Current through all regulations passed and filed through September 16, 2024
(A)
For claims arising before September 15, 2020, an
application for an additional award of
compensation founded upon the claim that the injury, occupational disease, or
death resulted from the failure of the employer to comply with the specific
requirement for the protection of health, lives, or safety of employees, must
be filed, in duplicate, with the commission, within two years of the injury,
death, or inception of disability due to occupational disease.
For claims arising on or after September 15, 2020, an
application for an additional award of compensation founded upon the claim that
the injury, occupational disease or death resulted from the failure of the
employer to comply with the specific requirement for the protection of health,
lives, or safety of employees, must be filed, in duplicate, with the
commission, within one year of the injury, death or inception of disability due
to occupational disease. The commission shall make available a form with
which an application for an additional award by reason of a violation of a
specific safety requirement may be made. Such application should set forth the facts which are the
basis of the alleged violation and shall cite the section or sections of the
law or code or codes of specific safety
requirements which it is claimed have been violated. Such
application shall contain the claim number assigned by
the bureau to the claim for compensation or benefits under Chapters 4123. and
4131. of the Revised Code. The settlement of the underlying claim from which an
application for additional award by reason of a violation of a specific safety
requirement has been or may be filed abates any action on that
application.
(B) For the purpose of
this rule, "employer" shall be defined to include the customer employer of a
temporary service agency or the client employer of a professional employer
organization where the customer employer or client employer has the right of
control as to the manner or means of performing the work.
(C)
(1)
(a) The claimant or the claimant's
representative may amend the application to include any additional or
alternative violation, provided the amendment is filed within two years
following the date of injury, disability or death for
claims arising before September 15, 2020 or within one year following the date
of injury, disability or death for claims arising on or after September 15,
2020.
(b) The claimant or the
claimant's representative may submit an amendment of the application for
additional award for violation of a specific safety requirement beyond the
expiration of two years following the date of injury, disability or death
for claims arising before September 15, 2020 or within
one year following the date of injury, disability or death for claims arising
on or after September 15, 2020. Any such amendment must be submitted
within thirty days of the receipt by the claimant or
the claimant's
counsel of the report of the investigation by the bureau into the alleged
specific safety requirement violation. The claimant or the claimant's counsel
may request an extension of this period for an additional thirty days. Such
request must be submitted in writing within the original thirty-day period. If
properly submitted, the commission shall notify both parties and their
representatives of the granting of such request by mail. Such amendment shall
set forth all specific safety requirements omitted from the application made
prior to the expiration of the two-year period for
claims arising before September 15, 2020 or within one year following the date
of injury, disability or death for claims arising on or after September 15,
2020, which the claimant alleges were the cause of the injury, disease or
death, but which were omitted by reason of mistake or incompleteness. Copies of
any such amendments shall be forwarded to the employer and its representatives
as required by paragraph (D) of this rule. Any such amendment shall not raise
any unstated claim, but shall merely clarify a previously alleged
violation.
(2)
(a) All amendments to an application for
additional award for violation of a specific safety requirement filed after the
investigation by the bureau shall be reviewed to determine if the amendment
requires further investigation.
(b)
The employer or its representative may object to an amendment to the
application for additional award for violation of a specific safety
requirement, which was filed beyond the two-year period for claims arising before September 15, 2020 or within one
year following the date of injury, disability or death for claims arising on or
after September 15, 2020 on the grounds that the amendment raises a
previously unstated claim. If such objection is filed within thirty days of the
employer's receipt of the amendment, a staff hearing officer shall review the
amendment, to determine the need for a re-investigation if the original
investigation was conducted prior to the amendment.
(3) Whenever further investigation is
performed by the bureau regarding an alleged safety violation, the receipt by
the claimant or
the claimant's counsel of such report shall commence
the running of a further period for submission of amendment or new evidence as
if the re-investigation were the first investigation subject to the
aforementioned provisions.
(D) Processing of applications for an
additional award.
(1) Upon the filing of an
application for an additional award with the commission, the commission shall
send a copy of the application to the employer, customer employer of a
temporary service agency or client employer of a professional employer
organization and to its authorized representatives by mail.
(2) The commission shall notify the employer
that this application, if granted, will result in the employer being billed
directly for the amount of the award. The commission shall also notify the
appropriate section of the bureau of the filing of the application. The
employer has thirty days in which to file an answer unless the time is
extended, for good cause shown, by a staff hearing officer for a period not to
exceed an additional thirty days.
