Commission Considers Rule Changes

Commission Considers Rule Changes

Note: On September 25, 2003, the Commission withdrew these proposed rule changes and indicated that it would refile them. The Commission refiled the rules on October 9, 2003.

The Industrial Commission scheduled a public hearing to consider rule changes on September 3, 2003, at 10:00 a.m. in the 5th Floor West Conference Room at 30 West Spring Street in Columbus, Ohio.

The Commission will consider the following rules changes at the public hearing:

Amendment of Rule 4121-3-09: Conduct of Hearings Before the Commission and its Staff and District Hearing Officers.

1. failure to attend medical exam or provide medical release: The proposed amendments to Rule 4121-3-09 set forth procedures for determining if there was good cause for an injured worker to not attend a scheduled medical examination or refuse to provide a medical release. [Proposed new 4121-3-09(A)(6).]
2. depositions/interrogatorries: The proposed amendments to Rule 4121-3-09 change the standards to be considered when determining whether to grant a request for deposition or interrogatorries. The amendment removes language that the factors to be considered in determining whether to grant such a request include whether there is a “substantial disparity” among reports, whether one report was relied on to the exclusion of others, and whether the request is made only for harassment or delay. The proposed new standard is “whether the alleged defect or potential problem raised by the applicant can be adequately addressed or resolved” through the administrative process. [Proposed new 4121-3-09(A)(7)(d).]
3. continuances: The proposed amendments to Rule 4121-3-09 remove the examples of “good cause” and “extraordinary circumstances” for purposes of granting a continuance from the code section [contained in current 4121-3-09(C)(9)(e) and (f)] and instead provides that the Commission can provide guidelines for determining whether there is good cause, or whether there are extraordinary circumstances, for granting a continuance. [Proposed new 4121-3-09(C)(9)(b)(iii).]

Replacement of Rule 4121-3-13: Disputed Self-Insuring Employer’s Claims
The Commission proposes to completely replace the current Rule 4121-3-13 with a new version. Highlights of the new rule are:

1. Self-insurer must respond to request within 14 days: If the self-insurer does not respond to a request for compensation or benefits within 14 days, the matter is to be scheduled for a hearing. [Proposed new 4121-3-13(C).]
2. Self-insurer required to provide information: The self-insurer is required to provide certain information to the Commission and the injured worker (or their representative) before a hearing. Among the information required is: (1) a copy of the FROI; (2) a statement of the allowed conditions and additionally allowed conditions which have been recognized by the self-insurer; (3) the full weekly wage and average weekly wage determined by the self-insurer. The Commission can also request specific claims information relative to the contested matter. [Proposed new 4121-3-13(E).]

Replacement of Rule 4121-3-15: Percentage of Permanent Partial Disability
The Commission proposes to replace current 4121-3-15, “Claims Procedures Subsequent to Allowance” with a new version “Percentage of Permanent Partial Disability.”

1. Procedures to Follow Upon Filing Objection: The rule sets forth the procedures to be followed upon filing of an objection to a tentative order. Included is a requirement for the employer to provide notice of intent to schedule a medical examination with the filing of the objection, if the employer wants a medical examination. [Proposed new 4121-3-15(C)(1).]
2. Extension of Time For Medical Exam: If an employer wants to have a medical exam in response to a new medical report filed by a claimant, the hearing can be continued for 30 days. [Proposed new 4121-3-15(C)(3).]
3. Depositions/Interrogatorries: The proposed new rule provides for depositions or interrogatorries of a BWC or Commission examining doctor if (1) there is a “substantial disparity” between that report and another report on file (substantial disparity is defined as a difference of 15% or more); (2) the report was based on a non-allowed condition; or (3) an allowed condition was omitted. [Proposed new 4121-3-15(D).]
4. Decision-Making: Hearing Officers are to base their award on “medical or clinical findings reasonably demonstrable.” The hearing officer can return the claim file to the BWC for an additional medical exam or medical review if the hearing officer determines that the initial medical exam or review was legally insufficient. [Proposed new 4121-3-15(E).]
5. Settlement Provisions Removed: Current 4121-3-15 contains provisions relating to settlement of claims. Those provisions have been removed.

Amendment of Rule 4121-3-32: Temporary Disability
The proposed amendments delete current 4121-3-32(C), which provides for an injured worker to register with the Bureau of Employment Services in certain circumstances because the requirement is set out in R.C. 4123.56.

Amendment of Rule 4121-3-34: Permanent Total Disability

1. Age Definitions Deleted: Current 4121-3-34(B)(3)(a)(i)-(iv), which categorize different levels of “age” are deleted.
2. Medical Evidence Submitted with Application: The proposed amendment changes the age of medical evidence which can be submitted with a permanent total application. Currently, medical evidence must be from no more than 15 months before the date of the application. The new rule would permit medical evidence from up to 24 months before the date of the application. The proposed amendment also changes the standard of evidence required in the medical report from evidence of the “inability to work” to evidence of “physical and/or mental limitations” caused by the allowed condition(s). [Proposed new 4121-3-34(C)(1).]
3. Vocational Questionnaire Requirement Deleted: The current requirement that each applicant submit a vocational questionnaire, contained in 4121-3-34(C)(2), is deleted.
4. Procedures for Additional Medical Evidence: The employer is required to provide notice to the Commission if it intends to file medical evidence within 14 days of the acknowledgment letter. Whether the employer provides notice or not, it can provide additional medical evidence within 60 days of the acknowledgment letter, but if no notice is given the Commission will not delay scheduling its own medical examination. [Proposed new 4121-3-34(C)(4)(b).]Once the time limits have expired, the only medical evidence which can be submitted is evidence which is “newly discovered”, “relevant” and which could not have been previously obtained by “due diligence.” Rebuttal medical evidence is specifically excluded. [Proposed new 4121-3-34(C)(4)(d).]
5. Procedures for Vocational Evidence: The parties are given 14 days from the date that the Commission medical evidence is submitted to the parties to give written notice if they intend to submit additional vocational information. Failure to provide such notice waives the ability to submit additional information. If a party provides such notice, they have 45 days from the date that the Commission medical evidence is submitted to the parties to submit additional vocational evidence. No additional vocational evidence can be submitted after that date without prior approval by the hearing administrator. [Proposed new 4121-3-34(C)(6)(b).]The provisions of current 4121-3-34(C)(6)(b) and (c) providing for Commission vocational reports are deleted.
6. Psychiatric Conditions: Where the injured worker has a psychiatric condition and a physical condition, if the physical condition does not prevent sustained remunerative employment the hearing officer is to consider whether the “psychiatric condition in combination with the allowed physical condition prevents the injured worker from engaging in sustained remunerative employment.”