News and Analysis
Ohio Recognized for Reductions in Workers’ Compensation Rates
The Ohio Bureau of Workers’ Compensation (BWC) announced this week that Ohio workers’ compensation rates have dropped from 17th to 28th in the most recent Oregon Premium Rate Ranking Study, a biennial review of workers’ compensation rates that is used as a national benchmark.
In addition, rate-setting actions taken by the BWC over the past two years has resulted in the lowest collectible rates for private employers in 24 years.
Ohio Supreme Court Clarifies the Employer Intentional Tort Statute
In the recent decision of Houdek v. ThyssenKrupp Materials, N.A., Inc., the Ohio Supreme Court clarified that in order to recover under Ohio’s employer intentional tort statute, a plaintiff must show that the employer acted with deliberate and specific intent to injure him. The Court’s holding is a significant result for employers and comes after a temporary period of confusion on the state of the law.
OMA Connections Partner, Roetzel & Andress, offer a good summary of a decision that manufacturers will welcome.
U.S. DOT Clarifies Position on Use of Marijuana
The U.S. Department of Transportation (DOT) has received inquiries about its regulation of the use of marijuana by safety‐sensitive transportation employees as a result of some state-passed initiatives to permit use of marijuana for “recreational” purposes.
The DOT clarified that the state initiatives will have no bearing on its regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.
BWC to Alter 2-Hour Safety Training Requirement for 2013-14 Policy Year
Today the Bureau of Workers’ Compensation (BWC) requires employers participating in group experience rating or group retrospective rating programs and having a claim in either the “green” year (now, 2011) or the prior year to complete two hours of additional safety training annually.
Starting in the next BWC policy year, July 1 2013 to June 30, 2014, the BWC will modify the administrative rule in two ways. One is that claims outside of the green year will no longer trigger compliance, and two, there will be an additional way to gain compliance other than taking two hours of safety training. Employers will be able to complete a BWC online post-accident analysis form and BWC’s associated online safety class. This is intended to tie the learning directly to the risk.
BWC administrator, Steve Buehrer, said ”BWC can then use the data to better identify statewide trends and design loss prevention programs that meet the needs of Ohio employers.”
For now, affected employers need to comply with this current administrative rule.
Court Limits Definition of “Deliberate Removal of Safety Guard” for Intentional Tort Claims
OMA Connections Partner, Roetzel & Andress, offers a good summary of a recent Ohio Supreme Court case, Hewitt v. L.E. Myers Company, that substantially limits the definition of “deliberate removal of an equipment safety guard” necessary to create a rebuttable presumption of intent under Ohio’s Employer Intentional Tort Statute.
In Hewitt, the injured employee argued that the employer deliberately removed an equipment safety guard by failing to instruct him to wear protective rubber gloves and sleeves while working near energized electric lines. The Eighth District Court of Appeals accepted this broadened definition of “equipment safety guard,” construing this phrase to include freestanding items of personal protective equipment. The Ohio Supreme Court rejected this attempt to broaden the scope and brought the definition of “deliberate removal of equipment safety guard” back in line with the intent of the General Assembly.
Supreme Court Extends Thanksgiving and Keeps the Gravy Coming
A week after Thanksgiving and the injured worker plaintiff attorneys continue eating gravy. This week the Ohio Supreme Court handed down its highly anticipated decision in the Holmes vs. Crawford Machine, Inc. case. The OMA submitted an amicus brief on behalf of the appellee, Crawford Machine, Inc. The Court ruled against the OMA and its interests.
The Court ruled that once a claimant’s right to participate in the workers’ compensation fund is established on appeal, the Ohio Revised Code requires the trial court to award the claimant his costs. The trial court is not required to apportion costs based on the outcome or a particular claim or condition.
The Holmes case sets the precedent that when a claimant can prove he is entitled to participate in the workers’ compensation system for aclaim but is denied participation for other conditions, he can still collect maximum attorney fees and reimbursements. A more equitable system would require apportioning the costs.
BWC Launches New “My Profile Page”
This week the Bureau of Workers’ Compensation (BWC) launched a new home page that employers will see when they log in to their BWC account with username and password. From this page employers will be able to update demographic information, review financial information, report payroll and pay premiums, review their claims history, and more.
Rep. Sears Reviews Reform Bill at OMA Safety & Workers’ Comp Committee
This week State Representative Barbara Sears (R – Monclova Township) headlined the OMA Safety & Workers’ Compensation Committee. Rep. Sears reviewed her proposal contained in House Bill 517 and discussed the workers’ compensation reforms the legislature is planning in the upcoming General Assembly. She asked OMA members to provide reform ideas big and small. To have your voice heard, contact OMA’s Rob Brundrett.
Also addressing the committee were the new Bureau of Workers’ Compensation Chief Legal Counsel, Sarah Morrison, and Assistant General Counsel, Tom Sico. Some of the cases they reviewed are summarized in this report from OMA counsel, Tom Sant of Bricker & Eckler LLP.
Next year’s Safety &Workers’ Compensation committee dates are set; please put these dates on your 2013 calendar: February 6, May 30, and November 7. To join the committee to follow developments in your inbox, by phone or in-person, subscribe here.
Managing Claims in the IC Process Critical
This blog post from OMA Connections Partner, Roetzel & Andress, reminds employers to keep tabs on the disposition of all workers’ compensation claims moving through the Industrial Commission process. In this case, State ex rel. KPGW Holding Co., L.L.C. v Indus. Comm., the Tenth Appellate District of the Court of Appeals held that mandamus relief was not available when a party had failed to appeal an order of the Industrial Commission.
In this case, the claimant had filed two claims requesting that each be allowed for bilateral carpal syndrome. The first claim was denied by a District Hearing Officer. Seven months later the claimant filed a claim for the same medical condition and that claim was allowed by a District Hearing Officer. The employer did not appeal this order; since the employer had the right to appeal and did not, no relief was available to the employer in the state court system.
BWC Amends Policy and Gives Guidance on Medicare Set-Aside
Bureau of Workers’ Compensation (BWC) administrator, Stephen Buehrer, has caused revisions to be made to the confusing Medicare set-aside provision of workers’ compensation settlements. Here is his letter that gives guidance and generally improves the policy.