Chapter 4121-3 Claims Procedures

4121-3-01 Office locations, office hours, and scope of rules.

(A) Service offices of the industrial commission shall be located in cities as determined by the industrial commission.

(B) Each office will be open during posted hours of operation, holidays excepted, for the receipt and filing of claim applications or any other documents and for the transaction of any business pertinent to the administration of the workers' compensation law.

(C) All rules shall apply to the bureau and the commission.

R.C. 119.032 review dates: 04/05/2013 and 01/31/2018
Promulgated Under: 119.03
Statutory Authority: 4121.30
Rule Amplifies: 4121.36 , 4123.511
Prior Effective Dates: 1/1/1978, 10/17/1998, 2/1/1998, 6/1/2003

4121-3-09 Conduct of hearings before the commission and its staff and district hearing officers.

(A) Evidence and discovery.

(1) In 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. Evidence 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 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.

(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 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.

(3) The injured worker must provide, when requested, a current signed medical release as required by division (B) of section 4123.651 of the Revised Code. 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 pursuant to division (C) of section 4123.651 of the Revised Code. Medical releases are to be executed on forms provided by the bureau of workers' compensation, the commission, or on substantially similar forms.

(4)

(a) When the injured worker has provided a current signed medical release as required by division (B) of section 4123.651 of the Revised Code, 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.

(b) Should the injured worker make the assertion that the employer's request to provide a list of medical providers pursuant to paragraph (A)(4)(a) of this rule is unreasonable or not in compliance with paragraph (A)(4)(a) of this rule, 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. The notice of assertion shall set forth the reasons for the assertion that the request to provide a list of medical providers is unreasonable or not in compliance with paragraph (A)(4)(a) of this rule. 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. A party dissatisfied with the compliance letter issued under paragraph (A)(4)(a) of this rule may file an objection within fourteen days of receipt of the compliance letter. If a party files a timely objection to a compliance letter issued under paragraph (A)(4)(a) of this rule, an expedited hearing will be held by a staff hearing officer in five business days of the commission's receipt of the objection.

(5) The 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.

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

(a) 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 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 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. A 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.

The procedure set forth in paragraph (A) (6)(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 an employer's examination for the purpose of this rule. Treatment by a physician whom the employer has selected does not constitute an employer's examination for this rule. 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 excepted as provided by this rule.

(b) If after a medical examination of the injured worker under paragraph (A) (6)(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, 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 worker's 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 worker's 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 the date of the last examination of the injured worker by a doctor of employer's choice on the question pending and the reasoning for such additional examination.

Upon 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. A party dissatisfied with the compliance letter issued under paragraph (A)(6) of this rule may file an objection within fourteen days of receipt of the compliance letter. If a party files a timely objection to a compliance letter issued under paragraph (A)(6) of this rule, an expedited hearing will be held by a staff hearing officer in five business days of the commission's receipt of the objection.

All reasonable expenses of such examination, including any travel expense shall be paid by the employer within thirty 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 thirty days of the submission of proof of lost wages.

(7) Representatives of the parties may not be present at the medical examination conducted at the request of the commission under the provisions of Chapter 4121. or 4123. of the Revised Code, or at a medical examination conducted pursuant to division (A) of section 4123.651 of the Revised Code. 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.

(a) If an injured worker without good cause refuses to attend a medical examination scheduled under paragraph (A) (6) of this rule, or refuses to provide or execute a current signed medical release as required by section 4123.651 of the Revised Code, 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.

(b)

(i) The employer or the administrator asserting the suspension in paragraph (A) (7)(a) of this rule 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 scheduled under paragraph (A) (6) of this rule or the refusal to provide or execute a current signed medical release as required by section 4123.651 of the Revised Code. 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 as set forth in paragraphs (A) (7)(c) and (A) (7)(d) of this rule.

(ii) Should the injured worker make the assertion that the medical examination scheduled pursuant to paragraph (A) (6) of this rule is being used to cause undue hardship, the injured worker will within three business days of making the assertion, provide the hearing administrator and the employer, or in cases where the employer is represented, the employer's representative, notice of the assertion. The notice shall set forth the reason for the assertion.

(c) If it is found that there was good cause for the refusal to attend a medical examination scheduled under paragraph (A) (6) of this rule and/or for the refusal to provide or execute a current signed medical release as requested under section 4123.651 of the Revised Code, 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 fourteen days of the compliance letter.

(d) If it is found that there was not good cause for the refusal to attend a medical examination scheduled under paragraph (A) (6) of this rule, and/or for the refusal to provide or execute a current signed medical release as required by section 4123.651 of the Revised Code, 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.

(e) A party that is dissatisfied with a compliance letter issued under paragraph (A) (7)(c) or (A) (7)(d) of this rule may file an objection within fourteen days of the receipt of the compliance letter issued under paragraph (A)(6)(c) or (A)(6)(d) of this rule. If a party files a timely written objection to the compliance letter that is issued under paragraph (A) (7)(c) or (A) (7)(d) of this rule an expedited hearing will be held by a staff hearing officer within three business days of the commission's receipt of the objection.

(8) Procedure for obtaining the oral deposition of, or submitting interrogatories to, an industrial commission or bureau physician.

(a) 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 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, the hearing administrator 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 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.

(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) Except as may be provided pursuant to paragraph (D) of rule 4121-3-15 of the Administrative Code, when 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.

(e) The 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.

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 injured worker 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 fewer than fourteen days following the date of the mailing of the notice.

(3) Representation of injured workers 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 injured workers 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 evidence on file, if such proof is sufficient for that purpose. If such evidence is insufficient, the hearing may be continued to a specific date for the attendance of the parties or for the purpose of obtaining additional evidence 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, may 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 injured worker's residence, unless all parties agree that the hearing is to be held in another commission service office. Hearings for out-of-state injured workers who live more than one hundred -fifty miles from an industrial commission service office will be in Columbus, unless otherwise determined by agreement of the parties. If within one hundred-fifty miles, then the hearing will be at the nearest industrial commission service office. Other hearings before the commission or its deputies, 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. The requesting party must also state that the other parties' representatives or, if there is no representative, the opposing parties, have been informed prior to filing the request with the commission 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 the regional manager's designee shall be assigned the responsibility placed on the hearing administrator for granting or denying requests for continuances.

(b)

(i) If a representative of a party requests a continuance, the representative shall certify that the representative has informed representative's client of the time frames set forth within section 4123.511 of the Revised Code and that representative's 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) Requests for continuance filed more than five calendar days prior to the date of hearing shall be processed by the hearing administrator, resulting in the issuance of a compliance letter either granting or denying the requested continuance based on the standard of good cause. Where a request for continuance is received within five calendar days of the scheduled hearing, the hearing administrator shall address the requested continuance based on the presence of extraordinary circumstances that could not have been foreseen by the requesting party. Where a request for continuance is granted and the parties had mutually agreed to the continuance and the parties and/or their representatives have certified that the parties have agreed to waive the time frames set forth within section 4123.511 of the Revised Code, 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.

(iii) Guidelines may be provided by the commission for hearing administrators and hearing officers in determining whether the standard of good cause, or the standard of extraordinary circumstances that could not have been foreseen, is established.

(iv) If a request for continuance is received on the day of the scheduled hearing, the adjudicator assigned to hold the hearing shall publish an order either granting or denying the request for continuance based on the presence of extraordinary circumstances that could not have been foreseen by the requesting party. If the adjudicator determines to grant the continuance, the order shall list the party that requested the continuance and set forth the unforeseen extraordinary circumstances that justify the continuance. If a request for continuance was made through the hearing administrator, and it was found that the party making the request had not met the requisite standard to grant the request for continuance, similar reasons asserted at the hearing to justify the request will not be found to be sufficient by the adjudicator. If the adjudicator grants 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.

(v) If the adjudicator denies the requested continuance, the hearing shall proceed on the merits and the adjudicator shall reference in the order on the merits that the continuance was denied along with the reasons therefore.

(c) No hearing will be continued for purposes of discovery unless the requisite standard for granting the continuance has been met and the requesting party demonstrates that it has exercised due diligence in attempting to complete discovery prior to hearing.

(d) 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 sent to the parties and to all authorized representatives of record of each party, and to the administrator.Copies of decisions shall be sent by regular U.S. mail, unless the party or the party's authorized representative has opted not to receive decisions through the mail and elected to receive decisions electronically. It will be a rebuttable presumption that copies of decisions sent by the commission under paragraph (C)(10) of this rule were sent on the mailed date listed on the record of proceedings issued by the commission, both in claims where decisions are mailed to the parties and to the party's representatives by regular U.S. mail or where the record of proceedings is sent electronically to the parties or to the authorized representatives of the parties that have elected to receive copies of decisions electronically and opted not to receive decisions by regular U.S. mail.

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 each commissioner's vote.

(5) Signatures of each hearing officer participating in the hearing shall be affixed to the original order verifying the hearing officer's 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 injured workers, 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 the regional manager's designee shall assume the responsibilities placed on the hearing administrator by this rule.

(K) Publication of a docket.

(1) The daily docket of each hearing room shall be in writing and shall be posted in the lobbies adjacent to the hearing rooms.

(2) The daily docket sheets shall include:

(a) A notation as to the type of docket that will be heard in the hearing room.

(b) A notation of the date, time, and place of the scheduled hearings as well as the amount of time allotted for each hearing.

(c) The claim number, position control number, employer's risk number, and the representatives' identification numbers.

(d) The names of the employer, the employer's representative(s), and the injured worker's representative(s).

(e) The appeal and/or description of the request for action that is set for hearing.

(f) Notice of the continuance or cancellation of a hearing.

(3) The docket sheets shall not include the name of the injured worker.

Effective: 08/19/2013
R.C. 119.032 review dates: 09/07/2012 and 02/01/2017
Promulgated Under: 119.03
Statutory Authority: 4121.30 , 4121.31 , 4121.36 , 4123.53 , 4123.651
Rule Amplifies: 4121.36 , 4123.651
Prior Effective Dates: 1/1/1965, 10/9/1976, 1/10/1978, 12/11/1978, 11/26/1979, 8/22/1986 (Emer.), 11/17/1986 (Emer.), 2/16/1987, 7/3/1995, 9/23/1996 (Emer.), 1/17/1997, 4/1/2004, 6/1/2008

4121-3-10 Lump sum payments for attorney's fees for securing an award.

(A) An application from a claimant for lump sum payment for attorney's fees is to contain a certification, , executed by the attorney, listing the services rendered, all fees received prior to the filing of the application for services in obtaining the award under which the advancement to pay the fee is requested, and that the claimant is liable for no further fee with respect to continuing compensation except where a later dispute arises in the claim requiring additional services by the attorney.

(B) The commission may approve, disapprove or modify applications for a lump sum payment to pay such attorney fees, and may allow the payment of a reasonable fee after review of the application and the supporting evidence. Advancements for attorney fees shall be limited to an amount determined periodically by the commission.

(C) No lump sum payment for attorney's fees is to be granted from awards of compensation made pursuant to division (A) of section 4123.56 or division (B) of 4123.56 of the Revised Code. No lump sum payment for attorney's fees is to be granted from awards of compensation made pursuant to division (A) of section 4123.57 of the Revised Code as existed prior to the amendment effective August 22, 1986 for claims with dates of injury, or dates of disability in occupational disease claims, prior to August 22, 1986.

