News and Analysis
Breaking Down Types of Voluntary Abandonment Cases
June 30, 2017OMA Connections Partner, Calfee, recently wrote about the complex area of “voluntary abandonment” with respect to workers’ compensation benefits: “At the end of last year, the Ohio Supreme Court issued its decision in State ex rel. Cordell v. Pallet Cos. … holding that a post-accident positive drug test leading to employment termination did not bar the receipt of temporary total (wage replacement) compensation, even though the claimant had no job to return to as a result of his drug use. …
“… readers now should be aware that the Ohio Industrial Commission took the occasion of the Cordell case to issue an interpretative memorandum on how the “voluntary abandonment” doctrine should be applied in hearings before it …”
In this post, Calfee breaks down the three types of voluntary abandonment cases described in the Industrial Commission memo and concludes: “… every “voluntary abandonment” case must be viewed and decided on its own facts.” 6/27/2017
Senate Raids WC Funds
June 23, 2017To help fill a hole in the state operating budget, the Senate would raid the budgets of the Bureau of Workers’ Compensation and the Industrial Commission, budgets paid for by employer premiums and assessments, not taxes.
“This language sets an extremely dangerous precedent of allowing the state to “raid” the budgets of these exclusively employer-funded agencies. Unlike the main operating budget, appropriations for the BWC and IC operations are funded entirely by employer premiums and assessments. This amendment is asking Ohio’s employers to subsidize all state operations in the form of their BWC premium payments,” wrote the OMA, Ohio Chamber of Commerce, National Federation of Independent Businesses and Council of Retail Merchants in a letter to legislative leaders, asking that the raid be stopped.
“We are very concerned this language gives this and future administrations the go-ahead to siphon funds when budget shortfalls occur. There could also be a legal issue with directing funds to the GRF (general revenue fund) that are constitutionally set for the treatment of injured workers and promotion of safer workplaces,” said the business groups. 6/22/2017
Senate Panel Sends BWC Budget to Senate Floor
June 23, 2017During a busy week at the Ohio Senate, the Insurance Committee moved House Bill 27, the Bureau of Workers’ Compensation (BWC) budget bill. The committee accepted a substitute version of the bill that made several changes to the House passed version.
Among the more headline grabbing issues, the Senate removed a provision that would have prevented illegal aliens from receiving workers’ compensation benefits.
A second high profile provision deals with the time an injured worker has to report an injury; the House passed reduction from two years to one year was retained by the Senate. This change is heavily supported by the OMA and business groups.
The Senate plans to the vote the bill out of the chamber next week, leaving precious little time for a possible conference committee. As a budget bill, the bill must be signed by the governor by the end of June. 6/22/2017
BWC Issues RFPs for Safety, Health And Wellness Programs
June 23, 2017The Ohio Bureau of Workers’ Compensation (BWC) is seeking suppliers to support new health and safety initiatives expected to launch in early 2018.
Last week, BWC issued two requests for proposals, one that seeks a supplier to manage workplace health and wellness programs, and the other for a supplier to create and lead a campaign that educates the public about the importance of health and safety at work and in the home.
Both efforts are part of BWC’s Third Billion Back rebate, which was announced earlier this year.
BWC plans to spend up to $6 million annually on a health and wellness program that targets Ohioans working for employers with 50 or fewer employees in specific high-risk industries, in addition to a segment of injured workers with certain types of injuries.
BWC also plans to launch a $2 million statewide safety awareness and educational campaign to prevent injuries associated with slips, trips and falls, overexertions and motor vehicle accidents, which account for more than 60 percent of the agency’s injury claims.
The Third Billion Back rebate plan also includes $15 million for each of the next two years for Safety Intervention Grants. 6/16/2017
Ohio Workers’ Compensation: When Are Idiopathic Injuries Compensable?
June 23, 2017OMA Connections Partner, Dinsmore, posts this: “One of the more complicated categories of workers’ compensation claims in Ohio involves “idiopathic” injuries. An idiopathic injury is generally described as one which arose from circumstances peculiar to an individual employee, rather than one caused by a risk related to the employment. A common example of such an injury involves an employee who experiences an epileptic or diabetic seizure while at work. Since the seizure is the result of a personal medical condition particular to the individual employee, the injuries caused by the seizure itself would not be compensable.
“Even when the cause of an injury is idiopathic, however, an injury can nevertheless be compensable if the employment significantly contributes to the injury by placing the employee in a position which increases the dangerous effects of the idiopathic incident. This fact makes the determination of such claims very fact-specific. For example, if an employee falls as the result of a non-work related seizure, the claim could be compensable if the employee strikes a machine while falling but would not be compensable if the employee simply falls to the ground, even while working on a hard surface such as concrete.”
