743.02, 2744.02, 2913.48, 4123.01,
and 4123.511 and to enact sections 2307.82 and
4123.513 of the Revised Code to prohibit illegal
and unauthorized aliens from receiving
compensation and certain benefits under Ohio's
Workers' Compensation Law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2743.02, 2744.02, 2913.48, 4123.01,
and 4123.511 be amended and sections 2307.82 and 4123.513 of the
Revised Code be enacted to read as follows:
Sec. 2307.82. (A) As used in this section, "employer,"
"illegal alien," "occupational disease," and "unauthorized alien"
have the same meanings as in section 4123.01 of the Revised Code.
(B) Except as provided in division (C) of this section, no
court in this state has jurisdiction over a claim for damages
suffered by an illegal alien or an unauthorized alien by reason of
personal injury sustained or occupational disease contracted by
the illegal alien or unauthorized alien in the course of
employment caused by the wrongful act or omission or neglect of
the employer. Except as provided in division (C) of this section,
an illegal alien or unauthorized alien assumes the risk of
incurring such injury or contracting an occupational disease, and
that assumption is a complete bar to a recovery of damages for
such injury or occupational disease.
(C) A court in this state has jurisdiction over a claim
brought by an illegal alien or unauthorized alien against an
employer for damages suffered by reason of personal injury
sustained or occupational disease contracted in the course of
employment caused by the wrongful act or omission or neglect of
the employer if the employer employed the illegal alien or
unauthorized alien knowing that the illegal alien or unauthorized
alien was not authorized to work under section 101(a) of the
"Immigration Reform and Control Act of 1986," 100 Stat. 3360, 8
U.S.C. 1324a.
Nothing in this section shall be construed to prevent an
illegal alien or an unauthorized alien from bringing a claim under
section 2745.01 of the Revised Code against an employer in a court
of competent jurisdiction for an intentional tort allegedly
committed by the employer against the illegal alien or
unauthorized alien.
Sec. 2743.02. (A)(1) The state hereby waives its immunity
from liability, except as provided for the office of the state
fire marshal in division (G)(1) of section 9.60 and division (B)
of section 3737.221 of the Revised Code, except as provided in
division (I) of this section, and subject to division (H) of this
section, and consents to be sued, and have its liability
determined, in the court of claims created in this chapter in
accordance with the same rules of law applicable to suits between
private parties, except that the determination of liability is
subject to the limitations set forth in this chapter and, in the
case of state universities or colleges, in section 3345.40 of the
Revised Code, and except as provided in division (A)(2) or (3) of
this section. To the extent that the state has previously
consented to be sued, this chapter has no applicability.
Except in the case of a civil action filed by the state,
filing a civil action in the court of claims results in a complete
waiver of any cause of action, based on the same act or omission,
that the filing party has against any officer or employee, as
defined in section 109.36 of the Revised Code. The waiver shall be
void if the court determines that the act or omission was
manifestly outside the scope of the officer's or employee's office
or employment or that the officer or employee acted with malicious
purpose, in bad faith, or in a wanton or reckless manner.
(2) If a claimant proves in the court of claims that an
officer or employee, as defined in section 109.36 of the Revised
Code, would have personal liability for the officer's or
employee's acts or omissions but for the fact that the officer or
employee has personal immunity under section 9.86 of the Revised
Code, the state shall be held liable in the court of claims in any
action that is timely filed pursuant to section 2743.16 of the
Revised Code and that is based upon the acts or omissions.
(3)(a) Except as provided in division (A)(3)(b) of this
section, the state is immune from liability in any civil action or
proceeding involving the performance or nonperformance of a public
duty, including the performance or nonperformance of a public duty
that is owed by the state in relation to any action of an
individual who is committed to the custody of the state.
(b) The state immunity provided in division (A)(3)(a) of this
section does not apply to any action of the state under
circumstances in which a special relationship can be established
between the state and an injured party. A special relationship
under this division is demonstrated if all of the following
elements exist:
(i) An assumption by the state, by means of promises or
actions, of an affirmative duty to act on behalf of the party who
was allegedly injured;
(ii) Knowledge on the part of the state's agents that
inaction of the state could lead to harm;
(iii) Some form of direct contact between the state's agents
and the injured party;
(iv) The injured party's justifiable reliance on the state's
affirmative undertaking.