(D) If the commission approves or modifies an application for the lump sum payment of attorney's fees in a state fund claim, the claim shall be referred to the administrator to determine the amount of the biweekly rate reduction and to set the repayment schedule for the lump sum payment.

Effective: 12/16/2012
R.C. 119.032 review dates: 09/07/2012 and 02/01/2017
Promulgated Under: 119.03
Statutory Authority: 4121.30 , 4121.31 , 4123.06
Rule Amplifies: 4121.35 , 4123.06
Prior Effective Dates: 1/1/1964, 1/10/1978, 12/11/1978, 11/26/1976, 5/1/2002, 6/1/2008

4121-3-12 Suspension of the processing of claims.

When the bureau or the commission orders an injured or disabled employee to submit to medical examination and such employee refuses to be examined or in any way obstructs the examination, the employee's claim for compensation shall be suspended during the period of his refusal or obstruction.

R.C. 119.032 review dates: 02/03/2014 and 02/01/2019
Promulgated Under: 119.03
Statutory Authority: 4123.53
Rule Amplifies: 4123.53 , 4121.13
Prior Effective Dates: 10/1/2004

4121-3-13 Disputed self-insuring employers' claims.

(A) In the event there is a dispute or disagreement between the employee or an eligible applicant and the self-insuring employer that concerns a contested claims matter, the claim shall be referred to the commission for hearing.

(B) Upon receipt of a notice of a dispute or disagreement that concerns a contested claims matter, the bureau of workers' compensation shall immediately notify the parties of existence of the dispute or disagreement, and shall within seven days refer the matter to the commission as a disputed claims matter.

(C) In the event that the self-insuring employer fails to respond to a request for compensation and benefits made by an injured worker within thirty days of such a request, or pursuant to paragraph (B) of this rule the self-insuring employer disputes an application for compensation or benefits, the commission shall schedule the contested claims matter for hearing.

(D) Prior to the hearing in a contested claims matter the parties or their authorized representatives shall file the information necessary to comply with the provisions of paragraph (A)(1) of rule 4121-3-09 and paragraph (A)(2) of 4121-3-09 of the Administrative Code. Such information shall include, but not be limited to, medical reports received by the parties or their authorized representatives from the treating physician and physicians who have seen the injured worker in consultation for the allowed injury or occupational disease for which the claim has been filed.

(E) Notwithstanding paragraph (D) of this rule, a self-insuring employer, or its authorized representative, shall provide to the commission and to the injured worker, or the injured worker's representative in claims where the injured worker is represented, the following information in writing, prior to the date of hearing of a contested claims matter:

(1) A copy of the first report of injury, occupational disease, or death, or an equivalent document; and

(2) A statement listing the specific conditions that are recognized in the claim by the self-insuring employer, including conditions that were originally recognized as related to the injury or occupational disease for which the claim has been filed, as well as any conditions that are subsequently recognized by the self-insuring employer as being related to the injury or occupational disease; and

(3) Where the contested claims matter concerns a dispute as to the full weekly wage or average weekly wage, the information used to calculate the full weekly wage or average weekly wage, depending on which is at issue, shall be submitted unless the full weekly wage or average weekly wage had been previously established by a final order of the commission; and

(4) A statement setting forth the date of last payment of compensation and the date of the last payment of a medical bill where the employer intends to raise the issue of the statute of limitations pursuant to section 4123.52 of the Revised Code.

(5) A statement setting forth the date of last payment of a medical bill where the contested claims matter concerns a dispute over entitlement to, or extent of, medical benefits.

(6) A statement setting forth the date of last payment of compensation where the contested claims matter concerns entitlement to compensation.

(F) The information in paragraphs (D) and (E) of this rule is not to be provided to the commission or to the injured worker if the injured worker is unrepresented, or to the injured worker's representative in cases where the injured worker is represented, by the self-insuring employer if the information was previously filed with the commission or the bureau of workers' compensation, and the information is part of the claim file folder within the possession of the bureau of workers' compensation.

(G) Except as herein provided, the processing of contested claims matters where the employer is a self-insuring employer shall be in conformity with rule 4121-3-09 of the Administrative Code.

(H) Nothing in this rule shall inhibit or diminish the authority, and attendant powers, as provided in Chapters 4121. and 4123. of the Revised Code and agencies 4121 and 4125 of the Administrative Code, of the commission and its hearing officers to fully adjudicate contested claims matters.

Effective: 12/16/2012
R.C. 119.032 review dates: 09/07/2012 and 02/01/2017
Promulgated Under: 119.03
Statutory Authority: 4121.30 , 4121.31 , 4121.36
Rule Amplifies: 4121.36 , 4123.35
Prior Effective Dates: 10/17/1968, 12/11/1978, 4/1/2004, 6/1/2008

4121-3-15 Percentage of permanent partial disability.

(A) Definitions

(1) For purpose of this rule, both an application for the determination of percentage of permanent partial disability and an application for an increase in the percentage of permanent partial disability will be referred to as an "application."

(2) For purpose of this rule, a substantial disparity means fifteen per cent or more difference.

(B) Procedure upon filing of objection to a tentative order issued by the bureau of workers' compensation under section 4123.57 of the Revised Code as a result of the filing of an application as defined in paragraph (A)(1) of this rule or in a claim where the administrator determines that there is a conflict of evidence, the matter is to be referred to the commission.

(1) Upon receipt of a written notification of an objection to a tentative order (filed within twenty days after receipt of the notice of a tentative order) issued by the bureau of workers' compensation pursuant to section 4123.57 of the Revised Code, or in a claim where the administrator determines that there is a conflict of evidence, the matter is to be referred to the commission. The commission will set the application for hearing before a district hearing officer. The party filing the objection shall also provide a copy of the objection to the opposing party if the opposing party is unrepresented, or in cases where the opposing party is represented, to the opposing party's representative, at the time that the written objection is filed from the tentative order issued by the bureau of workers' compensation.

(2) Notices of the hearing shall be mailed to the injured worker, employer, and their representatives and to the administrator at least two weeks in advance of the hearing date, except as provided in paragraph (C)(6) of rule 4121-3-09 of the Administrative Code.

(C) Procedures upon referral to a district hearing officer

(1) Should the employer file an objection to a tentative order and the employer desires to obtain a medical examination of the injured worker, the employer shall provide written notice at the time of the filing of the objection to the hearing administrator, and to the injured worker if the injured worker is unrepresented, or to the injured worker's representative, if the injured worker is represented, of the employer's intent to schedule a medical examination of the injured worker. The examination shall be conducted and the report of the medical examination submitted to the commission and to the injured worker if the injured worker is unrepresented, or to the injured worker's representative if the injured worker is represented within forty-five days of the date of the filing of the employer's objection to the tentative order.

(2) If the injured worker is the only party that files an objection to a tentative order and the injured worker intends to submit medical evidence not previously submitted in support of the injured worker's objection, copies of the medical evidence are to be provided to the employer in accordance with paragraphs (C)(4) and (C)(5) of this rule. Upon the employer's receipt of the medical evidence submitted by the injured worker, should the employer desire to obtain a medical examination of the injured worker, the employer shall schedule the examination within fourteen days of its receipt of the medical evidence submitted by the injured worker. The employer shall provide written notice of the employer's intent to schedule a medical examination of the injured worker to the hearing administrator and to the injured worker in cases where the injured worker is not represented, or to the injured worker's representative if the injured worker is represented. The medical examination shall be conducted and the report of the examination submitted to the commission and the injured worker if the injured worker is unrepresented, or to the injured worker's representative if the injured worker is represented within forty-five days from the date of the employer's receipt of the injured worker's medical evidence.

(3) Upon request and for good cause shown, the hearing administrator, or at hearing, the hearing officer may provide an extension of time, not to exceed thirty days, to allow submission of the employer's medical report described in paragraphs (C)(1) and (C)(2) of this rule.

(4) The parties or their representatives shall provide to each other, as soon as available and prior to the district hearing officer hearing, a copy of all the evidence the parties intend to submit at the district hearing officer hearing.

(5) In the event a party fails to comply with paragraph (C)(4) of this rule, the hearing officer may 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.

(D) Procedure for obtaining the oral deposition, or submitting written interrogatories, to a commission or a bureau of workers' compensation physician who examined an injured or disabled injured worker or reviewed the claim file and issued an opinion as a result of an injured or disabled injured worker filing an application as defined in paragraph (A)(1) of this rule.

(1) If either the injured worker or the employer believe that the oral deposition, or the submission of written interrogatories, of the bureau of workers' compensation or the commission physician who examined the injured worker in connection with the application for the determination of the percentage of permanent partial disability, or who has submitted a report on the application for an increase in the percentage of permanent partial disability pursuant to a medical review or examination, is necessary for the proper determination of the percentage of permanent partial disability and there exists a substantial disparity as defined in paragraph (A)(2) of this rule between the report of the physician selected by the bureau of workers' compensation or the commission who is to be deposed and another medical report on file submitted on the issue of percentage of permanent partial disability that is to be adjudicated, or it appears that the estimate of disability made by the physician to be deposed was based, in part, on disability for which the claim has not been allowed, or an allowed disability was inadvertently omitted from consideration, such party shall make such request, in writing, to the hearing administrator, within ten days from the receipt of the examining or reviewing physician's report.

(2) In a claim where the injured worker or employer requests an oral deposition or the submission of written interrogatories to a bureau or commission physician as described in the paragraph (D)(1) of this rule but such party failed to receive a copy of the bureau or commission physician's medical report prior to the receipt of the notice of hearing, said party shall immediately after the receipt of the notice of hearing, request, in writing, to the hearing administrator that the hearing be continued and the deposition of the physician or the submission of interrogatories be taken prior thereto.

(3) Additional procedures on taking an oral deposition or submitting written interrogatories to a physician who performed an examination or a review on behalf of the bureau of workers' compensation or commission are set forth in paragraph (A)(7) of rule 4121-3-09 of the Administrative Code.

(E) Hearing officer guidelines for the adjudication of applications for the determination of the percentage of permanent partial disability and applications for an increase in the percentage of permanent partial disability:

(1) In the determination of percentage of permanent partial disability under division (A) of section 4123.57 of the Revised Code, hearing officers are to base a percentage of permanent partial disability award on medical or clinical findings reasonably demonstrable.

(2) If the hearing officer determines that the bureau of workers' compensation's medical examination and/or medical review is legally insufficient, the hearing officer may return the claim file to the bureau of workers' compensation for a second medical examination or medical review. If the hearing officer returns the claim file to the bureau of workers' compensation the hearing officer shall state in an interlocutory order the reason the claim file is being returned to the bureau of workers' compensation. The hearing officer shall also instruct the bureau of workers' compensation to return the claim to the commission for hearing upon completion of the medical examination or medical review. After the claim file is returned to the commission from the bureau of workers' compensation, the hearing officer shall proceed with the hearing and render a decision based upon competent medical evidence submitted to the claim file, regardless of the legal sufficiency of the second bureau medical examination or review.

(3) An application for reconsideration, review, or modification which is filed within ten days of receipt of the decision of a district hearing officer issued under division (A) of section 4123.57 of the Revised Code shall be heard by a staff hearing officer and the decision of the staff hearing officer shall be final. At a hearing on reconsideration of a decision of a district hearing officer on the initial application for the determination of the percentage of permanent partial disability, the staff hearing officer may consider evidence that was not on file at the time of the district hearing officer hearing.

