Due Process and Workers’ Compensation Hearings
In State ex rel. Sigler v. Lubrizol Corp., 136 Ohio St.3d 298, 2013-Ohio-3686 (8/29/13), the Supreme Court found that a member of the Industrial Commission can rule on a case without attending the hearing or reviewing a transcript of the hearing.
The Supreme Court considered a similar case in State ex rel. Ormet Corp. v. Indus. Comm., 54 Ohio St.3d at 107, (1990). In Ormet, a Commissioner had voted on a permanent total hearing without attending the hearing or reviewing a transcript. The employer claimed that the Commissioner’s action violated its right to Due Process.
Ormet recognized that parties to a workers’ compensation are entitled to Due Process — which means they are entitled to a fair hearing. However, the Court rejected the argument that a “fair hearing” requires the decision-maker to attend the hearing or review a transcript. The Court indicated, instead, that “the method used is secondary to the overall requirement that all evidence be considered and appraised.” After reviewing a number of cases discussing the requirements for a fair administrative hearing, Ormet determined that Due Process requires that “the decision-maker must, in some meaningful manner, consider evidence obtained at hearing.”
The Supreme Court found the permanent total decision which the employer challenged in Ormet invalid because that Commissioner who did not attend the hearing had only reviewed the claim file. He had not in any form (much less any meaningful form) reviewed the evidence from the hearing.
By contrast, in Sigler the absent Commissioner discussed the hearing with an employee who attended it. That is why the Supreme Court upheld the order challenged in Sigler.
Does this really provide fair hearing? If members of Due Process and Workers’ Compensation the Commission do not have to attend a hearing, what is to prevent them from holding “hearings” with no Commissioner present? Would such a meeting really be a hearing?
One of the issues, when an injured worker testifies at a hearing, involves the injured worker’s credibility. Does the hearing officer (or Commissioner) believe the injured worker’s testimony. Often, this is a crucial point. The importance of seeing the testimony to credibility determinations is obvious. At the very least, reading a transcript, while not as good as viewing or hearing the testimony, would give some basis for determining credibility.
When a Commissioner is permitted to make a decision without such a review, because they discussed the claim with an employee, in effect it is the employee – not the Commissioner – who makes the credibility determination. As the Court of Appeals recognized in its decision in this case (which the Supreme Court rejected)
Credibility, especially the credibility of a claimant, can be key to reaching a just decision in important workers’ compensation cases. As long as the commission and the courts are willing to consider failure to fully pursue rehabilitation efforts as a negative factor in deciding [permanent total disability] cases, the injured worker should be able to explain how he or she has done all he or she can do in pursuing rehabilitation.
As long as there are disputes among medical professionals about a claimant’s physical abilities, the claimant should be able to tell, in lay terms, what he or she can do. The claimant’s credibility may help determine which medical reports the commission finds persuasive.
With today’s technological capabilities, there is no reason the commission cannot have a complete record, even a video record, of the testimony before it. An absent commissioner could then make the appropriate decision without risking a violation of Due Process of Law.