(A) Numbering and
recording.
(1) Upon receipt, the bureau will
assign a claim number to each initial application for benefits. The bureau
shall provide the claim number to the claimant and employer. In cases where a
deceased employee has filed, during his or her lifetime, an industrial claim
for the injury or disability which is the subject matter of the death claim,
the application for death benefits shall be assigned the original claim
number.
(2) The claim number should
be placed on all documents subsequently filed in each claim and the claim
number should be given when inquiry is made concerning each claim.
(B) Initial review and processing
of new claims.
Immediately after numbering and recording, all new claim
applications, except applications of employees of self-insuring employers,
shall be reviewed and processed by the bureau. "Processing on the question of
compensability" means making a determination on the validity of the industrial
claim.
(1) Uncontested or undisputed
claims.
A "contested or disputed claim," as used herein, is where the
employer or the bureau of workers' compensation questions the validity of a
claim for compensation or benefits. No claim shall be regarded as a contested
or a disputed claim requiring a formal (public) hearing, solely by reason of
incomplete information, unless every effort has been made to complete the
record.
(a) If a state fund claim
meets the statutory requirements of compensability, the claims specialist shall
have authority to approve such claim for payment of medical bills and temporary
total disability compensation or other appropriate compensation. The approval
of the claim must contain the description of the condition or conditions for
which the claim is being allowed and part or parts of the body
affected.
(b) In the processing of
initial applications in state fund claims, requesting payment of compensation
in addition to medical benefits, the claims specialist may approve temporary
total disability compensation over a period not to exceed four weeks, without
medical proof in the record, provided that the application has been properly
completed and signed, certified by the employer and was otherwise
noncontroversial. If medical proof was submitted with the initial application,
the above limitation shall not apply. Upon approval of the claim the claimant
shall be notified in writing that his or her attending physician's report will
be necessary for consideration of any additional payment of compensation and an
appropriate form shall be enclosed, with the necessary instructions, for the
claimant's convenience.
(2) Contested or disputed claims.
(a) Contested or disputed claims as well as
claims requiring investigation shall be referred, immediately after the initial
review, to the appropriate office of the bureau from which investigation and
determination of issues may be made most expeditiously.
(b) If the bureau or the employer contests
the claim application and the claimant is not available for an adjudication due
to the claimant's service in the armed services of the United States, the
bureau shall continue the matter in accordance with the Servicemembers Civil
Relief Act until the claimant is available for adjudication of the
claim.
(3) Applications
for death benefits.
Immediately after numbering and recording, all applications for
death benefits shall be referred to the appropriate office of the bureau from
which investigation and determination of issues may be made most expeditiously.
Every effort should be made to complete the investigation within the shortest
time possible, depending on the facts and circumstances of each particular
case, to enable prompt adjudication of such claims by the bureau.
(4) Contested (disputed)
applications for workers' compensation benefits filed by employees of
self-insuring employers shall be referred to the industrial commission for a
hearing.
(C) Proof.
(1) In every instance the proof shall be of
sufficient quantum and probative value to establish the jurisdiction of the
bureau to consider the claim and determine the rights of the applicant to an
award. "Quantum" means measurable quantity. "Probative" means having a tendency
to prove or establish.
(2) Proof
may be presented by affidavit, deposition, oral testimony, written statement,
document, or other forms.
(3) The
burden of proof is upon the claimant (applicant for workers' compensation
benefits) to establish each essential element of the claim by preponderance of
the evidence. Essential elements shall include, but will not be limited to:
(a) Establishing that the applicant is one of
the persons who under the act have the right to file a claim for workers'
compensation benefits;
(b) That the
application was filed within the time period as required by law;
(c) That the alleged injury or occupational
disease was sustained or contracted in the course of and arising out of
employment;
(d) In death claims,
that death was the direct and proximate result of an injury sustained or
occupational disease contracted in the course of and arising out of employment;
the necessary causal relationship between an injury or occupational disease and
death may be established by submission of sufficient evidence to show that the
injury or occupational disease aggravated or accelerated a pre-existing
condition to such an extent that it substantially hastened death;
(e) Any other material issue in the claim,
which means a question that must be established in order to determine
claimant's right to compensation and/ or benefits.