(F) This rule shall apply to the adjudication of an application as defined in paragraph (A)(1) of this rule filed on or after the effective date of this rule.

Effective: 12/16/2012
R.C. 119.032 review dates: 09/07/2012 and 02/01/2017
Promulgated Under: 119.03
Statutory Authority: 4121.30 , 4121.31 , 4121.36 , 4123.57
Rule Amplifies: 4123.57
Prior Effective Dates: 10/9/1976, 1/10/1978, 12/11/1978, 11/26/1979, 8/22/1986 (Emer.), 11/17/1986 (Emer.), 2/16/1987, 9/21/1993 (Emer.), 12/2/1993 (Emer.), 6/1/1995, 4/1/2004, 7/1/11

4121-3-16 Motions.

(A) Form C-86 motion or its equivalent shall be used to request action from the bureau or commission.

(B) A motion may be submitted by the claimant or the employer to seek a determination by the bureau or the commission on any matter not otherwise provided for in Chapter 4121-3 of the Administrative Code.

(C) A motion shall fully set forth the question presented together with a succinct statement of the action or relief sought.

(D) A motion shall be accompanied by competent proof conforming to the standard established in paragraph (A)(1) of rule 4121-3-09 of the Administrative Code.

(E) Where required, a motion shall contain citations to the legal authorities relied upon.

(F) Except in ex parte matters not affecting the rights of the opposite party, the applicant filing a motion shall mail a copy of the motion to the opposite party and the copy of the motion filed with the bureau or the commission shall indicate that a copy has been so mailed.

(G) A motion shall bear the signature of the applicant or the applicant's authorized representative .

(H) Failure to comply with the provisions of this rule shall be sufficient reason for the dismissal of the motion. A motion signed by a person or entity other than the claimant, his or her representative, the employer, the employer's representative, the administrator, or the administrator's representative shall be dismissed.

(I) Special hearings on motions, where required, shall be in conformity with paragraph (C) of rule 4121-3-09 of the Administrative Code.

Effective: 07/01/2011
R.C. 119.032 review dates: 03/28/2011 and 02/01/2016
Promulgated Under: 119.03
Statutory Authority: 4121.30 , 4121.31
Rule Amplifies: 4121.03 , 4121.36
Prior Effective Dates: 10/17/68, 5/1/01

4121-3-17 Briefs.

(A) Parties may, of their own volition, file briefs with the bureau or commission on legal questions presented in claims.

(B) The bureau or commission may require parties to file briefs on legal questions presented in claims. The hearing officer shall fix a time certain for the filing of such briefs allowing a reasonable time for preparation.

(C) In either instance, the submitted briefs shall be legibly typewritten on paper not exceeding eight and one-half inches by eleven inches in size and filed without a protective cover. The party filing a brief shall furnish a copy to the opposite party at the time that the brief is filed with the bureau or the commission. If the brief is directed to a matter before the bureau, the brief shall be filed with the bureau. If the brief is directed to a matter before the commission, the brief shall be filed with the commission.

Effective: 07/01/2011
R.C. 119.032 review dates: 03/28/2011 and 02/01/2016
Promulgated Under: 119.03
Statutory Authority: 4121.30 , 4121.31
Rule Amplifies: 4121.03 , 4121.36
Prior Effective Dates: 1/1/64, 5/1/01

4121-3-18 Administrative appeals.

(A) This rule applies to administrative appeals filed to district hearing officers, staff hearing officers, and the commission under section 4123.511 of the Revised Code.

(B) Filing requirements for administrative appeals.

(1) Appeals may be filed electronically with the commission. Appeals filed electronically with the commission shall only be filed online through the industrial commission online network (I.C.O.N.). Appeals electronically filed through I.C.O.N. after commission business hours or on days the commission offices are closed, are considered filed on the next state business day that the commission offices are open. The appellant filing an appeal electronically shall certify that the appellant has notified the opposing party of the appeal by U.S. mail, by facsimile, by telephone, or by e-mail.

(2) Appeals may also be filed in writing with the commission. Written appeals should be submitted on forms made available by the commission. In lieu thereof, district hearing officers, staff hearing officers and the commission will accept a written statement from a party, signed in handwriting, as such an appeal, provided that the statement is filed within the period specified by section 4123.511 of the Revised Code and provided that it contains the names of the injured worker and the employer, the number of the claim, the date of the decision appealed from, and the fact that the appellant appeals therefrom.

(a) All such written notices of appeal shall be signed in handwriting by the party appealing or authorized representative on behalf of such party. Such notices of appeal may be filed with any office of the bureau or of the commission.

(b) An appellant filing a written notice of appeal shall mail a copy of the notice of appeal to the opposing party's representative, if the opposing party is represented, or to the opposing party, if the opposing party is not represented, at the time the notice of appeal is filed with the commission and the notice of appeal shall indicate that a copy has been so mailed. An appellant filing a written notice of appeal shall certify that the appellant has mailed a copy of the notice of appeal to the opposing party.

(3) It shall be a rebuttable presumption that the order that is the subject of the appeal was received within three days of the date of mailing of the order.

(4) In claims where a party has elected to receive e-mail notification from the commission of orders issued by the commission, it shall be a rebuttable presumption that the order that is the subject of the appeal was received on the next commission business day after the date the e-mail notification was sent by the commission.

(5) The last day of the period for filing an appeal shall be included as part of the appeal period, unless it is a Saturday, Sunday, legal holiday, or a day the commission offices are closed, in which event the period runs until the close of business of the next day which is not a Saturday, Sunday, legal holiday, or a day the commission offices are closed.

(6) On any day that the commission is closed for the entire day or closes earlier than its usual closing time, and this day constitutes the last day for the filing of an appeal, then such filing may be performed on the next succeeding commission business day which is not a Saturday, Sunday, legal holiday or a day the commission offices are closed.

(7) Upon application of a party who resides in an area in which an emergency or disaster has been declared, as set forth in division (O) of section 4123.511 of the Revised Code, the commission may waive the time frames within which an appeal from an order of the bureau or of the commission must be filed.

(a) Upon the application of a party for relief under division (O) of section 4123.511 of the Revised Code, a hearing officer is to determine whether the requesting party was unable to comply with the filing time frames of section 4123.511 of the Revised Code due to the existence of an emergency or disaster as described in division (O) of section 4123.511 of the Revised Code. If the hearing officer finds that a party was unable to comply with the filing deadlines set forth within section 4123.511 of the Revised Code due to an emergency or disaster as described in division (O) of section 4123.511 of the Revised Code, the hearing officer shall waive the time frames of section 4123.511 of the Revised Code within which a claim or an appeal of a claim must be filed.

(b) The party that makes application for relief under division (O) of section 4123.511 of the Revised Code shall make application for such relief no later than thirty days after the termination of the state of emergency or disaster as described within division (O) of section 4123.511 of the Revised Code that the party asserts caused the party to be unable to comply with the filing time frames of section 4123.511 of the Revised Code.

(c) "Emergency" is defined as any occasion or instance for which the governor of Ohio or the president of the United States publicly declares an emergency and orders state or federal assistance to save lives and protect property, the public health and safety, or to lessen or avert the threat of a catastrophe.

(d) "Disaster" is defined as any natural catastrophe or fire, flood, or explosion, regardless of the cause, that causes damage of sufficient magnitude that the governor of Ohio or the president of the United States, through a public declaration, orders state or federal assistance to alleviate damage, loss, hardship, or suffering that results from the occurrence.

(8) The right of administrative appeal is limited to the injured worker, the employer, and the administrator as provided in Chapters 4121. and 4123. of the Revised Code. An appeal filed by any other person shall be denied, by order, without special hearing.

(C) Appeals to district hearing officers.

(1) Appeals from orders of the administrator issued pursuant to division (B) of section 4123.511 of the Revised Code, or issued by the administrator pursuant to other provisions in Chapters 4121. and 4123. of the Revised Code that expressly provide that the administrator's order is appealable under section 4123.511 of the Revised Code to district hearing officers, shall be filed within the period of fourteen days from receipt of the order from which the appeal is taken. Once a notice of appeal is filed, the district hearing officer shall hold a hearing within forty-five days of the filing of the appeal. The district hearing officer shall then publish an order within seven days after the hearing is held.

(2) In state fund claims involving contested claims matters over which the bureau lacks original jurisdiction, the administrator shall refer the claim to the commission for hearing. Upon receipt of such a referral, the commission shall set the matter for hearing before a district hearing officer. The district hearing officer shall hear the contested claims matter within forty-five days of the referral for hearing and publish an order within seven days after the hearing on the contested matter.

(3) In contested claims other than state fund claims, the administrator shall refer the claim, within seven days of the administrator's receipt of notification of the contested claim, to the commission which shall refer the claim to a district hearing officer. The district hearing officer shall hear the contested claim within forty-five days after notification that the matter is contested. Thereafter, the district hearing officer shall publish an order within seven days after the hearing held.

When a self-insuring employer fails to respond to an application for compensation and benefits made by an injured worker within thirty days of the receipt of such application or in claims where the administrator does not forward the employer's request for a hearing to the commission, the injured worker or the employer may request that the commission schedule the contested claims matter for hearing before a district hearing officer. Upon receipt of such a request, the commission shall refer the claim for hearing before a district hearing officer, who shall hear the contested claim within forty-five days after the expiration of the thirty day period or notification of the contested claims matter, whichever is earlier, and publish an order within seven days after the hearing is held.

(D) Appeals to staff hearing officers.

Appeals from orders of district hearing officers issued pursuant to division (C) of section 4123.511 of the Revised Code to staff hearing officers shall be filed within the period of fourteen days from receipt of the order from which the appeal is taken. Once an appeal is filed, the staff hearing officers shall hold a hearing within forty-five days of the filing of the appeal. The staff hearing officers shall then publish an order within seven days after the hearing is held.

(E) Appeals to the commission under division (E) of section 4123.511 of the Revised Code.

(1) The injured worker, the employer and the administrator, as limited by division (G)(3) of section 4123.511 of the Revised Code, may appeal a decision of a staff hearing officer, issued in accordance with division (D) of section 4123.511 of the Revised Code, to the commission.

(2) A notice of appeal filed under division (E) of section 4123.511 of the Revised Code shall specify the grounds upon which the appeal is sought. Notices of appeal filed from orders of staff hearing officers issued under division (D) of section 4123.511 of the Revised Code should include the following;

(a) Identification of all the underlying administrative orders from which the notice of appeal is filed;

(b) Identification of all relevant documents that are within the claim and, where appropriate, citation to any legal authority relied upon to support the request that the notice of appeal be accepted for hearing under division (E) of section 4123.511 The failure of a notice of appeal filed under division (E) of section 4123.511 of the Revised Code to specify the grounds upon which the appeal is sought as described in paragraph (E)(2) of this rule may result in a determination not to hear the appeal;

(c) If there exists newly discovered evidence which by due diligence could not have been discovered and filed by the appellant prior to the date of the hearing held under division (D) of section 4123.511 of the Revised Code that is relevant to the issue on appeal, but is not merely corroborative of evidence that was submitted prior to the date of the hearing held under division (D) of section 4123.511 of the Revised Code, such evidence shall be submitted with the notice of appeal.