(B) The state hereby waives the immunity from liability of
all hospitals owned or operated by one or more political
subdivisions and consents for them to be sued, and to have their
liability determined, in the court of common pleas, in accordance
with the same rules of law applicable to suits between private
parties, subject to the limitations set forth in this chapter.
This division is also applicable to hospitals owned or operated by
political subdivisions that have been determined by the supreme
court to be subject to suit prior to July 28, 1975.
(C) Any hospital, as defined in section 2305.113 of the
Revised Code, may purchase liability insurance covering its
operations and activities and its agents, employees, nurses,
interns, residents, staff, and members of the governing board and
committees, and, whether or not such insurance is purchased, may,
to the extent that its governing board considers appropriate,
indemnify or agree to indemnify and hold harmless any such person
against expense, including attorney's fees, damage, loss, or other
liability arising out of, or claimed to have arisen out of, the
death, disease, or injury of any person as a result of the
negligence, malpractice, or other action or inaction of the
indemnified person while acting within the scope of the
indemnified person's duties or engaged in activities at the
request or direction, or for the benefit, of the hospital. Any
hospital electing to indemnify those persons, or to agree to so
indemnify, shall reserve any funds that are necessary, in the
exercise of sound and prudent actuarial judgment, to cover the
potential expense, fees, damage, loss, or other liability. The
superintendent of insurance may recommend, or, if the hospital
requests the superintendent to do so, the superintendent shall
recommend, a specific amount for any period that, in the
superintendent's opinion, represents such a judgment. This
authority is in addition to any authorization otherwise provided
or permitted by law.
(D) Recoveries against the state shall be reduced by the
aggregate of insurance proceeds, disability award, or other
collateral recovery received by the claimant. This division does
not apply to civil actions in the court of claims against a state
university or college under the circumstances described in section
3345.40 of the Revised Code. The collateral benefits provisions of
division (B)(2) of that section apply under those circumstances.
(E) The only defendant in original actions in the court of
claims is the state. The state may file a third-party complaint or
counterclaim in any civil action, except a civil action for ten
thousand dollars or less, that is filed in the court of claims.
(F) A civil action against an officer or employee, as defined
in section 109.36 of the Revised Code, that alleges that the
officer's or employee's conduct was manifestly outside the scope
of the officer's or employee's employment or official
responsibilities, or that the officer or employee acted with
malicious purpose, in bad faith, or in a wanton or reckless manner
shall first be filed against the state in the court of claims that
has exclusive, original jurisdiction to determine, initially,
whether the officer or employee is entitled to personal immunity
under section 9.86 of the Revised Code and whether the courts of
common pleas have jurisdiction over the civil action. The officer
or employee may participate in the immunity determination
proceeding before the court of claims to determine whether the
officer or employee is entitled to personal immunity under section
9.86 of the Revised Code.
The filing of a claim against an officer or employee under
this division tolls the running of the applicable statute of
limitations until the court of claims determines whether the
officer or employee is entitled to personal immunity under section
9.86 of the Revised Code.
(G) If a claim lies against an officer or employee who is a
member of the Ohio national guard, and the officer or employee
was, at the time of the act or omission complained of, subject to
the "Federal Tort Claims Act," 60 Stat. 842 (1946), 28 U.S.C.
2671, et seq., the Federal Tort Claims Act is the exclusive remedy
of the claimant and the state has no liability under this section.
(H) If an inmate of a state correctional institution has a
claim against the state for the loss of or damage to property and
the amount claimed does not exceed three hundred dollars, before
commencing an action against the state in the court of claims, the
inmate shall file a claim for the loss or damage under the rules
adopted by the director of rehabilitation and correction pursuant
to this division. The inmate shall file the claim within the time
allowed for commencement of a civil action under section 2743.16
of the Revised Code. If the state admits or compromises the claim,
the director shall make payment from a fund designated by the
director for that purpose. If the state denies the claim or does
not compromise the claim at least sixty days prior to expiration
of the time allowed for commencement of a civil action based upon
the loss or damage under section 2743.16 of the Revised Code, the
inmate may commence an action in the court of claims under this
chapter to recover damages for the loss or damage.
The director of rehabilitation and correction shall adopt
rules pursuant to Chapter 119. of the Revised Code to implement
this division.