Dinsmore provides this advice: “Because the determination of such claims can be so fact-specific, employers should carefully investigate any injury involving an unexplained fall or appearing to have been caused by a medical condition personal to the employee.” Read more. 6/20/2017
OMA Safety & Workers’ Comp Committee to Feature Lawmaker with a Plan
June 16, 2017The OMA Safety & Workers’ Compensation committee will meet on Tuesday, June 27. You can attend in-person or via phone.
The agenda features Rep. Mike Henne (R-Clayton) who will discuss his recently introduced legislation, HB 268 and HB 269, which would make major changes to Ohio’s workers’ compensation system.
Also, BWC staff will present the agency’s Health Behavior Assessment Investment initiative. There will be updates on BWC and Industrial Commission budget impacts to manufacturers; legal, regulatory and BWC program updates; and OSHA & safety updates.
All members are welcome. Register at My OMA. 6/15/2017
Hot? There’s an App for That.
June 16, 2017The National Institute for Occupational Safety and Health and OSHA have collaborated to update OSHA’s original Heat Safety Tool. The updated app, available for both Android and iPhone, provides a clearer user interface, while still providing the same information to help keep workers safe when working in hot weather.
Extreme heat causes more deaths than any other weather-related hazard; each year more than 65,000 people seek medical treatment for extreme heat exposure.
Employers should encourage workers exposed to hot and humid conditions to use the app to check the heat index and relevant protective measures. The app displays the heat index in the user’s location and shows the current risk level. The app also forecasts the hourly heat index throughout the entire workday, giving employers information they can use to adjust the work environment as needed to protect workers.
To download the updated app and get more information on OSHA’s efforts to help protect workers from the heat, visit its heat campaign webpage. 6/15/2017
BWC and IC Defend Budgets in Senate
June 2, 2017This week the Industrial Commission (IC) and Bureau of Workers’ Compensation (BWC) presented their budgets to the Ohio Senate Insurance and Financial Institutions Committee.
BWC budget sponsor Rep. Tom Brinkman (R-Cincinnati) outlined ten substantive changes the House made to the budget, including changing the statute of limitations for claims from two years to one.
BWC CEO/Administrator Sarah Morrison described the operations of the agency and its financial performance.
Industrial Commission Chairman Tom Bainbridge presented the IC’s budget.
The agencies have separate budgeting processes from the state operating budget which funds the majority of state agencies. All budgets must be signed by the governor by the end of June. 6/1/2017
Supreme Court Upholds Pre-Existing Condition Compensation Statute
May 26, 2017OMA Connections Partner, Dinsmore, updates us on a series of recent workers’ compensation legal actions that ultimately leave intact the Ohio workers’ compensation statute that limits compensation for pre-existing conditions.
Under current statute, an employee must prove a pre-existing condition was substantially aggravated to obtain workers’ compensation benefits for that condition. Further, once the condition has returned to a level that would have existed without the aggravating injury, no further compensation or benefits are payable for the pre-existing condition.
Last week, the Supreme Court of Ohio issued its decision in Clendenin v. Girl Scouts of Western Ohio, a case that tested this statute. The court ruled that the Industrial Commission had not denied the claimant participation in the system but had appropriately limited the amount of benefits the claimant could obtain for the pre-existing condition once the condition had returned to pre-injury status.
Per Dinsmore: “… Ohio employers should carefully review any claim allowed for substantial aggravation of a pre-existing condition to determine whether a motion should be filed requesting a finding that the condition has returned to pre-injury status.”
Read more from Dinsmore here. 5/22/2017
PTSD Bill Would Cost $98 M Annually
May 26, 2017This week Rep. Tom Patton (R-Strongsville) gave sponsor testimony on House Bill 161, a bill that would provide workers’ compensation benefits for first responders with post-traumatic stress disorder (PTSD) arising from employment, even without an accompanying physical injury or occupational illness. Benefits could be provided to qualifying claimants for up to one year.
The bill creates a fundamental shift from current workers’ compensation law which requires a physical injury before allowing any mental health claims. A similar measure backed by then Senator Patton died in the 132nd General Assembly.
The Bureau of Workers’ Compensation (BWC) board this week reviewed a report from the BWC actuarial staff quantifying the financial impact this bill and its companion, Senate Bill 118, would have on the local governments which would pay the claims.
It is estimated that the bill would cost up to an additional $98.4 million annually in claims. For comparative purposes, currently all public entities in the State Insurance Fund combined pay approximately $190 million in total annual premium today.
OMA and its business allies have long opposed opening the workers’ compensation system to cover claims with no accompanying physical injury or occupational illness. More testimony is expected prior to summer recess. 5/25/2017