(3) When a notice of appeal of a self-insuring employer is filed under division (E) of section 4123.511 of the Revised Code, the self-insuring employer shall certify that compensation and medical benefits have been timely paid as mandated by divisions (H) and (I) of section 4123.511 of the Revised Code. The commission or designated staff hearing officer shall consider whether the self-insuring employer has timely paid compensation and/or benefits pursuant to section 4123.511 of the Revised Code in deciding whether to permit an appeal filed by a self-insuring employer to be heard under division (E) of section 4123.511 of the Revised Code.

(4) Appeals from decisions of staff hearing officers to the commission shall be filed within a period of fourteen days from receipt of the staff hearing officer order. Upon the timely filing of an appeal from an order of a staff hearing officer, the commission or designated staff hearing officer shall determine whether to hear the appeal. This determination is within the discretion of the commission or designated staff hearing officer.

(5) The commission or designated staff hearing officer will permit appeals to be heard from orders of staff hearing officers issued pursuant to division (D) of section 4123.511 of the Revised Code in the following cases:

(a) The commission determines the appeal presents issues for which the commission desires to set policy or precedent or presents an unusual legal, medical or factual question that the commission members desire to hear.

(b) There exists newly discovered evidence which by due diligence could not have been discovered and filed by the appellant prior to the date of the hearing held under division (D) of section 4123.511 of the Revised Code. Newly discovered evidence shall be relevant to the issue on appeal but shall not be merely corroborative of evidence which was submitted prior to the date of the hearing held under division (D) of section 4123.511 of the Revised Code.

(c) There is the possible existence of fraud in the claim.

(d) There is a clear mistake of fact in the order of a staff hearing officer issued under division (D) of section 4123.511 of the Revised Code.

(e) There is a clear mistake of law of such character that remedial action would clearly follow in the staff hearing officer order issued under division (D) of section 4123.511 of the Revised Code.

(f) There is an error in the staff hearing officer order issued under division (D) of section 4123.511 of the Revised Code.

(6) If the commission or designated staff hearing officer determines not to hear an appeal filed under division (E) of section 4123.511 of the Revised Code, the commission or designated staff hearing officer shall issue an order to that effect and shall provide written notification to the parties and their respective representatives within fourteen days after the expiration of the period in which an appeal of the order of the staff hearing officer may be filed as provided under division (D) of section 4123.511 of the Revised Code.

(7) If the commission or designated staff hearing officer determines to hear the appeal, the commission or designated staff hearing officer shall notify the injured worker, the employer, and the administrator as to the date, time and place of the hearing to consider the merits of the appeal. That hearing shall be heard by the commission or designated deputy of the commission within forty-five days from the filing date of the appeal. The commission shall then publish an order within seven days after the hearing is held. If the hearing is held by a deputy of the commission and the order of the deputy is approved and confirmed by the majority of the members of the commission, there is no appeal to the commission from such an order.

If a self-insuring employer's appeal is set for hearing pursuant to division (E) of section 4123.511 of the Revised Code, and at hearing it is determined that the self-insuring employer has not timely paid compensation and medical benefits pursuant to divisions (H) and (I) of section 4123.511 of the Revised Code, the commission retains the discretion to determine that the self-insuring employer's appeal was improvidently accepted for hearing and to dismiss the self-insuring employer's appeal without considering the merits of such appeal.

(F) Payments of compensation and benefits.

Payments of compensation to an injured worker or on behalf of an injured worker as a result of any order issued under Chapter 4123. of the Revised Code or the payments of medical benefits awarded under Chapter 4121., 4123., 4123., 4127., or 4131. of the Revised Code shall commence pursuant to the provisions set forth in divisions (H) and (I) of section 4123.511 of the Revised Code.

Replaces: 4121-3-18

Effective: 07/01/2011
R.C. 119.032 review dates: 02/01/2016
Promulgated Under: 119.03
Statutory Authority: 4121.30 , 4121.31
Rule Amplifies: 4121.31 , 4121.34 , 4121.35 , 4123.511
Prior Effective Dates: 10/17/1968, 1/10/1978, 12/11/1978, 11/26/1979

4121-3-19 Form reference.

Where reference is made to designated forms in these rules, such reference shall be to the form as it exists at the time of the adoption of these rules and as such form may be revised in the future.

R.C. 119.032 review dates: 09/07/2012 and 02/01/2017
Promulgated Under: 119.03
Statutory Authority: 4121.30 , 4121.31
Rule Amplifies: 4121.36
Prior Effective Dates: 1/1/1964

4121-3-20 Additional awards by reason of violations of specific safety requirements.

(A) An application for an additional award of compensation founded upon the claim that the injury, occupational disease, or death resulted from the failure of the employer to comply with the specific requirement for the protection of health, lives, or safety of employees, must be filed, in duplicate, with the commission, within two years of the injury, death, or inception of disability due to occupational disease. The commission shall make available a form with which an application for an additional award by reason of a violation of a specific safety requirement may be made. Such applications should set forth the facts which are the basis of the alleged violation and shall cite the section or sections of the law or code of specific safety requirements which it is claimed have been violated. Such applications shall contain the claim number assigned by the bureau to the claim for compensation or benefits under Chapters 4123. and 4131. of the Revised Code. The settlement of the underlying claim from which an application for additional award by reason of a violation of a specific safety requirement has been or may be filed abates any action on that application.

(B) For the purpose of this rule "employer" shall be defined to include the customer employer of a temporary service agency or the client employer of a professional employer organization where the customer employer or client employer has the right of control as to the manner or means of performing the work.

(C)

(1)

(a) The claimant or the claimant's representative may amend the application to include any additional or alternative violation, provided the amendment is filed within two years following the date of injury, disability or death.

(b) The claimant or the claimant's representative may submit an amendment of the application for additional award for violation of a specific safety requirement beyond the expiration of two years following the date of injury, disability or death. Any such amendment must be submitted within thirty days of the receipt by the claimant or his counsel of the report of the investigation by the bureau into the alleged specific safety requirement violation. The claimant or the claimant's counsel may request an extension of this period for an additional thirty days. Such request must be submitted in writing within the original thirty-day period. If properly submitted, the commission shall notify both parties and their representatives of the granting of such request by mail. Such amendment shall set forth all specific safety requirements omitted from the application made prior to the expiration of the two-year period which the claimant alleges were the cause of the injury, disease or death, but which were omitted by reason of mistake or incompleteness. Copies of any such amendments shall be forwarded to the employer and its representatives as required by paragraph (D) of this rule. Any such amendment shall not raise any unstated claim, but shall merely clarify a previously alleged violation.

(2)

(a) All amendments to an application for additional award for violation of a specific safety requirement filed after the investigation by the bureau shall be reviewed to determine if the amendment requires further investigation.

(b) The employer or its representative may object to an amendment to the application for additional award for violation of a specific safety requirement, which was filed beyond the two-year period on the grounds that the amendment raises a previously unstated claim. If such objection is filed within thirty days of the employer's receipt of the amendment, a staff hearing officer shall review the amendment, to determine the need for a re-investigation if the original investigation was conducted prior to the amendment.

(3) Whenever further investigation is performed by the bureau regarding an alleged safety violation, the receipt by the claimant or his counsel of such report shall commence the running of a further period for submission of amendment or new evidence as if the re-investigation were the first investigation subject to the aforementioned provisions.

(D) Processing of applications for an additional award.

(1) Upon the filing of an application for an additional award with the commission, the commission shall send a copy of the application to the employer, customer employer of a temporary service agency or client employer of a professional employer organization and to its authorized representatives by mail.

(2) The commission shall notify the employer that this application, if granted, will result in the employer being billed directly for the amount of the award. The commission shall also notify the appropriate section of the bureau of the filing of the application. The employer has thirty days in which to file an answer unless the time is extended, for good cause shown, by a staff hearing officer for a period not to exceed an additional thirty days.

(3) The commission may assign an application for such award for investigation or for hearing without investigation. In the event that the application or answer raises legal issues the decision of which would dispose of the application (e.g., did the application cite a specific safety requirement, or was the application timely filed) the commission will assign the application for hearing without investigation. In the event that the claim is referred for investigation, after the investigation report is completed, the commission shall mail a copy of such report to each of the parties and their authorized representatives. At that time, the commission shall advise the parties that they have a designated period of time, not to exceed thirty days, in which to furnish additional proof that they may desire to offer. Within this period, either party may request in writing an extension of the time within which he may submit additional proof. Such requests shall be considered by a staff hearing officer and, if granted, written notice of the extension, not to exceed an additional thirty days, shall be sent to both parties and their representatives. Any such extension shall extend the time available for submission of additional proof equally to both parties, but there can only be one such extension.

(4) Unless otherwise directed by a staff hearing officer, at the end of the thirty day period after the mailing of the investigation report, or the sixty day period if an extension had been granted, all applications for an additional award shall be scheduled for a pre-hearing conference, with written notice provided to all parties of record and their representatives no less than fourteen days prior to the pre-hearing conference. Items the parties should be prepared to discuss at the pre-hearing conference include, but are not limited to:

(a) Have the names and addresses for all parties and their representatives been listed correctly;

(b) Have all parties received copies of the relevant documentary evidence on file;

(c) Has either party requested a record hearing;

(d) Has either party previously requested the issuance of a subpoena, and are there pending subpoena requests;

(e) Are the parties considering or engaged in settlement negotiations;

(f) Is an intentional tort court case pending; and

(g) Any other procedural matter which needs to be addressed.

The pre-hearing conference will conclude with the parties agreeing to the date and time for the scheduling of the merit hearing within the time frame specified by the staff hearing officer conducting the pre-hearing conference.

(5) Either party may request a record hearing but the request shall only be made from the date of filing of the application through the date of the pre-hearing conference. If a record hearing is held, the requesting party is responsible for securing the attendance of a court reporter. A stenographic transcript of any testimony offered shall be taken at the record hearing. The party requesting a record hearing shall pay for the stenographic services and shall submit a copy of the transcript to the commission, as well as to the opposing party, within thirty days of the date of the hearing. Failure to file a copy of the transcript of the proceedings within the thirty-day period, or within such an extended period as may be granted by the staff hearing officer for good cause shown, shall not delay the rendering of the decision. If the party that requests a record hearing decides not to proceed with the record hearing, subsequent to the date that the request for record hearing was granted, that party shall promptly notify the opposing party and their representative, to avoid unfair surprise. If desired, the opposing party may then secure its own court reporter, so that the hearing may proceed as a record hearing. If a record hearing is held, both parties will be permitted to introduce new evidence at the hearing on the application. If no request is made for a record hearing, no new documentary evidence or testimony will be accepted at the hearing on the merits.

(6) Subpoena requests should be filed no later than the date of the pre-hearing conference. If a request for subpoena to obtain documents or information has been granted, copies of all the information obtained by the subpoena are to be submitted immediately to the commission upon its receipt by the party requesting the subpoena.

(7) Except for the initial processing, investigation and prehearing conference of the claim as described in paragraphs (D)(1) to (D)(4) of this rule, if an intentional tort or other court action is pending in court, and if all parties agree and make a request, the commission may hold further processing of the application for an additional award in abeyance, until one of the parties requests that processing be reinstated. If both parties do not agree, processing of the application will continue.

