Caution: The Time to File a BWC Claim is Cut to 1 Year

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Substitute House Bill 27 was signed by the Ohio Governor on June 30, 2017. This bill made appropriations to the Ohio Bureau of Workers' Compensation for the biennium beginning July 1, 2017, and ending June 30, 2019.

However, this bill made some significant changes to the workers' compensation law. Most notably, this new law slashed the statute of limitations within which to file a workers' compensation claim for injuries or death from two (2) years to only one (1) year. Why is this important? Because some complex claims may not be ready to be filed and pursued within a short period of time. When a workers' compensation claim is filed, the claimant bears the burden of proof and must submit factual evidence of an injury, as well as medical opinion evidence on the question of causation (proving a link between the injury or work activity and the diagnosis of an injury or death).

Below is a summary of other changes Sub. H.B. 27 has made to the workers' compensation law. Please note that the effective date of Sub. H.B. 27 is 91 days from the date the law was filed with the Ohio Secretary of State. It is anticipated that these changes will be effective in October 2017:*

4123.512(A) allows the court appeal deadline (of 60 days) to be extended in claims that are in the process of being settled. The claimant or employer may file a “notice of intent to settle” with the BWC within 30 days after receipt of the IC order being appealed; the party must serve the notice of intent upon the opposing party and the party’s representative. This extends the court filing deadline to 150 days unless the other party files an objection within 14 days after receipt of the notice of intent to settle. The objection must be filed with the BWC and served on the other party and the party’s representative.

4123.512(F) increases the claimant attorney’s attorney fee in right to participate court appeals from $4,200.00 to $5,000.00.

4123.53(B)(2) is a new section, and allows the BWC, for good cause, to waive an initial 90-day MMI exam, unless the employer objects.

4123.54(B)(1)(b) aligns the state’s drug testing level with the federal standard as set forth in the CFR.

4123.56(E) is a new section, and in claims where the FWW is not yet calculated, TTD will be paid at 33 1/3 of the SAWW. If the claimant’s FWW is determined to be higher than the SAWW, then the claimant will receive the difference. If it is lower, then the amount will be recovered from the claimant according to 4123.511(K), i.e. from future payments under the claim.

4123.57 adds a provision allowing the BWC to dismiss a PPD application if the claimant fails to respond to an attempt to schedule an exam, or fails to attend a scheduled exam. A dismissed PPD application does not toll the continuing jurisdiction of a claim under 4123.52.

4123.66(D)(1) and (2) are new sections, and allow the BWC to reimburse Medicare or Medicaid up to $500.00 for conditional payments Medicare or Medicaid may have paid when the payment was for an injury or occupational disease which was compensable or likely to be compensable under the BWC law.

4123.68(X), involving the recent (January 2017) firefighter cancer presumption law, reduces the duration from the claimant’s last hazardous duty assignment of 20 years to 15 years; i.e. the presumption does not apply if the diagnosis is 15 years or more since the firefighter was last assigned to hazardous duty. This section adds working wage loss as a form of compensation the claimant is now eligible to receive; this is in addition to TTD, PTD and death benefits.

4123.84(A) reduces the statute of limitations from 2 years to one year after the injury or death. The SOL for occupational diseases, as contained within R.C. 4123.85 remains 2 years.

For more information, or to discuss the specifics of your case, please call us at 614-221-1300.

*UPDATE: The effective date of R.C. 4123.84(A) is September 29, 2017.

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