• Classifications of Workers' as Contractors Being Scrutinized from Calfee Update
• DESKTOP EDUCATION: 2011 Online Education and Training

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BWC’s One Claim Program (OCP) is open to private, state-fund employers currently enrolled in a group-experience-rating program. If you qualify and participate in the program, you will receive a 40% discount off of your base rate.

To participate in the OCP, you must have a single significant claim entering your experience for the first time from the green year. For the upcoming July 1 policy year, the green year is 2010. A significant claim is one whose total cost exceeds the total limited losses (TLL) for an employer based on size and industry calculated for that policy year. You may only designate one significant claim every four years.

In addition to the one significant claim, you may carry up to three medical-only claims in your experience. The sum of these medical-only claims must not exceed your TLL. As the medical-only claims move out of your experience, another may enter so long as you never have more than four total claims in your experience.

Each year you are in the program, you must attend a one-day, classroom style training session through BWC’s Division of Safety & Hygiene. Also, you may not have any outstanding balances, and you must be in compliance with BWC rules and law. If you meet the OCP’s eligibility criteria, applications are due to BWC’s employer programs unit by the last business day in April. Fax applications to 614-365-4976. Contact your Benefits 1 Group customer service representative for more assistance.

—Jennifer Pillitiere, VP of Operations, Benefits 1 Group

Text for this article was taken from the Ohio Bureau of Workers’ Compensation website. Please visit the following link for more information: www.ohiobwc.com/employer/programs/oneclaim/default.asp

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As part of the legislation, the Ohio Bureau of Workers’ Compensation provides all employers with a written notice that must be posted on-site. This is located at the bottom of an employer’s certificate of coverage. It must be presented as the same size as or larger than the certificate. The notice informs employees they may not be eligible for workers’ compensation benefits if they are injured while intoxicated or under the influence of a controlled substance not prescribed by the employee’s physician. It applies to claims with dates of injury after October 13, 2004 or whenever written notice is posted, whichever is later. Employers must conspicuously post this written notice in a place viewable by employees; failure to do so may result in the company forfeiting its rights to protection under the regulation.

The statute requires a reasonable suspicion in order to submit an employee to a drug test. The Bureau will not deny a claim based on just one of the above conditions; all parts of the employer’s process will be analyzed.

—Elizabeth Buck, Claims Manager, Benefits 1 Group

For the BWC’s definition of rebuttable assumption and the required posting, visit: www.ohiobwc.com/downloads/blankpdf/RebutPresumpCertNotice.pdf

In recent findings by the Court of Appeals, Franklin County, the term “massive fraud” was used to establish a level of misrepresentation in the case of an injured worker attempting to procure employment while receiving Temporary Total Disability/Wage Loss (TTD). In the case of State, ex rel. Goodwin v. Industrial Commission, 2010 WL 323318, 2010-Ohio-166 (January 28, 2010), the Supreme Court found in favor of the injured worker despite the BWC fraud section’s proof of the claimant’s brief (33 hour) employment at a YMCA health club while receiving TTD. The claimant received TTD over the course of approximately two years and it was discovered that he had failed to report this brief attempt at employment to the BWC and, therefore, continued to receive TTD thereafter.

The claimant testified he quickly realized that he could not sustain employment based on the duties required to perform the YMCA job and the limitations caused by his injury. He did report this to his rehabilitation counselor at the time, but also received $249.38 for the work he completed during his employment. While the Industrial Commission granted motion on the BWC’s declaration of fraud and over-payment, the Supreme Court ruled that the claimant had not committed “massive fraud” and, therefore, is not required to refund the TTD received after the YMCA job ceased.

This finding serves as a poignant reminder of the fact that there are several considerations to be made before taking legal action. We, at Benefits 1 Group, are here to help you determine the most appropriate course of action in challenging cases. Please feel free to contact the Benefits 1 Group team or your account executive if you would like to learn more about your options when handling a difficult claim.

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2010 saw significant efforts at both federal and state levels of government to aggressively curb perceived loss of revenue from misclassification of employees. In the case of Ohio businesses, these efforts can lead to an increase of targeted audits to determine if certain workers are misclassified as independent contractors to avoid premium payments into the state workers’ compensation fund, the unemployment compensation fund, and to avoid Fair Labor Standards Act and like employer obligations.

The use of independent contractors is most common in the construction, trucking, sales and home health care industries. There are several factors that can be considered in determining whether a person is an “employee” or an “independent contractor.” Under Ohio law, there are two tests used to make such a determination. The typical approach follows the common law “right to control” test set forth by Ohio courts. This approach analyzes factors primarily dealing with the amount of control reserved by the alleged employer over the manner and method of the worker’s performance of his or her duties, including method of compensation, training, providing equipment or tools to perform the work, hours worked, and so on. Citing the revenue lost to federal and state income tax, and workers’ compensation and unemployment funds, state and federal agencies have increased enforcement and targeted audits on businesses for suspected misclassification. In addition, measures have been introduced into the legislatures to give more teeth to these enforcement efforts in the form of back pay, penalties and interest upon a finding of misclassification.

STATE UPDATE
On the state level, Ohio H.B. 523 was introduced in May 2010. This bill was designed to unify the various definitions of “employee” in all the Ohio employment laws, including workers’ compensation. On December 8th, the Ohio General Assembly took up H.B. 523 for potential passage, but the bill failed to pass by just one vote. The Ohio House did not re-convene for the remainder of 2010, leaving this legislative effort unresolved with fate uncertain in 2011. In addition, the Office of State Attorney General Richard Cordray had convened an inter-agency task force with a goal of examining these misclassification issues more closely and to proposing steps for greater enforcement. Like the legislative effort however, with the transition of administrations in 2011, the fate of this task force is unclear.

WHAT BUSINESSES CAN DO
While legislative priorities in the coming new year are still developing, increased government targeting of perceived misclassification is expected to continue in 2011. The expense of audits and appeals from those audits can be costly for Ohio companies. Those businesses that use or intend to use independent contractors for certain areas of their workforce need to keep apprised of these changes in the enforcement landscape and prepare for a potential audit or claim. In addition to a strong, written independent contractor agreement to define the relationship between employer and contractor, it is imperative that the relationship outlined in the agreement actually be put into practice with the contractor on a day-to-day basis.

—Originally published in full in Calfee Update. Excerpt courtesy of Calfee, Halter & Griswold LLP, 2011, www.Calfee.com

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NEXT WEEK!
WORKERS' COMP 101: THE HISTORY OF WORKERS' COMPENSATION
Knowing how and why you, your employees, and your business are protected
Presenter: Elizabeth A. Crosby, attorney, certified specialist in workers’ compensation, founder and president of Elizabeth A. Crosby and Associates