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OhioBWC - Basics:  OAC 4121-3-09

4121-3-09 CONDUCT OF HEARINGS BEFORE THE COMMISSION AND ITS STAFF AND DISTRICT HEARING OFFICERS

(A) Proof and discovery.

(1) In every instance the proof shall be of sufficient quantum and probative value to establish the jurisdiction of the commission to consider the claim and determine the rights of the employee to an award. Proof may be presented by affidavit, deposition, oral testimony, written statement, document, or other forms of evidence.

(a) The parties or their representatives shall provide to each other, as soon as available and prior to hearing, a copy of the evidence the parties intend to submit at a commission proceeding.
(b) In the event a party fails to comply with paragraph (A)(1)(a) of this rule, the hearing officer may in his discretion continue the claim to the end of the hearing docket, or to a future date with instructions to the parties or their representatives to comply with the rule.

(2) The free pre-hearing exchange of information relevant to a claim is encouraged to facilitate thorough and adequate preparation for commission proceedings. If a dispute arises between the parties regarding the exchange of information, the hearing administrator, pursuant to paragraph (B) of this rule to consider the dispute. At the conclusion of the pre-hearing conference, the hearing administrator may issue a compliance letter, which becomes part of the claim file and which shall be adhered to by the parties.

(3) The claimant must provide, when requested, a current signed medical release as required by division (B) of section 4121.651 of the Revised Code. Should a claimant refuse to provide a current signed medical release as requested, then the claim shall be referred to the hearing administrator so that an order suspending the claim may be placed pursuant to division (C) of section 4123.651 of the Revised Code.

(4) The commission may, at any point in the processing of an application for benefits, require the employee to submit to a physical examination or may refer a claim for investigation.

(5) The employer may require a medical examination of the employee as provided in section 4123.651 of the Revised Code under the following circumstances:

(a) In no event will the claimant be examined more than one time at the request of the employer on any issue that is asserted by the claimant or which is to be considered by the commission, during the time that the specific matter asserted or that is in controversy remains pending final adjudication before the bureau or commission.

The exercise of this right of an examination shall not be allowed to delay the timely payment of benefits or scheduled hearings. The cost of any examination initiated by employer shall be paid by the employer including any fee required by the physician, and the payment of all of the claimant's traveling and meal expenses, in a manner and at the rates as established by the administrator from time to time. If employed, the claimant will also be compensated for any loss of wages arising from the scheduling of an examination. All reasonable expenses shall be paid by the employer immediately upon receipt of the billing, and the employer shall provide the claimant with a proper form to be completed by the claimant for reimbursement of such expenses. The employer shall reimburse the claimant for lost wages within thirty days of the submission of proof of lost wages.

The employer shall promptly inform the commission, as well as the claimant's representative, as to the time and place of the examination, and the questions and information provided to the doctor. A copy of the examination report shall be submitted to the commission and to the claimant's representative upon the employer's receipt of the report from the doctor.

The procedure set forth in paragraph (A)(4)(a) of this rule shall be applicable to claims where the date of injury or the date of disability in occupational disease claims occur on or after August 22, 1986.

Emergency treatment does not constitute examination for the purpose of this rule. Treatment by a company doctor does not constitute an examination for this rule. Treatment by a company doctor does not constitute an examination for this rule. [FN1] However, if following an examination the company doctor renders an opinion as to causation, extent of disability, or other medical opinion on a workers' compensation matter that is asserted by the claimant, or which is to be considered by the commission, then that examination does constitute an examination for purposes of this rule.
(b) If after a medical examination of the claimant under paragraph (A)(4)(a) of this rule on an issue that remains in controversy and has not been finally adjudicated, an employer asserts that an additional medical examination by a doctor of the employer's choice is essential in the defense of the claim by the employer, written request for such an examination shall be submitted to the hearing administrator only in cases where there is a dispute as to the request for additional examination. Written request for such an examination in a claim which has been set for a hearing with notice must be filed immediately upon the receipt of the notice or within such time as will be adequate for notification of the parties of the continuance of the hearing. The request shall state the date of the last examination of the claimant by a doctor of employer's choice on the question pending and the reasoning for such additional examination.
(c) All reasonable expenses of such examination, including any travel expense shall be paid by the employer immediately upon the receipt of the billing. Payment for traveling expenses shall not require an order of the bureau or commission, unless there is a dispute. The employer shall provide the claimant with a proper form to be completed by the claimant for reimbursement for traveling expenses. The employer shall reimburse the claimant for lost wages within thirty days of the submission of proof of lost wages.

