Major legislative changes in Ohio workers’ compensation

On June 16, 2020, HB 81 was signed into law by Governor DeWine. The new law takes effect on September 23, 2020 and substantively impacts several areas of the Ohio Workers’ Compensation system.

The most significant change is the language regarding the doctrine of voluntary abandonment. The General Assembly codifies the requirement that the loss of wages must be a direct result of the injury or occupational disease to be compensable and that compensation is not payable if the loss of wages is for reasons unrelated to the injury or disease. The new law states, “If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section.”

In Ohio we have 25 years of case law that has shaped the doctrine of voluntary abandonment. The new law specifically indicates that it is the intent of the General Assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim. With this broad language, it is unclear how the new law affects prior decisions such as Gross II, Klein and Louisiana Pacific. Time will tell how both the Industrial Commission and the court system address this broad language.

The law also addresses other substantive areas which include:

• A VSSR must be filed within one year from the date of injury, consistent with the 2018 legislative change limiting the time to file an industrial claim from two years to one year.
• The five year statute of limitations for post 2006 claims is now five years after payment of last compensation or five years from the last date of medical treatment instead of five years from the last payment of medical services. This provision will only apply to any claims arising on or after July 1, 2020. C. 4123.52.
• In state fund settlements, BWC will not need to seek approval from an employer if the claim is no longer within that employer’s experience and the injured worker is no longer employed by the employer. RC 4123.65 (G).
• The maximum payable for funeral expenses is increased from $5,500-$7,500.

In addition, in response to the COVID-19 pandemic, there is pending legislation which, if passed, could significantly impact the Workers’ Compensation system. HB 606 would provide a rebuttable presumption that specifies emergency responders, corrections officers and certain food workers who contract COVID-19 in the course of and arising from employment. The bill, if passed, also would provide temporary qualified immunity to specific healthcare providers who provide healthcare services or emergency services through December 31, 2020. This legislation passed the House in late May and an initial Senate Judiciary committee hearing was conducted on June 24, 2020.

Perez and Morris continues to monitor the latest developments in the Ohio Worker’s Compensation system especially relating to COVID-19 issues. Please feel free to reach out with any questions pertaining to any of these legislative changes or to COVID-19.

Rick is a proactive, strategic and dedicated workers’ compensation defense attorney with nearly three decades’ experience. He has represented self-insured and state-funded private employers, state agencies, and public and private universities in proceedings before the Industrial Commission of Ohio, and at all levels of court within the State of Ohio. Rick’s experience includes representation of national trucking companies, major hospital organizations, nursing home consortiums, national utilities, as well as a number of industry-leading retailers and restaurants.

Rick received his JD from Capital University Law School in 1986 and was a member of Phi Delta Phi, the international legal fraternity. Rick resides in New Albany, Ohio with his wife, Gigi, and their three children. Read more

Email Rick Hernandez

Beth has represented and advised employers for thirty years regarding all aspects of their workers’ compensation and risk management programs. Beth’s philosophy is that preparation and attention to detail are the hallmarks of a successful defense plan. Her practice includes representation of employers at all administrative hearing levels before the Industrial Commission of Ohio and the adjudicating bodies of the Ohio Bureau of Workers’ Compensation.

Beth received her JD from Capital University Law School in 1988. She resides in Bexley, Ohio with her husband and two children. Read more

Email Beth Weeden

Ohio Workers’ Comp Update: COVID-19 claims handling

As our country struggles with the COVID-19 crisis, both personally and professionally, it is important to understand the impact of this virus on the Ohio Workers’ Compensation system.

To date, there are eighteen COVID-19 claims filed with the Ohio BWC. Three of those claims have been denied by the BWC and the remaining 15 are under investigation at this time. The number of claims filed is expected to increase over the ensuing weeks and months.

The claims are being analyzed by the BWC as occupational disease claims. When a claim is filed on the FROI-1 claim application it will be important to look at the description of injury or exposure, and the employer should be prepared to defend the claim under the injury and occupational disease theories of causation. A COVID-19 claim could be filed as a result of a specific injury if, for example, a COVID-19 positive patient sneezes directly into the unprotected face of an individual, who is subsequently diagnosed with the virus. However, most claims are likely to be filed as exposure claims over a period of time, without specifying a single event.

