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Northwest OH Legal Blog

Tuesday, November 3, 2015

Third Circuit Court of Appeals Requires Benefit Denial Letters to Include Notice of Plan-Imposed Limitations Period for Civil Actions

The Employee Retirement Income Security Act of 1974 (“ERISA”) requires all ERISA-governed plans to notify claimants of their right to bring a civil action in court for the purpose of recovering benefits or enforcing their rights under the plan’s terms.  In Mirza v. Insurance Administrator of America, Inc., No. 13-3535 (3d Cir. August 26, 2015), the United States Court of Appeals for the Third Circuit became the latest court to require that ERISA-governed benefit denial letters include specific notice of the plan’s limitations period for bringing a civil action in court.  In reaching this conclusion, the Third Circuit joined the First and Sixth Circuits of the United States Court of Appeals.  See Moyer v. Metro. Life Ins. Co., 762 F.3d 503 (6th Cir. 2014); Ortega Candelaria v. Orthobiologics LLC, 661 F.3d 675 (1st Cir. 2011).

Background.  Under the facts in Mirza, Dr. Neville Mirza performed back surgery on a patient who was a participant in an ERISA-governed healthcare plan sponsored by her employer.  Following the surgery, the patient assigned to Dr. Mirza the right to pursue her plan benefits.  Dr. Mirza then submitted a claim to the claims administrator, Insurance Administrator of America (“IAA”).  IAA denied the claim on the ground that the surgery was medically investigational.  Dr. Mirza appealed the decision, but the claims administrator, by letter dated August 12, 2010, upheld IAA’s decision.  The letter notified Dr. Mirza of his right to bring a civil action under ERISA Section 502(a)(1)(B), but did not inform him of the plan’s one-year limitation period for bringing suit.

Sometime thereafter, Dr. Mirza and another healthcare provider to whom the participant had assigned her benefit claim rights retained a law firm to pursue their respective claims.  On April 11, 2011, 8 months after the plan’s final denial letter, the law firm obtained a copy of the plan document.  The plan document required that any lawsuit against the plan or the plan administrator following an adverse benefit determination be filed within one year following receipt of the plan’s final denial letter.  Dr. Mirza brought suit on March 8, 2012—almost 19 months after he received the final denial letter.

Despite the plan’s time restriction on civil court actions against the plan or the plan administrator, Dr. Mirza filed a complaint in federal district court, naming IAA as a defendant.  IAA moved for summary judgment on Dr. Mirza’s claim, asserting that the statute of limitations had run.  The federal district court for the District of New Jersey granted IAA’s motion to dismiss.  The district court reasoned that the plan’s one-year deadline for seeking judicial enforcement was reasonable, that Dr. Mirza’s suit was brought after that period had expired, and that he was not entitled to equitable tolling because he had notice (through his attorney) of the deadline.

Ruling on Appeal.  Relying on ERISA’s regulatory requirements for benefit denial letters, the United States Court of Appeals for the Third Circuit reversed.  The court asserted that the equitable tolling issue was irrelevant and focused only on the defendants’ regulatory obligations under ERISA.  United States Department of Labor Regulation Section 2650.503-1(g)(1)(iv), which governs the manner and content of benefit determination notices, requires plan administrators to provide “[a] description of the plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under [ERISA] Section 502(a) following an adverse benefit determination on review.”  The court interpreted the word “including” in the ERISA regulation to mean that plan administrators, in their benefit denial letters, must inform claimants of any plan-imposed deadlines for judicial review. 

The court observed that this interpretation of the ERISA regulation had been recently adopted by the Courts of Appeal for the First and Sixth Circuits.  The court also rejected defendants’ argument that the denial letter to Dr. Mirza substantially complied with the regulations.  The court held that the plan administrator’s failure to include the plan’s judicial review time limits in the adverse determination letter caused the letter to fail to be in substantial compliance with the applicable regulatory requirements.  The court then concluded that the proper remedy for the defendants’ failure to comply with the regulation was to abrogate the plan’s limitations period and apply the most analogous statutory limitations period under New Jersey state law.  In this case, that was New Jersey’s six-year breach-of-contract limitation period.  Because Dr. Mirza’s complaint fell within that period, the court remanded the case to the district court for further proceedings.

