New Rules Published for Industrial Commission Hearing Officers
Every May, Ohio Industrial Commission Hearing Officers attend a two-day meeting to review and update policies and procedures in order to comply with recent case law and statutes.
This year, six new Policy Statements were published providing
instruction for hearing officers in the areas of Settlements, Violation of
Specific Safety Requirements, Dismissal Orders, Substantial Aggravations, and
Psychological Conditions.
Industrial Commission Memo O3 outlines the
documentation that Staff Hearing Officers (SHOs) need to review in giving final
approval of settlements of workers’ compensation claims. SHOs review each
settlement application, whether for a state funded or self insured claim, to
ensure that the settlement is not clearly unfair to either party. Of interest
from this new policy is that the 30 day cooling off period after a settlement
order is issued cannot be waived by the parties. Should the SHO find that a
settlement is clearly unfair, then he or she will issue an order disapproving
the settlement during this 30 day period.
Memos P2 and P4 discuss the
SHO’s duty to address the employer’s correction of a violation of specific
safety requirement (VSSR). After an initial VSSR, the Industrial Commission
order that issues the penalty must also address the employer’s correction of the
violation. Subsequently, if the employer has not corrected the violation and
another injury occurs within 24 months of the first injury, the SHO should
address a civil penalty in addition to the penalty for the second VSSR.
Memo K1 sets out instructions for hearing officers who are asked to
dismiss an application , motion, or appeal. If the merits of the issue scheduled
for hearing have already been discussed, then the hearing officer cannot dismiss
the application, motion, or appeal. In short, any request for a dismissal or
withdrawal should be made before the hearing on the merits begins.
Memo
A5 further clarifies the “substantial aggravation” test that was codified in
Senate Bill 7. If an injury occurred on or after October 11, 2006, and the
injured worker is asking for a diagnosis relating to aggravation of a
pre-existing condition, the hearing officer must cite specific pieces of
evidence that demonstrate the aggravation was “substantial.” Although the
hearing officer must rely upon objective diagnostic findings, the determination
as to whether an aggravation of a pre-existing condition is “substantial” is a
legal determination rather than a medical one.
Lastly, Memo C5 indicates
that psychological treatment requests can be made by a medical or osteopathic
doctor, a licensed clinical counselor, or a licensed social worker. However, if
the injured worker is requesting temporary total disability based upon an
allowed psychological condition, only a medical/osteopathic doctor or a
psychologist may submit evidence to support the disability.
Each of the
new policies can be viewed at www.OhioIC.com in the Hearing Officer Manual
section. If you have questions, please contact the Frost Brown Todd LLC workers’
compensation practice group.
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Attorney Spotlight
Deborah S. Adams is a member of Frost Brown Todd LLC and practices in the labor and employment law practice group. She represents management in the areas of employment discrimination and wrongful discharge.