Workers Compensation and Presumptive Cancer Law Changes



Substitute House Bill 27, enacted by the Ohio General Assembly on June 28, 2017, and signed by the Governor on June 30, makes several major changes to the workers compensation and the firefighter presumptive cancer laws. Highlights include the following.

WORKING WAGE LOSS ADDED FOR CANCER CLAIMANTS. Currently, firefighters who have cancer contracted in the course of hazardous duty are entitled to compensation only in the event of temporary total disability (TTD), permanent total disability (PTD), or death. HB 27 adds working wage loss to the compensation a firefighter who is disabled due to cancer incurred the cancer while performing official duties as a firefighter may receive.

TEMPORARY TOTAL DISABILITY MEDICAL EXAMINATION MAY BE WAIVED. Under current law, the BWC must refer an employee who has received 90 consecutive days of TTD compensation to the BWC Medical Section for a medical examination. If a medical examiner determines that the employee remains temporarily and totally disabled, the medical examiner must recommend a date when the employee should be reexamined. The BWC must schedule, and the employee must attend, medical examinations until an examiner determines that the employee is no longer temporarily totally disabled, or the employee is no longer receiving TTD compensation. HB 27 authorizes BWC, for good cause, to waive the requirement that an employee receiving TTD compensation undergo a medical examination. However, the medical examination must be scheduled if the employee’s employer objects to the waiver.

PAYMENT OF TTD EVEN IF WEEKLY WAGE HAS NOT BEEN ESTABLISHED. Under the Act, if an employee is eligible for TTD compensation, but the employee’s full weekly wage has not yet been determined at the time payments are to start, the employee is entitled to 33 1/3% of the statewide AWW. Once the employee’s full weekly wage has been determined, the employee’s TTD compensation is adjusted accordingly.

EXTENSION OF TIME TO APPEAL WC CLAIM TO COURT. HB 27 extends the time to appeal an Industrial Commission order from 60 days to 150 days if a party provides notice of intent to settle a claim and the opposing party does not object.

ATTORNEY FEES INCREASED. HB 27 increases to $5,000 (from $4,200 under current law) the amount of attorney’s fees a workers’ compensation claimant can recover in an appeal to a court of common pleas.

FEES FOR EXAMS PROHIBITED. HB 27 prohibits a public employer from requiring an employee, prospective employee, or applicant for employment to pay the cost of a medical examination required by the public employer as a condition of employment or continued employment.

TIME TO FILE A WC CLAIM REDUCED. Currently injured employees have two years to file a worker’s compensation claim. HB 27 decreases the amount of time a person has to initiate a workers’ compensation claim based on an employee’s injury or death to one year after an employee sustains the injury or dies.

SUSPENSION OF PAYMENTS TO INCARCERATED DEPENDENTS. Claimants cannot receive WC compensation while incarcerated. However, currently an injured worker’s dependents receiving death benefits may receive those benefits even if in jail. HB 27 prohibits, for claims arising on or after the provision’s effective date, compensation or benefits from being paid to a deceased employee’s dependent while the dependent is incarcerated as a result of a conviction of any state or federal criminal law.

PPD MEDICAL EXAMS. With regard to permanent partial disability (PPD) applications filed on or after the provision’s effective date, if an employee fails to respond to an attempt to schedule a medical examination by the BWC Medical Section or fails to attend a scheduled medical examination without notice or explanation, HB 27 requires the dismissal of the PPD application. The employee may re-file a dismissed application, assuming the statute of limitations has not been reached.

CHIPPING AWAY AT THE CANCER PRESUMPTION LAW. HB 27 provides that the presumption a firefighter’s cancer was job-related does not apply if it has been more than 15 years since the firefighter was last assigned to hazardous duty as a firefighter (rather than 20 years or more as under current law). In addition, HB 27 adds to the circumstances under current law in which the presumption can be rebutted. The presumption that the cancer is work related does not apply if there is evidence that shows, by a preponderance of competent scientific evidence, that exposure to the type of carcinogen alleged did not or could not have caused the cancer being alleged.

DRUG TESTING. HB 27 revises the types and amounts of controlled substances to which the law regarding the rebuttable presumption that an employee was under the influence at the time of injury applies. The changes raise a number of questions as to which drugs are now covered, which sample types are to be used for valid drug tests, which types of tests (for example, enzyme multiplied immunoassay technique or gas chromatography mass spectrometry) are required for the presumption to apply, and what levels (such as initial test cutoff concentration level or the confirmatory test cutoff level) are to be used.