INDUSTRIAL COMMISSION RESOLUTION REGARDING THIRD PARTY ADMINISTRATORS

June 2004

As you may know, on May 18, 2004, the Ohio Board of Commissioners on the Unauthorized Practice of Law made a recommendation to the Ohio Supreme Court that, if adopted by the Court, could effectively prohibit third party workers’ compensation administrators (TPA’s) from adjudicating claims before the Industrial Commission.  In the case of Cleveland Bar Assn. v. CompManagement Inc. et al., (5/18/04), Case No. UPL02-04, the Board of Commissioners concluded that under a number of circumstances the TPA’s were engaged in the unauthorized practice of law.

On May 21, 2003, the Industrial Commission issued a statement that third party administrators may continue to represent employers until the Ohio Supreme Court issues an order on the matter.  In this regard, the Ohio Supreme Court could adopt the Commission’s recommendations, reject them, modify them or direct the parties to develop a compromise plan.  The Supreme Court could also use this case to clarify and balance the involvement of TPA’s and attorneys in Commission hearings to best protect the interests of all parties.

Most recently, on June 2, 2004, the Industrial Commission issued a Resolution to address the Board of Commissioner’s report.  The Resolution reiterates and expands upon the standards set forth in the Hearing Officer Manual as to what activities a third party administrator may and may not do at a hearing.  In addition, the Commission applied these updated standards to union representatives and employees of employers that may appear before the Bureau and the Commission. 

Essentially, the Resolution provides that non attorney representatives may investigate facts and compile documents and evidence relative to a claim and submit these facts, documents and evidence at a hearing.  The representatives may also assist injured workers in the administration of a claim and complete and submit BWC and IC forms, records and reports.

The Commission’s Resolution also provides that non-attorney representatives may not examine or cross-examine witnesses, render opinions or arguments as to the nature and weight of the evidence or witness credibility.  Likewise, non-attorneys may not cite or interpret statutory opinions, administrative rules or case law.  In effect, non-attorneys are prohibited from commenting on the documents and evidence submitted. 

The Commission’s Resolution constitutes interim standards for non-attorney representatives until permanent guidelines are issued by the Ohio Supreme Court.  Pending these permanent guidelines, it is recommended that employers retain legal counsel for hearings where it will be necessary to examine or cross examine witnesses, make arguments with respect to the weight and sufficiency of the evidence and/or give legal interpretations involving statutes, administrative rules or case law.