Update on Proposed Changes to Industrial Commission Rules
The Industrial Commission held a public rule hearing on September 3, 2003, to consider changes to O.A.C. 4121-3-09 (Conduct of Hearings Before the Commission and its Staff and District Hearing Officers); 4121-3-13 (Disputed Self-Insuring Employer’s Claims); 4121-3-15 (Percentage of Permanent Partial Disability); 4121-3-32 (Temporary Total Disability); and 4121-3-34 (Permanent Total Disability).
On September 25, 2003, the Industrial Commission withdrew these rules for further study and indicated that it would refile the rules. The Commission refiled the rules on October 9, 2003.
Some excerpts of testimony at the hearing follow:
- Jamie Parman testified on behalf of the International Association of Rehabilitation Professionals. Ms. Parman testified about the provision of O.A.C. 4121-3-34 which deletes the requirement that the Commission obtain its own vocational expert report in a permanent total claim. Ms. Parman urged the Commission not to delete the requirement for the Commission vocational expert report. She pointed to the Stephenson decision, which recognizes the necessity for consideration of disability factors and that the Commission must consider disability factors where the decision of permanent total disability is not based solely on physical limitations. Ms. Parman indicated that a Commission vocational expert is better than dealing with reports submitted by each side.
- Buzz Minor testified in behalf of the Self-Insured Association. His testimony dealt with O.A.C. 4121-3-13(E)4, which provides for a “Self-Insuring Employer Claim Information Form” which the Commission can use before a hearing to request information the self-insurer has which is relevant to the issue of the hearing.Mr. Minor said that the parties who had held discussions on changing the rule had not agreed to this item. The form referred to in this rule does not presently exist and Mr. Minor indicated that self-insured employers ought not to be treated differently from other employers. Mr. Minor also suggested that the BWC was doing some things in connection with self-insured claims and there ought to be coordination between the Commission and the BWC.
- Stewart Jaffy testified on O.A.C. 4121-3-34. Mr. Jaffy indicated that that rule is unreasonable and unlawful insofar as it restricts the injured worker applying for permanent total from submitting rebuttal medical evidence. Mr. Jaffy pointed out that the burden of proof is clearly put on the injured worker. He stated the rule is unlawful and unreasonable because it requires the claimant to file evidence to start the claim but gives the claimant no opportunity to provide any rebuttal evidence.Mr. Jaffy also testified about O.A.C. 4121-3-09 (A)(7)(d), dealing with depositions and interrogatories and suggested that there are times when a deposition or interrogatory is necessary to question a Commission doctor’s examination. Nevertheless, this proposed rule does not address the problem and clearly prevents such written or oral examination.Finally Mr. Jaffy criticized the failure of the rule to require Commission doctors to set out information on a claimant’s limitations and restrictions because such information is necessary for a permanent total claim but is not currently being provided by Commission doctors.