(8) Subsequent to the prehearing conference, or in cases where no prehearing conference is held, the claim shall be set for hearing with notices to the parties, their representatives and the bureau, at which time the arguments in favor of and opposed to granting the application will be heard.

(9) If, at any time, the staff hearing officer determines further investigation is necessary, the staff hearing officer will refer the claim for investigation requesting the specific data needed and notify the parties of the further investigation. When the supplemental investigation report is in the file, copies are to be mailed to each of the parties and their authorized representatives.

(10) Following the hearing, the staff hearing officer shall issue an order in conformity with rule 4121-3-09 of the Administrative Code.

(E) Within thirty days of the receipt of the order of the staff hearing officer deciding the issues presented by the application, either party has the right to file a motion requesting a rehearing. The party requesting a rehearing shall provide a copy of the motion for rehearing to the opposing party and its representative. The opposing party has thirty days in which to file an answer. A motion for rehearing is not to be adjudicated until the answer has been received or the expiration of the thirty-day period.

(1) If the motion for rehearing is filed, a staff hearing officer, after the expiration of the answer time, shall review the motion for rehearing under the following criteria:

(a) In order to justify a rehearing of the staff hearing officer's order, the motion shall be accompanied by new and additional proof not previously considered and which by due diligence could not be obtained prior to the prehearing conference, or prior to the merit hearing if a record hearing was held and relevant to the specific safety requirement violation.

(b) A rehearing may also be indicated in exceptional cases where the order was based on an obvious mistake of fact or clear mistake of law.

(2) If the motion for rehearing does not meet the criteria as outlined in paragraph (E)(1)(a) or (E)(1)(b) of this rule, the motion shall be denied without further hearing.

(3) If the motion for rehearing is granted, the staff hearing officer shall either:

(a) Set the claim for a hearing with notices on the merits of the application; or

(b) Refer the claim for investigation and after the report of investigation is filed then set the claim for a hearing on the merits of the application.

(4) Following the hearing the staff hearing officer shall follow the same procedure pertaining to the order as outlined in paragraph (D)(9) of this rule. Such order, shall be final. In no case shall a rehearing be granted from an order adjudicating a rehearing.

(5) The payment of the additional award shall be stayed during the pendency of the motion for rehearing.

(F)

(1) Joint application of the claimant and the employer, or the administrator in a case where the settlement proceeds are to be paid from the state insurance fund, on an agreed settlement shall be considered by a staff hearing officer without hearing. Such an application to settle a violation application shall be considered by a staff hearing officer either prior to the determination of the application for an additional award for violation of a specific safety requirement, or after such an application has been adjudicated, and such agreed settlements shall be processed in the same manner. If the staff hearing officer finds that the settlement is appropriate, the staff hearing officer shall issue an order approving it. If the staff hearing officer does not find the settlement to be appropriate in its present form, the staff hearing officer shall schedule a hearing with notices to all parties and their representatives where the matter of the proposed settlement is to be considered. Following the hearing, the staff hearing officer shall issue an order either approving or disapproving the settlement, and the order shall be final.

(2) When a state fund employer desires to settle its liability, which may include its future liability, for the violation of a specific safety requirement, the employer shall file an application for settlement with the adjudicating committee of the bureau of workers' compensation. The bureau shall process the application in the same manner as if an application to settle the liability of a noncomplying employer pursuant to rule 4123-14-05 of the Administrative Code had been filed.

(G) Every order adjudicating an application for additional award for violation of a specific safety requirement which finds such a violation against an employer still in business in Ohio, shall direct that the violation be corrected within a time period which the order shall specify. An employer which fails to comply with such a corrective order within the specified time shall be deemed to have violated a specific safety requirement for the purposes of section 4121.47 of the Revised Code.

(H) The commission shall maintain a list of additional awards granted, including findings of failure to comply with a corrective order. In the event of two such findings of violations of specific safety requirements during the same twenty-four month period, the staff hearing officer shall assess a civil penalty appropriate in light of the circumstances of the individual case in an amount not to exceed fifty thousand dollars. Among the factors the staff hearing officer shall consider in determining the amount of any such civil penalty are the size of the employer as measured by the number of employees, assets and earnings of the employer.

(1) If the two violations of specific safety requirements occur at the same workplace, the violations need not be of the same type or kind for a penalty to be assessed. However, if the two violations of specific safety requirements occur at two different workplaces owned, operated, managed, leased or otherwise controlled by the same individual, company or corporation, the violations must be for the same specific safety requirements.

(2) A penalty shall not be assessed solely for multiple violations which caused the same incident, nor for incidents where more than one employee was injured or killed, nor for a finding of a violation of a specific safety requirement which was settled before the order became final because of the granting of a rehearing or during the pendency of a motion for rehearing.

(3) For the purpose of paragraph (H) of this rule: "workplace" shall mean all of a single contiguous fixed situs under the control of the employer where work is performed; or, if the violation took place at or en route to or from a work site to which the employer sent employees to perform work but which was not expected to remain indefinitely under the control of the employer, any work site or travel route to or along which employees based or supervised from the same site have been sent to perform work, including such base site.

(4) For purpose of paragraphs (G) and (H) of this rule, "specific safety requirement" shall mean the identical requirement, but this exception shall not prevent a penalty where the employer is found to have violated the provisions of two requirements in effect for different periods of time which cover the same matters, even though one of the requirements is stricter than the other.

R.C. 119.032 review dates: 02/03/2014 and 02/01/2019
Promulgated Under: 119.03
Statutory Authority: 4121.03 , 4121.31 , 4121.36
Rule Amplifies: 4121.35 , 4121.47 , Section 35, Art. II, Ohio Const.
Prior Effective Dates: 10/17/68, 1/10/78, 11/26/79, 12/7/82, 8/22/86 (Emer.), 1/10/87, 7/1/01, 1/1/05

4121-3-21 Change of address.

(A) To effect a change of address, an employee shall file a signed request for such change, which request shall indicate the former address as well as the new address. When the change of address has been effected, the request for change shall be incorporated in the applicable claim file and the change of address will also attach to the other claim files of the injured worker.

(B) Except for notice of hearing or notice of findings, as set forth in paragraph (C) of this rule, to effect a change of address, an employer shall file a signed request for such change, which request shall indicate the former address as well as the new address. When the commission receives a request for a change of address from an employer, the commission shall notify the appropriate bureau section .

(C) If an employer desires for notice of hearing or notice of findings to be sent to an address other than the address used by the bureau for risk purposes, the employer shall send the commission a written request specifying the risk number and plant code. The request shall indicate the former address as well as the new address. The commission shall attach the aforementioned request to each claim bearing the risk number and plant code specified.

Effective: 07/01/2011
R.C. 119.032 review dates: 03/28/2011 and 02/01/2016
Promulgated Under: 119.03
Statutory Authority: 4121.03 , 4121.30 , 4121.31
Rule Amplifies: 4121.36
Prior Effective Dates: 1/1/64, 5/1/01

4121-3-22 Inspection of claim files.

(A) Authorizations for representation shall be in writing and signed by the authorizing party. When the authorization is on behalf of the injured worker, there shall be a separate authorization filed with the bureau for each claim to which the authorization is to extend, and the authorization shall be made a part of the claim file. When the authorization is on behalf of the employer, a blanket authorization may be filed with the claims section in Columbus or with the local district office.

Whenever an employer has two representatives, one for actuarial purposes and another for hearings, there must be a specific designation which representative is to be given notice of hearing.

(B) Authorizations on behalf of the injured worker shall not be accepted for filing when they do not bear the claim number unless the following identifying information is furnished:

(1) A specific year of injury;

(2) Name and address of employer at time of injury;

(3) Injured worker's date of birth;

(4) City where accident occurred;

(5) Nature of disability.

(C) An authorization may be cancelled by the filing of a notice to that effect with the bureau or by filing a new authorization by another representative. In either event, the party should notify the former representative of the party's action.

(D) The inspection of claim files shall be limited to:

(1) The parties or their duly authorized representatives as outlined in paragraphs (A), (B) and (C) of this rule;

(2) Any other person authorized, in writing, by either the injured worker or the employer; such authorization having been executed within one year prior to its use.

(3) Members of the general assembly when in the course of their duties as such, acting under authorization from a claimant or employer.

(4) The governor, a select committee of the general assembly, a standing committee of the general assembly, the auditor of state, the attorney general, or their designee , in the pursuance of any duty imposed by Chapters 4121. and 4123. of the Revised Code;

(5) Duly authorized employees of governmental agencies whose official duties, by law, require the information contained in the claim files;

(6) Such other persons as are specifically authorized by a member of the commission or the administrator pursuant to the provisions of section 4123.88 of the Revised Code.

(E) A person entitled to inspect a claim file shall complete and file a request for inspection at the time of each inspection. Such request shall bear the signature of the person inspecting the claim file and shall be incorporated in the claim file when the inspection is completed.

(F) When a party desires to inspect a claim at a point other than that where the claim is located, the claim file will be forwarded to that point. If such request is made by an authorized representative, the representative shall be required to pay the amount of the postal charges involved. Claims which are forwarded to another point for inspection shall be held at that point for seven days following notification of the party or the party's representative that the claim is available for inspection.

(G) Request for inspection shall not be honored where the request is made by a person representing a claimant unless such person is an attorney at law, authorized to practice in the state of Ohio, or unless such person certifies on the authorization that he or she is not receiving a fee for his or her participation in the claim.

(H) No person shall, without prior authorization from a member of the commission, the administrator, or their authorized representatives, remove a claim file, or any portion thereof, from the immediate area in which they receive the file.

Effective: 07/01/2011
R.C. 119.032 review dates: 03/28/2011 and 02/01/2016
Promulgated Under: 119.03
Statutory Authority: 4121.03 , 4121.30 , 4121.31
Rule Amplifies: 4123.27 , 4123.88
Prior Effective Dates: 1/1/64, 3/1/84

4121-3-24 Fee controversies.

(A) The commission may inquire into the amounts of fees charged by attorneys, agents or representatives of the parties for services in matters before the commission and shall protect parties against unfair fees. Attorney fees shall be based upon:

(1) The time and labor required.

(2) The novelty and difficulty of the questions involved and the skill requisite to perform the legal services properly.

(3) The amount involved and the results obtained.

(4) The likelihood, if apparent to the claimant, that the acceptance of the particular employment will preclude other employment by the lawyer.

(5) The fee customarily charged in the locality for similar legal services.

(6) The time limitations imposed by the claimant or by the circumstances.

(7) The nature and length of the professional relationship with the claimant.

(8) The experience, reputation, and ability of the lawyer or lawyers performing the services.

(9) Whether the fee is fixed or contingent.

(B) When a controversy exists between a party and his representative concerning fees for services rendered in industrial claims, either the party or the representative may make a written request to the commission to resolve the dispute. The commission shall set the matter for special hearing and inquire into the merits of the controversy. The commission shall fix the amount of a reasonable fee, if any fee be due the representative, and the decision of the commission shall be binding upon the parties to the dispute.

In such controversies, the commission shall not assume jurisdiction unless the written request is filed within one year of the payment of the amount claimed or request therefore.

The representative shall file a copy of the written fee agreement and an itemized statement showing all services rendered and expenses incurred in regard to the matter in controversy and also any and all payments received.

