National Workers Compensation Defense Network (NWCDN)
Ohio House Bill 81 to Significantly Change Ohio Workers’ Compensation LawOhio House Bill 81 (H.B. 81) went into effect on September 15, 2020, but many of its significant changes to current Ohio Workers’ Compensation Law have been discussed by claimant’s counsel and employer's counsel throughout the workers’ compensation community for many months.The first major change encompassed by H.B. 81 involves the shortening of the time for the filing of claims asserting a Violation of a Specific Safety Requirement (VSSR). The current time limit for the filing of a VSSR claim under Section 4121.47 of the Ohio Revised Code is 24 months from the date of the injury. Under H.B. 81, for all such claims arisingon or after September 15, 2020, that time limit has been reduced to one year. This change to the statute of limitations for VSSR claims appears to be an attempt to bring this section of the workers' compensation world into alignment with a previous amendment passed by the General Assembly in 2017 that reduced the statute of limitations for injury and death claims to one year for all claims arising on or after October 1, 2017. With the enactment of H.B. 81, only claims of an occupational disease brought pursuant to Ohio Revised Code 4123.85 continue to allow for a two-year statute of limitations.The second major change encompassed by H.B. 81 pertains to the continuing jurisdiction of the Ohio Industrial Commission to make modifications or changes for a period of five years with respect to former findings or orders involving matters of disability, compensation, dependency or benefits. Under current Ohio law, that time period begins running from the last payment of compensation or lastpayment for medical services. For claims arising on or after July 1, 2020, H.B. 81 now permits a five-year continuing jurisdiction period to commence from the last payment of compensation or the lastrendering (providing) of medical services. This should serve to hasten the beginning of that five-year time period since payment for medical services usually occurs after those services are rendered.The third major change set forth by H.B. 81 effectively legislates a "proximate cause" standard to Section 4123.56 as it relates to the awarding of temporary total benefits or wage loss compensation, while expressly setting forth the "intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section." For claims pending or arising after September 15, 2020, "an employee who is unable to work or who suffers a wage loss as thedirect result of an impairment arising from an injury ... is entitled to receive compensation under this section ..." (emphasis added). If an employee is not working or has suffered a wage loss as a direct result of reasonsunrelated to the allowed injury or occupational disease the employee is not eligible to receive compensation. There is a final major change included in H.B. 81 that may potentially affect a state-funded employer’s desire to settle claims under Section 4123.65. For claims arising on or after September 15, 2020, an employer will no longer be able to deny or withdraw consent to an application to settle a claim if both of the following apply to the claim: 1) the claim is no longer within the employer’s experience; and 2) the employee named in the claim is no longer employed by the employer. This change will serve to limit an employer's ability to object to the resolution of claims that do not have any impact on the employer.Revisions to Ohio Law Provide Clarity and Consistency to Motor Carriers as to Test for Independent Contractors Effective July 3, 2019, the Ohio General Assembly has enacted statutory changes to the definition of “employment” to provide clarity to motor carriers and those in the trucking industry as to how administrative agencies, including the Ohio Bureau of Workers’ Compensation (BWC), will view independent contractor drivers. H.B. 62, Ohio’s transportation budget bill which was signed into law by Governor DeWine on April 3, 2019 (the Bill), was supported by the Ohio Trucking Association in order to address the issue that different common law tests were used by the various Ohio agencies with a hand in regulating the trucking industry.Prior to the enactment of H.B. 62, each agency used a slightly different test as developed under common law. For workers’ compensation, agencies and courts looked to whether the employer reserved the right to control the manner and means of performing the work. In unemployment compensation matters (as well as with construction industry-specific cases before the BWC), a 20-factor control test was utilized. Yet another test for purposes of minimum wage regulations required one to examine the economic realities in the nature of the relationship between the worker and the employer. The Bill now replaces all these tests and should provide clarity and consistent results for motor carriers operating in Ohio.The Bill now exempts from coverage – under Ohio workers’ compensation law, unemployment compensation law, overtime law, and minimum wage law – individuals who meet all seven factors of the new statutory test to govern the definition of independent contractor across the agencies. Under the revised R.C. 4123.01 defining “employment” for the purposes of Ohio workers’ compensation (similarly with R.C. 4111.03, et seq. for minimum wage/overtime and R.C. 4141.01 for unemployment), an individual who operates a