Takeaways.  The Third Circuit’s opinion should alert plan administrators that when they issue benefit denial letters, they should now err on the side of caution by explicitly notifying the recipient of any plan-imposed deadlines for judicial review.  As a possible silver lining, the Third Circuit court stopped short of requiring notice of the limitations period for the most analogous state law claim.  It noted that, while the issue was not before the court, such a requirement would require legal research into various state laws for each claim and could potentially cause a plan administrator to be perceived as providing legal advice to claimants.  Nonetheless, the court’s decision in Mirza should, at the very least, prompt plan administrators to review their procedures for notifying claimants of adverse benefit determinations.


Tuesday, October 13, 2015

I've been named in a lawsuit. Now what?

When someone receives an envelope from a court continuing paperwork advising that they have been named in a lawsuit, the usual first reaction is one of panic.  That initial reaction is understandable – most people are unfamiliar with how courts operate, and they would rather not be involved in litigation.  Fortunately, an experienced attorney can help you navigate through the process.

An attorney can review the documents you received and determine whether the party initiating the lawsuit (called the plaintiff) has asserted claims against you, or whether you have been made part of the proceeding in another capacity.  The attorney can also help you determine if any claims against you are covered by insurance, and he or she can help you make a claim with your insurer.  If an insurance policy is applicable, the insurance company should appoint a lawyer to represent you in the lawsuit at the insurer’s expense.  There are time limits and other requirements that must be met to obtain the benefits an insurance policy provides, so it is important to contact an attorney to look into these matters at the beginning of a lawsuit.

Perhaps the most-important thing to remember when you believe you have been named in a lawsuit is that time is not on your side.  There are deadlines that must be met for a variety of actions, and, for example, if you fail to respond to the lawsuit in the applicable time limit, a judgment may be granted against you.  As time passes and events occur in the lawsuit without your involvement, it becomes increasingly difficult for any attorney who later becomes involved on your behalf to safeguard your interests.  It is therefore critical to contact an attorney as soon as you receive paperwork indicating that you have become involved in a legal process.  


Wednesday, October 7, 2015

Fair Share Fees

On June 30, 2015 the Supreme Court announced that it will review the decision in Friedrichs v. California Teachers Association, a Ninth Circuit Case challenging the constitutionality of charging public sector workers a “fair share fee” when they have opted out of union membership.

When a union is elected as a certified representative for a bargaining unit, they must represent all workers that fall within that classification regardless of their union status.  This means that the rights and benefits afforded under the union contract are received by all members of the bargaining unit, not just the union members.  It also means that if a non-union member in the bargaining unit faces discipline the union has a duty to represent that individual.  Since non-union members do not have to pay union dues, this creates the problem of the “free rider.”  A free rider is someone that receives the benefits of union membership (wages, representation, etc.), but does not pay for it.

To eliminate the free-rider problem unions charge non-union bargaining unit members a fair share fee.  This fee is calculated as the portion of union dues that the union expends on administering the contract.  The fee does not include the portion of dues that Unions spend on political activity or other non-representation matters.  This practice by public sector unions, adopted from the private sector, was upheld as constitutional in Abood v. Detroit Board of Education, in 1977.  The plaintiffs in Friedrichs object to paying the fair share fee as a violation of their first amendment rights and assert that Aboud was decided wrongly.

Friedrichs follows on a case heard last year, Harris v. Quinn, where the Supreme Court ruled that Chicago home health care providers could that did not want to join a union did not have to pay a fair share fee.  Although decided on different grounds, Justice Alito, in his majority opinion, questioned the constitutional foundation that the legality of fair share fees had been based on.  Now, with Friedrichs, Alito will have the chance to rule on that very subject.

The importance of Union fair share fees cannot be understated.  Without it, the free-rider problem can cripple or even bankrupt a union.  For instance, when Indiana eliminated the fair share fee from state law, public sector unions lost 91% of its membership.  Likewise, when Wisconsin eliminated the fair share fee AFSCME lost over 50% of its membership.  This loss of income used to administer the contract weakens the Unions ability to participate in negotiations, enforce contract provisions, and defend workers that have been wrongfully disciplined by their employers.

Friedrichs represents yet another attack on Unions by the far right.   Rather than work with the unions and ensure that all workers receive basic protections and rights, these people have chosen to try and “kill the unions.”   In the face of this solidarity among union workers, union rights activist and pro-union politicians is imperative.

Although we hope that Supreme Court makes the right decision and upholds the right to collect a fair share fee, the attorneys at Allotta | Farley will be prepared to implement effective strategies to maintain union membership numbers if the right-wing judges on the Court have their way.  Pay attention to this space for more news on Friedrichs as it develops.  Allotta | Farley is here to aid non-union and union employees alike in employment matters.  If you have questions about your rights or are facing adverse employment action, please do not hesitate to contact us.