Generally a communicable disease like COVID-19 is not a compensable claim because people are exposed in a variety of ways and there are few jobs that pose a hazard or risk of contracting the disease in greater degree than the public in general. Healthcare workers are obviously at a higher risk of contracting the disease, and arguably, any business that remains open at a time when most businesses are closed, would also pose a higher risk for its employees.

In Ohio, an occupational disease is compensable where:

• The disease is contracted in the course of the employment;
• The disease is peculiar to the claimant’s employment by its causes and that characteristics of its manifestation or the conditions of the employment result in a hazard which distinguishes the employment in character from employment in general;
• The employment creates a risk of contracting the disease in greater degree and in different manner than the public in general.

To establish compensability of an occupational disease claim, the Ohio BWC looks for proof of:

• Whether there was a work related exposure to a hazardous substance;
• A harmful effect confirmed by medical diagnosis;
• A causal relationship between the work related exposure and the harmful effect confirmed by a medical diagnosis by a physician; and
• The conditions of employment created a greater risk to the injured worker than to the general public.

The following is a list of considerations for investigating a claim involving an alleged COVID-19 exposure:

• A review of the claimant’s job duties to determine if there is evidence of clear work related exposure or just fear of exposure, and whether the conditions of the employment create a greater risk of contracting the virus than the public in general.
• Did the individual filing a claim actually come in contact with a COVID-19 positive person in the course of and arising out of their employment?
• Does the claimant have incidences of exposure in other aspects of their life or at home?
• Is there a specific medical diagnosis of COVID-19 for both the individual filing the claim and the individual they were exposed to at work and is there evidence of causal relationship between the alleged work exposure and the diagnosis.
• A review of the claimant’s pre-existing co-morbidities.

Each claim must be evaluated on a case by case basis. In addition, given the complexities of this defense, early involvement of legal counsel is recommended to assist in exploring both the factual and medical issues.

There is also a policy component to be considered in these cases, especially with respect to our healthcare clients who are on the front lines in this crisis and an employer may want to take that into consideration in determining if claims will be contested.

We are here and are keeping up to date on the latest developments in this area. Email addresses for our workers’ compensation team are below. Please feel free to reach out with any questions.

Rick is a proactive, strategic and dedicated workers’ compensation defense attorney with nearly three decades’ experience. He has represented self-insured and state-funded private employers, state agencies, and public and private universities in proceedings before the Industrial Commission of Ohio, and at all levels of court within the State of Ohio. Rick’s experience includes representation of national trucking companies, major hospital organizations, nursing home consortiums, national utilities, as well as a number of industry-leading retailers and restaurants.

Rick received his JD from Capital University Law School in 1986 and was a member of Phi Delta Phi, the international legal fraternity. Rick resides in New Albany, Ohio with his wife, Gigi, and their three children. Read more

Email Rick Hernandez

Beth has represented and advised employers for thirty years regarding all aspects of their workers’ compensation and risk management programs. Beth’s philosophy is that preparation and attention to detail are the hallmarks of a successful defense plan. Her practice includes representation of employers at all administrative hearing levels before the Industrial Commission of Ohio and the adjudicating bodies of the Ohio Bureau of Workers’ Compensation.

Beth received her JD from Capital University Law School in 1988. She resides in Bexley, Ohio with her husband and two children. Read more

Email Beth Weeden

Practicing law since 1978, Steve has become one of Ohio’s leading attorneys in the area of workers’ compensation defense and disability law. Steve has devoted his career to protecting employers. Steve frequently teaches and presents on current trends and best practices in workers’ compensation and disability and has taught on these subjects at Capital University School of Law. Read more

Email Steve Habash

Prior to entering private practice, Dennis served in the Ohio Attorney General’s Office’s Workers’ Compensation Section for 10 years. Dennis’ practice since then has included all areas of workers’ compensation defense and employment litigation and counseling. Read more

Email Dennis Behm