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Sub. S. B. No. 252 As Passed by the SenateAs Passed by the Senate
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Senators Hughes, Turner, Schiavoni, Kearney, LaRose, Gardner, Sawyer, Tavares, Bacon, Balderson, Eklund, Faber, Gentile, Hite, Jones, Lehner, Manning, Obhof, Oelslager, Uecker, Widener
A BILL
To amend sections 4123.01, 4123.026, and 4123.46 of
the Revised Code to make peace officers,
firefighters, and emergency medical workers
diagnosed with post-traumatic stress disorder
arising from employment without an accompanying
physical injury eligible for compensation and
benefits under Ohio's Workers' Compensation Law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4123.01, 4123.026, and 4123.46 of
the Revised Code be amended to read as follows:
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, emergency medical workers 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
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:
(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.
Any employer may elect to include as an "employee" within
this chapter, any person excluded from the definition of
"employee" pursuant to division (A)(2) of this section. If an
employer is a partnership, sole proprietorship, 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 (A)(2) 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 (A)(2) 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 as follows:
(a) Where the claimant's psychiatric conditions have arisen
from an injury or occupational disease sustained by that claimant
or where;
(b) 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;
(c) Where the claimant is a peace officer, firefighter, or
emergency medical worker and is diagnosed with post-traumatic
stress disorder that has arisen from the claimant's employment as
a peace officer, firefighter, or emergency medical worker.
(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) "Peace officer" has the same meaning as in section
2935.01 of the Revised Code.
(M) "Firefighter" means a firefighter, whether paid or
volunteer, of a lawfully constituted fire department.
(N) "Emergency medical worker" means a first responder,
emergency medical technician-basic, emergency medical
technician-intermediate, or emergency medical
technician-paramedic, certified under Chapter 4765. of the Revised
Code, whether paid or volunteer.
Sec. 4123.026. (A) The administrator of workers'
compensation, or a self-insuring public employer for the peace
officers, firefighters, and emergency medical workers employed by
or volunteering for that self-insuring public employer, shall pay
the costs of conducting post-exposure medical diagnostic services,
consistent with the standards of medical care existing at the time
of the exposure, to investigate whether an injury or occupational
disease was sustained by a peace officer, firefighter, or
emergency medical worker when coming into contact with the blood
or other body fluid of another person in the course of and arising
out of the peace officer's, firefighter's, or emergency medical
worker's employment, or when responding to an inherently dangerous
situation in the manner described in, and in accordance with the
conditions specified under, division (A)(1)(a) of section 4123.01
of the Revised Code, through any of the following means:
(1)(A) Splash or spatter in the eye or mouth, including when
received in the course of conducting mouth-to-mouth resuscitation;
(2)(B) A puncture in the skin;
(3)(C) A cut in the skin or another opening in the skin such
as an open sore, wound, lesion, abrasion, or ulcer.
(B) As used in this section:
(1) "Peace officer" has the same meaning as in section
2935.01 of the Revised Code.
(2) "Firefighter" means a firefighter, whether paid or
volunteer, of a lawfully constituted fire department.
(3) "Emergency medical worker" means a first responder,
emergency medical technician-basic, emergency medical
technician-intermediate, or emergency medical
technician-paramedic, certified under Chapter 4765. of the Revised
Code, whether paid or volunteer.
Sec. 4123.46. (A)(1) Except as provided in division (A)(2)
of this section, the bureau of workers' compensation shall
disburse the state insurance fund to employees of employers who
have paid into the fund the premiums applicable to the classes to
which they belong when the employees have been injured in the
course of their employment, wherever the injuries have occurred,
and provided the injuries have not been purposely self-inflicted,
or to the dependents of the employees in case death has ensued.
(2) As long as injuries have not been purposely
self-inflicted, the bureau shall disburse the surplus fund created
under section 4123.34 of the Revised Code to off-duty peace
officers, firefighters, and emergency medical technicians, and
first responders workers, or to their dependents if death ensues,
who are injured while responding to inherently dangerous
situations that call for an immediate response on the part of the
person, regardless of whether the person was within the limits of
the person's jurisdiction 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.
As used in division (A)(2) of this section, "peace officer,"
"firefighter," and "emergency medical technician," "first
responder worker," and "jurisdiction" have the same meanings as in
section 4123.01 of the Revised Code.
(B) All self-insuring employers, in compliance with this
chapter, shall pay the compensation to injured employees, or to
the dependents of employees who have been killed in the course of
their employment, unless the injury or death of the employee was
purposely self-inflicted, and shall furnish the medical, surgical,
nurse, and hospital care and attention or funeral expenses as
would have been paid and furnished by virtue of this chapter under
a similar state of facts by the bureau out of the state insurance
fund if the employer had paid the premium into the fund.
If any rule or regulation of a self-insuring employer
provides for or authorizes the payment of greater compensation or
more complete or extended medical care, nursing, surgical, and
hospital attention, or funeral expenses to the injured employees,
or to the dependents of the employees as may be killed, the
employer shall pay to the employees, or to the dependents of
employees killed, the amount of compensation and furnish the
medical care, nursing, surgical, and hospital attention or funeral
expenses provided by the self-insuring employer's rules and
regulations.
(C) Payment to injured employees, or to their dependents in
case death has ensued, is in lieu of any and all rights of action
against the employer of the injured or killed employees.
Section 2. That existing sections 4123.01, 4123.026, and
4123.46 of the Revised Code are hereby repealed.
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