Ohio Supreme Court Finds Commission Decision Proper Despite Commissioner’s Absence
In State ex rel. Sigler v. Lubrizol Corp., 2013-Ohio-3686, the Ohio Supreme Court examined whether the Commission denied a claimant due process by issuing a decision where only two of three commissioners were present to hear employer’s reconsideration of the claimant’s permanent total disability (PTD) award.
After a staff hearing officer granted the claimant’s PTD application, the employer requested reconsideration. The Commission granted reconsideration and scheduled a further hearing. Only two of three commissioners were present at the hearing. The absentee commissioner apprised himself of the substance of the hearing by reviewing a summary provided by a commission employee appointed to observe the hearing. Upon rehearing, the Commission denied the PTD application. The claimant filed a mandamus action in the 10th District Court of Appeals.
The court of appeals’ found the Commission deprived the claimant due process by rendering a decision where the third commissioner was not present to hear the evidence. The employer and Commission appealed to the Supreme Court, which reversed the court of appeals. The Supreme Court found due process was satisfied because the absentee commissioner apprised himself of all pertinent evidence in a meaningful way.
REMINDER:Bugbee & Conkle presents its annual Employment Seminar October 3, 2013 at the Holiday Inn French Quarter, Perrysburg, OH. Register on our homepage or call 419-244-6788
Significant Rule Changes From the Industrial Commission
The Industrial Commission recently announced changes to Ohio Admin. Code 4121-3-09, regarding conduct of hearings, and is in the process of proposing significant changes to the Wage Loss rule in Ohio Admin. Code 4125-1-01.
Ohio Admin. Code 4121-3-09 provides, among other things, a claimant’s duty to provide medical releases to the employer and the Bureau upon request, and to attend company sponsored medical examinations. Prior to the rule change, which became effective August 19, 2013, employers had no effective means to discover the names of the claimant’s physicians, who performed examinations or provided treatment in connection with the conditions at issue. With the rule change, claimants now are obligated to provide a list of medical providers that have examined or treated the claimant for conditions that are related causally or historically to the injuries relevant to the claim. The new rule also provides the employers may obtain a second examination if the issue underlying the original exam remains in controversy and the employer can demonstrate the additional exam is essential to its defense. The new rule provides claimants can have a relative present during an independent medical examinations, but not their representative. Read the amended rule here.
The Commission also has proposed extensive changes to the Wage Loss rule. Because the proposed changes will replace more than half of the existing rule, the Commission and Bureau are recommending rescission of the existing rule and enactment of a new rule bearing the same rule number (4125-1-01). Some of the proposed changes are as follows:
- The new rule will include a rebuttable presumption that earnings from paid leave provided by the employer would be included in present earnings.
- If a claimant has permanent restrictions, the Commission will no longer require the treating physician to provide updated restrictions every 180 days unless requested by the self-insured employer or Bureau.
- New applications for wage loss compensation must include a complete employment history, including all the jobs held by the claimant. If the claimant applies for jobs on-line, the applicant must provide a copy of the on-line posting and verification of the application submission, the results of the contact, and any other information requested by the Bureau.
- The claimant must also provide proof of registration with the Ohio Department of Job and Family Services, or if the injured worker is out of state, the out of state equivalent.
- Claimants are not required to continue a job search if they are back to work for their former employer.
Compare the current and proposed rules here.