"Preponderance of the evidence" means greater weight of
evidence, taking into consideration all the evidence presented. Burden of proof
does not necessarily relate to the number of witnesses or quantity of evidence
submitted, but to its quality, such as merit, credibility and weight. The
obligation of the claimant is to make proof to the reasonable degree of
probability. A mere possibility is conjectural, speculative and does not meet
the required standard.
(4) The bureau or commission may, at any
point in the processing of an application for benefits, require the employee to
submit to a physical examination or may refer a claim for
investigation.
(5) Procedure on
employer's request for medical examination of the claimant by a doctor of
employer's choice.
The employer may require a medical examination of the employee
as provided in section
4123.651 of the Revised Code
under the following circumstances:
(a)
Such an examination, if requested, shall be in lieu of any rights under
paragraph (C)(5)(b) of this rule and in no event will the claimant be examined
on the same issue by a physician of the employer's choice more than one time.
The exercise of this examination right shall not be allowed to delay the timely
payment of benefits or scheduled hearings. Requests for further examinations
will be made to the bureau or commission following the provisions of paragraph
(C)(5)(b) of this rule. The cost of any examination initiated by the employer
shall be paid by the employer including any fee required by the doctor, and the
payment of all of the claimant's traveling and meal expenses, in a manner and
at the rates as established by the bureau from time to time. If employed, the
claimant will also be compensated for any loss of wages arising from the
scheduling of an examination.
All reasonable expenses shall be paid by the employer
immediately upon receipt of the billing, and the employer shall provide the
claimant with a proper form to be completed by the claimant for reimbursement
of such expenses.
The employer shall promptly inform the bureau or the
commission, as well as the claimant's representative, as to the time and place
of the examination, and the questions and information provided to the doctor. A
copy of the examination report shall be submitted to the bureau or commission
and to the claimant's representative upon the employer's receipt of the report
from the doctor.
Emergency treatment does not constitute an examination by the
employer for the purposes of this rule. Treatment by a company doctor as the
treating physician constitutes an examination for the purposes of this rule.
The procedure set forth in paragraph (C)(5)(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.
(b) If after one medical examination of the
claimant under paragraph (C)(5)(a) of this rule, an employer asserts that a
medical examination of the claimant by a doctor of the employer's choice is
essential in the defense of the claim by the employer, a written request may be
filed with the bureau for that purpose. In such request the employer shall
state the date of the last examination of the claimant by a doctor of
employer's choice on the question pending. If there was no such prior
examination, the request must so indicate.
(c) If the claim is pending before the
industrial commission or its hearing officers and the question sought to be
clarified by such examination is not within the jurisdiction of the bureau (for
example: permanent total disability), the request shall be referred, forthwith,
to the industrial commission or to the appropriate hearing officer, as the case
may be, for further consideration.
(d) If the question sought to be clarified by
the requested examination is within the bureau's jurisdiction (for example:
temporary total disability in otherwise undisputed claim, allowance of
additional condition), the bureau shall immediately act upon the request.
If, upon a review of the claim file the bureau is of the
opinion that the request should be denied for the reason that the claimant has
been recently examined by a doctor of the employer's choice, or for any other
reason indicating that further examination would not be pertinent to the
defense of the claim, based on the facts and circumstances of each particular
case, the matter shall be referred, forthwith, to the appropriate district
hearing officer for further consideration. In cases of temporary total
disability, a medical examination performed within the past thirty days shall
be regarded as "recent." If the question involves additional allowance of claim
for an additional condition allegedly causally related to the allowed injury or
occupational disease, a medical examination performed within the past sixty to
ninety days may be regarded as "recent," depending on the nature and type of
the condition and/or disability.
