This week we feature a guest post from two of our members, Colleen and Henry Arnett from the law firm of Livorno and Arnett. Their practice focuses on legal issues facing labor, and this week they examine an important piece of legislation currently before the Ohio Legislature that potentially will impact both labor and management.
We want to thank Colleen and Henry for their outstanding analysis of this legislation.
WORKERS COMPENSATION CHANGES CONTEMPLATED BY H.B. 80 By
Colleen M. Arnett and Henry A. Arnett
There are some potential developments in workers compensation law. On June 5, the Ohio House of Representatives passed House Bill 80, the workers compensation budget bill. It is now pending in the Ohio Senate, with a deadline of both receiving Senate approval and signature by Governor Mike DeWine by July 1, 2019.
H.B. 80 would add several updates to the Ohio Workers’ Compensation program, most notably in regards to coverage for post-traumatic stress disorder (PTSD). Ordinarily, under current law, a mental condition, such as PTSD, is not covered by Ohio Workers’ Compensation Law, unless that mental condition directly arose from a physical injury or occupational disease (and this exception is very strictly construed to the point that it is usually very difficult to obtain coverage of a mental condition on the theory that it arose from a physical injury or disease). The bill makes a peace officer, firefighter, or emergency medical worker (“emergency medical worker” includes any person, whether paid or volunteer, certified under Ohio law as a first responder; an emergency medical technician-basic; an emergency medical technician-intermediate; or an emergency medical technician-paramedic) who is diagnosed with PTSD that has been received in the course of, and arising out of his or her employment, eligible to receive compensation and benefits under Ohio Workers’ Compensation Law, regardless of whether the person suffers an accompanying physical injury.
Firefighter and police unions have worked for several years to have PTSD allowed under workers compensation. Proposed legislation has typically been viewed favorably by the Senate, only to die in the House. So the passage by the House of legislation allowing PTSD for safety forces is a very good sign that PTSD may finally be recognized as a legitimate workers compensation claim. Of course, the Senate and the Governor still have to approve.
The bill also addresses the issue of voluntary abandonment. This is a court created doctrine that says an injured worker may be precluded from collecting temporary total compensation if the employee has “voluntarily” abandoned his/her employment. Ironically, most “voluntary” abandonment issues arise when an employee is injured and then fired by the employer; the employer then arguing that the injured worker should not receive benefits because the employee abandoned his/her job (by getting fired).
H.B. 80 provides that, in order to be eligible to receive temporary total disability (TTD) compensation, a person must be unable to work or must suffer a wage loss as the direct result of a disability arising from an injury or occupational disease. But the bill also prohibits a person from receiving TTD and permanent total disability (PTD) when the person is not working for reasons unrelated to a disability arising from an injury or occupational disease. The bill then states that the General Assembly intends to supersede any previous judicial decision that applied the voluntary abandonment doctrine. H.B. 80 applies the rule to claims pending on the bill’s effective date and to claims arising after that date. The possibility that the voluntary abandonment rule is being thrown out is a good thing for injured workers. However, whether the language of the bill actually is sufficient to supersede the voluntary abandonment doctrine, and whether the Senate will agree, remain to be seen.
This bill requires that, unless otherwise provided in a collective bargaining agreement, an employer must either pay an employee or reinstate employee’s sick leave when the employee’s TTD compensation is offset by an amount paid to the employee for accrued sick leave. Additionally, the funeral expense benefit cap increases from $5,500 to $7,500.
When a claim is filed, the OBWC Administrator is required to request information about an employee’s and, when applicable, a dependent’s immigration status and authorization to work or reside in the United States. A person who provides false information regarding immigration status or work authorization is prohibited from receiving compensation and benefits and subjects the person to criminal prosecution for workers’ compensation fraud.
Currently, a worker’s compensation claim stays alive for five years from the date of payment of compensation or a medical bill. H.B. 80 makes the date of rendering of medical services, rather than the date of payment for services as under current law, an event that continues the Industrial Commission’s jurisdiction to modify or change a claim or to make a finding or award under a claim. This change could potentially shorten the life of many claims.
Additionally, currently employers sometimes block claim settlements, even though OBWC might agree to the settlement and the settlement would have no affect on the employer or the premiums it pays. H.B. 80 prohibits an employer from refusing or withdrawing a proposed claim settlement agreement if the claim is no longer in the employer’s industrial accident or occupational disease experience for premium calculation purposes.
This bill also requires, for claims arising on or after the provision’s effective date, a claim for an additional award of compensation for a violation of a specific safety rule (VSSR) to be filed within one year after the injury, death, or diagnosis of disability due to occupational disease, rather than within two years as under current administrative law.
For claims pending on and arising after September 29, 2017, H.B. 80 applies a provision of Sub. H.B. 27 extending the time to appeal an Industrial Commission order from 60 days to 150 days when certain conditions are satisfied.
In some industries, there is often a dispute whether the injured person is an “employee” (whose worker’s compensation claim would be covered) or an “independent contractor” (no coverage). H.B. 80 directs the Superintendent of Industrial Compliance (Department of Commerce) to establish a test, consistent with the test used by the U.S. Internal Revenue Service, to determine whether an individual is an employee or an independent contractor under the Workers’ Compensation Law, the Unemployment Compensation Law, and the Ohio Income Tax Law. Having one standard test should simplify things for both employees and employers. The bill prohibits an employer from classifying an individual as an independent contractor for purposes of the laws listed above when the individual is an employee under the Superintendent’s test and the applicable law does not contain an exception. It also provides individuals the ability to file complaints and the Superintendent the ability to investigate and take specific actions, including assessing penalties, against employers when misclassifying employees as independent contractors.
Finally, under the bill, certain private employers furnishing services for a public employer are generally prohibited from requiring an applicant or employee to pay for medical examinations that are required as a condition of employment or continued employment.
As noted, the provisions of H.B. 80 are still subject to concurrence, modification, or deletion by the Senate.