(I) The state is not liable in any civil action brought by or
on behalf of an illegal alien or an unauthorized alien for damages
suffered by reason of personal injury sustained or occupational
disease contracted in the course of employment caused by the
wrongful act or omission or neglect of the state acting as an
employer unless the state employed that illegal alien or
unauthorized alien knowing that the illegal alien or unauthorized
alien was not authorized to work under section 101(a) of the
"Immigration Reform and Control Act of 1986," 100 Stat. 3360, 8
U.S.C. 1324a.
As used in this division, "illegal alien," "occupational
disease," and "unauthorized alien" have the same meanings as in
section 4123.01 of the Revised Code.
Sec. 2744.02. (A)(1) For the purposes of this chapter, the
functions of political subdivisions are hereby classified as
governmental functions and proprietary functions. Except as
provided in division (B) of this section, a political subdivision
is not liable in damages in a civil action for injury, death, or
loss to person or property allegedly caused by any act or omission
of the political subdivision or an employee of the political
subdivision in connection with a governmental or proprietary
function. A political subdivision is not liable in any civil
action brought by or on behalf of an illegal alien or an
unauthorized alien for damages suffered by reason of personal
injury sustained or occupational disease contracted in the course
of employment caused by the wrongful act or omission or neglect of
the political subdivision acting as an employer unless the
political subdivision employed that illegal alien or unauthorized
alien knowing that the illegal alien or unauthorized alien was not
authorized to work under section 101(a) of the "Immigration Reform
and Control Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a.
As used in this division, "illegal alien," "occupational
disease," and "unauthorized alien" have the same meanings as in
section 4123.01 of the Revised Code.
(2) The defenses and immunities conferred under this chapter
apply in connection with all governmental and proprietary
functions performed by a political subdivision and its employees,
whether performed on behalf of that political subdivision or on
behalf of another political subdivision.
(3) Subject to statutory limitations upon their monetary
jurisdiction, the courts of common pleas, the municipal courts,
and the county courts have jurisdiction to hear and determine
civil actions governed by or brought pursuant to this chapter.
(B) Subject to sections 2744.03 and 2744.05 of the Revised
Code, a political subdivision is liable in damages in a civil
action for injury, death, or loss to person or property allegedly
caused by an act or omission of the political subdivision or of
any of its employees in connection with a governmental or
proprietary function, as follows:
(1) Except as otherwise provided in this division, political
subdivisions are liable for injury, death, or loss to person or
property caused by the negligent operation of any motor vehicle by
their employees when the employees are engaged within the scope of
their employment and authority. The following are full defenses to
that liability:
(a) A member of a municipal corporation police department or
any other police agency was operating a motor vehicle while
responding to an emergency call and the operation of the vehicle
did not constitute willful or wanton misconduct;
(b) A member of a municipal corporation fire department or
any other firefighting agency was operating a motor vehicle while
engaged in duty at a fire, proceeding toward a place where a fire
is in progress or is believed to be in progress, or answering any
other emergency alarm and the operation of the vehicle did not
constitute willful or wanton misconduct;
(c) A member of an emergency medical service owned or
operated by a political subdivision was operating a motor vehicle
while responding to or completing a call for emergency medical
care or treatment, the member was holding a valid commercial
driver's license issued pursuant to Chapter 4506. or a driver's
license issued pursuant to Chapter 4507. of the Revised Code, the
operation of the vehicle did not constitute willful or wanton
misconduct, and the operation complies with the precautions of
section 4511.03 of the Revised Code.
(2) Except as otherwise provided in sections 3314.07 and
3746.24 of the Revised Code, political subdivisions are liable for
injury, death, or loss to person or property caused by the
negligent performance of acts by their employees with respect to
proprietary functions of the political subdivisions.
(3) Except as otherwise provided in section 3746.24 of the
Revised Code, political subdivisions are liable for injury, death,
or loss to person or property caused by their negligent failure to
keep public roads in repair and other negligent failure to remove
obstructions from public roads, except that it is a full defense
to that liability, when a bridge within a municipal corporation is
involved, that the municipal corporation does not have the
responsibility for maintaining or inspecting the bridge.
(4) Except as otherwise provided in section 3746.24 of the
Revised Code, political subdivisions are liable for injury, death,
or loss to person or property that is caused by the negligence of
their employees and that occurs within or on the grounds of, and
is due to physical defects within or on the grounds of, buildings
that are used in connection with the performance of a governmental
function, including, but not limited to, office buildings and
courthouses, but not including jails, places of juvenile
detention, workhouses, or any other detention facility, as defined
in section 2921.01 of the Revised Code.
