An amendment to R.C. 4123.512 extends the court appeal deadline where the parties intend to settle a claim.
RC 4123.512 sets for the procedure to appeal a final order from the Industrial Commission into the court of common pleas. A notice of appeal must be filed within 60 days of receipt of the Industrial Commission Order.
This 60 day appeal deadline can now be extended by either the claimant or employer upon the filing of a notice of intent to settle the claim. The notice of intent to settle the claim must meet several requirements:
- It must be filed with the administrator of the BWC;
- It must be filed within 30 days of receipt of the final Industrial Commission Order; and
- It must be served on the opposing party and the party’s representative.
If these criteria are met, the deadline for filing an appeal into common pleas court is extended to 150 days UNLESS the opposing party files an objection within 14 days.
WARNING! The intent of this provision is to allow parties time to settle claims. BUT it also sets up a scenario where benefits will otherwise be extended for an additional 150 days in a claim being appealed by the employer.
UPDATE – SUCCESS FOR STATE FUND EMPLOYER! BWC APPROVES APPLICATION TO CHARGE SURPLUS FUND FOR NON AT FAULT MOTOR VEHICLE ACCIDENT IN ONE DAY
LL Patterson recently assisted a state fund employer in successfully having all its claim costs allocated to the surplus fund where their employee was injured in an auto accident caused by a negligent driver. In July 2017, the BWC implemented a new procedure to help state fund employers in claims where their employees are injured in auto accidents caused by negligent third parties. In these circumstances, if the required documentation is provided, the BWC allocates all the claim costs to the surplus fund and NONE of the claim costs are counted against the employer’s experience. In April 2018, LL Patterson secured all the required documentation and forwarded the request to the BWC. The BWC approved the application on the same day it was received!
Statistical public data from the BWC indicates that currently there are 278 of these applications pending, with 181 approved, and 11 applications pending. So far, the BWC has approved approximately 65% of the applications. LL Patterson is confident we can beat this statistic!
Please note that certain documentation is required. These include Crash Report from law enforcement agency, Citation showing at fault third party, Proof of insurance for at fault third party, Proof that at fault party’s insurance accepts responsibility. The BWC will REJECT any application that does not contain this mandatory information.
If you are a state fund employer and have a claim where one of your employees was injured in an auto accident caused by a negligent third party, PLEASE contact us!! We can help get all the claim costs allocated to the surplus fund so they do not count against your experience. This has the potential of LOWERING your premiums!!!
The BWC SI Department Interim Director, David Sievert, made a surprising announcement on 8-21-18 at a BWC SI Employer Workshop in Cincinnati:
Providers in WC claims will now be directed to the Ombuds Office for assistance in bringing SI Complaints directly against Self Insuring Employers. LL Patterson views this at best as “opening the door” to more SI Complaints, and at worst, injecting Ombuds representatives into the position of advising and assisting providers in adversarial proceedings against SI employers.
The BWC describes the Ombuds Office as a problem solving service for employers, injured workers, and their respective representatives. The Ombuds Office is “independent of the BWC and the Industrial Commission of Ohio, which answers complaints and general inquiries about Ohio’s workers’ compensation system.”
Please contact our office if you have any questions about or need assistance with SI Complaints.
In Ohio, medical marijuana is now legal. Ohio employers are STILL ABLE to enforce drug free workplace policies for medical marijuana use.
Ohio has NOT (yet?) legalized small amounts of recreational marijuana. The rest of the country is a patchwork, but the trend toward legalization is clearly growing.
For example, 22 states, including Ohio, have legalized medical marijuana. These include Montana, North Dakota, Minnesota, Illinois, Michigan, Ohio, West Virginia, Pennsylvania, Maryland, Delaware, New Jersey, New York, Connecticut, Rhode Island, Florida, Louisiana, Arkansas, Oklahoma, New Mexico, Arizona, and Hawaii.
Nine other states have legalized recreational marijuana along with medical marijuana. These are Alaska, Washington, Oregon, California, Nevada, Colorado, Maine, Vermont, and Massachusetts, PLUS Washington D.C.
However, marijuana is still a Schedule I substance under the Federal Controlled Substance Act. Some federal regulations that affect marijuana use are still in effect regardless of the existence of state laws legalizing marijuana use.
For example, the Department of Transportation Drug and Alcohol Testing Regulation does NOT authorize medical marijuana, legal under a state law, as a valid medical explanation for a positive drug test result.
Federal contractors are required to maintain drug free workplaces and zero tolerance policies.
Aside from these policies, the federal Drug Enforcement Agency has NOT aggressively prosecuted marijuana use cases in states with legalized marijuana laws.
How do the state marijuana laws affect employers? The answer is – IT DEPENDS!
Some state laws expressly prohibit employers from discriminating on the basis of an employee’s use of legal medical marijuana as long as the employee complies with state law.
These states prohibit discrimination against medical marijuana users: Arizona, Connecticut, Georgia, Illinois, Maine, Minnesota, New York, Pennsylvania, and West Virginia.
In Nevada and New York, there is a duty to accommodate medical marijuana.
Some states allow employers to enforce drug free workplace policies for medical marijuana use: Ohio, Florida, Montana, Nevada, Vermont, and Washington.
California and Colorado allow employers to enforce drug free workplace policies for recreational marijuana use.
Some state laws FAIL to address the employment relationship at all: Massachusetts, Michigan, New Hampshire, New Jersey, North Dakota, and Oregon.
For employers who have facilities across multiple states, the landscape of marijuana legality is constantly changing and can create big problems!
Q.: Why would I hire you as an hourly workers’ compensation attorney when I can have my third party administrator’s attorney cover my hearing for a one time flat fee?
A.: Every employer has multiple choices for representation at hearings. The benefit to having a lawyer attend a hearing are: 1) a lawyer may argue the law and 2) a lawyer may directly question the claimant.
Before I address the concerns, I want to emphasize that there are equally talented lawyers that practice both hourly and for a flat rate.
The issue for hearing is a good indicator of who you should select to represent you. If it is a hotly contested hearing, with factual and medical disputes, you would certainly want an hourly attorney that you have hired to do an extensive investigation of the facts and prepare a defense on your behalf. You have unlimited access to an hourly attorney, while typically you would have little or no contact with a flat rate attorney until the day or the day before the hearing. These same flat rate attorneys will not likely represent you in any post administrative court proceeding.
It is extremely beneficial to have an attorney represent you throughout the administrative level through to court if that case continues. Their assessment and observations of the claimant at hearing, as well as detailed administrative work-up are a great predictor of the likelihood of success in later court proceedings.
Hearing issues such as Permanent Partial Hearings require little to no legal argument and certainly no cross examination would best be served by using a flat rate attorney.
The benefit of paying an hourly lawyer is that you are retaining a lawyer that not only is intimately knowledgeable about your business, but you are retaining that lawyer for the overall cost containment of the claim. An hourly lawyer can make recommendations as to what they foresee is the next step the claimant may take in a claim and predict what the overall exposure on the claim can be.
Flat rate lawyers take multiple hearings in one hour and will only represent you at that hearing. They typically will not make recommendations for future cost containment, or even what further documentation would be needed at future hearings.
The choice of what kind of representation is a business decision, that depends solely on the circumstances for your business and the specific facts of the claim at hand.