Wednesday, September 30, 2015

Internal Revenue Service Announces Curtailment of Determination Letter Program for Individually Designed Tax-Qualified Retirement Plans

On July 21, 2015, the Internal Revenue Service (“IRS”) announced a significant curtailment in its determination letter program for individually designed retirement plans that are tax-qualified under Section 401(a) of the Internal Revenue Code (“Code”).  Pursuant to IRS Announcement 2015-19, the following changes will become effective on January 1, 2017:

  • The IRS’s five-year remedial amendment cycles for individually designed retirement plans will be eliminated.
  • The IRS’s determination letter filing program will be available only for initial plan qualification, plan termination, and possibly other limited circumstances which are to be determined by the IRS.

The announcement also includes an immediate change to the IRS’s determination letter filing program.  Effective July 21, 2015, the IRS will no longer accept so-called “off-cycle” determination letter submissions (those that are not submitted during the cycle applicable to the plan), except in certain circumstances.

Background.  IRS determination letters have been used by plan sponsors to obtain assurance that their individually designed retirement plans meet the Code’s applicable qualification requirements. Periodically, changes are made to those qualification requirements, necessitating plan amendments to satisfy the new requirements. The Code permits those amendments to be made retroactively during a period referred to as the “remedial amendment period.”

Under the Code, the remedial amendment period for retroactive plan amendments is extended to the end of the applicable remedial amendment cycle.  Plan sponsors of individually designed plans are permitted to apply to the IRS for a new determination letter during the last year of each remedial amendment cycle.  By participating in the staggered remedial amendment cycles, a plan sponsor may periodically obtain an updated determination letter and continued assurance that the sponsor’s plan continues to meet the Code’s tax-qualification requirements.

Remedial Amendment Cycle for Multiemployer Pension Plans.  The current IRS determination letter filing program provides a five-year staggered remedial amendment cycle (Cycles A, B, C, D, and E) for individually designed retirement plans.  The cycle is designed so that each plan is assigned to one of the five cycles based on the last number of the plan sponsor’s employer identification number (“EIN”) or certain other characteristics of the plan.  Multiemployer pension plans that cover collectively bargained employees are assigned to Cycle D.  The second Cycle D in the IRS’s five-year staggered remedial amendment cycle began on February 1, 2014 and ended on January 31, 2015.  To receive a favorable determination letter from the IRS, multiemployer pension plans were required to amend their plan documents in conformity with the changes specified in the 2013 Cumulative List of Changes in Plan Qualification Requirements.  The IRS is currently reviewing determination letter applications filed by multiemployer plans during the second Cycle D.

Practical Effect of IRS Announcement 2015-19.  IRS Announcement 2015-19 eliminates the five-year staggered remedial amendment cycle as of January 1, 2017.  As a result, the IRS will no longer accept determination letter filings in connection with each remedial amendment cycle.  For multiemployer pension plans, barring future IRS guidance to the contrary, their determination letter filing during the second Cycle D will presumably be their last for the foreseeable future.

The IRS will accept off-cycle determination letter submissions in only the following circumstances:

  • an initial plan qualification determination,
  • a plan termination, or
  • certain other circumstances to be determined and later announced by the IRS.

The elimination of the remedial amendment cycle also terminates the extension of the remedial amendment period otherwise permitted by the Code.  Although the extended remedial amendment period will no longer be available as of January 1, 2017, IRS Announcement 2015-19 indicates that the IRS intends to issue guidance pursuant to which the remedial amendment period for individually designed retirement plans will be extended to at least December 31, 2017.


Thursday, September 17, 2015

Employer Can’t Stop Injured Worker From Filing A Workers Compensation Claim

Many employees believe that their employer must “sign off” of their workers compensation claim before it can be processed.  Nothing could be further from the truth.  The time this situation usually arises is when an employer is self-insured (pays their own claims) and refuses to recognize the injury or process the request for treatment.  An injured worker, in that case, can file the claim with the Bureau of Workers Compensation and they will start the process.  If the employer continues to dispute everything the claim will sent to the Industrial Commission for a hearing on the injured workers claim application.  This happens whether the employer refuses to acknowledge the claim or not.  No injured worker should be intimidated by the employer into filing under “regular” insurance when they have suffered an on the job injury.


Wednesday, September 2, 2015

The insurer denied my claim. Now what?