(5) In addition to the circumstances described in divisions
(B)(1) to (4) of this section, a political subdivision is liable
for injury, death, or loss to person or property when civil
liability is expressly imposed upon the political subdivision by a
section of the Revised Code, including, but not limited to,
sections 2743.02 and 5591.37 of the Revised Code. Civil liability
shall not be construed to exist under another section of the
Revised Code merely because that section imposes a responsibility
or mandatory duty upon a political subdivision, because that
section provides for a criminal penalty, because of a general
authorization in that section that a political subdivision may sue
and be sued, or because that section uses the term "shall" in a
provision pertaining to a political subdivision.
(C) An order that denies a political subdivision or an
employee of a political subdivision the benefit of an alleged
immunity from liability as provided in this chapter or any other
provision of the law is a final order.
Sec. 2913.48. (A) No person, with purpose to defraud or
knowing that the person is facilitating a fraud, shall do any of
the following:
(1) Receive workers' compensation benefits to which the
person is not entitled;
(2) Make or present or cause to be made or presented a false
or misleading statement with the purpose to secure payment for
goods or services rendered under Chapter 4121., 4123., 4127., or
4131. of the Revised Code or to secure workers' compensation
benefits;
(3) Make a false statement in an attestation submitted to the
administrator of workers' compensation pursuant to division (A) of
section 4123.511 of the Revised Code.
(4) Alter, falsify, destroy, conceal, or remove any record or
document that is necessary to fully establish the validity of any
claim filed with, or necessary to establish the nature and
validity of all goods and services for which reimbursement or
payment was received or is requested from, the bureau of workers'
compensation, or a self-insuring employer under Chapter 4121.,
4123., 4127., or 4131. of the Revised Code;
(4)(5) Enter into an agreement or conspiracy to defraud the
bureau or a self-insuring employer by making or presenting or
causing to be made or presented a false claim for workers'
compensation benefits;
(5)(6) Make or present or cause to be made or presented a
false statement concerning manual codes, classification of
employees, payroll, paid compensation, or number of personnel,
when information of that nature is necessary to determine the
actual workers' compensation premium or assessment owed to the
bureau by an employer;
(6)(7) Alter, forge, or create a workers' compensation
certificate to falsely show current or correct workers'
compensation coverage;
(7)(8) Fail to secure or maintain workers' compensation
coverage as required by Chapter 4123. of the Revised Code with the
intent to defraud the bureau of workers' compensation.
(B) Whoever violates this section is guilty of workers'
compensation fraud. Except as otherwise provided in this division,
a violation of this section is a misdemeanor of the first degree.
If the value of premiums and assessments unpaid pursuant to
actions described in division (A)(5), (6), or (7), or (8) of this
section, or of goods, services, property, or money stolen is one
thousand dollars or more and is less than seven thousand five
hundred dollars, a violation of this section is a felony of the
fifth degree. If the value of premiums and assessments unpaid
pursuant to actions described in division (A)(5), (6), or (7), or
(8) of this section, or of goods, services, property, or money
stolen is seven thousand five hundred dollars or more and is less
than one hundred fifty thousand dollars, a violation of this
section is a felony of the fourth degree. If the value of premiums
and assessments unpaid pursuant to actions described in division
(A)(5), (6), or (7), or (8) of this section, or of goods,
services, property, or money stolen is one hundred fifty thousand
dollars or more, a violation of this section is a felony of the
third degree.
(C) Upon application of the governmental body that conducted
the investigation and prosecution of a violation of this section,
the court shall order the person who is convicted of the violation
to pay the governmental body its costs of investigating and
prosecuting the case. These costs are in addition to any other
costs or penalty provided in the Revised Code or any other section
of law.
(D) The remedies and penalties provided in this section are
not exclusive remedies and penalties and do not preclude the use
of any other criminal or civil remedy or penalty for any act that
is in violation of this section.
(E) As used in this section:
(1) "False" means wholly or partially untrue or deceptive.
(2) "Goods" includes, but is not limited to, medical
supplies, appliances, rehabilitative equipment, and any other
apparatus or furnishing provided or used in the care, treatment,
or rehabilitation of a claimant for workers' compensation
benefits.
