There is a solution to the problem of appeals in the Ohio Workmen\u27s Compensation Act. Permit the administrative officers who are well trained and have many years of experience to determine the facts and law with court appeals on questions of law only. Since Ohio is a State Fund operation, hearing officers probably should not be responsibleto the Bureau of Workmen\u27s Compensation. This alliance could affect their judgment since they must defend the insurance fund against any claim which is, in their opinion, unlawful

Krise, M. Holland

English

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Appeals in Workmen\u27s Compensation

Cleveland-Marshall College of Law

Cleveland State UniversityEngagedScholarship@CSUCleveland State Law Review Law Journals1968Appeals in Workmen's CompensationM. Holland KriseFollow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrevPart of the Workers' Compensation Law CommonsHow does access to this work benefit you? Let us know!This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion inCleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact library.es@csuohio.edu.Recommended CitationM. Holland Krise, 17 Clev.-Marshall L. Rev. 117 (1968)Appeals in Workmen's CompensationM. Holland Krise*F IFTY ODD YEARS AGO attorneys showed very little interest in work-men's compensation claims since the fees available were uninviting.The benefits to the injured workman were payable bi-weekly with noaccrued benefits. Fees, if collected, were paid by the workman out ofthe small amount paid to the injured with benefits checks amounting toless than thirty dollars bi-weekly. However, there were lawyers whohandled such cases, becoming specialists in the workmen's compensa-tion law.When enacted, the administration of the law was intended to obviatethe necessity for legal counsel; however, the recipient of benefits hadto show he was injured in the course of his employment and the injuryarose out of it. This posed a legal question and the advice of lawyersoftentimes was necessary. Most of the early litigation in workmen's com-pensation was predicated upon this legal requirement. Those earlycases are the guideline today on this question.Administrative law designed to reduce the work load of the courtswas in its infancy when workmen's compensation laws were enacted inOhio and, although the processing of claims, establishment of hearingprocedures, and decisions followed administrative procedure acts, countycourts of common pleas were given jurisdiction over questions of factand law on appeal. Certain specified orders were appealable while onothers, such as extent of disability, the Commission order was final.Early industrial commissioners were dissatisfied with the results onappeal to courts, feeling cases before them were poorly prepared andinadequately prosecuted for the purpose of perfecting an appeal tothe court which would increase the chargeable fee. Rehearings wereinaugurated whereby cases were heard before a referee, a record pre-pared and evidence submitted under court rules on admissibility. Therecord was reviewed and reheard by the Commission after which a finaldecision was rendered.If such a case was appealed to court, counsel for both parties readtheir portions of the testimony to a jury, thereby confining the case tothe allegations and facts as presented to the Commission. Since Ohio'sAct provided for a state fund, the Commission was represented by as-sistant attorneys general while self-insuring employers provided theirown lawyers. Many objections were raised by the attorneys defendingcommission orders on the rehearing method of trying cases. Physicians* Chairman, The Industrial Commission of Ohio; member of the Ohio Bar.1Published by EngagedScholarship@CSU, 196817 CLEV-MAR. L. R. (1)were never seen and observed by jurors, claimants and witnesses werenot observed when under cross examination and, as stated over and over,the jurors did not observe the squirming, blushing, hesitancy in answer-ing questions and evasiveness of those testifying.The General Assembly drastically revised the workmen's compen-sation law in 1955 and created the Bureau of Workmen's Compensationheaded by an Administrator who assumed some duties formerly heldby the Commission, but gave him joint authority on other matters. Thenew law resulted in the Administrator having original jurisdiction overthe allowance of claims. He appointed deputy administrators to manbranch offices where claims were assigned to be processed and hearingsconducted on contested claims. It was further provided that any partydissatisfied with the deputy's ruling could request a reconsideration be-fore the Administrator, this being a matter of right. After a hearingbefore the Administrator a dissatisfied party could appeal to a board ofreview, which boards were created by the amendment. Another stepwas provided whereby either party could ask for leave to appeal to theCommission. A new facet was provided for in this step which permittedthe Administrator to ask for leave to appeal, if he so desired. If leaveis granted, the Commission would hear the parties and render a decision,however, if leave was denied the claimant or employer could file anappeal from the board's order to the Court of Common Pleas. No suchappeal was granted to the Administrator. It is of interest to note thatall reconsiderations and appeal hearings were de novo.Many attorneys lost their cases in court because they appealed fromthe wrong order. It is provided the order of a board of review becomesthe order of the Commission if no appeal therefrom was granted. Somelawyers appealed from the Commission order denying the leave to ap-peal rather than from the board's order which either allowed the claimor denied it. The Ohio Supreme Court held that the appeals procedurewas created by the Workmen's Compensation statutes and had to beconstrued strictly and the appeal must be taken from the order grantingor denying benefits.It is of financial importance for the claimant to attempt to have hisclaim allowed and compensation awarded at any of the appeal steps,forcing the employer to perfect the appeal to court since the law providesfor the payment of such compensation pending a final order on the ap-peal. If the award is reversed it is provided the compensation previouslypaid will be refunded to the employer's account out of the Surplus Fund.There is no provision to collect such overpayment from the claimant.There are many occasions when the award has been paid out before thematter comes to trial.It is provided that either the employer or the claimant may appealto the Court of Common Pleas. The mere filing of such a notice withJan., 19682https://engagedscholarship.csuohio.edu/clevstlrev/vol17/iss1/12APPEALS IN W. C.copies to the other side confers jurisdiction of the court, however, theCommission and the Administrator must be included as parties defend-ant. Once the appeal is filed proceedings in court will be de novo andfollow the rules for civil procedure. Regardless of whether it is the em-ployer's or claimant's appeal the claimant must file a petition to whichthe employer answers.The de novo process, although sought after by employers, has nothad the good effect anticipated. Cases are again being decided on factsnever heard by any