court house 25061 640

Practice & Procedure: Ohio Evidence, Discovery

30 Jul, 2023 Frank Ferreri

court house 25061 640
                               

Columbus, OH (WorkersCompensation.com) -- In Ohio, state law spells out the rules when it comes to evidence used in workers' compensation hearings. The following chart breaks down what the Buckeye State requires on evidence and discovery when a claim comes before the commission or a district hearing officer.

TopicRule
Basic requirementsIn every instance the evidence 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 injured worker to an award. 
How evidence may be presentedEvidence may be presented by affidavit, deposition, oral testimony, written statement, document, or other forms of evidence.
What must be presented to the other partyThe 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.
What if the parties don't present the required evidence to the other side?In that case, the hearing officer has the discretion to 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.
What happens if there is a dispute on the exchange of evidence?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 may conduct a pre-hearing conference 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.
Signed medical releasesAn injured worker must provide, when requested, a current signed medical release.
Should an injured worker 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.
Medical releases are to be executed on forms provided by the bureau of workers' compensation, the commission, or on substantially similar forms.
List of medical providersWhen an injured worker has provided a current signed medical release upon written request made by the employer, the injured worker shall provide a list of the medical providers that the injured worker is authorizing to release medical records that have examined or treated the injured worker for any medical, psychological and/or psychiatric conditions that are related causally or historically to the physical or psychological and/or psychiatric injuries relevant to the injured worker's claim.
The medical records released to the employer pursuant to a signed medical release shall be treated as confidential medical records by the employer and the employer's authorized representatives.
Charges of unreasonablenessShould an injured worker make the assertion that the employer's request to provide a list of medical providers is unreasonable, the injured worker shall within three days of making the assertion provide the hearing administrator and the employer, or in claims where the employer is represented, the employer's representative, notice of the assertion. 
Notices of assertionA notice of assertion shall set forth the reasons for the assertion that the request to provide a list of medical providers is unreasonable.
Upon receipt of such notification, the hearing administrator shall determine whether there is good cause for the injured worker's refusal to provide a list of medical providers to the employer who have examined or treated the injured worker for any medical, psychological and/or psychiatric conditions that are related causally or historically to the physical and/or psychiatric conditions relevant to the injured worker's claim and the hearing administrator shall issue a compliance letter on whether there was good cause for the refusal to provide a list of medical providers to the employer. 
Compliance lettersA party dissatisfied with a compliance letter may file an objection within 14 days of receipt of the compliance letter. If a party files a timely objection to a compliance letter, an expedited hearing will be held by a staff hearing officer in five business days of the commissions receipt of the objection.
Physical examinationsThe commission may, at any point in the processing of an application for benefits, require the injured worker to submit to a physical examination or may refer a claim for investigation.
Medical examinationsAn employer may require a medical examination of an injured worker under the following circumstances:
--> In no event will the injured worker be examined more than one time at the request of the employer on any issue that is asserted by the injured worker or that 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 nor be used to cause undue hardship on the injured worker. 
--> 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 injured worker's traveling and meal expenses, in a manner and at the rates as established by the administrator from time to time.
--> If employed, the injured worker 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 injured worker at the time that the employer notifies the injured worker of the time and place of the examination with a proper form to be completed by the injured worker for reimbursement of such expenses. 
--> The employer shall reimburse the injured worker 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 injured worker's representative, as to the time and place of the examination, and the questions and information provided to the doctor. 
Exam reportsA copy of the examination report shall be submitted to the commission and to the injured worker's representative upon the employer's receipt of the report from the doctor.
What is not an employer's examination?(1) Emergency treatment does not constitute an employer's examination.
(2) Treatment by a physician whom the employer has selected does not constitute an employer's examination. However, if following an examination the physician whom the employer has selected renders, at the request of the employer, an opinion as to causation, extent of disability, or other medical opinion on a workers' compensation matter that is asserted by the injured worker, or which is to be considered by the commission, then that examination does constitute an examination for purposes of this rule, and the employer would not be entitled to a second examination on the same issue.
Additional medical examinationsIf after a medical examination of the injured worker 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, the employer shall promptly inform the injured worker, and in claims where the injured worker is represented, the injured worker's representative as to the time and place of the examination.
Upon request by the injured worker, or the injured workers authorized representative in claims where the injured worker is represented, the questions and information provided to the physician and the reasoning for such additional examination shall be provided to the injured worker or the injured workers authorized representative in claims where the injured worker is represented.
A 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:
(1) The date of the last examination of the injured worker by a doctor of employer's choice on the question pending
(2) The reasoning for such additional examination
Hearing administrators and second examinationsUpon receipt of such written request of the employer, the hearing administrator shall contact the parties to the claim and determine whether the second medical examination is essential to the defense of the claim by the employer.
The hearing administrator will thereafter issue a compliance letter advising the parties of whether the medical examination scheduled pursuant to this section is permitted.