(C) The commission shall make inquiry into whether the fee agreement is a contingency fee agreement. If the fee agreement is a contingency fee agreement, inquiry shall be made as to whether the contingency that is the basis for the matter in controversy has occurred.

(D) The commission and the bureau of workers' compensation shall prominently display in all areas of an office which the claimants frequent a notice to the effect that the commission has statutory authority to resolve fee disputes.

(E) A "controversy," as used in this rule, means a dispute between a claimant and his attorney.

Effective: 07/01/2011
R.C. 119.032 review dates: 03/28/2011 and 02/01/2016
Promulgated Under: 119.03
Statutory Authority: 4121.03 , 4121.30 , 4121.31
Rule Amplifies: 4123.06
Prior Effective Dates: 1/1/64, 1/1/78

4121-3-25 Application for change of occupation allowance.

(A) Eligibility for a change of occupation allowance:

(1) Where it is found that a change of occupation is medically advisable for an employee suffering from silicosis, coal miners' pneumoconiosis or asbestosis contracted in the course of employment but not totally disabled therefrom, and, any other diseases which may be specified by law for which the statutory allowance for change of occupation may be granted, or

(2) Where it is found that a change of occupation is medically advisable for a fire fighter or police officer suffering from a cardiovascular and pulmonary disease contracted in the course of employment but not totally disabled therefrom,

(3) Pursuant to the provisions of section 4123.57 of the Revised Code such employee may make application for the approval of the statutory allowance for such change of occupation, in order to decrease substantially further injurious exposure.

(B) This rule is applicable to public employees, employees of employers contributing to the private fund, employees of self-insuring employers and employees of amenable but noncomplying employers.

(C) If an employer or claimant timely appeals the order of the administrator issued under division (D) or (E) of section 4123.57 of the Revised Code, or in the case of a contested application, filed in a claim other than a state fund claim, requesting an award under division (D) or (E) of section 4123.57 of the Revised Code, the commission shall refer the claim to an appropriate district hearing officer according to the provisions of section 4123.511 of the Revised Code and rule 4121-3-09 of the Administrative Code.

(D) To qualify for an award, as described herein, the employee must establish by appropriate evidence that the employee has discontinued employment or has changed the employee's occupation to one in which the exposure is substantially decreased. The fact that the employee continues employment with the same employer will not preclude the granting of the award so long as employment subsequent to the change is such that the exposure is substantially decreased and the change of occupation is certified by the claimant as permanent.

(E) An award for change of occupation in excess of the initial thirty weeks must be supported by evidence of employment in an occupation in which the exposure is substantially decreased or evidence of reasonable attempts to secure employment in an occupation in which the exposure is substantially decreased.

Effective: 07/01/2011
R.C. 119.032 review dates: 03/28/2011 and 02/01/2016
Promulgated Under: 119.03
Statutory Authority: 4121.03 , 4121.30 , 4121.31
Rule Amplifies: 4123.57
Prior Effective Dates: 1/1/64, 1/10/78, 12/11/78, 5/1/01

4121-3-26 Effect of rules.

Failure to adhere to the rules of the commission may be a ground for reversal of an order or decision.

Effective: 12/16/2012
R.C. 119.032 review dates: 09/07/2012 and 02/01/2017
Promulgated Under: 119.03
Statutory Authority: 4121.30 , 4121.31
Rule Amplifies: 4121.36
Prior Effective Dates: 1/1/1964, 6/1/2008

4121-3-27 [Rescinded]Application.

Effective: 07/01/2011
R.C. 119.032 review dates: 03/28/2011
Promulgated Under: 119.03
Statutory Authority: 4121.03 , 4121.30 , 4121.31
Rule Amplifies: 4121.121 , 4123.51
Prior Effective Dates: 10/17/68, 5/9/90, 5/1/01

4121-3-30 Emergency hearings.

(A) A hearing will be deemed an emergency hearing where a party is undergoing severe financial hardship due to immediate foreclosure actions, eviction notices, shutoff notices for gas, electric, or water, or a party to a claim is in dire need of emergency medical treatment, and the issue to be heard can potentially resolve the financial hardship or approve payment of the needed medical treatment.

(B) Hearings before district and staff hearing officers

(1) When an emergency exists which requires an immediate hearing of a claim, the person for whom the emergency exists, shall make a written request with supporting documentation of the emergency to the regional hearing administrator of the commission.

(2) The hearing administrator, upon determining the request valid, shall set the claim for hearing on the first available docket, and give all the parties at least forty-eight hours notice of the emergency hearing by telephone, regular mail, and facsimile, as available.

(C) Hearings before the commission

(1) When an emergency exists which requires the immediate hearing of a claim before the commission, the person for whom the emergency exists shall make a written request to the manager of commission level hearings or other individual designated by the commission.

(2) The commission upon determination of the validity of the request, shall arrange for the claim to be heard on the earliest possible docket of the commission or, upon the direction of the commission, shall assign it to the earliest possible docket of a person sitting as a deputy of the commission.

(D) The written notice of the emergency hearing may be expressly waived by all parties. Such waiver is to be in writing and signed by all parties. The waiver is to be placed in the record of the claim file.

(E) The appeal period provided by section 4123.511 of the Revised Code may be expressly waived by all parties concerned in order to expedite the processing of the order resulting from an emergency hearing.

Effective: 07/01/2011
R.C. 119.032 review dates: 03/28/2011 and 02/01/2016
Promulgated Under: 119.03
Statutory Authority: 4121.03 , 4121.30 , 4121.31
Rule Amplifies: 4121.36 , 4123.511
Prior Effective Dates: 1/10/78, 12/11/78, 5/1/01

4121-3-31 Waiver for recreational activities.

(A) Effective August 22, 1986, an employee who voluntarily participates in an employer's sponsored recreation or fitness program or activity may waive and relinquish all rights to workers' compensation benefits pursuant to division (C)(3) of section 4123.01 of the Revised Code.

(B) This waiver applies to any injury or disability which is incurred while the employee is participating in an employer's sponsored recreation or fitness program or activity.

(C) The waiver form must be signed and dated by the employee prior to the date of injury or date of disability in an occupational disease claim. The employee shall receive a personal copy of the signed waiver form. Waiver forms shall be available through the bureau of workers' compensation. An employer desiring an employee waiver shall execute a waiver form, and the executed form shall be valid for two calendar years.

R.C. 119.032 review dates: 02/18/2011 and 02/01/2016
Promulgated Under: 119.03
Statutory Authority: 4121.31
Rule Amplifies: 4123.01
Prior Effective Dates: 8/22/86 (emer.), 11/8/86, 2/1/2011

4121-3-32 Temporary disability.

(A) The following provisions shall apply to all claims where the date of injury or the date of disability in occupational disease claims accrued on or after August 22, 1986. The following definitions shall be applicable to this rule:

(1) "Maximum medical improvement" is a treatment plateau (static or well-stabilized) at which no fundamental functional or physiological change can be expected within reasonable medical probability in spite of continuing medical or rehabilitative procedures. An injured worker may need supportive treatment to maintain this level of function.

(2) "Physical capabilities" includes any psychiatric condition allowed in a claim.

(3) "Suitable employment" means work which is within the employee's physical capabilities.

(4) "Treating physician" means the employee's attending physician of record on the date of the job offer, in the event of a written job offer to an employee by an employer. If the injured worker requested a change of doctors prior to the job offer and in the event that such request is approved, the new doctor is the treating physician.

(5) "Work activity" means sustained remunerative employment.

(6) "Job offer" means a proposal, made in good faith, of suitable employment within a reasonable proximity of the injured worker's residence. If the injured worker refuses an oral job offer and the employer intends to initiate proceedings to terminate temporary total disability compensation, the employer must give the injured worker a written job offer at least forty-eight hours prior to initiating proceedings. The written job offer shall identify the position offered and shall include a description of the duties required of the position and clearly specify the physical demands of the job. If the employer files a motion with the industrial commission to terminate payment of compensation, a copy of the written offer must accompany the employer's initial filing.

(B)

(1) Temporary total disability may be terminated by a self-insured employer or the bureau of workers' compensation in the event of any of the following:

(a) The employee returns to work.

(b) The employee's treating physician finds that the employee is capable of returning to his former position of employment or other available suitable employment.

(c) The employee's treating physician finds the employee has reached maximum medical improvement.

(2) Except as provided in paragraph (B)(1) of this rule, temporary total disability compensation may be terminated after a hearing as follows:

(a) Upon the finding of a district hearing officer that either the conditions in paragraph (B)(1)(a) or (B)(1)(b) of this rule has occurred.

(b) Upon the finding of a district hearing officer that the employee is capable of returning to his/her former position of employment.

(c) Upon the finding of a district hearing officer that the employee has reached maximum medical improvement.

(d) Upon the finding of a district hearing officer that the employee has received a written job offer of suitable employment.

If a district hearing officer determines, based upon the evidence, that as of the date of the hearing, the injured worker is no longer justified in remaining on temporary total disability compensation, he shall declare that no further payments may be made. If the district hearing officer determines that the injured worker was not justified in receiving temporary total disability compensation prior to the date of the hearing, he shall declare an overpayment from the date the injured worker was no longer justified in remaining on temporary total disability compensation. Such payment shall be recovered from future awards related to the claim or any other claim. The recovery order shall provide a method for the repayment of any such overpayment as is reasonable, taking into account such factors as the amount of money to be recouped, the length of the periodic payments to be made under any future award, and the financial hardship that would be imposed upon the employee by any specific schedule of repayment.

Effective: 06/20/2013
R.C. 119.032 review dates: 09/07/2012 and 02/01/2017
Promulgated Under: 119.03
Statutory Authority: 4121.30 , 4121.31 , 4123.56
Rule Amplifies: 4123.56
Prior Effective Dates: 8/22/1986 (Emer.), 11/17/1986 (Emer.), 2/17/1987, 8/6/1987, 5/15/1997, 4/1/2004

4121-3-34 Permanent total disability.

(A) Purpose

The purpose of this rule is to ensure that applications for compensation for permanent total disability are processed and adjudicated in a fair and timely manner. This rule applies to the adjudication of all applications for compensation for permanent and total disability filed on or after the effective date of this rule.

(B) Definitions

The following definitions shall apply to the adjudication of all applications for permanent and total disability:

(1) "Permanent total disability" means the inability to perform sustained remunerative employment due to the allowed conditions in the claim.

The purpose of permanent and total disability benefits is to compensate an injured worker for impairment of earning capacity.

The term "permanent" as applied to disability under the workers' compensation law does not mean that such disability must necessarily continue for the life of the injured worker but that it will, within reasonable probability, continue for an indefinite period of time without any present indication of recovery therefrom.

(2) Classification of physical demands of work:

(a) "Sedentary work" means exerting up to ten pounds of force occasionally (occasionally: activity or condition exists up to one-third of the time) and/or a negligible amount of force frequently (frequently: activity or condition exists from one-third to two-thirds of the time) to lift, carry, push, pull, or otherwise move objects. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

(b) "Light work" means exerting up to twenty pounds of force occasionally, and/or up to ten pounds of force frequently, and/or a negligible amount of force constantly (constantly: activity or condition exists two-thirds or more of the time) to move objects. Physical demand may be only a negligible amount, a job should be rated light work:

(1) when it requires walking or standing to a significant degree; or

(2) when it requires sitting most of the time but entails pushing and/or pulling or arm or leg controls; and/or

(3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible.

