Current through all regulations passed and filed through September 16, 2024
(A) For the
purposes of
disability relief under section
4123.343 of the Revised Code,
an "employee with a disability" means an employee
who is defined as having one or more of the conditions listed in division (A)
of section 4123.343 of the Revised Code.
(1) With respect to the
condition defined in division
(A)(4) of section 4123.343 of the Revised Code,
degenerative disc disease, spondylosis, spondylolysis, and spondylolisthesis do
not constitute evidence of arthritis for purposes of satisfying the
statute.
(2) With respect to the
condition defined in division
(A)(14) of section 4123.343 of the Revised Code,
the employee must have
inpatient treatment and admission for the
psycho-neurotic disability in a recognized medical or mental institution.
Outpatient treatment does not satisfy the statutory
definition.
(3) With respect to the
condition defined in division
(A)(25) of section 4123.343 of the Revised Code, an
employer is not eligible for
disability relief in the
same claim in which the employee participated in a rehabilitation program. The
employee must suffer a subsequent compensable injury or occupational disease
claim, and any rights
to disability relief would be in the subsequent
claim.
(B) Under
division (B) of section
4123.343 of the Revised Code,
the administrator specifies the following grounds upon which the administrator
may charge claims costs to the statutory surplus fund.
(1) The administrator will consider
disability relief under section
4123.343 of the Revised Code
only in claims satisfying all of the following prerequisites:
(a) The claimant is
an employee with a
disability as defined in division (A) of section
4123.343 of the Revised Code and
paragraph (A) of this rule.
(b) The
employer has filed an application for
disability relief while
the claim is within the employer's claim experience period, as referred to in
division (B) of section
4123.34 of the Revised Code.
(i) For a claim
involving a private state fund employer :
(a) If the date of injury is between January
first and June thirtieth, the application shall be filed by June thirtieth of
the year no more than six years from the year of the date of the injury or
occupational disease.
(b) If the
date of injury is between July first and December thirty-first, the application
shall be filed by June thirtieth of the year no more than seven years from the
year of the date of the injury or occupational disease.
(ii) For a claim
involving a public employer taxing district employer ,
the application shall be filed by December thirty-first of the year no more
than six years from the year of the date of the injury or occupational
disease.
(iii) For a claim
involving a private state fund employer or a public employer taxing district
employer participating in a retrospective rating plan, the application shall be
filed within the time provided in
paragraph
(B)(1)(b)(i) or (B)(1)(b)(ii) of this rule, as applicable.
(c) The bureau has awarded
compensation to the claimant for temporary total disability, disabilities
described under division (B) of section
4123.57 of the Revised Code,
permanent total disability, or death benefits, or the claimant has received
wages from the employer in lieu of compensation.
(2) For an employer granted relief, all or
such portion as the administrator determines of the amount that otherwise would
be charged to the employer's experience will be deducted from each claim
arising from injury or occupational disease to
an employee
with a disability for the purpose of premium or
assessment adjustment, in accordance with the following principles and
paragraphs (E), (F), and (G) of this rule:
(a)
All amounts deducted from the experience of the employer will be charged to the
statutory surplus fund.
(b) The
bureau will calculate the amount of the cost of the claim to remain in the
employer's experience by applying the complement of the
disability
relief percentage to the reducible costs contained within the claim cost
as limited by the maximum value of a claim chargeable to the employer's
experience, as determined by the employer's credibility group under rule
4123-17-05.1 of the
Administrative Code.
(c) The bureau
will apply disability relief in a claim to only the following
claims awards and reserves:
(i) Temporary
total disability;
(ii) Disabilities
described under division (B) of section
4123.57 of the Revised
Code;
(iii) Permanent total
disability;
(iv) Death
benefits;
(v) Lump sum settlements
under section 4123.65 of the Revised Code or a
settlement agreement approved by a court of competent jurisdiction in this
state;
(vi) Medical payments;
and
(vii) Claims
reserves.
(d) If the
actual cost of a claim exceeds the maximum value of the claim chargeable to a
particular employer's experience, the ratio of the nonreducible costs of the
claim to the total cost of the claim
will be maintained in the maximum value
chargeable to the particular employer's experience, so that when the
disability
relief percentage is applied, it will be applied only to that portion of
the maximum value that is reducible in accordance with division (B) of section
4123.343 of the Revised
Code.
(e)
The bureau will apply the disability relief in a claim for lump sum settlements
as provided in paragraph (B)(2)(c)(v) of this rule as follows:
(i) Where the
disability relief determination is made on or after
September 29, 2017, the bureau will apply
disability relief
to a lump sum settlement effective before, on or after September 29,
2017;
(ii) Where the lump sum
settlement is effective on or after September 29, 2017, the bureau will apply
the
disability relief to a
disability relief determination made before, on or
after September 29, 2017;
(iii)
Where both the
disability relief determination was made and the
lump sum settlement was effective prior to September 29, 2017, the provisions
in paragraph (B)(2)(c)(v) of this rule do not apply and the bureau will not
apply the
disability relief to the lump sum
settlement.
(C) The administrator of workers'
compensation may delegate the authority granted to the administrator under
Chapters 4121. and 4123. of the Revised Code for determining the amount
to be charged to the statutory surplus fund in
connection with
an employer's employees
with
disabilities. The decision of the administrator's designee
is
the decision of the administrator.