(e) All reasonable expenses incurred by the
claimant in submitting to such examination, including any travel expense that
the claimant may properly incur, shall be paid by the employer immediately upon
receipt of the billing. Payment for traveling expenses shall not require an
order of the bureau or commission, unless there is a dispute. The employer
shall provide the claimant with a proper form to be completed by the claimant
for reimbursement for traveling expenses. In addition, if
the request for such examination is filed on or
after January 1, 1979, and the claimant sustains lost wages as a
result of such examination, the employer shall reimburse the claimant for such
lost wages within three weeks from the date of examination. Expenses incurred
by the claimant and wages lost by reason of attending such examination are not
to be paid in the claim.
(f) The
employer shall make arrangements for such examination within fifteen days from
the date of receipt of the order of approval. The examination shall be
performed not later than within thirty days from the date of the receipt of
approval.
The doctor's report shall be filed with the bureau immediately
upon its receipt. Failure of the employer to comply with this rule shall not
delay further action in the claim, unless it is established that the omission
was due to causes beyond the employer's control.
(6) Procedure for obtaining the deposition of
an examining physician. Authority to allow depositions is within the exclusive
jurisdiction of the industrial commission. Any such request, if filed with the
bureau, shall be referred, forthwith, to the industrial commission for further
consideration.
(D)
Hearings and orders.
(1) Unless required by
law or by the circumstances of the claim, the claim shall be adjudicated
without a formal hearing.
(2)
Disputed or contested claims shall be set for a formal (public) hearing on the
question of allowance before the district hearing officers. A "disputed or
contested claim," as used herein, is where the employer or the claimant
questions the decision of the bureau regarding a request for compensation or
benefits. No claim shall be regarded as a contested or disputed claim requiring
a formal (public) hearing, solely by reason of incomplete information unless
every effort has been made to complete the record In the event the employer or
claimant object to the decision of the bureau, such objection shall be made in
writing with rationale and supporting evidence, as appropriate.
(3) The administrator or his or her designee
may appear at such hearings to represent the interest of the state insurance
fund and/or the surplus fund.
(4)
The bureau shall make payment on orders of the commission, and district or
staff hearing officers in accordance with law and rules of the bureau and the
industrial commission.
(5) If the
administrator or his or her designee is of the opinion that an emergency exists
which requires an immediate hearing of a claim, he or she may request an
emergency hearing. "Emergency," as used herein, means a sudden, generally
unexpected occurrence or set of circumstances demanding immediate action. Such
request shall be made in accordance with the rule of the industrial commission
on emergency hearings as defined in rule
4121-3-30 of
the Administrative Code.
(E) Representation of claimants and employers
before the bureau. Representation of claimants and employers before the bureau
is a matter of individual free choice. The bureau does not require
representation nor does it prohibit it. No one other than an attorney at law,
authorized to practice in the state of Ohio, shall be permitted to represent
claimants for a fee before the bureau.
(F) If the bureau or the parties believe that
clarification of issues will facilitate the processing of the claim, the
claimant, employer, and their duly authorized representatives, as defined in
rule
4123-3-22
of the Administrative Code, shall be given an opportunity to provide additional
evidence on questions pertaining to the claim pending before the bureau.
The evidence shall be made a part of the claim file to be
considered by the bureau when the determination is made on the issue pending
before the bureau.
Notes
Ohio Admin. Code
4123-3-09
Effective:
7/1/2019
Five Year Review (FYR) Dates:
4/8/2019 and
07/01/2024
Promulgated
Under: 119.03
Statutory
Authority: 4121.12,
4121.121
Rule
Amplifies: 4121.121,
4121.43,
4123.651
Prior
Effective Dates: 10/09/1976, 01/16/1978, 12/21/1979, 08/22/1986 (Emer.),
11/17/1986 (Emer.), 01/10/1987, 02/10/2009, 11/05/2009,
04/01/2014