Member Article

On June 16, 2020, Governor Mike DeWine signed into law House Bill 81. Its impact is significant for employers in the context of workers’ compensation. Governor DeWine touted the amendment that provided workers’ compensation coverage for medical diagnostic services to investigate whether a detention facility employee’s exposure to another’s blood or bodily fluids resulted in an injury or occupational disease. However, the broader implication of this new legislation includes the codification of the voluntary abandonment doctrine and the reduction of the statute of limitations for an injured worker to file an application for a violation of a specific safety rule (VSSR). Under this doctrine, an employee who abandons employment for reasons unrelated to the work injury is not entitled to temporary total disability compensation or wage loss compensation.

Under R.C. 4123.56, the statute addressing temporary total disability (TTD) compensation and wage loss, new subsection (F) codifies the voluntary abandonment doctrine and addresses the situation when an injured worker is not eligible to receive such compensation. The new law states, “If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section.” The law further states the general assembly’s intent is “to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section.”

For employers, this new law could result in additional defenses to TTD, because the law supersedes any previous court decision regarding voluntary abandonment. It remains to be seen how the Industrial Commission and courts will interpret this, but a broadened voluntary abandonment defense will no doubt benefit employers. The amendment to R.C. 4123.56 regarding voluntary abandonment applies to claims pending on or arising after the effective date of this section, which is 90 days from the signing date.

Under R.C. 4121.471, the time limitation an injured worker has to file a VSSR application has been reduced to one year. Currently, an injured worker has two years from the date of injury to file a VSSR application. Such VSSR applications are filed at or near the two-year deadline. While an employer should thoroughly investigate all industrial incidents as soon as possible, especially where an incident could result in a VSSR application, sometimes a timely investigation does not occur. A delayed investigation results in challenges for employers, because after two years, typically, evidence to defend against a VSSR application, such as witness testimony, is no longer available. The reduced statute of limitations should assist employers in that respect. Another added benefit is VSSR awards, based on accrued compensation, should be reduced by knocking a year off the filing deadline. The change to the VSSR statute of limitations applies to claims arising on or after the effective date for this section, which is 90 days from the signing date.

A slight but important change to the workers’ compensation law addresses the length of time in which a claim remains open. The amendment to R.C. 4123.52(A) includes a bar to modifications or changes to claims under continuing jurisdiction after five years from the last date of payment of compensation or the date of the last medical services rendered. The current law is five years from the last date of payment of compensation or date of the payment of medical benefits. This slight change could shorten the period of time a claim remains “alive.” This amendment applies to claims arising on or after July 1, 2020.

An additional amendment includes the increase in funeral expenses in cases of death to $7,500 (R.C. 4123.66(A)). This amendment applies to claims arising on or after the effective date of this section, which is 90 days from the signing date.

If you have any questions regarding these changes, please contact your Dinsmore workers’ compensation attorney.