(3) The commission may assign an application
for such award for investigation or for hearing without investigation. In the
event that the application or answer raises legal issues the decision of which
would dispose of the application (e.g., did the application cite a specific
safety requirement, or was the application timely filed) the commission will
assign the application for hearing without investigation. In the event that the
claim is referred for investigation, after the investigation report is
completed, the commission shall mail a copy of such report to each of the
parties and their authorized representatives. At that time, the commission
shall advise the parties that they have a designated period of time, not to
exceed thirty days, in which to furnish additional proof that they may desire
to offer. Within this period, either party may request in writing an extension
of the time within which the party may submit additional proof. Such requests
shall be considered by a staff hearing officer and, if granted, written notice
of the extension, not to exceed an additional thirty days, shall be sent to
both parties and their representatives. Any such extension shall extend the
time available for submission of additional proof equally to both parties, but
there can only be one such extension.
(4) Unless otherwise directed by a staff
hearing officer, at the end of the thirty day period after the mailing of the
investigation report, or the sixty day period if an extension had been granted,
all applications for an additional award shall be scheduled for a pre-hearing
conference, with written notice provided to all parties of record and their
representatives no less than fourteen days prior to the pre-hearing conference.
Items the parties should be prepared to discuss at the pre-hearing conference
include, but are not limited to:
(a) Have the
names and addresses for all parties and their representatives been listed
correctly;
(b) Have all parties
received copies of the relevant documentary evidence on file;
(c) Has either party requested a record
hearing;
(d) Has either party
previously requested the issuance of a subpoena, and are there pending subpoena
requests;
(e) Are the parties
considering or engaged in settlement negotiations;
(f) Is an intentional tort court case
pending; and
(g) Any other
procedural matter which needs to be addressed.
The pre-hearing conference will conclude with the parties
agreeing to the date and time for the scheduling of the merit hearing within
the time frame specified by the staff hearing officer conducting the
pre-hearing conference.
(5) Either party may request a record hearing
but the request shall only be made from the date of filing of the application
through the date of the pre-hearing conference. If a record hearing is held,
the requesting party is responsible for securing the attendance of a court
reporter. A stenographic transcript of any testimony offered shall be taken at
the record hearing. The party requesting a record hearing shall pay for the
stenographic services and shall submit a copy of the transcript to the
commission, as well as to the opposing party, within thirty days of the date of
the hearing. Failure to file a copy of the transcript of the proceedings within
the thirty-day period, or within such an extended period as may be granted by
the staff hearing officer for good cause shown, shall not delay the rendering
of the decision. If the party that requests a record hearing decides not to
proceed with the record hearing, subsequent to the date that the request for
record hearing was granted, that party shall promptly notify the opposing party
and their representative, to avoid unfair surprise. If desired, the opposing
party may then secure its own court reporter, so that the hearing may proceed
as a record hearing. If a record hearing is held, both parties will be
permitted to introduce new evidence at the hearing on the application. If no
request is made for a record hearing, no new documentary evidence or testimony
will be accepted at the hearing on the merits.
(6) Subpoena requests should be filed no
later than the date of the pre-hearing conference. If a request for subpoena to
obtain documents or information has been granted, copies of all the information
obtained by the subpoena are to be submitted immediately to the commission upon
its receipt by the party requesting the subpoena.
(7) Except for the initial processing,
investigation and prehearing conference of the claim as described in paragraphs
(D)(1) to (D)(4) of this rule, if an intentional tort or other court action is
pending in court, and if all parties agree and make a request, the commission
may hold further processing of the application for an additional award in
abeyance, until one of the parties requests that processing be reinstated. If
both parties do not agree, processing of the application will
continue.
(8) Subsequent to the
prehearing conference, or in cases where no prehearing conference is held, the
claim shall be set for hearing with notices to the parties, their
representatives and the bureau, at which time the arguments in favor of and
opposed to granting the application will be heard.
(9) If, at any time, the staff hearing
officer determines further investigation is necessary, the staff hearing
officer will refer the claim for investigation requesting the specific data
needed and notify the parties of the further investigation. When the
supplemental investigation report is in the file, copies are to be mailed to
each of the parties and their authorized representatives.
(10) Following the hearing, the staff hearing
officer shall issue an order in conformity with rule
4121-3-09 of the Administrative
Code.
(E) Within thirty
days of the receipt of the order of the staff hearing officer deciding the
issues presented by the application, either party has the right to file a
motion requesting a rehearing. The party requesting a rehearing shall provide a
copy of the motion for rehearing to the opposing party and its representative.
The opposing party has thirty days in which to file an answer. A motion for
rehearing is not to be adjudicated until the answer has been received or the
expiration of the thirty-day period.