Accidents happen.  Mother Nature causes damage.  Buildings burn down.  Because we know these things will happen, people and businesses purchase insurance to protect them from the losses these events cause.  A surprising number of times, though, after one of these events, someone makes a claim with their insurer, only to be told by the insurer that the loss isn’t covered.

But insurers make mistakes.  Some also say that insurers intentionally deny a claim in the hopes that the claim will go away.  Whatever the reason for the denial, if you have suffered a loss you believe should be covered by insurance, it is wise to have the matter reviewed by an attorney.

Ohio law recognizes that insurers write the insurance contracts, and that the purchaser has little to no say in what language is included, so insurance contracts are interpreted in favor of the insured.  Many times, courts have determined that when a contract is interpreted in favor of the insured, a claim actually is covered, despite the fact the insurer reads the contract differently.  This area of the law can be complex, and Insurance-coverage law is an area that many attorneys are unfamiliar with, so consultation with an attorney experienced in this area is critical.


Wednesday, August 12, 2015

401(k) Lawsuits by Participants Have Been Made Easier by Supreme Court

A recent U.S. Supreme Court decision has made it easier for participants in 401K Plans and other defined contribution plans to sue their plans for offering investments with excessive fees.

In a unanimous decision written by Justice Breyer, the court ruled in favor of current and former workers of Edison International, a public utility holding company based in Rosemead, Calif., who claimed that six retail-class mutual funds selected by plan fiduciaries as investment options were imprudent because they charged higher fees than identical institutional-class funds that were allegedly available to large investors, such as the defendant Edison International’s 401(k) plan..

The case is Tibble v. Edison International. In Tibble, Plan fiduciaries selected three retail-class funds as plan investment options in 1999, more than six years before plan participants filed a lawsuit claiming the investment choices were imprudent. According to the attorney for the Plaintiffs, the Tibble decision is a clear victory for plaintiffs, because the Supreme Court has confirmed that the six-year statute of limitations is not an absolute bar to a legal action with respect to the selection of investment options.

Under ERISA, employer-sponsored retirement plans have a fiduciary responsibility for selecting and monitoring appropriate investments, as well as removing investments that no longer fit criteria established in an investment policy statement..

Essentially, the Supreme Court found that plan fiduciaries are required to conduct regular reviews of plan investments

Studies have shown that investment costs can adversely impact portfolio balances. According to one Vanguard study, an investor who starts out with a $100,000 nest egg would have 30 years later $574,349 when assuming no investment costs, $523,899 with annual costs of 0.25%, and just $438,976 with annual costs of 0.9%.

Rather than a case where a poorly performing investment was allowed to remain on a plan investment menu,, the alleged violation involves the nature of the investment itself, specifically retail-class mutual funds that are usually, but not always, more expensive than comparable institutional-class funds.

The case also involved the Employee Retirement Income Security Act's (ERISA) six-year statute of limitations.  The court found the claim was not barred by the six year statute of limitations. Because a fiduciary normally has a continuing duty to monitor investments and remove imprudent ones, a plaintiff may allege that a fiduciary breached a duty of prudence by failing to properly monitor investments and remove imprudent ones. Such a claim is timely as long it is filed within six years of the alleged breach of continuing duty.

This case involves the duty of the trustees of pension plans to manage the assets of those plans with “prudence.” The question is whether the trustees need to worry that an investment that was “prudent” when the trustees first made it will become “imprudent” because of future changes. If so, that means that the trustees must continuously monitor all the assets that they own, to make sure they don’t need to sell any of them. The Court held that the trustees do have that continuing duty to monitor.

Some quotes from the case convey the court’s views:

“Under trust law, a trustee has a continuing duty to monitor trust investments and remove imprudent ones. This continuing duty exists separate and apart from the trustee’s duty to exercise prudence in selecting investments at the outset.”

“The trustee must systematically consider all the investments of the trust at regular intervals to ensure that they are appropriate.”

“When the trust estate includes assets that are inappropriate as trust investments, the trustee is ordinarily under a duty to dispose of them within a reasonable time.”

The Supreme Court's found that that the nature and timing of this review are contingent on the circumstances.  Justice Stephen Breyer did not state a view on whether a review should have taken place in Tibble or what kind of review would have been required if, in fact, a review had been needed.

The case was remanded to the 9th Circuit to determine more specifically to what extent fiduciaries must look at plan investments in order to satisfy their monitoring duty.

The Labor Department has published education materials to help workers better evaluate their 401(k) plan fees. 