(3) "Services" includes, but is not limited to, any service
provided by any health care provider to a claimant for workers'
compensation benefits and any and all services provided by the
bureau as part of workers' compensation insurance coverage.
(4) "Claim" means any attempt to cause the bureau, an
independent third party with whom the administrator or an employer
contracts under section 4121.44 of the Revised Code, or a
self-insuring employer to make payment or reimbursement for
workers' compensation benefits.
(5) "Employment" means participating in any trade,
occupation, business, service, or profession for substantial
gainful remuneration.
(6) "Employer," "employee," and "self-insuring employer" have
the same meanings as in section 4123.01 of the Revised Code.
(7) "Remuneration" includes, but is not limited to, wages,
commissions, rebates, and any other reward or consideration.
(8) "Statement" includes, but is not limited to, any oral,
written, electronic, electronic impulse, or magnetic communication
notice, letter, memorandum, receipt for payment, invoice, account,
financial statement, or bill for services; a diagnosis, prognosis,
prescription, hospital, medical, or dental chart or other record;
and a computer generated document.
(9) "Records" means any medical, professional, financial, or
business record relating to the treatment or care of any person,
to goods or services provided to any person, or to rates paid for
goods or services provided to any person, or any record that the
administrator of workers' compensation requires pursuant to rule.
(10) "Workers' compensation benefits" means any compensation
or benefits payable under Chapter 4121., 4123., 4127., or 4131. of
the Revised Code.
Sec. 4123.01. As used in this chapter:
(a) Every person in the service of the state, or of any
county, municipal corporation, township, or school district
therein, including regular members of lawfully constituted police
and fire departments of municipal corporations and townships,
whether paid or volunteer, and wherever serving within the state
or on temporary assignment outside thereof, and executive officers
of boards of education, under any appointment or contract of hire,
express or implied, oral or written, including any elected
official of the state, or of any county, municipal corporation, or
township, or members of boards of education.
As used in division (A)(1)(a) of this section, the term
"employee" includes the following persons when responding to an
inherently dangerous situation that calls for an immediate
response on the part of the person, regardless of whether the
person is within the limits of the jurisdiction of the person's
regular employment or voluntary service when responding, on the
condition that the person responds to the situation as the person
otherwise would if the person were on duty in the person's
jurisdiction:
(i) Off-duty peace officers. As used in division (A)(1)(a)(i)
of this section, "peace officer" has the same meaning as in
section 2935.01 of the Revised Code.
(ii) Off-duty firefighters, whether paid or volunteer, of a
lawfully constituted fire department.
(iii) Off-duty first responders, emergency medical
technicians-basic, emergency medical technicians-intermediate, or
emergency medical technicians-paramedic, whether paid or
volunteer, of an ambulance service organization or emergency
medical service organization pursuant to Chapter 4765. of the
Revised Code.
(b) Every person in the service of any person, firm, or
private corporation, including any public service corporation,
that (i) employs one or more persons regularly in the same
business or in or about the same establishment under any contract
of hire, express or implied, oral or written, including aliens and
authorized to work by the United States department of homeland
security or its successor; minors,; household workers who earn one
hundred sixty dollars or more in cash in any calendar quarter from
a single household; and casual workers who earn one hundred sixty
dollars or more in cash in any calendar quarter from a single
employer,; or (ii) is bound by any such contract of hire or by any
other written contract, to pay into the state insurance fund the
premiums provided by this chapter.
(c) Every person who performs labor or provides services
pursuant to a construction contract, as defined in section 4123.79
of the Revised Code, if at least ten of the following criteria
apply:
(i) The person is required to comply with instructions from
the other contracting party regarding the manner or method of
performing services;
(ii) The person is required by the other contracting party to
have particular training;
(iii) The person's services are integrated into the regular
functioning of the other contracting party;
(iv) The person is required to perform the work personally;
(v) The person is hired, supervised, or paid by the other
contracting party;
(vi) A continuing relationship exists between the person and
the other contracting party that contemplates continuing or
recurring work even if the work is not full time;
(vii) The person's hours of work are established by the other
contracting party;
(viii) The person is required to devote full time to the
business of the other contracting party;
(ix) The person is required to perform the work on the
premises of the other contracting party;
(x) The person is required to follow the order of work set by
the other contracting party;
(xi) The person is required to make oral or written reports
of progress to the other contracting party;
(xii) The person is paid for services on a regular basis such
as hourly, weekly, or monthly;
(xiii) The person's expenses are paid for by the other
contracting party;
(xiv) The person's tools and materials are furnished by the
other contracting party;
(xv) The person is provided with the facilities used to
perform services;
(xvi) The person does not realize a profit or suffer a loss
as a result of the services provided;
(xvii) The person is not performing services for a number of
employers at the same time;
(xviii) The person does not make the same services available
to the general public;
(xix) The other contracting party has a right to discharge
the person;
(xx) The person has the right to end the relationship with
the other contracting party without incurring liability pursuant
to an employment contract or agreement.
