By: Mark Barnes
On July 6, 2021, the Industrial Commission of Ohio resumed in-person hearings. Or did it? The Commission’s website contains a link to information about in-person workers’ compensation hearings, but this posting neither constitutes a policy regarding in-person hearings nor does it provide clear guidance to practitioners. Although many parties and representatives have returned to the hearing room, there is little uniformity regarding hearing attendance. The Commission does not require in-person hearings, and therefore, in-person attendance is voluntary. Hearing attendance by Webex, which began as a method to conduct hearings during the initial height of the COVID-19 pandemic, remains an option for parties and representatives alike. The pandemic continues, and as such, effectively advocating on behalf of employers in the present environment has become a challenge.
Imagine the following scenario: Employer’s counsel attends a hearing in-person, as does claimant’s counsel. Because the hearing involves the claimant’s credibility and his body habitus, the claimant’s in-person attendance is critical to the outcome of the hearing. However, the claimant appears by Webex and according to the Commission’s practices, the claimant is not permitted to use video. During the hearing, the claimant reveals his connection is poor because he is attending the hearing in the restroom of a fast-food restaurant. More importantly, during cross examination, the claimant loses connection. Minutes pass before the claimant returns on the line, then he loses connection permanently and is no longer a participant in the hearing. After this fractured, disjointed hearing, employer’s counsel makes argument, only to be undermined by claimant’s counsel who requests a continuance after the merits of the hearing have been heard.
Unfortunately, the above scenario is not hypothetical; it really happened. The Commission has no discernible policy on hearing attendance. Parties may appear in person, by Webex, or not at all. While hearing notices provide that continuances must comply with Ohio Adm.Code 4121-3-09, which requires written requests to the hearing administrator 5 days prior to the hearing, except for good cause or unforeseen extraordinary circumstances, there are hearing officers who will continue hearings for any reason they deem “good cause,” which could include a poor Webex connection. Hearing processes are meant to provide due process, which essentially means fair and equitable legal proceedings, designed to protect the rights of all parties. Until the Commission establishes a clear policy on the conduct of hearings during the continuing pandemic, due process will be strained and the hearing room will be a mish mash of in-person arguments, telephonic testimony, and technological foibles.