ObjectionsA party dissatisfied with the compliance letter may file an objection within 14 days of receipt of the compliance letter. If a party files a timely objection to a compliance letter issued, an expedited hearing will be held by a staff hearing officer in five business days of the commission's receipt of the objection.
Expenses of second examinationsAll reasonable expenses of an additional examination, including any travel expense shall be paid by the employer within 30 days of 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 injured worker with a proper form to be completed by the claimant for reimbursement for traveling expenses.
The employer shall reimburse the injured worker for lost wages within 30 days of the submission of proof of lost wages.
Who can be present at medical examinations?Representatives of the parties may not be present at the medical examination conducted at the request of the commission.
Injured workers may have a relative present at such medical examinations if the injured worker desires to have a relative present. Examinations should be conducted with a chaperone present where appropriate.
No person or party other than a commission employee shall communicate with the physician examining or reviewing on behalf of the commission. The preceding prohibition applies both prior to and subsequent to the medical examination, other than to the injured worker during the medical examination itself.
Representatives of the parties may not be present at the medical examination conducted by the treating or consulting physician of the injured worker without the approval of the injured worker or, in claims where the injured worker is represented, the injured worker's authorized representative.
Refusal to attend medical examinationsIf an injured worker without good cause refuses to attend a medical examination or refuses to provide or execute a current signed medical release, the right to have the injured worker's claim for compensation or benefits considered -- if the claim is pending before the commission, the administrator or district or staff hearing officer or to receive any payment of compensation or benefits previously granted -- is suspended during the period of refusal.
Employers asserting suspensionsThe employer or the administrator asserting the suspension shall, within three business days of the assertion, provide the hearing administrator and the injured worker or in claims where the injured worker is represented the injured worker's representative notice of the assertion.
The notice shall include the reason for the assertion that there was not good cause shown for the refusal to attend a medical examination or the refusal to provide or execute a current signed medical release. Upon receipt of such notification, the hearing administrator shall contact the parties to the claim and determine whether there is a dispute concerning the asserted suspension. Promptly thereafter, a compliance letter shall be issued.
Good causeIf it is found that there was good cause for the refusal to attend a medical examination and/or for the refusal to provide or execute a current signed medical release, a compliance letter shall issue finding that the claim is not suspended. If the compliance letter finds that payment of compensation or benefits was terminated by the administrator or by self-insuring employer without having good cause for the suspension, payments of compensation and/or benefits shall be made within 14 days of the compliance letter.
If it is found that there was not good cause for the refusal to attend a medical examination and/or for the refusal to provide or execute a current signed medical release, a compliance letter shall issue finding that the injured worker's right to have the claim for compensation or benefits considered if the claim is pending before the administrator, commission, or district or staff hearing officer, or to receive any payment of compensation or benefits previously granted is suspended during the period of refusal.
Dissatisfaction with a compliance letterA party that is dissatisfied with a compliance letter may file an objection within 14 days of the receipt of the compliance letter. If a party files a timely written objection to the compliance letter rule an expedited hearing will be held by a staff hearing officer within three business days of the commission's receipt of the objection.
Procedure for obtaining the oral deposition of, or submitting interrogatories to, an industrial commission or bureau physician.(1) A request to take the oral deposition of or submit interrogatories to an industrial commission or bureau 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 10 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.
(2) 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 to the physician and will furnish a copy of the deposition or the interrogatory to the opposing party and to the file.
(3) If the hearing administrator finds that the request is a reasonable one, the hearing administrator shall issue a compliance letter that will set forth the responsibilities of the party that makes the request. 
Items that must be in the compliance letterThe following items shall be set forth in the compliance letter:
--> A statement of the responsibility of the party that requests the taking of deposition or answering of interrogatories concerning payment to the commission physician of a reasonable fee as established from time to time in the commission's medical examination manual. 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.
--> 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.
--> 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.
Determining the reasonableness of the request for deposition or interrogatoriesWhen determining the reasonableness of the request for deposition or interrogatories the hearing administrator shall consider whether the alleged defect or potential problem raised by the applicant can be adequately addressed or resolved by the claims examiner, hearing administrator, or hearing officer through the adjudicatory process within the commission or the claims process within the bureau of workers' compensation.
Subpoena optionThe party seeking the deposition may request that the hearing administrator issue a subpoena to secure the attendance of the physician. If the hearing administrator issues a subpoena to secure the attendance of the physician, the hearing administrator shall notify the physician that is to be deposed to bring copies of existing office notes and records concerning the medical examination or medical review to the deposition.
Failure to appearIf 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.
CopiesThe 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.

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    About The Author

    • Frank Ferreri

      Frank Ferreri, M.A., J.D. covers workers' compensation legal issues. He has published books, articles, and other material on multiple areas of employment, insurance, and disability law. Frank received his master's degree from the University of South Florida and juris doctor from the University of Florida Levin College of Law.

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