Every person in the service of any independent contractor or
subcontractor who has failed to pay into the state insurance fund
the amount of premium determined and fixed by the administrator of
workers' compensation for the person's employment or occupation or
if a self-insuring employer has failed to pay compensation and
benefits directly to the employer's injured and to the dependents
of the employer's killed employees as required by section 4123.35
of the Revised Code, shall be considered as the employee of the
person who has entered into a contract, whether written or verbal,
with such independent contractor unless such employees or their
legal representatives or beneficiaries elect, after injury or
death, to regard such independent contractor as the employer.
(d) Every person to whom all of the following apply:
(i) The person is a resident of a state other than this state
and is covered by that other state's workers' compensation law;
(ii) The person performs labor or provides services for that
person's employer while temporarily within this state;
(iii) The laws of that other state do not include the
provisions described in division (H)(4) of section 4123.54 of the
Revised Code.
(2) "Employee" does not mean any of the following:
(a) A duly ordained, commissioned, or licensed minister or
assistant or associate minister of a church in the exercise of
ministry;
(b) Any officer of a family farm corporation;
(c) An individual incorporated as a corporation; or
(d) An individual who otherwise is an employee of an employer
but who signs the waiver and affidavit specified in section
4123.15 of the Revised Code on the condition that the
administrator has granted a waiver and exception to the
individual's employer under section 4123.15 of the Revised Code;
(e) An illegal alien or an unauthorized alien.
Any employer may elect to include as an "employee" within
this chapter, any person excluded from the definition of
"employee" pursuant to division divisions (A)(2)(a) to (d) of this
section. If an employer is a partnership, sole proprietorship,
individual incorporated as a corporation, or family farm
corporation, such employer may elect to include as an "employee"
within this chapter, any member of such partnership, the owner of
the sole proprietorship, the individual incorporated as a
corporation, or the officers of the family farm corporation. In
the event of an election, the employer shall serve upon the bureau
of workers' compensation written notice naming the persons to be
covered, include such employee's remuneration for premium purposes
in all future payroll reports, and no person excluded from the
definition of "employee" pursuant to division divisions (A)(2)(a)
to (d) of this section, proprietor, individual incorporated as a
corporation, or partner shall be deemed an employee within this
division until the employer has served such notice.
For informational purposes only, the bureau shall prescribe
such language as it considers appropriate, on such of its forms as
it considers appropriate, to advise employers of their right to
elect to include as an "employee" within this chapter a sole
proprietor, any member of a partnership, an individual
incorporated as a corporation, the officers of a family farm
corporation, or a person excluded from the definition of
"employee" under division divisions (A)(2)(a) to (d) of this
section, that they should check any health and disability
insurance policy, or other form of health and disability plan or
contract, presently covering them, or the purchase of which they
may be considering, to determine whether such policy, plan, or
contract excludes benefits for illness or injury that they might
have elected to have covered by workers' compensation.
(1) The state, including state hospitals, each county,
municipal corporation, township, school district, and hospital
owned by a political subdivision or subdivisions other than the
state;
(2) Every person, firm, professional employer organization as
defined in section 4125.01 of the Revised Code, and private
corporation, including any public service corporation, that (a)
has in service one or more employees or shared employees regularly
in the same business or in or about the same establishment under
any contract of hire, express or implied, oral or written, or (b)
is bound by any such contract of hire or by any other written
contract, to pay into the insurance fund the premiums provided by
this chapter.
All such employers are subject to this chapter. Any member of
a firm or association, who regularly performs manual labor in or
about a mine, factory, or other establishment, including a
household establishment, shall be considered an employee in
determining whether such person, firm, or private corporation, or
public service corporation, has in its service, one or more
employees and the employer shall report the income derived from
such labor to the bureau as part of the payroll of such employer,
and such member shall thereupon be entitled to all the benefits of
an employee.
