Commission Issues New Hearing Officer Guidelines
The Commission issued five new hearing officer guidelines for the Hearing Officer’s Manual.
Memo B. 3: ORC 4123.85 and White v. Mayfield
White provided that the disability date to trigger the beginning of the statute of limitations on an occupational disease claim occurs at the latest of the following:
- when the injured worker first became aware through medical diagnosis that he or she was suffering from the disease;
- the date on which the injured worker first received medical treatment for the disease; or
- the date the injured worker first quit work on account of the disease.
The guideline says that
where there has not been a request for disability compensation or where the injured worker retired prior to being diagnosed with an occupational disease that involves a long latency period, that the claim is timely filed. Claims are only untimely filed pursuant to White where they have been filed more than two years after diagnosis and first medical treatment and two years after the injured worker quit work on account of the disease. If an injured worker has not yet quit work on account of the disease, the two-year period has not even begun to run.
Memo K. 2: Precise Order Writing
The guideline says that every order should clearly state the action taken. The order must delineate the evidence relied on and reflect that all evidence has been reviewed and considered. The order must address every issue and state the rationale for the decision even when affirming a prior decision.
Hearing Officers are not to cut and paste language from underlying orders. The language must be paraphrased.
Memo M. 5: Documentation Submitted by Advanced Practice Nurses, Certified Nurse Practitioners and Clinical Nurse Specialists
Medical documentation submitted by an Advanced Practice Nurse (APN), a Certified Nurse Practitioner (CNP), or a Clinical Nurse Specialist (CNS) is evidence to be considered by a hearing officer.
An APN, CNP or CNS may submit documentation regarding the injured worker’s wellness, preventative or primary care service required by injured worker and regarding care for injured worker health problems. This medical evidence is not sufficient to justify the payment or non-payment of compensation to the IW.
Prescription drug and therapeutic device documentation submitted by an APN, CNS, and CNP, is evidence to be considered by a hearing officer if they have been granted prescriptive authority under R.C or OAC 4723.
Memo R. 12: Hearing Officer Complaint Procedure
A formal complaint must be in writing and delineate the issues or concerns and sent to the Director of Hearing Services, Industrial Commission of Ohio, 30 West Spring Street, Columbus, OH 43215.
The complaint should indicate the hearing officer, the issue or concern being questioned, when and where they occurred and any other pertinent information.
The Director of Hearing Services will wait until the appeal period for the most current district or staff hearing has ended (whichever is last). After all hearing officer appeals have ended, the issue will be addressed.
After review by the Director of Hearing Services, a copy will go to the hearing officer’s regional manager. The regional manager will discuss the issue with the hearing officer and ask that the hearing officer respond to the complaint in writing. The regional manager will then forward the written response to the Director of Hearing Services.
The Director will review the hearing officer’s response and respond in writing to the complaining party. If remedial or corrective action is required, the Director will work with the regional manager and the hearing officer to implement corrective action.
Memo S. 12: Role of Sureties in Hearings
Sureties for an insolvent self-insured employer are included within the definition of employer for the limited purpose of participating in the workers compensation benefit determination proceedings. Holben v. Interstate Motor Freight System (1987), 31 Ohio St.3d 152.
Prior to being found financially responsible for a claim or voluntarily accepting responsibility for a claim, sureties do not have the right to actively participate in the defense of a claim and do not have the right to have injured workers examined, conduct depositions or submit interrogatories.
The Commission will give notice to all potential sureties and their representatives of hearings. A representative of a potentially responsible surety company may participate in the hearing to the limited extent of providing information that will assist the adjudicator in identifying the surety or other entity that is responsible for the cost of a claim of an insolvent self-insured employer.