News and Analysis
Insurers Not Liable to Defend Employers Against Workplace Injury Tort Claims?
This week the Ohio Supreme Court upheld a lower court ruling involving insurance coverage for employer intentional torts. In a 7-0 decision authored by Justice Lundberg Stratton (with Justice Pfeifer concurring in judgment only), the Court held that insurers are not responsible for defending claims against insured employers for substantially-certain intentional torts unless such torts are expressly covered by the policy.
In Ward v. United Foundries, an injured employee and family filed an intentional tort claim against the employer for injuries sustained in the workplace. Such claims are made in addition to workers’ compensation claims.
The dispute underscores the need for employers to understand and be abundantly clear about the terms of their insurance coverage. Additionally, the unanimous decision may indicate that employers in similar situations may find themselves out of luck in getting insurance to defend against tort actions stemming from workplace injury.
Supreme Court Protects Confidentiality of Workers’ Comp Files
Unanimously and without comment, the Ohio Supreme Court ruled that state law exempts from public disclosure data contained in claim files of the Ohio Bureau of Workers’ Compensation. Various interests continually attempt to gain access to claim files for commercial purposes; this decision is a welcome protection to confidentiality for injured workers.
Assistant Attorney General Elise Porter argued that the information sought was excluded from release under the Public Records Act: “The only reasonable interpretation of the statute as a whole is that the public cannot obtain data, information, or documents contained in the bureau’s claim files or any other bureau files that pertain to the claim files without authorization,” Ms. Porter said. “The only exception is for journalists, who can only obtain the addresses and telephone numbers and nothing else.”
Plaintiffs lawyers have attempted to gain access to the claim information by dressing up as journalists, too, but so far have been stopped.
Workers’ Compensation Privatization Study Fizzles
Senator Tim Grendell (R-Geauga) convened a final meeting of a task force created by the Ohio Senate in 2010. The task force was to determine if opening Ohio’s monopoly workers’ compensation system to private insurance would lower overall premiums for employers. The task force was comprised of senators, Bureau of Workers’ Compensation leadership, employer representatives, injured worker representatives and insurance company executives.
After seven meetings that included testimony from interested parties and experts, the task force members this week adopted a summary. “The findings were largely inconclusive,” said the OMA’s Ryan Augsburger, who noted that the task force chairman conceded there was insufficient data to model costs.
The privatization task force has wrapped up its work and disbanded. Its time now to address the system’s cost drivers. The OMA Safety and Workers’ Compensation Committee is engaged in that work. Join it by logging in to your OMA profile and clicking on My OMA Management Communities.
OSHA Launches Interactive Web Site to Help Employers with Recordkeeping Rule
The Occupational Safety and Health Administration (OSHA) has created an interactive web tool to help employers determine whether injuries and illnesses are work-related and recordable under the OSHA Recordkeeping rules.
The OSHA Recordkeeping Advisor is an interactive tool that simulates an employer’s interaction with a Recordkeeping rules expert. The Advisor relies on users’ responses to questions and automatically adapts to the situation presented. Responses put into the program are strictly confidential and the system does not record or store any of the information.
The Advisor helps employers determine whether an injury or illness (or related event) is work-related, whether a work-related injury or illness needs to be recorded, and more.
BWC Senior Managers Resign
Two Bureau of Workers’ Compensation (BWC) senior staff members have announced their resignations within the last couple of weeks. COO Ray Mazzotta and chief actuarial officer John Pedrick are both leaving the BWC.
Among the important work achieved, Mazzotta led improvements in the adequacy and security of the self insured guaranty fund and Pedrick drove changes to level the playing field so employers pay the appropriate premium for the risk they bring to the system. Replacements have not been named. The OMA appreciates the professionalism both managers brought to the BWC.
Industrial Commission Chair at OMA
Pictured together with OMA committee chairman, Robert Truex of Lancaster Colony, is Industrial Commission Chairperson Jodie Taylor, and Tim Adams, the executive director of the agency.
Taylor, the employer representative on the three-person commission, was elevated to the chairmanship at the start of the Kasich Administration. She indicated that the recently-appointed public member, Karen Gillmor, will replace her as chairperson upon her arrival.
Missed this week’s meeting? Click for meeting materials.
Supreme Court: Workers Protected from Retaliatory Actions under Common-Law Tort
The Ohio Supreme Court ruled last week that employees are protected from retaliatory actions of employers, even though the anti-retaliation provision of the Ohio workers’ compensation statute, R.C. 4123.90, does not extend protection to an employee who is terminated prior to filing a workers’ compensation claim.
The facts in the case, Sutton V. Tomco Machining, Inc.: the employee injured his back on the job and notified the president of the company of the injury. The employee was terminated within one hour of notifying the president of the injury, prior to his filing of a workers’ comp claim.
In a 4-3 decision, the Ohio Supreme Court acknowledged that R.C. 4123.90 does not expressly prohibit retaliation against injured workers who have not yet filed a workers’ compensation claim.
However, notwithstanding the absence of specific statutory protection, the Court ruled that Ohio recognizes a common-law tort for wrongful discharge in violation of public policy when an injured employee suffers a retaliatory employment action after an on-the-job injury but before the employee files a workers’ compensation claim.
OMA’s law firm, Bricker & Eckler prepared a summary of the case.
New OSHA National Emphasis Program Puts Focus on Primary Metals Industry
Earlier this month the Occupational Safety and Health Administration (OSHA) issued a new directive establishing a National Emphasis Program (NEP) for the primary metals industries.
The purpose of this NEP is to identify and reduce or eliminate worker exposures to harmful chemical and physical hazards in establishments producing metal products such as nails, insulated wires and cables, steel piping, and copper and aluminum products.
The primary metals industries became a concern during OSHA’s review of data from the Bureau of Labor Statistics’ Census of Fatal Occupational Injuries. Exposures of concern include metal dusts and fumes, carbon monoxide, lead and silica, noise and heat hazards. OSHA developed this program because of the seriousness and frequency of these problems.
Happy Birthday BWC!
One hundred years ago on June 15, 1911, Ohio became one of the first states in the nation to offer workers’ compensation insurance when the “Ohio Workmen’s Compensation Act” was signed into law.
In observance of this milestone, the Bureau of Workers’ Compensation (BWC) has developed a commemorative brochure that celebrates the Ohio spirit of innovation that launched Ohio’s system.
The BWC is housed today in the William Green Building; William Green, former president of the Ohio United Mine Workers and state senator, championed workers’ compensation in Ohio at the beginning of the 20th century.
Deloitte Provides Estimated Reserve Amount to BWC for June 30 Financial Statements
Deloitte, actuary to the Bureau of Workers’ Compensation (BWC), has provided an estimated amount to be recorded in BWC’s June 30, 2011 financial statements for reserves for claim obligations associated with all claims occurring through June 30.
The reserve estimate is $20.0 billion, which is computed using a discount rate of 4%.
Workers’ comp reserves in Ohio can be discounted as there is no competition for the business, and therefore, no risk of ruin to the BWC.
If the reserve amount could not be discounted, the reserve the BWC would book is estimated to be $32.5 billion according to Deloitte. The difference is an estimated $12 billion that can be put to productive use in Ohio.