(C) "Injury" includes any injury, whether caused by external
accidental means or accidental in character and result, received
in the course of, and arising out of, the injured employee's
employment. "Injury" does not include:
(1) Psychiatric conditions except where the claimant's
psychiatric conditions have arisen from an injury or occupational
disease sustained by that claimant or where the claimant's
psychiatric conditions have arisen from sexual conduct in which
the claimant was forced by threat of physical harm to engage or
participate;
(2) Injury or disability caused primarily by the natural
deterioration of tissue, an organ, or part of the body;
(3) Injury or disability incurred in voluntary participation
in an employer-sponsored recreation or fitness activity if the
employee signs a waiver of the employee's right to compensation or
benefits under this chapter prior to engaging in the recreation or
fitness activity;
(4) A condition that pre-existed an injury unless that
pre-existing condition is substantially aggravated by the injury.
Such a substantial aggravation must be documented by objective
diagnostic findings, objective clinical findings, or objective
test results. Subjective complaints may be evidence of such a
substantial aggravation. However, subjective complaints without
objective diagnostic findings, objective clinical findings, or
objective test results are insufficient to substantiate a
substantial aggravation.
(D) "Child" includes a posthumous child and a child legally
adopted prior to the injury.
(E) "Family farm corporation" means a corporation founded for
the purpose of farming agricultural land in which the majority of
the voting stock is held by and the majority of the stockholders
are persons or the spouse of persons related to each other within
the fourth degree of kinship, according to the rules of the civil
law, and at least one of the related persons is residing on or
actively operating the farm, and none of whose stockholders are a
corporation. A family farm corporation does not cease to qualify
under this division where, by reason of any devise, bequest, or
the operation of the laws of descent or distribution, the
ownership of shares of voting stock is transferred to another
person, as long as that person is within the degree of kinship
stipulated in this division.
(F) "Occupational disease" means a disease contracted in the
course of employment, which by its causes and the characteristics
of its manifestation or the condition of the employment results in
a hazard which distinguishes the employment in character from
employment generally, and the employment creates a risk of
contracting the disease in greater degree and in a different
manner from the public in general.
(G) "Self-insuring employer" means an employer who is granted
the privilege of paying compensation and benefits directly under
section 4123.35 of the Revised Code, including a board of county
commissioners for the sole purpose of constructing a sports
facility as defined in section 307.696 of the Revised Code,
provided that the electors of the county in which the sports
facility is to be built have approved construction of a sports
facility by ballot election no later than November 6, 1997.
(H) "Public employer" means an employer as defined in
division (B)(1) of this section.
(I) "Sexual conduct" means vaginal intercourse between a male
and female; anal intercourse, fellatio, and cunnilingus between
persons regardless of gender; and, without privilege to do so, the
insertion, however slight, of any part of the body or any
instrument, apparatus, or other object into the vaginal or anal
cavity of another. Penetration, however slight, is sufficient to
complete vaginal or anal intercourse.
(J) "Other-states' insurer" means an insurance company that
is authorized to provide workers' compensation insurance coverage
in any of the states that permit employers to obtain insurance for
workers' compensation claims through insurance companies.
(K) "Other-states' coverage" means insurance coverage
purchased by an employer for workers' compensation claims that
arise in a state or states other than this state and that are
filed by the employees of the employer or those employee's
dependents, as applicable, in that other state or those other
states.
(L) "Illegal alien" means an alien who is deportable if
apprehended because of one of the following:
(1) The alien entered the United States illegally without the
proper authorization and documents.
(2) The alien once entered the United States legally and has
since violated the terms of the status under which the alien
entered the United States, making that alien an "out of status"
alien.
(3) The alien once entered the United States legally but has
overstayed the time limits of the original legal status.
(M) "Unauthorized alien" means an alien who is not authorized
to be employed as determined in accordance with section 101(a) of
the "Immigration Reform and Control Act of 1986," 100 Stat. 3360,
8 U.S.C. 1324a.
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
To be considered eligible for compensation or benefits paid
under this chapter or Chapter 4121., 4127., or 4131. of the
Revised Code other than medical benefits as described in section
4123.66 of the Revised Code, the claimant shall submit to the
administrator of workers' compensation a signed attestation that
the claimant is an eligible "employee" as that term is defined in
section 4123.01 of the Revised Code or, if the claimant is a
dependent of an individual who died as a result of suffering an
injury or contracting an occupational disease, that the individual
who is the subject of the claim was such an employee. The
administrator shall not pay compensation or benefits, other than
medical benefits described in section 4123.66 of the Revised Code,
unless the administrator receives the signed attestation. The
administrator, if the administrator has reason to believe that a
submitted attestation is not valid, may request the claimant to
submit proof to the administrator that the attestation is valid.