(1) If
the motion for rehearing is filed, a staff hearing officer, after the
expiration of the answer time, shall review the motion for rehearing under the
following criteria:
(a) In order to justify a
rehearing of the staff hearing officer's order, the motion shall be accompanied
by new and additional proof not previously considered and which by due
diligence could not be obtained prior to the prehearing conference, or prior to
the merit hearing if a record hearing was held and relevant to the specific
safety requirement violation.
(b) A
rehearing may also be indicated in exceptional cases where the order was based
on an obvious mistake of fact or clear mistake of law.
(2) If the motion for rehearing does not meet
the criteria as outlined in paragraph (E)(1)(a) or (E)(1)(b) of this rule, the
motion shall be denied without further hearing.
(3) If the motion for rehearing is granted,
the staff hearing officer shall either:
(a)
Set the claim for a hearing with notices on the merits of the application;
or
(b) Refer the claim for
investigation and after the report of investigation is filed then set the claim
for a hearing on the merits of the application.
(4) Following the hearing the staff hearing
officer shall follow the same procedure pertaining to the order as outlined in
paragraph (D)(9) of this rule. Such order, shall be final. In no case shall a
rehearing be granted from an order adjudicating a rehearing.
(5) The payment of the additional award shall
be stayed during the pendency of the motion for rehearing.
(F)
(1)
Joint application of the claimant and the employer, or the administrator in a
case where the settlement proceeds are to be paid from the state insurance
fund, on an agreed settlement shall be considered by a staff hearing officer
without hearing. Such an application to settle a violation application shall be
considered by a staff hearing officer either prior to the determination of the
application for an additional award for violation of a specific safety
requirement, or after such an application has been adjudicated, and such agreed
settlements shall be processed in the same manner. If the staff hearing officer
finds that the settlement is appropriate, the staff hearing officer shall issue
an order approving it. If the staff hearing officer does not find the
settlement to be appropriate in its present form, the staff hearing officer
shall schedule a hearing with notices to all parties and their representatives
where the matter of the proposed settlement is to be considered. Following the
hearing, the staff hearing officer shall issue an order either approving or
disapproving the settlement, and the order shall be final.
(2) When a state fund employer desires to
settle its liability, which may include its future liability, for the violation
of a specific safety requirement, the employer shall file an application for
settlement with the adjudicating committee of the bureau of workers'
compensation. The bureau shall process the application in the same manner as if
an application to settle the liability of a noncomplying employer pursuant to
rule 4123-14-05 of the Administrative
Code had been filed.
(G)
Every order adjudicating an application for additional award for violation of a
specific safety requirement which finds such a violation against an employer
still in business in Ohio, shall direct that the violation be corrected within
a time period which the order shall specify. An employer which fails to comply
with such a corrective order within the specified time shall be deemed to have
violated a specific safety requirement for the purposes of section
4121.47 of the Revised
Code.
(H) The commission shall
maintain a list of additional awards granted, including findings of failure to
comply with a corrective order. In the event of two such findings of violations
of specific safety requirements during the same twenty-four month period, the
staff hearing officer shall assess a civil penalty appropriate in light of the
circumstances of the individual case in an amount not to exceed fifty thousand
dollars. Among the factors the staff hearing officer shall consider in
determining the amount of any such civil penalty are the size of the employer
as measured by the number of employees, assets and earnings of the employer.
(1) If the two violations of specific safety
requirements occur at the same workplace, the violations need not be of the
same type or kind for a penalty to be assessed. However, if the two violations
of specific safety requirements occur at two different workplaces owned,
operated, managed, leased or otherwise controlled by the same individual,
company or corporation, the violations must be for the same specific safety
requirements.
(2) A penalty shall
not be assessed solely for multiple violations which caused the same incident,
nor for incidents where more than one employee was injured or killed, nor for a
finding of a violation of a specific safety requirement which was settled
before the order became final because of the granting of a rehearing or during
the pendency of a motion for rehearing.
(3) For the purpose of paragraph (H) of this
rule, "workplace" shall mean all of a single contiguous fixed situs under the
control of the employer where work is performed; or, if the violation took
place at or en route to or from a work site to which the employer sent
employees to perform work but which was not expected to remain indefinitely
under the control of the employer, any work site or travel route to or along
which employees based or supervised from the same site have been sent to
perform work, including such base site.
(4) For purpose of paragraphs (G) and (H) of
this rule, "specific safety requirement" shall mean the identical requirement,
but this exception shall not prevent a penalty where the employer is found to
have violated the provisions of two requirements in effect for different
periods of time which cover the same matters, even though one of the
requirements is stricter than the other.
