Ohio Supreme Court OK's Third Party Administrators' Participation in Workers' Compensation System

By David M. McCarty

The Ohio Supreme Court today issued its highly anticipated decision in the case of Cleveland Bar Association v. CompManagement, Inc. In a 5 to 2 decision, the Court approved the active participation of third party administrators (TPAs) and other non-lawyers in the workers' compensation process. The Cleveland Bar Association had successfully argued to the Board of Commissioners on the Unauthorized Practice of Law that many of the activities TPAs and union representatives had been engaged in for many years constituted the unauthorized practice of law. However, the Supreme Court disagreed and held that "non-lawyers who appear and practice in a representative capacity before the Industrial Commission and Bureau of Workers' Compensation in conformity to Industrial Commission Resolution No. R04-1-01 are not engaged in the unauthorized practice of law." Following is a link to the Resolution: www.ic.state.oh.us/resolutions/r4101.jsp. Among other things, the Resolution permits non-lawyers to:

1. Investigate and assist claimants and employers in discussing the facts in relationship to the claim with employers, witnesses and others, preparing and securing statements, and preparing and obtaining reports;

2. Assist claimants and employers in the administration of a claim and the filing of claims and appeals;

3. Attend hearings for the purposes of recording and reporting the action taken at such hearing, apprise the hearing officer of documents that are in the file or that are missing from the file, file documents, request continuance of the hearing and discuss matters within the independent knowledge of the representative;

4. Complete and submit records and reports with the Bureau and Commission, including any forms adopted by the Commission and Bureau;

5. File protests with the Bureau to the Adjudicating Committee, the Self-Insured Review Panel, the Self-Insuring Employers Evaluation Board or the Administrator; and

6. Advise employers or claimants to seek legal representation.

On the other hand, the Resolution expressly prohibits non-lawyers from:

1. Examining or cross-examining any witnesses, either directly or indirectly;

2. Citing, filing or interpreting statutes, cases or administrative provisions;

3. Making or giving legal interpretations of testimony, affidavits, medical evidence or filing any briefs, memoranda or requests for reconsideration;

4. Commenting or giving opinions with respect to evidence, credibility of witnesses, the nature and weight of the evidence or the legal significance of the contents of the file;

5. Providing legal advice to claimants or employers;

6. Giving legal opinions or citing case law or statutes to claimants or employers before, at or after the time when claims are initially certified or rejected; or

7. Providing stand-alone representation at hearings by charging a fee specifically associated with such hearing representation without providing other services.

In the past, problems have arisen as a result of the unequal enforcement of standards of conduct before the Industrial Commission. One can only hope that, with this Court decision, the Commission will provide clearer direction to its hearings officers and other workers.