Tuesday, July 21, 2015

United States Department of Labor Proposes Expanded Definition of ERISA Fiduciary

On April 20, 2015, more than three years after withdrawing a similar proposal that was staunchly opposed by the financial services industry, the United States Department of Labor (“DOL”) published a proposal to amend certain parts of the definition of the term “fiduciary” under the Employee Retirement Income Security Act of 1974 (“ERISA”) and regulations that were issued in 1975.  Under this regulatory proposal, the definition of a fiduciary would be expanded to encompass certain activities that were previously considered non-fiduciary in nature, or at least fell into a gray area of fiduciary status.

Background.  ERISA’s current definition of the term “fiduciary” includes any party who “renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of [a] plan, or has any authority or responsibility to do so.”  The DOL’s position is that the current definition of “investment advice” is too narrow, and does not cover some parties who are giving potentially conflicted investment advice to ERISA-governed plans and individual retirement accounts (“IRAs”) concerning the investment of plan assets.

DOL Proposal.  Pursuant to the DOL’s proposed definition of a fiduciary, a person is considered to be a fiduciary with respect to an ERISA-governed plan or IRA if the person gives advice under the following circumstances: 

  • pursuant to an agreement, arrangement or understanding,
  • when the advice is individualized or specifically directed for use in making investment decisions for a plan or IRA concerning securities or other property,
  • when the advice is provided for a fee or other compensation, or
  • when the advice falls into one of the following four categories:
    • recommendations on acquiring, holding, disposing or exchanging securities or other property (including distributions from a plan or IRA),
    • recommendations on managing securities or other property (including distributions from a plan or IRA),
    • appraisals, opinions or other statements on the value of securities or other property in connection with a specific transaction involving those securities or other property, or
    • recommendations of a person to give the plan or IRA advice described in the prior three categories for a fee or other compensation.

This new definition of a fiduciary is broader than the definition in current DOL regulations.  The new definition expands the categories of advice that can trigger fiduciary status, and does not require that the advice be given on a regular basis, or be a primary basis for investment decisions, in order for the advice-giver to be considered a fiduciary. In addition, even though IRAs are generally not ERISA-governed plans, the DOL proposal specifically addresses fiduciary status with respect to IRAs.

The DOL proposal does, however, retain a provision in the current DOL regulations shielding broker-dealers from fiduciary status.  Under this provision, a broker-dealer is not considered to be a fiduciary merely as a result of executing securities transactions on behalf of an ERISA-governed plan or IRA pursuant to specific instructions from an unaffiliated fiduciary.

Exclusions.  The proposed DOL regulation provides an exclusion from fiduciary status for certain classes of persons who provide investment advice, including the following:

  • employees of a plan sponsor (e.g., a chief financial officer or corporate treasury personnel) who provide advice to a fiduciary of the employer’s plan for no additional compensation,
  • “investment platform providers” that develop a set of investment alternatives (e.g., mutual funds) that a participant-directed plan (e.g., a typical 401(k) plan) could make available to its participants,
  • persons who provide certain financial reports and valuations to plans and collective investment funds, and
  • persons providing “investment education” to plan participants.

There are also carve-outs under certain circumstances for investment advice given to a small (fewer than 100 participants) ERISA-governed plan, an independent fiduciary with at least $100 million in employee plan assets under management, or an independent fiduciary on potential swap transaction matters.

Prohibited Transaction Class Exemption.  The DOL proposal includes a prohibited transaction class exemption for so-called “best interest contracts.”  Under this exemption, advisers such as brokers and insurance agents would be allowed to give investment advice (as defined in the proposed regulation) to an ERISA-governed plan or IRA client and receive commissions or other compensation resulting from that advice, provided that they comply with the following requirements:

  • a commitment to provide advice in the client’s best interest,
  • adopting and following policies and procedures designed to identify and mitigate conflicts of interest, and
  • disclosure (including disclosure on a webpage) of conflicts of interest such as hidden fees or payments from third parties.

The DOL also proposed amendments to several current prohibited transaction class exemptions in order to harmonize those exemptions with the proposed “best interest contract” exemption.  In addition, the DOL proposed a prohibited transaction class exemption that would permit advisers to enter into principal transactions in debt securities with ERISA-governed plans or IRAs under conditions similar to those of the “best interest contract” exemption. 

Conclusion.  The DOL has established a 75-day comment period, running until July 6, 2015, for the proposed regulation, the proposed exemptions, and the proposed amendments to existing exemptions.  Within 30 days after the close of the comment period, the DOL will hold a public hearing on its proposals.  The proposed regulation would become effective 60 days after it is published in final form in the Federal Register.  However, the DOL has proposed that compliance with the final regulation would not be required until eight months after publication. 