(c) "Medium work" means exerting twenty to fifty pounds of force occasionally, and/or ten to twenty-five pounds of force frequently, and/or greater than negligible up to ten pounds of force constantly to move objects. Physical demand requirements are in excess of those for light work.

(d) "Heavy work" means exerting fifty to one hundred pounds of force occasionally, and/or twenty to fifty pounds of force frequently and/or ten to twenty pounds of force constantly to move objects. Physical demand requirements are in excess of those for medium work.

(e) "Very heavy work" means exerting in excess of one hundred pounds of force occasionally, and/or in excess of fifty pounds of force frequently, and/or in excess of twenty pounds of force constantly to move objects. Physical demand requirements are in excess of those for heavy work.

(3) Vocational factors:

(a) "Age" shall be determined at time of the adjudication of the application for permanent and total disability. In general, age refers to one's chronological age and the extent to which one's age affects the ability to adapt to a new work situation and to do work in competition with others.

(b) "Education" is primarily used to mean formal schooling or other training which contributes to the ability to meet vocational requirements. The numerical grade level may not represent one's actual educational abilities. If there is no other evidence to contradict it, the numerical grade level will be used to determine educational abilities.

(i) "Illiteracy" is the inability to read or write. An injured worker is considered illiterate if the injured worker cannot read or write a simple message, such as instructions or an inventory list, even though the person can sign his or her name.

(ii) "Marginal education" means sixth grade level or less. An injured worker will have ability in reasoning, arithmetic, and language skills which are needed to do simple unskilled types of work. Generally, formal schooling at sixth grade level or less is marginal education.

(iii) "Limited education" means seventh grade level through eleventh grade level. Limited education means ability in reasoning, arithmetic and language skills but not enough to allow an injured worker with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs. Generally, seventh grade through eleventh grade formal education is limited education.

(iv) "High school education or above" means twelfth grade level or above. The G.E.D. is equivalent to high school education. High school education or above means ability in reasoning, arithmetic, and language skills acquired through formal schooling at twelfth grade education or above. Generally an individual with these educational abilities can perform semi-skilled through skilled work.

(c) "Work experience":

(i) "Unskilled work" is work that needs little or no judgment to do simple duties that can be learned on the job in a short period of time. The job may or may not require considerable strength. Jobs are unskilled if the primary work duties are handling, feeding, and off bearing (placing or removing materials from machines which are automatic or operated by others), or machine tending and a person can usually learn to do the job in thirty days and little specific vocational preparation and judgment are needed.

(ii) "Semi-skilled work" is work that needs some skills but does not require doing the more complex work duties. Semi-skilled jobs may require close attention to watching machine processes or inspecting, testing, or otherwise looking for irregularities or tending or guarding equipment, property, material, or persons against loss, damage, or injury and other types of activities which are similarly less complex than skilled work but more complex than unskilled work. A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly in a repetitive task.

(iii) "Skilled work" is work that requires qualifications in which a person uses judgment or involves dealing with people, factors or figures or substantial ideas at a high level of complexity. Skilled work may require qualifications in which a person uses judgment to determine the machine and manual operations to be performed in order to obtain the proper form, quality, or quantity to be produced. Skilled work may require laying out work, estimating quality, determine the suitability and needed quantities of materials, making precise measurements, reading blue prints or other specifications, or making necessary computations or mechanical adjustments or control or regulate the work.

(iv) "Transferability of skills" are skills that can be used in other work activities. Transferability will depend upon the similarity of occupational work activities that have been performed by the injured worker. Skills which an individual has obtained through working at past relevant work may qualify individuals for some other type of employment.

(v) "Previous work experience" is to include the injured worker's usual occupation, other past occupations, and the skills and abilities acquired through past employment which demonstrate the type of work the injured worker may be able to perform. Evidence may show that an injured worker has the training or past work experience which enables the injured worker to engage in sustained remunerative employment in another occupation. The relevance and transferability of previous work skills are to be addressed by the adjudicator.

(4) "Residual functional capacity" means the maximum degree to which the injured worker has the capacity for sustained performance of the physical-mental requirements of jobs as these relate to the allowed conditions in the claim(s).

(5) "Maximum medical improvement" is a treatment plateau (static or well-stabilized) at which no fundamental functional or physiological change can be expected within reasonable medical probability in spite of continuing medical or rehabilitative procedures. An injured worker may need supportive treatment to maintain this level of function.

(C) Processing of applications for permanent total disability

The following procedures shall apply to applications for permanent total disability that are filed on or after the effective date of this rule.

(1) Each application for permanent total disability shall identify, if already on file, or be accompanied by medical evidence from a physician, or a psychologist or a psychiatric specialist in a claim that has been allowed for a psychiatric or psychological condition, that supports an application for permanent total disability compensation. The medical examination upon which the report is based must be performed within twenty-four months prior to the date of filing of the application for permanent total disability compensation. The medical evidence used to support an application for permanent total disability compensation is to provide an opinion that addresses the injured worker's physical and/or mental limitations resulting from the allowed conditions in the claim(s). Medical evidence which provides an opinion addressing such limitations, but which also contains a conclusion as to whether an injured worker is permanently and totally disabled, may be considered by a hearing officer. A vocational expert's opinion, by itself, is insufficient to support an application for permanent total disability compensation. If an application for permanent total disability compensation is filed that does not meet the filing requirements of this rule, or if proper medical evidence is not identified within the claim file, the application shall be dismissed without hearing.Where it is determined at the time the application for permanent total disability compensation is filed that the claim file contains the required medical evidence, the application for permanent total disability compensation shall be adjudicated on its merits as provided in this rule absent withdrawal of the application for permanent total disability compensation.

(2) At the time the application for permanent total disability compensation is filed with the industrial commission, the industrial commission shall serve a copy of the application together with copies of supporting documents to the employer's representative (if the employer is represented), or to the employer (if the employer is not represented) along with a letter acknowledging the receipt of the permanent total disability application.

(3) A claims examiner shall initially review the application for permanent and total disability.

(a) If it is determined there is a written agreement to award permanent total disability compensation entered into between the injured worker, the employer, and the administrator in claims involving state fund employers, the application shall be adjudicated, and an order issued, without a hearing.

(b) If it is determined that the injured worker is requesting a finding of permanent total disability compensation under division (C) of section 4123.58 of the Revised Code (statutory permanent and total disability), the application shall be adjudicated in accordance with paragraph (E) of this rule.

(c) If a motion requesting recognition of additional conditions is filed on or prior to the date of filing for permanent total disability compensation, such motion(s) shall be processed prior to the processing of the application for permanent total disability compensation. However, if a motion for recognition of an additional condition is filed subsequent to the date of filing of the application of permanent total disability, the motions shall be processed subsequent to the determination of the application for permanent total disability compensation.

(4)

(a) The injured worker shall ensure that copies of medical records, information, and reports that the injured worker intends to introduce and rely on that are relevant to the adjudication of the application for permanent total disability compensation from physicians who treated or consulted the injured worker that may or may not have been previously filed in the workers' compensation claim files, are contained within the file at the time of filing an application for permanent total disability.

(b) The employer shall be provided fourteen days after the date of the industrial commission acknowledgment letter provided for in paragraph (C)(2) of this rule to notify the commission if the employer intends to submit medical evidence relating to the issue of permanent total disability compensation to the commission. Should the employer make such written notification the employer shall submit such medical evidence to the commission within sixty days after the date of the commission acknowledgment letter unless relief is provided to the employer under paragraph (C)(4)(d) of this rule. Should the employer fail to make such written notification within fourteen days after the date of the commission acknowledgment letter, the employer shall be provided sixty days after the date of the commission acknowledgment letter to submit medical evidence relating to the issue of permanent total disability compensation to the commission, but the scheduling of the injured worker for appropriate medical examinations by physicians selected by the commission under paragraph (C)(5)(a)(iii) of this rule will proceed without delay.

(c) If the injured worker or the employer has made a good faith effort to obtain medical evidence described in paragraph (C)(4)(a) or (C)(4)(b) of this rule and has been unable to obtain such evidence, the injured worker or the employer may request that the hearing administrator issue a subpoena to obtain such evidence. Prior to the issuance of a subpoena, the hearing administrator shall review the evidence submitted by the injured worker or the employer that demonstrates the good faith effort to obtain medical evidence. Should a subpoena be issued, it shall be served by the party requesting the issuance of a subpoena.

(d) Upon the request of either the injured worker or the employer and upon good cause shown, the hearing administrator may provide an extension of time, to obtain the medical evidence described in paragraphs (C)(4)(a) and (C)(4)(b) of this rule. Thereafter, no further medical evidence will be admissible other than additional medical evidence approved by a hearing administrator that is found to be newly discovered medical evidence that is relevant to the issue of permanent total disability and which, by due diligence, could not have been obtained under paragraph (C)(4)(a) or (C)(4)(b) of this rule.

(5)

(a) Following the date of filing of the permanent and total disability application, the claims examiner shall perform the following activities:

(i) Obtain all the claim files identified by the injured worker on the permanent total disability application and any additional claim files involving the same body part(s) as those claims identified on the permanent total disability application.

(ii) Copy all relevant documents as deemed pertinent by the commission including evidence provided under paragraphs (C)(1) and (C)(4) of this rule and submit the same to an examining physician to be selected by the claims examiner.

(iii) Schedule appropriate medical examination(s) by physician(s) to be selected by the commission provided that the scheduling of said exams shall not be delayed where the employer fails to notify the commission within fourteen days after the date of the commission acknowledgment letter that it intends to submit medical evidence to the commission relating to the issue of permanent total disability compensation.

(iv) Prepare a statement of facts. A copy of the statement of facts shall be mailed to the parties and their representatives by the commission.

(6)

(a) After the reports of the commission medical examinations have been received, the hearing administrator may refer the claim to an adjudicator to consider the issuance of a tentative order, without a hearing.

(i) Within fourteen days of the receipt of the tentative order adjudicating the merits of an application for compensation for permanent and total disability, a party may file a written objection to the order. Unless the party notifies the commission in writing of the objection to the tentative order within fourteen days after the date of receipt of notice of the findings of the tentative order, the tentative order shall become final.

(ii) In the event a party makes written notification to the industrial commission of an objection within fourteen days of the date of the receipt of the notice of findings of the tentative order, the application for compensation for permanent and total disability shall be set for hearing and adjudicated on its merits.

(b) If the hearing administrator determines that the case should not be referred for consideration of issuance of a tentative order by an adjudicator, the hearing administrator shall notify the parties to the claim that a party has fourteen days from the date that copies of reports of the commission medical examinations are submitted to the parties within which to make written notification to the commission of a party's intent to submit additional vocational information to the commission that is relevant to the adjudication of the application for permanent total disability compensation.

(i) Unless a party notifies the commission within the aforementioned fourteen-day period of the party's intent to submit additional vocational information to the commission, a party will be deemed to have waived its ability to submit additional vocational information to the commission that is relevant to the adjudication of the application for permanent total disability.