(6) Procedure for obtaining the oral deposition of, or submitting interrogatories to, an examining physician.

(a) A request to take the oral deposition of or submit interrogatories to a physician who has examined an injured or disabled worker or reviewed the claim file and issued an opinion shall be submitted in writing to the hearing administrator within ten days from the receipt of the examining or reviewing physician's report and the applicant shall simultaneously mail a copy of the request to all parties, or if represented, to the representatives of the parties.
(b) The request must set out the reasons for the request and affirm that the applicant will pay all costs of the deposition or interrogatories including the payment of a reasonable fee, as defined below, to the physician and will furnish a copy of the deposition or the interrogatory to the opposing party and to the file.
(c) If the hearing administrator finds that the request is a reasonable one, he shall issue a compliance letter that will set forth the responsibilities of the party that makes the request. The following items shall be set forth in the compliance letter:
(i) A statement of the responsibility of the party that requests the taking of deposition or answering of interrogatories concerning payment to the physician of a reasonable fee as established from time to time by commission resolution. Additionally, should a party cancel a deposition within two days of the scheduled time, a minimum cancellation fee will be charged as set by the industrial commission.
(ii) A statement of the responsibility of the party that makes the request to provide written notice of the date and time of the deposition to be provided by the requesting party to all opposing parties and their representatives, the bureau of workers' compensation and the industrial commission.
(iii) A statement setting forth a date by which the transcript of the deposition or the answers to the interrogatories is to be submitted to the industrial commission for inclusion within the claim file folder and to be served upon opposing parties.
(d) The factors to be considered by the hearing administrator when determining the reasonableness of the request for deposition and interrogatories include whether a substantial disparity exists between various medical reports on the issue that is under contest, whether one medical report was relied upon to the exclusion of others, and whether the request is for harassment or delay. If the request is made by an employer the hearing administrator shall also determine whether the relied-upon medical report(s) considered non-allowed conditions.
(e) The party seeking the deposition may request that the hearing administrator issue a subpoena to secure the attendance of the physician.

If a witness who has been issued a subpoena fails to appear, the hearing administrator shall certify this fact to the office of the attorney general who shall take appropriate action to compel the witness to obey the subpoena.
(f) The applicant shall furnish the opposing party and the industrial commission with a copy of the deposition or the completed interrogatories. The applicant shall also furnish the industrial commission with proof of payment of the court reporter and the physician.

(B) Prehearing conferences.

(1) At any time prior to the hearing the hearing administrator may, for good cause, hold a prehearing conference to consider matters that would tend to expedite the proceeding.

(2) At the conclusion of a prehearing conference, the hearing administrator shall prepare a compliance letter listing the subjects considered and the agreements reached at the prehearing conference. The compliance letter shall be made part of the claim file to be reviewed by the adjudicator and also be provided to the parties in attendance at the pre-hearing conference. The parties must adhere to the provisions of the compliance letter.

(3) A prehearing conference may be held by telephone conference call or in person, as determined by the hearing administrator.

(C) Hearings before the industrial commission, its staff hearing officers, and the district hearing officers, and the rendering of their decision.

(1) Contested claims matters, disputed issues or claims, and appeals under section 4123.511 of the Revised Code shall be set for hearing before the district hearing officers, staff hearing officers or the industrial commission. Contested claim matters shall be assigned to hearing officers through a system which ensures that each hearing officer hears a representative sample of the issues under contest, dispute, or appeal. Hearing officers shall review all claim files prior to hearing.

(2) Notice of the date, time and place of such hearings shall be given to the employee and the employer, and their respective representatives of record by mail, and to the administrator by inter-office mail, in advance of the hearing date. The mailing of the notice, unless it is an emergency hearing, shall precede the hearing date by a period of time which will reasonably afford the parties opportunity to be present and participate in the hearing. This shall not be less than fourteen days following the date of the mailing of the notice.

(3) Representation of employees and employers before the bureau and the commission is a matter of individual free choice. This includes hearings before the designated hearing officers. The commission does not require representation nor does it prohibit it. No employee of the commission shall in any way make statements tending to limit such free choice. No one, other than an attorney at law, authorized to practice in the state of Ohio, shall be permitted to represent claimants for a fee before the commission.