 

 

 

 


Tuesday, June 30, 2015

What is discovery?

In a lawsuit, the parties need to learn what information and evidence the other parties have.  Statistically, the vast majority of civil disputes settle prior to trial.  Without obtaining the other parties’ information and evidence, though, the parties cannot evaluate the strengths and weaknesses of each party’s claims and defenses, and therefore cannot engage in meaningful settlement discussions.  Parties also need to obtain the other parties’ information and evidence so that a fair trial can be had if the parties cannot reach a settlement prior to trial.  The legal system is not designed for “trial by ambush.”  Instead, the law promotes the free sharing of information and evidence. 

To accomplish this sharing, the parties will typically engage in two forms of discovery:  written discovery and depositions.  Written discovery consists of written questions in the form of interrogatories, requests for production, and requests for admission.  Depositions are a procedure where a witness is asked questions under oath, and a court reporter records the answers.  These discovery methods are employed in virtually every civil lawsuit.  While simple in concept, there are a myriad of rules, written and unwritten, that much be followed.  There can be serious adverse consequences for not following rules, so having the benefit of experienced litigation counsel is critical.  


Thursday, June 25, 2015

Supreme Court Upholds Subsidies Under Affordable Care Act In Federal Exchange

By a vote of 6 to 3 the United States Supreme Court has upheld the availability of tax subsidies for people enrolled in health insurance through the federal exchange under the Affordable Care Act. The case is King v. Burwell. The challengers argued that the words “established by the state” meant that the subsidies were available only to people enrolled through a state run exchange.  Most states are operating under the federal exchange.  A ruling for the challengers would have taken subsidies away from all those receiving subsidies through the federal exchange and would have destabilized insurance markets in states operating with the federal exchange.

Chief Justice Roberts wrote for the Court and was joined by Justices Kennedy, Kagan, Ginsburg and Sotomayor.  Justice Scalia wrote the dissent and was joined by Justice Thomas and Alito.  Although Justice Roberts characterized the wording of the Act as ‘inartful,” he also noted “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.”

The Court said that it was following the “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme” The Court found numerous other provisions in the law which would not make sense if the interpretation offered by the challengers was accepted. Reading the disputed wording in context of the statute as whole, the Court found that the only logical interpretation was that the subsidies are available under either a state or federal exchange.

In a colorful dissent Justice Scalia called the majority’s opinion as “absurd” and characterized it as “pure applesauce.” However, the Court noted that “the words of a statute must be read in their context and with view to the place in the overall statutory scheme” and upheld the availability of the tax subsidies in all exchanges, whether federal or state.

 


Tuesday, June 16, 2015

Potential Exposure to Blood Borne Pathogens and Workers’ Compensation

            Periodically, confusion arises over a workers’ compensation claim to cover the cost of post-exposure testing after being exposed to blood or body fluids.  The State of Ohio currently covers the cost of post-exposure testing for peace officers, firefighters, and emergency medical workers employed or volunteering for a covered provider.

            Confusion on this issue generally arises over what is “exposure.”  For the purpose of workers’ compensation coverage exposure is defined as the exposure to blood or other bodily fluids through: (1) A splash or spatter in the eye or mouth, including when received in the course of conducting mouth-to-mouth resuscitation; (2) A puncture in the skin; or (3) A cut in the skin or another opening in the skin such as an open sore, wound, lesion, abrasion, or ulcer.  If the exposure happens in some other way than these three ways (such as exposure of unbroken skin to blood) then post exposure testing is not covered by workers’ compensation.

            If you are exposed to blood or other bodily fluids in the manner listed above, then post-exposure testing is covered.  If you are exposed in this method, you should notify your immediate supervisor immediately and get the post-exposure blood tests as soon as possible.  When notifying your supervisor it is important that you state the type of exposure.  You should also tell this to the physician or nurse administering the post-exposure testing the nature of the exposure.  It is also a good idea to note the exposure in any reports that you must complete about the incident when the exposure occurred.  This will help the Bureau of Workers’ Compensation (BWC) administer your claim and help insure that your claim is not denied.

            If your claim for post-exposure testing is denied, it is important that you file your appeal with the BWC within 14 days of receiving notice of the denial.  If you do not appeal the denial during this time period the BWC will permanently close your claim.  If you have questions about this or any other workers’ compensation matter, or need help appealing a decision by BWC please contact our office.  We are here to assist you.


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