(ii) Should a party provide timely notification to the commission of its intent to submit additional vocational information, the additional vocational information shall be submitted to the commission within forty-five days from the date the copies of the reports of commission medical examinations are submitted to the parties. Upon expiration of the forty-five day period no further vocational information will be accepted without prior approval from the hearing administrator.

(7) If the employer or the injured worker request, for good cause shown, that a pre-hearing conference be scheduled, a pre-hearing conference shall be set. The request for a pre-hearing conference shall include the identification of the issues that the requesting party desires to be considered at the pre-hearing conference. The hearing administrator may also schedule a pre-hearing conference when deemed necessary on any matter concerning the processing of an application for permanent and total disability, including but not limited to, motions that are filed subsequent to the filing of the application for permanent and total disability.

Notice of a pre-hearing conference is to be provided to the parties and their representatives no less than fourteen days prior to the pre-hearing conference. The pre-hearing conference may be by telephone conference call, or in-person at the discretion of the hearing administrator and is to be conducted by a hearing administrator.

The failure of a party to request a pre-hearing conference or to raise an issue at a pre-hearing conference held under paragraph (C)(8) of this rule, does not act to waive any assertion, argument, or defense that may be raised at a hearing held under paragraphs (D) and (E) of this rule.

(8) Should a pre-hearing conference be held, the hearing administrator is not limited to the consideration of the issues set forth in paragraphs (C)(8)(a) to (C)(8)(i) of this rule, but may also address any other matter concerning the processing of an application for permanent total disability. At a pre-hearing conference the parties should be prepared to discuss the following issues:

(a) Evidence of retirement issues.

(b) Evidence of refusal to work or evidence of refusal or failure to respond to written job offers of sustained remunerative employment.

(c) Evidence of job description.

(d) Evidence of rehabilitation efforts.

(e) Exchange of accurate medical history, including surgical history.

(f) Agreement as to allowed condition(s) in the claim.

(g) Scheduling of additional medical examinations, if necessary.

(h) Ensure that deposition requests that have been granted pursuant to industrial commission rules are completed and transcripts submitted.

(i) Settlement status.

(9) At the conclusion of the pre-hearing conference, a date for hearing before a staff hearing officer shall be scheduled no earlier than fourteen days subsequent to the date of a pre-hearing conference. After the pre-hearing conference, unless authorized by the hearing administrator, no additional evidence on the issue of permanent and total disability shall be submitted to the claim file. If the parties attempt to submit additional evidence on the issue of permanent and total disability, the evidence will not be admissible on the adjudication of permanent total disability compensation.

(10) The time frames established herein in paragraph (C) of this rule can be waived by mutual agreement of the parties by motion to a hearing administrator, except where otherwise specified.

(11) The applicant may dismiss the application for permanent and total disability any time up to the determination of the hearing on the merits of the application. Should a party dismiss an application prior to its adjudication, the commission's medical evidence obtained will be valid twenty-four months from the date of dismissal.

(D) Guidelines for adjudication of applications for permanent total disability

The following guidelines shall be followed by the adjudicator in the sequential evaluation of applications for permanent total disability compensation:

(1)

(a) If the adjudicator finds that the injured worker meets the definition of statutory permanent and total disability pursuant to division (C) of section 4123.58 of the Revised Code, due to the loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, the injured worker shall be found permanently and totally disabled, and a tentative order shall be issued.

Should an objection be filed from a tentative order, a hearing shall be scheduled. (Reference paragraph (E) of this rule).

(b) If, after hearing, the adjudicator finds that the injured worker is engaged in sustained remunerative employment, the injured worker's application for permanent and total disability shall be denied, unless an injured worker qualifies for an award under division (C) of section 4123.58 of the Revised Code.

(c) If, after hearing, the adjudicator finds that the injured worker is medically able to return to the former position of employment, the injured worker shall be found not to be permanently and totally disabled.

(d) If, after hearing, the adjudicator finds that the injured worker voluntarily removed himself or herself from the work force, the injured worker shall be found not to be permanently and totally disabled. If evidence of voluntary removal or retirement is brought into issue, the adjudicator shall consider evidence that is submitted of the injured worker's medical condition at or near the time of removal/retirement.

(e) If, after hearing, the adjudicator finds that the injured worker is offered and refuses and/or fails to accept a good-faith offer of sustained remunerative employment that is made prior to the pre-hearing conference described in paragraph (C)(9) of this rule where there is a written job offer detailing the specific physical/mental requirements and duties of the job that are within the physical/mental capabilities of the injured worker, the injured worker shall be found not to be permanently and totally disabled.

(f) If, after hearing, the adjudicator finds that the injured worker's allowed medical condition(s) is temporary and has not reached maximum medical improvement, the injured worker shall be found not to be permanently and totally disabled because the condition remains temporary. In claims involving state fund employers, the claim shall be referred to the administrator to consider the issuance of an order on the question of entitlement to temporary total disability compensation. In claims involving self-insured employers, the self-insured employer shall be notified to consider the question of the injured worker's entitlement to temporary total disability compensation.

(g) If, after hearing, the adjudicator determines that there is appropriate evidence which indicates the injured worker's age is the sole cause or primary obstacle which serves as a significant impediment to reemployment, permanent total disability compensation shall be denied. However, a decision based upon age must always involve a case-by-case analysis. The injured worker's age should also be considered in conjunction with other relevant and appropriate aspects of the injured worker's nonmedical profile.

(h) If, after hearing, the adjudicator finds that the allowed condition(s) is the proximate cause of the injured worker's inability to perform sustained remunerative employment, the adjudicator is to proceed in the sequential evaluation of the application for permanent and total disability compensation in accordance with the provisions of paragraph (D) of this rule. However, should the adjudicator finds that non-allowed conditions are the proximate cause of the injured worker's inability to perform sustained remunerative employment, the injured worker shall be found not to be permanently and totally disabled.

(i) If, after hearing, the adjudicator finds that injured worker's inability to perform sustained remunerative employment is the result of a pre-existing condition(s) allowed by aggravation, the adjudicator is to continue in the sequential evaluation of the application for permanent total disability compensation in accordance with the provisions of paragraph (D) of this rule. However, should the adjudicator find that the non-allowed pre-existing condition(s) are the proximate cause of the injured worker's inability to perform sustained remunerative employment, the injured worker shall be found not to be permanently and totally disabled.

(2)

(a) If, after hearing, the adjudicator finds that the medical impairment resulting from the allowed condition(s) in the claim(s) prohibits the injured worker's return to the former position of employment as well as prohibits the injured worker from performing any sustained remunerative employment, the injured worker shall be found to be permanently and totally disabled, without reference to the vocational factors listed in paragraph (B)(3) of this rule.

(b) If, after hearing, the adjudicator finds that the injured worker, based on the medical impairment resulting from the allowed conditions is unable to return to the former position of employment but may be able to engage in sustained remunerative employment, the non-medical factors shall be considered by the adjudicator.

The non-medical factors that are to be reviewed are the injured worker's age, education, work record, and all other factors, such as physical, psychological, and sociological, that are contained within the record that might be important to the determination as to whether the injured worker may return to the job market by using past employment skills or those skills which may be reasonably developed. (Vocational factors are defined in paragraph (B) of this rule).

(c) If, after hearing and review of relevant vocational evidence and non-medical disability factors, as described in paragraph (D)(2)(b) of this rule the adjudicator finds that the injured worker can return to sustained remunerative employment by using past employment skills or those skills which may be reasonably developed through retraining or through rehabilitation, the injured worker shall be found not to be permanently and totally disabled.

(3) Factors considered in the adjudication of all applications for permanent and total disability:

(a) The burden of proof shall be on the injured worker to establish a case of permanent and total disability. The burden of proof is by preponderance of the evidence. The injured worker must establish that the disability is permanent and that the inability to work is causally related to the allowed conditions.

(b) In adjudicating an application for permanent and total disability, the adjudicator must determine that the disability is permanent, the inability to work is due to the allowed conditions in the claim, and the injured worker is not capable of sustained remunerative employment.

(c) The industrial commission has the exclusive authority to determine disputed facts, the weight of the evidence, and credibility.

(d) All medical evidence of impairment shall be based on objective findings reasonably demonstrable and medical reports that are submitted shall be in conformity with the industrial commission medical examination manual.

(e) If the adjudicator concludes from evidence that there is no proximate causal relationship between the industrial injury and the inability to work, the order shall clearly explain the reasoning and basis for the decision.

(f) The adjudicator shall not consider the injured worker's percentage of permanent partial impairment as the sole basis for adjudicating an application for permanent and total disability.

(g) The adjudicator is to review all relevant factors in the record that may affect the injured worker's ability to work.

(h) The adjudicator shall prepare orders on a case by case basis which are fact specific and which contain the reasons explaining the decision. The orders must specifically state what evidence has been relied upon in reaching the conclusion and explain the basis for the decision. In orders that are issued under paragraphs (D)(2)(b) and (D)(2)(c) of this rule the adjudicator is to specifically list the non-medical disability factors within the order and state how such factors interact with the medical impairment resulting from the allowed injuries in the claim in reaching the decision.

(i) In claims in which a psychiatric condition has been allowed and the injured worker retains the physical ability to engage in some sustained remunerative employment, the adjudicator shall consider whether the allowed psychiatric condition in combination with the allowed physical condition prevents the injured worker from engaging in sustained remunerative employment.

(E) Statutory permanent total disability

Division (C) of section 4123.58 of the Revised Code provides that the loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, constitutes total and permanent disability.

(1) In all claims where the evidence on file clearly demonstrates actual physical loss, or the permanent and total loss of use occurring at the time of injury secondary to a traumatic spinal cord injury or head injury, of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, the claim shall be referred to be reviewed by a staff hearing officer of the commission. Subsequent to review, the staff hearing officer shall, without hearing, enter a tentative order finding the injured worker to be entitled to compensation for permanent and total disability under division (C) of section 4123.58 of the Revised Code. If an objection is made, the claim shall be scheduled for hearing.

(a) Within thirty days of the receipt of the tentative order adjudicating the merits of an application for compensation for permanent and total disability, a party may file a written objection to the order. Unless the party notifies the industrial commission in writing of the objection to the tentative order within thirty days after the date of receipt of notice of the findings of the tentative order, the tentative order shall become final.

(b) In the event a party makes written notification to the industrial commission of an objection within thirty days of the date of the receipt of the notice of findings of the tentative order, the application for compensation for permanent and total disability shall be set for hearing and adjudicated on its merits.

(2) In all other cases filed under division (C) of section 4123.58 of the Revised Code, if the staff hearing officer finds that the injured worker meets the definition of statutory permanent and total disability pursuant to division (C) of section 4123.58 of the Revised Code, due to the loss of use of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, the staff hearing officer, without a hearing, is to issue a tentative order finding the injured worker to be permanently and totally disabled under division (C) of section 4123.58 of the Revised Code. An objection to the tentative order may be made pursuant to paragraphs (E)(1)(a) and (E)(1)(b) of this rule.

Effective: 06/20/2013
R.C. 119.032 review dates: 09/07/2012 and 02/01/2017
Promulgated Under: 119.03
Statutory Authority: 4121.30 , 4121.32
Rule Amplifies: 4121.35 , 4121.36 , 4123.58
Prior Effective Dates: 6/1/1995, 9/15/1995, 1/1/1997, 4/1/2004, 6/1/2008