The administrator shall make the request in writing and shall
state in the request the type of proof necessary to determine
validity and the date by which the claimant shall submit the
proof. If a claimant fails to comply with the request, the
administrator shall deny the claim for compensation or benefits
other than medical benefits and the claimant is barred from
refiling that claim for compensation or benefits. A denial of a
claim for compensation or benefits for failing to comply with the
written request may be appealed under this section and section
4123.512 of the Revised Code. In the event a claimant provides a
signed attestation required under this division and it is later
determined that the claimant is or the deceased individual who is
the subject of the claim was an illegal or unauthorized alien, the
claimant shall be subject to prosecution for a violation of
section 2913.48 of the Revised Code.
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, with the advice and consent of the bureau
of workers' compensation board of directors, 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 account 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 industrial 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 expiration of the period in
which an appeal of the order of the staff hearing officer may be
filed as provided in division (D) of this section, 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 (K) 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) Payments of medical benefits payable under this chapter
or Chapter 4121., 4127., or 4131. of the Revised Code shall
commence upon 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) The administrator shall charge the compensation payments
made in accordance with division (H) of this section or medical
benefits payments made in accordance with division (I) of this
section to an employer's experience immediately after the employer
has exhausted the employer's administrative appeals as provided in
this section or has waived the employer's right to an
administrative appeal under division (B) of this section, subject
to the adjustment specified in division (H) of section 4123.512 of
the Revised Code.
(K) 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.
(L) 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.
(M) 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.
(N) 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.
(O) 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. 4123.513. (A) Except as otherwise provided in divisions
(B) and (C) of this section, if a claim is denied because the
claimant is, or if the claimant is a dependent of an individual
who died as a result of suffering an injury or contracting an
occupational disease, that individual was an unauthorized alien,
the claimant's employer or the individual's employer is not liable
to that claimant for damages suffered by reason of personal injury
sustained or occupational disease contracted in the course of
employment caused by the wrongful act or omission or neglect of
the employer. For such a claimant, filing a claim under Chapter
4121., 4123., 4127., or 4131. of the Revised Code is the exclusive
remedy against the employer on account of injury, disease, or
death in the course of and arising out of the claimant's or
deceased employee's employment. Notwithstanding section 4123.77 of
the Revised Code and except as provided in division (B) of this
section, an irrebuttable presumption exists that the individual
assumed the risk of incurring an injury or contracting an
occupational disease at the workplace, or dying as a result of
such an injury or occupational disease, when performing services
or providing labor for that employer.
(B) An employer is liable to a claimant whose claim is denied
because the claimant is or the deceased individual who is the
subject of the claim was an unauthorized alien for damages
suffered by reason of personal injury sustained or occupational
disease contracted in the course of employment caused by the
wrongful act or omission or neglect of the employer if the
claimant establishes, by clear and convincing evidence, that the
employer employed the claimant or the deceased individual knowing
that the claimant or deceased individual was not authorized to
work under section 101(a) of the "Immigration Reform and Control
Act of 1986," 100 Stat. 3360, 8 U.S.C. 1324a, on the date the
claimant or deceased individual suffered the injury or contracted
the occupational disease and that such knowledge was not solely
the result of communications made by the claimant or the deceased
individual to the employer. An employer may not assert any of the
common law defenses listed in section 4123.77 of the Revised Code
in an action brought against the employer pursuant to this
section.
(C) Nothing in this section shall be construed to prevent a
claimant whose claim is denied because the claimant is or the
deceased individual who is the subject of the claim was an
unauthorized alien from bringing a claim under section 2745.01 of
the Revised Code against an employer in a court of competent
jurisdiction for an intentional tort allegedly committed by the
employer against the claimant or deceased individual who was the
subject of the claim.
Section 2. That existing sections 2743.02, 2744.02, 2913.48,
4123.01, and 4123.511 of the Revised Code are hereby repealed.
Section 3. This act applies to claims arising on or after
the effective date of this act.
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