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Several Pertinent Changes to Workers' Compensation Laws

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By: Kevin R. Sanislo

September 7, 2017

Recently, Governor Kasich passed the Workers’ Compensation Budget under H.B. 27. In doing so, there were also some changes in several of the laws affecting the workers’ compensation system. Not only did Governor Kasich approve the Workers’ Compensation Budget, he approved changes to several Code sections dealing with permanent partial disability applications, payment of temporary total disability, court appeals to the Court of Common Pleas, and the statute of limitations for injury claims. Those affected Code sections are Ohio Rev. Code §§ 4123.512, 4123.56, 4123.57, and 4123.84.

The changes to the statute of limitations for filing a claim for an injury are quite significant. The Ohio Legislature amended Ohio Rev. Code § 4123.84 to lessen the timeframe in which a claimant can file an injury. Now a claimant has one year to file a claim. Thus, for any and all new claims allegedly occurring on or after September 29, 2017, a claimant MUST file that injury claim within one year or it will be forever barred. These changes to the Code sections are significant in that injury claims must now be filed in a much more timely fashion. This should cut down on those claims wherein claimants were purposefully not pursuing a workers’ compensation claim after a motor vehicle accident until after the motor vehicle accident claim was settled. There should be an increase in subrogation potential as worker’s compensation claims must now be more timely filed.

There were several changes made by the Legislature to the Common Pleas Court Appeals section under Ohio Rev. Code § 4123.512. First, the statutory maximum attorneys’ fee to plaintiff’s counsel for a successful court appeal was increased from $4,200 to $5,000. Therefore trial court appeals with an injury or occupational disease arising on or after September 29, 2017 can potentially have a maximum award of attorneys’ fees after a successful trial by the claimant in the amount of $5,000.

The second change to Ohio Rev. Code § 4123.512 comes in the form of a new provision allowing either the claimant or the employer to request additional time in which to explore settlement before having to file the notice of appeal into the court of common pleas. Under Ohio Rev. Code § 4123.512, the party wishing to file the notice of appeal into court must do so within 60 days of the receipt of the final order from the Industrial Commission, either granting or denying the allowance of the claim or additional allowances. This amendment to the Code section allows the petitioning party to set aside the 60-day notice of appeal filing requirement to try and perpetuate settlement.

Under the new provision, the claimant or the employer (within 30 days of receiving the final appealable order from the Industrial Commission) can file a notice of intent to settle with the Ohio BWC. The parties serving the notice of intent to settle must file the notice on both the opposing party and the parties’ representative. By filing the notice of intent to settle, it extends the timeframe to file the notice of appeal into court to 150 days. This extension of 150 days is granted to allow the parties time to try and settle the claim and avoid unnecessary litigation costs unless the opposing side files an objection to the notice of intent to settle with the Ohio BWC within 14 days of receiving the original notice of intent to settle. At which time, if a party opposes the intent to settle, the timeframe to appeal the order into court would revert back to the original 60-day timeframe. The changes for this section are also significant in that this is another step toward the claimant’s bar and the employer’s bar trying to amicably resolve claims via settlement before having to go into court. The 150-day window created by the notice of intent to settle is a significant amount of time that should allow the parties to have meaningful discussions about settlement. Additionally, this would also lend time for the parties to schedule mediation in higher-dollar claims or difficult cases before having to file the case into court. The one drawback to his amendment is that it only applies to new injury or occupational disease claims occurring on or after September 29, 2017.

Ohio Rev. Code § 4123.56 was amended with respect to the payment of temporary total disability. The part of this section that was amended dealt with the actual payment of temporary total disability at the outset of a claim or when ordered to pay temporary total disability benefits and what rate of pay to use. Specifically, if temporary total disability becomes payable in a claim and the injured worker’s FWW has not yet been calculated because the wages have not been submitted, then this new Code section mandates the injured worker shall be paid at 1/3 the rate of the statewide average weekly wage unless and until the wages are actually calculated. Should the payment of 1/3 of the statewide average weekly wage result in more compensation going to the claimant, then there shall be an overpayment for those monies declared in the file. If, on the other hand, the claimant is then owed monies because the FWW is greater than that amount, the difference shall be paid to the claimant. This change is significant in that it ensures the timely payment of compensation to injured workers, but it is also important for employers to make sure they are quickly providing wage information to ensure the quick calculation of FWW in claims.

The Code section for the processing and payment of permanent partial disability was also amended. A new provision was added to Ohio Rev. Code § 4123.57 specifically addressing the situations wherein a claimant filed a Permanent Partial Disability Application (“PPD Application”), but did not attend the actual Bureau PPD exam. Under this new law, if a claimant files a PPD Application and fails to attend the BWC examination and did not reschedule that examination, then the PPD Application itself will be dismissed without prejudice. Further, and very importantly, the dismissal of this Application will not toll the statute of limitations on the claim. Thus the statute of limitations clock on the death of the claim continues to move along. Unlike the other amendments this section is retroactive in terms of injury and occupational disease dates and it applies to any and all PPD Applications filed on or after September 29, 2017.

If you have any questions or would like more information on H.B. 27 and the changes to Ohio Revised Code, please do not hesitate to contact a member of the Workers’ Compensation Practice Group.