Senate Bill 106 was introduced on April 11, 2023 for consideration. This Bill would add physicians and registered nurses as qualifying professions under the state’s existing law providing testing for first responders exposed to chemicals or bodily fluids who are provided “post-exposure medical diagnostic services, consistent with the standards of medical care existing at the time of the exposure, to investigate whether an injury or 16 occupational disease was sustained.”
State ex Rel Friendship Supported Living, Inc. v. Ohio Bur. Of Workers’ Comp., Slip Opinion No. 2023-Ohio-957.
The Supreme Court found in this case that the BWC had abused its discretion by failing to sufficiently account for the factors required in determining whether in-home direct-care workers were employees rather than independent contractors. The Appellee Friendship Supported Living Inc. underwent a premium audit in 2008 and the BWC classified their workers as independent contractors. An audit in 2017 yielded the exact opposite result, the BWC classifying their direct-care workers as employees, and not independent contractors.
Friendship Supported Living Inc. protested the BWC’s audit findings to the Adjudicating Committee who determined that they had the “right to control the workers.” They appealed further the Administrator’s Designee who again cited “sufficient control” over the workers to classify them as employees. Friendship Supported Living Inc. filed a complaint for a writ of mandamus requesting that the workers be classified as independent contractors and reimburse them for the premiums it had incurred as the result of the BWC’s classification. The Court of Appeals granted the writ and ordered that BWC to vacate its order classifying the workers as employees and ordered the BWC to return any premium payments paid on that classification. Rather than adopt the Court of Appeals decision, the Supreme Court noted that the BWC orders’ were not sufficient because they did not consider the totality of circumstances in the light of the relevant factors and order a limited writ to return to the issue to the BWC to specifically, address compliance and quality, workers’ freedom to work for other entities, and routes traveled and length of employment factors.
State Ex rel. Ohio-Kentucky-Indiana Regional Council of Govts. V. Bur. Of Workers’ Comp. Slip Opinion No. 2022-Ohio-3058
The Court found that the BWC abused its discretion classifying OKI as a special public authority without explaining why the classification change. In 2018, the BWC reclassified OKI as a “special public authority” which resulted in a much higher premium. Historically, OKI had been assigned two manual classifications, 1) 8742 “council of government staff members office and away from office and 2) 8810 “clerical office employees, no outside duties for others.
The BWC advised OKI that its prior classifications were for private employers only and OKI should be moved to manual classification 9443 which would result in a workers’ compensation premium 14 times higher than it had been. OKI appealed because it was neither a public employer nor a taxing district, both of which are required as criteria for the new classification. The BWC order did not specifically address why OKI’s employees are exposed to similar hazards to those which fall in the new 9443 classification. The Court issued a limited writ of Mandamus for the BWC to address the degree of hazard which supported the new classification.
The Supreme Court finally begins to question the BWC’s “Discretion” in Mandamus cases where the standard is “abuse of discretion.”
In two recent decisions it appears that the Supreme Court is taking the BWC to task for what was historically attributed to the BWC’s wide discretion in classifying employers for premium purposes. The Supreme Court is requiring that BWC orders addressing premiums set forth the basis for their decisions rather than pronouncing classification changes.
This decision published by the 10th District Court of Appeals brings new challenges for Employers as if 56(F) which superseded all voluntary abandonment case law wasn’t challenging enough. While the decision is consistent with the application of the law, (i.e. a claimant who was terminated for cause and later had surgery was entitled to temporary total compensation from the date of surgery forward because under the statute the allowed conditions were the disabling cause) the dicta is troubling to say the least. Specifically, the Court discusses termination for cause and did the claimant receive unemployment compensation. At the hearing table, Hearing Officers have been asking what was the reason for the termination, whether the employer contested those payments and whether the claimant ultimately received unemployment compensation. There is nothing in the statute that would allow this line of inquiry nor is it relevant. However, it will be helpful to have this information at hearing. Unfortunately, for any of us who have dealt with unemployment compensation, we are well aware that in only a few limited circumstances are claimants denied unemployment even after it has been contested.
This Court seems to want it both ways, not applying that portion of the statute that addresses whether the claimant was working prior to the disabling event and then wanting to address the appropriateness of a termination for cause. Their analysis does not apply the second portion of 4123.56(F) which 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.”
Additionally, from a practical standpoint the argument that had they not been terminated we would have had them return to light duty is a difficult argument to make when a legitimate light duty job offer is not proffered to claimant prior to the termination.
While the Tenth District is not the final word, it will be interesting as to how this will play out in the hearing room. It will be important for employers to provide all documentation for termination/retirement as well as information regarding their dispute of any unemployment compensation to move to apply that second portion of 4123.56(F).