Industrial Commission Releases New Workers’ Compensation Policies

Kegler Brown E-mployment Alert

Please be aware that the Industrial Commission of Ohio (IC) recently approved four new guidelines and procedures regarding participation by telephone at hearings, Permanent Total Disability (PTD) Tentative Grant Orders, review of settlements by staff hearing officers and the use of audiovisual evidence. These new policies became effective on April 4, 2014:

1. New Telephone Participation Guidelines

The IC released new guidelines outlining the procedures for telephone hearing participation by employers, injured workers and necessary witnesses. In general, a request for a telephone hearing will only be granted when the lack of in-person participation will not interfere with the hearing process. Authorized representatives, including a company's legal counsel or TPA representative, can only make a request on behalf of their client or witness(es), but cannot participate via telephone themselves. The request will be considered by the respective hearing administrator or commissioner based on a good cause/reasonableness standard. All requests, whether at the district, staff, deputy level or at a commission hearing must be submitted, in writing, to the hearing administrator or commissioner, with a copy to the opposing party and their representative at least five business days prior to the hearing. Objections can be filed within 48 hours of receipt of the request. In the case of extraordinary circumstances, a request can be made within less than five business days.

2. New Guidelines for PTD Tentative Grant Orders

Under the new policy, (Memo G5) the IC shall issue an order granting PTD if both the IC specialist and the injured worker's medical evidence state that, based on the allowed conditions, the injured worker is unable to perform any sustained remunerative employment. The same requirement applies to medical evidence from the employer, if any exists. In addition, if there is Bureau of Workers' Compensation (BWC) medical evidence that addresses the issue of PTD, it must state that the injured worker is unable to return to sustained remunerative employment based upon the allowed conditions.

We do not anticipate a big impact on employers due to this new guideline, as the PTD tentative order process is limited for "grants" in medically obvious claims.

3. Staff Hearing Officers Review of Settlements

The IC also revised its policy (Memo O3) in regards to staff hearing officer review of settlements to ensure that the settlement agreement is not a gross miscarriage of justice as required by ORC 4123.65(D). A staff hearing officer (SHO) has to review certain documentations in order to comply with his/her responsibility. Worth pointing out is that the SHO has to review the fully signed - meaning an actual or electronic signature - settlement documents. The parties cannot waive the thirty-day waiting period in their agreement. In addition, in state fund claims, a BWC approval order including the terms of the agreement and the amount allocated in each claim needs to be reviewed. If the SHO determines that the terms of the settlement are clearly unfair, the SHO will issue an order disapproving the settlement within the thirty-day waiting period.

4. Use of Audiovisual Evidence

The final revision (Memo R7) of the Hearing Officer Manual Policy concerns the use of audiovisual evidence at IC hearings. It is important to point out that audiovisual evidence filed with the Commission has to be accompanied by a written summary of the evidence. Such summary also needs to be provided to the opposing party or his/her representative. In general, the party offering the audiovisual evidence must ensure that the evidence can be viewed by the IC and has to, if necessary, bring the proper equipment required for presentation. The hearing officer, in his/her discretion, can continue the hearing if the parties do not comply with this revised policy or if the docket will be disrupted.

If you would like to discuss questions regarding the policy changes and effects they might have on your company, please contact David McCarty, Randall Mikes or Katja Garvey