motor vehicle in the performance of services for or on behalf of a motor carrier will be designated as an independent contractor (and therefore exempt from coverage) if all these seven factors apply:1. The person owns the vehicle or vessel that is used in performing the services for or on behalf of the carrier, or the person leases the vehicle or vessel under a bona fide lease agreement that is not a temporary replacement lease agreement. For purposes of this division, a bona fide lease agreement does not include an agreement between the person and the motor carrier transporting property for which, or on whose behalf, the person provides services.2. The person is responsible for supplying the necessary personal services to operate the vehicle or vessel used to provide the service.3. The compensation paid to the person is based on factors related to work performed, including on a mileage-based rate or a percentage of any schedule of rates, and not solely on the basis of the hours or time expended.4. The person substantially controls the means and manner of performing the services, in conformance with regulatory requirements and specifications of the shipper.5. The person enters into a written contract with the carrier for whom the person is performing the services that describes the relationship between the person and the carrier to be that of an independent contractor and not that of an employee.6. The person is responsible for substantially all of the principal operating costs of the vehicle or vessel and equipment used to provide the services, including maintenance, fuel, repairs, supplies, vehicle or vessel insurance, and personal expenses, except that the person may be paid by the carrier the carrier's fuel surcharge and incidental costs, including tolls, permits, and lumper fees.7. The person is responsible for any economic loss or economic gain from the arrangement with the carrier.See R.C. 4123.01(A)(1)(d). This industry-specific test is now a comprehensive way for motor carriers to properly interpret the nature of the relationship with independent contractors, as well as for Ohio administrative agencies to determine and adjudicate coverage disputes should they arise. While some of the required factors which must apply to be deemed an independent contractor are common to tests in other jurisdictions – mileage-based compensation, supplying personal services, responsibility for operating costs – this new test expressly requires a bona fide, written agreement to be in place that specifies that the relationship is one of independent contractor. Such agreement must not be directly between the contractor and the motor carrier transporting company for whom the contractor provides the services. Pursuant to the revised statute, administrative rules will be developed in the near future for implementation of the test for each agency. In the meantime, those in the trucking industry should review both their current written independent contractor agreements and the in-practice relationship with contractors to remain or come into compliance with Ohio’s clarified standard.Ohio COVID-19 Immunity BillOn September 15, Ohio Governor Mike DeWine signed into law House Bill 606, the COVID-19 Immunity Bill, which grants temporary qualified immunity to healthcare workers as well as general temporary qualified immunity to individuals, businesses, schools, governmental entities and religious entities from civil lawsuits arising from the COVID-19 pandemic. The much-anticipated law will go into effect on December 13, 2020, and provides the above-referenced immunity from potential causes of action that may arise from March 9, 2020 (the date of the Governor’s Executive Order declaring an emergency) through September 30, 2021.In general, the new temporary law provides businesses, individuals, schools, governmental entities and religious entities with immunity from civil liability for injury, death or loss to a person or property when that loss is based in whole or in part upon exposure to, or the transmission or contraction of certain viruses, including the virus that causes COVID-19. This immunity does not apply if it can be established that the exposure or transmission was as a result of reckless conduct, intentional misconduct, or willful or wanton misconduct by the defendant. The law also is quite clear that governmental orders, recommendations or guidelines do not create a legal duty that could be used to establish liability in a civil lawsuit. The new statute also includes a presumption that any such government order, guideline or recommendation is not admissible as evidence in order to establish a legal duty or new cause of action. For healthcare workers, the new law grants temporary immunity from tort liability and professional discipline for services provided that result in injury, death or loss as a result of and in response to the Governor’s declared emergency. This immunity covers actions or omissions and decisions related to the provision of healthcare services as well as actions resulting from compliance with an executive order or director’s order. This immunity, however, does not cover conduct that constitutes a reckless disregard of the consequence or intentional or willful or wanton misconduct on the part of the healthcare workers. Moreover, for disciplinary actions, conduct that is considered to constitute gross negligence is not provided immunity.
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