(4) If no appearance is made at a hearing, with notice, the claim will be heard and disposed of upon the proof on file, if such proof is sufficient for that purpose. If such proof is insufficient, the hearing may be continued to a specific date for the attendance of the parties or for the purpose of obtaining additional proof or for any other justifiable reason.

(5) At hearings with notice, consideration shall be confined to the issues presented in the adjudication of the claim and the parties shall be prepared to fully present their respective positions in regard to such issues.

(6) In claims where a hearing with notice is required, parties may waive notice of hearing in writing, or by appearance and oral motion at the hearing, if such waiver is presented in advance of the hearing.

(7) Hearing officers of the commission and the commission itself, insofar as is practicable, shall announce the decision on the issues presented in the hearing at its conclusion. Upon announcement of the decision or upon the hearing officer taking the issues under advisement, where that is required, the hearing shall be concluded.

(8) Hearings with notice before the district hearing officers on contested claims matters, disputed issues or claims, and appeals from a decision of the administrator shall be conducted in the industrial commission service office that is closest to the claimant's residence, which shall be presumed to be the office that houses the claim file unless otherwise directed. Hearings for out-of-state claimants who live more than one hundred miles from a [sic] industrial commission service office will be in Columbus, unless otherwise directed. If within one hundred miles, then the hearing will be at the nearest industrial commission service office. Other hearings before the commission or its hearing officers, shall be at the places designated by the commission in the notices of hearing.

(9) Continuances.

(a)(i) Requests for continuances shall be addressed to the hearing administrator. The party that requests a continuance must state the reason for the request and whether the other parties' representatives or, if there is no representative, the opposing parties, have been informed that the request is being made and the reason therefore. Requests for continuances shall be in writing except in extraordinary circumstances where time does not permit a written request, and should be submitted on the "request for continuance" form available from the commission.
(ii) In the absence of a hearing administrator, due to extended illness or vacancy, the regional manager or his designee shall be assigned the responsibility placed on the hearing administrator for granting or denying requests for continuances.
(b)(i) Mutually agreed requests for continuances will be granted upon the written representation that the parties to the claim have agreed to the continuance and have further agreed to waive the time frames for hearing and issuance of an order that are set forth within section 4123.511 and other applicable provisions of the Revised Code. If a representative of a party requests a continuance, the representative shall certify that he has informed his client of the time frames set forth within section 4123.511 of the Revised Code and that his client has agreed to waive the time frames for hearing and issuance of an order set forth in section 4123.511 of the Revised Code.
(ii) Mutually agreed requests for continuances are to be made no later than five calendar days prior to the date of hearing. Where a mutually agreed request for continuance is granted, the case will not be identified as a claim that has not met the time limits set forth within section 4123.511 of the Revised Code in the reports required to be prepared pursuant to division (H)(2)(a) of section 4121.36 of the Revised Code.
(c)(i) Where the parties fail to agree on the request for continuance, fail to waive the time frame for hearing and issuance of an order set forth within section 4123.511 of the Revised Code, or if a mutually agreed request for continuance is submitted less than five calendar days prior to the date of hearing, the claim shall remain on the hearing docket as scheduled. The adjudicator that is assigned to the hearing shall review the request and make a recommendation as to whether the continuance should be granted or denied. The reasons in support of the recommendation shall be noted on the hearing worksheet or on the file copy of the notice of hearing, if a hearing worksheet is not available. The hearing administrator shall retain jurisdiction to determine whether to grant or deny requests for continuances until the day of the scheduled hearing for which a continuance has been made.
(ii) If a request for continuance has not been decided prior to the date of hearing, the adjudicator assigned to hold the hearing shall publish an order either granting or denying the request for continuance. If the adjudicator determines to grant the continuance, the order shall list the party that requested the continuance, the reason for granting the continuance, and the fact that the claim is to be continued, in progress, and reset on the next available docket. Such requests for continuances shall be granted only in exceptional circumstances and not as a matter of course. If the adjudicator grants such a request for continuance, the order shall be interlocutory in nature and is not subject to appeal. Such claims shall remain subject to the reporting provisions under division (H)(2)(A) of section 4121.36 of the Revised Code, as well as the requirement of the timely hearing and issuance of an order under section 4123.511 of the Revised Code.
(d) No hearing will be continued for purposes of discovery unless good cause is shown as determined by the hearing administrator or the adjudicator where a request for continuance is made at the hearing.
(e) In cases where the hearing is to be scheduled before the members of the industrial commission, requests for continuances will be considered and determined by a majority of the members of the industrial commission.

