|Q. In a system where the Employer must always be reactionary |
how can Employers move towards proactive and take control of the claim?
A. Prior to any decision about the compensability of a claim an
employer must investigate whether the Employee was injured in the
course of and arising out of his or her employment. It is becoming
more frequent that injured workers do not disclose all prior medical
treatment and yet it is this very documentation that is crucial to the
determination of whether a claim is compensable. As the number of
Industrial Commission hearings continues to plummet, hearings are
being set sooner, forcing employers to participate in hearings where
increasingly they don’t have all the facts. The single most effective
thing an employer can do to control the timing of the processing of the
claim is to immediately send out a medical release and begin to
request medical records. This places the ball so to speak in to the
Without a medical release AND a list of medical providers the Employer
has the right to stop processing of the claim and file a motion to suspend
until the requested documentation is received. While a suspension does
nothing more than delay benefits and processing it allows the employer
the adequate time to mount a successful defense. While most use the
BWC release, many providers have their own release and those will also
need to be secured from the Employee. The Hearing Administrator
presides over any failure to provide a medical release and failure to
respond to medical records request. By the Employer doing their due
diligence, they insure that claims are not processed prior securing all the
facts. Once again, preparation is always key to being successful at the
hearing table. If you have having difficulty securing either medical
releases or medical records please contact us.
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!