Current through all regulations passed and filed through September 16, 2024
(A) Pursuant to
section 4123.932 of the Revised Code and
when an employer satisfies all of the requirements of this rule, the bureau
shall charge to the surplus fund created under division (B) of section
4123.34 of the Revised Code any
compensation and benefits related to a compensable workers' compensation claim
based on a motor vehicle accident involving a third party. This rule applies
only to claims arising on or after July 1, 2017.
(B) Eligibility requirements.
(1) This rule does not apply to self-insuring
employers, state agencies, or a state institution of higher education,
including its hospitals.
(2) This
rule applies to private state fund employers and public employer taxing
district employers that pay premiums into the state insurance fund.
(a) The employer must have had active
workers' compensation coverage on the date of injury of the claim.
(b) The employer must be current with respect
to all payments due the bureau, as defined in paragraph (A)(1)(b) of rule
4123-17-14 of the Administrative
Code.
(c) The employer must be
current on the payment schedule of any part-pay agreement into which it has
entered for payment of premiums or assessment obligations.
(C) If an employer
believes the bureau should charge a claim to the surplus fund under this rule,
the employer may file an application with the bureau requesting the bureau
determine whether the claim is to be charged to the surplus fund. The bureau
will not review or consider charging a claim to the surplus fund under this
rule unless the employer files an application in accordance with this
rule.
(D) The employer's
application to charge a claim to the surplus fund shall include all of the
following:
(1) Evidence that the claim is
based on a motor vehicle accident involving a third party. "Motor vehicle" has
the same meaning as in section
4501.01 of the Revised
Code.
(2) Evidence that
either of
the following circumstances apply to the claim:
(a)
The third
party involved in the motor vehicle accident was issued a citation for
violation of any law or ordinance regulating the operation of a motor vehicle
arising from the accident on which the claim is based and that any form of insurance maintained by the third party
or uninsured or underinsured motorist coverage as described in section
3937.18 of the Revised Code
covers damages caused by the motor vehicle accident which gave rise to the
claim.
(i)
The employer does
not need to prove that the third party was convicted of the
citation.
(ii)
The employer does not need to prove that the insurance
accepts complete liability for the motor vehicle accident, but only that the
insurance accepts liability for some portion of the accident and pays costs
associated therewith.
(b)
If there is
evidence that the third party was not issued a citation arising from the
accident, the employer shall provide evidence that the third party involved in
the motor vehicle accident was primarily liable for the accident on which the
claim was based and that any form of insurance maintained by the third party or
uninsured or underinsured motorist coverage as described in section
3937.18 of the Revised Code
covers damages caused by the motor vehicle accident which gave rise to the
claim.
(i)
"Primarily liable" means that the third party involved in
the motor vehicle accident is more than fifty per cent liable for purposes of
section 2315.33 of the Revised
Code.
(ii)
The employer does not need to prove that the insurance
accepts complete liability for the motor vehicle accident, but only that the
insurance accepts primary liability for the accident and pays costs associated
therewith.
(E) Within one hundred eighty days after the
bureau receives the employer's application, the bureau shall determine whether
the claim shall be charged to the surplus fund under this rule.
(1) If the bureau believes the employer has
not provided all of the information necessary for the bureau to make the
determination, the bureau shall contact the employer for the employer to
provide the additional evidence required prior to denying an
application.
(2) If the bureau
determines that the employer failed to establish that the bureau should charge
the claim to the surplus fund under this rule, the bureau shall deny the
application with an explanation of the reasons for the denial.
(3) If the bureau fails to make a
determination within the time required, the application shall be deemed
approved and the bureau shall charge the claim to the surplus fund.
(F) If the bureau determines that
the employer's claim shall be charged to the surplus fund created under
division (B) of section
4123.34 of the Revised Code or
if the application is deemed approved because the bureau failed to make a
determination within the time provided for in paragraph (E) of this rule, the
bureau shall charge all of the costs of the claim to the surplus fund.
(1) If the bureau previously included the
costs of the claim in the calculation of the employer's experience in a prior
policy year, the bureau shall adjust the employer's experience in the prior
policy year, subject to the limitation provided in paragraph (F)(2) of this
rule.
(2) In accordance with
paragraph (C)(2) of rule
4123-17-17 of the Administrative
Code, the bureau shall limit any adjustments in an employer's account which
result in changes to the amount of premium due from an employer for a policy
year to the annual or adjustment periods ending within twenty-four months
immediately prior to the date the employer filed its application under this
rule.
(G) The bureau's
denial of an employer's application to charge a claim to the surplus fund under
this rule is appealable to the adjudicating committee under section
4123.291 of the Revised
Code.