(1) An
employer which seeks a
disability relief award
must file a complete and timely application and attach copies of all relevant
medical evidence which the employer believes the administrator should consider
when determining the appropriate award.
(a)
The administrator may dismiss without prejudice an incomplete application. The
administrator may dismiss without prejudice an application at the employer's
request. Within the time limits and provisions of this rule the employer may
refile an application that was dismissed without prejudice.
(b) The administrator may deny an application
not
filed within the employer's experience as provided in
division (B) of section
4123.34 of the Revised Code and
paragraph (B)(1)(b) of this rule.
(c) The administrator may dismiss an
application which fails to meet the
provisions of paragraphs
(A) and (B) of this rule.
(d) The
administrator may dismiss an application if the initial allowance of the claim
is being contested before the bureau, industrial commission, or a court of
competent jurisdiction at the time the application is filed. Upon a final
administrative or judicial determination allowing the claim, the employer may
refile an application dismissed under this provision.
(2) The administrator may issue a
disability relief order based on a review of the
application and any information contained in any relevant claim file or any
other relevant bureau or industrial commission records.
(3) The administrator
will
afford an employer the opportunity for an informal conference if the
application meets the
provisions of this rule.
(a) If the administrator conducts an informal
conference, the administrator
will send a notice of conference to the employer
and its representative by regular mail or email,
setting forth the date, time, and place of the conference.
(b) The administrator
will
notify the employer by mail or email not less
than fourteen days before the date of such conference, unless the employer
waives this
notice.
(c) At the request of the employer or another
party, the administrator may conduct an expedited or an informal telephone
conference.
(4) The
administrator's decision
will be reduced to writing and mailed to all
interested parties. The order
will state the evidence upon which the
administrator based the decision.
(5) The administrator
will
keep a record of
disability relief applications received,
conferences scheduled, orders issued with publication dates and any waiver of
appeals, and appeals to the industrial commission.
(D) The burden of proof is upon the employer
to establish entitlement to the relief under section
4123.343 of the Revised Code by
appropriate medical evidence or other evidence as may be indicated
(1) With respect to any credit under division
(D)(1) of section 4123.343 of the Revised Code,
the administrator
will grant full
disability
relief credit if the employer establishes that the injury or occupational
disease would not have occurred but for the employee's pre-existing
qualifying condition.
(2) With respect to any credit under division
(D)(2) of section 4123.343 of the Revised Code,
the administrator
will determine the degree of relief to be granted
based upon the following:
(a) The degree to
which medical evidence or other evidence indicates the pre-existing
condition has affected the cost of the
claim.
(b) The employer shall
establish the relationship between the pre-existing condition and subsequent
injury by way of aggravation or delayed recovery by proof on file but the
condition need not be recognized by an order of allowance for such condition or
aggravation of the condition.
(c)
In determining the appropriate per cent of relief in the claim, the
administrator
will consider the effect of the
pre-existing condition on the past claims costs, and also
account for the effect of the
condition on the anticipated future costs of the claim.
(E) A non-complying employer
is not
entitled to relief under section
4123.343 of the Revised Code. If
the employer had active coverage on the date of the injury but was a
non-complying employer on the date of the application for
disability relief, the administrator may dismiss
the application.
(F) No employer
in any rating year
may receive credit under section
4123.343 of the Revised Code in
an amount greater than the premium it paid.
(G) An order issued by the administrator is
appealable under section
4123.511 of the Revised Code.
(1) If the administrator holds an informal
conference, the employer and the administrator may agree upon the amount of
disability relief in a claim, and the employer
may waive its right to appeal.
(2)
Upon waiver of the employer's right to an appeal or the expiration of the
appeal period, the administrator's order is final, and the bureau will
immediately process the award.
(3)
If no agreement is reached at the informal conference and the employer files a
written appeal within fourteen days of the employer's receipt of the
administrator's decision, the administrator
will forward
the claim file to the industrial commission within seven days of the
administrator's receipt of the notice of appeal for a hearing before a district
hearing officer.
(4) The employer
and the administrator are parties at any hearing conducted by the industrial
commission or its hearing officers.
(5) Upon a final industrial commission order
which grants
disability relief, the bureau will immediately
process the award.
(H)
Since pursuant to paragraph (D)(2)(c) of this rule the administrator
is to
consider the effect of the
qualifying condition on the past and future costs
of the claim in determining
disability relief, the employer is not entitled
to consideration of a subsequent application for
disability
relief for a condition in a claim in which the administrator has made a
previous determination on the condition, regardless of whether there has been a
change in circumstances such as allowance of the condition or payment of
compensation. A subsequent application
cannot substitute for an appeal of
the administrator's order. The administrator
will dismiss or
deny any subsequent application for an increase in
disability
relief in a previously determined claim.
Effective: 4/1/2024
Five Year Review
(FYR) Dates: 6/1/2024
Promulgated Under:
119.03
Statutory
Authority: R.C. 4121.12,
4121.121,
4121.30,
4121.31,
4123.05
Rule
Amplifies: R.C. 4121.12,
4121.121,
4123.343,
4123.511
Prior
Effective Dates: 01/10/1978, 12/11/1978, 02/16/1987, 07/12/1999, 10/04/2004,
02/15/2009, 04/01/2014, 01/01/2016,
04/05/2018