of the various hearing officers, just as the earlycommissioners observed. This is accomplished through the amendmentof the petition by claimant's lawyers after the proof has been submitted.Claims have been allowed by juries for a low back injury when theclaim had been processed through the lower bodies for a shoulderinjury. Such cases are generally fraudulent and steps should be takento eliminate this practice. Any appeal from the order of the hearingbody below should be confined to the matters presented to and con-sidered by that body. Appeals in workmen's compensation claims shouldfollow the administrative procedure act applicable to other boards andcommissions wherein appeals to the courts are on question of law only.Although the National representatives of the AFL-CIO support this ap-proach, the Ohio Council AFL-CIO adamantly opposes it. The questionbefore the jury is the right of the claimant to participate in or continueto participate in the workmen's compensation insurance fund.Juries must hear the testimony of the claimant, his witnesses, ifany, and the opinion of a physician. The physician may have been theattending doctor or may be some specialist who has never known theclaimant. The claimant and witnesses must present a prima facie casedescribing an injury which was accidental in character and result,arising out of and in the course of the employment. The medical wit-ness must state that the disability was the probable result of the injury.If it is a death claim the physician must testify that the death wasprobably caused by the injury or hastened the demise of the injured bya measurable degree.Jurors as selected are average Americans with the education usuallyfound present when twelve people are selected somewhat at random.Business leaders and professional people are usually excused from juryduty. Being well aware of this fact, a successful claimant's lawyer canbe selective in choosing his expert medical witness. Those lawyers withlarge practices have physicians with a long list of credits which greatlyimpresses the jury. Little do the jurors know these physicians aresometimes used by claimant's lawyers because of their favorable testi-mony. Many of these witnesses never appear in the courtroom wherethey can be observed both under direct examination and cross examina-tion through the use of the deposition.3Published by EngagedScholarship@CSU, 196817 CLEV-MAR. L. R. (1)Unfortunately very little can be said for the quality of the medicaltestimony heard by jurors as presented by claimants' attorneys. If thetreating physician has stated in reports during the administrative pro-cedure prior to court there is no causal relationship between the injuryand the disability he will not be called upon to testify. However, if heis favorable he will be called since his testimony will have a good effecton the jury, particularly if the trial is in a small town where thephysician enjoys a good reputation. One such claim was allowed by arural area jury where the question was whether the deceased claimant'sleukemia was the result of an accidental overexposure to radiation. Theemployer and the Atomic Energy Commission had several outstandinghighly qualified specialists testifying that the type of leukemia presentcould not have been caused by radiation. However, the family physiciantestified to the contrary, and the jury found for the widow.Jurors naturally are impressed by professionals when they testify.Technical language and medical terms intrigue the average person andjurors are average. They have no way of knowing whether the testi-mony departs from generally accepted medical theories. They are notaware of the care with which the hypothetical question has been pre-pared, nor the fact the physician has probably seen the question priorto its being presented in court or in deposition form. Medical testimonyis available which will refute practically any old established and provenmedical theory. The only problem confronting the attorney is the knowl-edge of the source.Administrative bodies hearing cases are usually well acquainted withthe names of physicians who will testify as a specialist in everything.They know the weight which can be given to this testimony. Also, theassistance of specialists in every field of medicine who have no interestwhatever in the particular claim are available to them for medical adviceand are frequently relied upon in assisting the administrator in arrivingat a decision.Ohio's occupational disease law is administered by administrativeoffices with no appeal permitted on question of law. Although attemptshave been made to amend this section the General Assembly has notseen fit to do so. Very few complaints are made on this procedure andno charges of unfairness have been lodged. True, some lawyers feelin a particular case they could have won a verdict for the claimant incourt, but again it would be on the basis of laymen serving on juriesattempting to understand medical testimony and rendering decisionsbased on such testimony. The value of such testimony has been discussedabove.The newest trend among claimants' lawyers is the mental illnessallegation. Any time a physician cannot find objective causes for thepain a claimant alleges is present, and upon being told it is unaccountedJan., 19684https://engagedscholarship.csuohio.edu/clevstlrev/vol17/iss1/12APPEALS IN W. C.for medically, the claimant is sent to a psychiatrist. Since this doctor isselected by the claimants' lawyer there is no doubt a finding of a neurosisof one of the many types will be reported as being present and causallyrelated to the injury. No treatment has been rendered for the condi-tion and none is recommended. The condition, however, is reported asdisabling and a degree of disability is supplied in percentage.This phase of workmen's compensation is extremely hard to ad-minister since it appears the mental problem does not need treatment,therefore, it must be presumed it will disappear and be forgotten uponthe payment of compensation. This operates at about $100 per 1% or$2,000 for 20%. This appears to be the gold cure referred to for manyyears by defense counsel in personal injury claims.It is extremely difficult for administrators to accept the fact that atruck driver who had an injury, lost no time and earning his usual wage,could have a neurosis to a disabling degree. Unfortunately they are fre-quently forced to accept this theory based on medical reports. Again,jurors are asked to decide this question based on testimony of physiciansengaged in the specialized practice of psychiatry.There is a solution to the problem of appeals in the Ohio Work-men's Compensation Act. Permit the administrative officers who arewell trained and have many years of experience to determine the factsand law with court appeals on questions of law only. Since Ohio is aState Fund operation, hearing officers probably should not be responsibleto the Bureau of Workmen's Compensation. This alliance could affecttheir judgment since they must defend the insurance fund against anyclaim which is, in their opinion, unlawful.5Published by EngagedScholarship@CSU, 1968

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Appeals in Workmen\u27s Compensation

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