(10) All final decisions of the district hearing officers, staff hearing officers or commission upon hearing with notice shall be reduced to writing and copies mailed to the parties and to all authorized representatives of record of each party, and to the administrator.

Written decisions shall be signed by the adjudicator(s) who conducted the hearing. When schedules or traveling do not permit a hearing officer to sign his orders, another hearing officer will be designated to sign the order. The designated signer should ensure that the order conforms to the hearing worksheet of the hearing officer that made the decision. If a designated signer has a question regarding the contents of the order, the order must be returned to the hearing officer that made the decision prior to its publication.

(11) All hearings before a district hearing officer, staff hearing officer and the industrial commission shall be public.

(12) The hearing administrator, hearing officer, or industrial commission may compel the attendance or testimony of witnesses on their own motion or at the request of any party.

(13) The assignment of a staff hearing officer or district hearing officer to a hearing shall be made by the regional manager.

(D) Final decisions of the district hearing officer, staff hearing officer or the industrial commission shall be in writing and shall include:

(1) Description of the part of the body and the nature of the disability recognized in the claim.

(2) A concise statement of the order or award.

(3) A notation as to the notice furnished and as to the appearances of the parties.

(4) Signatures of each commissioner participating in the hearing, shall be affixed to the original order verifying his vote.

(5) Signatures of each hearing officer participating in the hearing shall be affixed to the original order verifying his vote, which will be made part of the claim file.

(E) All matters which at the request of one of the parties or on the initiative of the administrator and any commissioner are to be expedited, shall require at least forty-eight hours notice of a public hearing and a statement of such order of the circumstances that justified such expeditious hearing.

(F) All original memoranda, orders and decisions of the commission shall be compiled in a journal to be made available to the public with sufficient indexing to allow orderly review of documents. The journal shall indicate the vote of each commissioner.

(G) All orders, rules, memoranda and decisions of the commission shall contain the signature of two of the three commissioners and shall state whether adopted at a meeting of the commission or by circulation to individual commissioners. Any facsimile or secretarial signature, initials of commissioners and delegated hearing officers and any printed record of "yes" and "no" vote of a district or staff hearing officer, or commission member is invalid.

(H) Claim inquiries.

(1) The industrial commission shall maintain a public information section, which will be charged with the responsibility of handling claim inquiries by or on behalf of claimants, employers and their respective representatives.

(2) Requests, whether in writing, in person, or by telephone, concerning the status of a claim and/or any action necessary to maintain the claim shall be directed to the public information section.

(3) The public information section shall promptly answer such request(s) or may refer the matter for response to the office or section before which the matter is currently pending. If the matter is so referred, the public information section shall follow-up the inquiry to ensure that it has been expeditiously answered.

(4) Should the filing of a supplemental application, affidavit or other form(s) be necessary, it shall be forwarded by the office answering the inquiry.

(5) The public information section shall maintain a record of all inquiries received in order that statistics be developed to indicate problem areas and to serve as a basis for appropriate measures.

(I) Processing claims in an orderly, uniform and timely fashion.

(1) Each section of the industrial commission shall perform the tasks necessary to discharge its responsibilities for the processing of claims in accordance with the procedures adopted by such section and approved by the industrial commission.

(2) The discharge of these responsibilities, whether involving claims pertaining to state fund, self-insured or other employers shall be accomplished within the reasonable time parameters as set forth by the procedures of each section.

(3) It shall be the responsibility of the regional manager and hearing administrator to monitor the performance of tasks being carried on within their jurisdiction and to ensure that such assigned tasks are being performed in an orderly, uniform and timely manner, as established by the procedures of that section.

(4) Should it be determined that the assigned tasks were not being performed according to the adopted procedures, it shall be the responsibility of the regional manager and hearing administrator to adopt such corrective measures as may be indicated under the circumstances.

(J) In the absence of the hearing administrator, due to extended illness or vacancy, the regional manager or his designee shall assume the responsibilities placed on the hearing administrator by this rule



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