Important Workers’ Compensation Developments from Ohio HB 81

E-mployment Alert

Smart Summary

  • Ohio HB 81 makes important changes to temporary total disability, wage loss compensation, filing periods for VSSR awards, and settlements.
  • The “allowed injury” must now be the proximate cause of the wage loss and HB 81 supersedes previous judicial decisions re: “voluntary abandonment.”
  • Until rectified by the General Assembly, a VSSR application in certain claims must now be filed before the claim itself(!).
  • OIC five-year “continuing jurisdiction” period is now tied to the last date of medical service, not the payment for the service.

Ohio HB 81 takes effect on September 15, 2020, and contains several important amendments addressing Ohio’s workers’ compensation law. Some of the more relevant provisions are summarized below.

No Temporary Total Disability or Wage Loss Comp for Reasons Unrelated to Allowed Injury or Occupational Disease

First, and perhaps most significantly, the bill amends RC 4123.56 to provide that if “an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease,” the employee is not entitled to temporary total disability compensation and/or wage loss compensation. This provision codifies that the allowed injury must be the proximate cause of the loss of wages and expressly supersedes all previous judicial decisions addressing the issue of “voluntary abandonment.”

“Voluntary Abandonment” Reference Replaced with New Language

The bill likewise amends RC 4123.58 (permanent total disability compensation) by removing the reference to “voluntary abandonment of the workforce” and replacing it with “is not working for reasons unrelated to the allowed injury or occupational disease.” These amendments apply to claims pending on or arising after September 15, 2020.

Judicial decisions on voluntary abandonment are numerous and often contradictory. The desire is that this amendment will codify a proximate cause standard and, perhaps, simplify the issue. Time will tell whether the Ohio Industrial Commission and the courts will find it that simple.

Time Period to File for an Additional Award for VSSR Reduced to 1 Year

The bill reduces the time in which a claimant may file an application for an additional award for violation of a specific safety requirement (“VSSR”) from two years to one. This reduction corresponds to a 2017 amendment to RC 4123.84, which likewise reduced the statute of limitations for injury and death claims. This amendment applies to claims arising on or after September 15, 2020.

Interestingly, RC 4123.85 still provides two years in which to file a claim for an occupational disease, meaning that now a VSSR application in such a claim must be filed before the claim itself! The General Assembly will need to address this anomaly.

Five-Year Open Period for Claims Now Tied to Last Date of Medical Service, Not Payment

The legislation also amends provisions addressing expiration of the Ohio Industrial Commission’s continuing jurisdiction (i.e. the time that a claim remains open). Previously, claims remained open for five years after the last date of payment of compensation or medical expenses. Now the five-year period runs from the last date compensation was paid or the last date of service (instead of payment) of medical treatment. This should benefit employers as medical expenses are always paid after, and sometimes well after, the date of service. This amendment applies to claims arising on or after July 1, 2020.

No Settlement Objections if Out of Employer Experience and They No Longer Employ Claimant

Finally, the legislation amends RC 4123.65 to provide that a state fund employer may no longer object to a settlement of a claim where the claim is out of the employer’s experience and the claimant is no longer employed by the employer. This amendment applies to claims pending or arising after September 15, 2020.