Can You Still Schedule That Permanent Partial Disability Exam You’ve Been Putting Off?

A client recently approached us after they weren’t able to get a Permanent Partial Disability (“PPD”) examination scheduled until after the first level (District Hearing Officer “DHO”) hearing.  My first instinct was that they were out of luck.  After looking into the matter further however, that wasn’t necessarily the case.  The rules in Ohio regarding PPD examinations are slightly complicated, so I’m sharing them here.

Ohio Revised Code Section 4123.57 and Ohio Administrative Code Section 4123-3-15 provide the rules for scheduling PPD exams.

Scheduling the examination after the Tentative Order is issued

–When the Employer files the objection

Per OAC 4123-3-15(C)(1) if the employer files an objection to the tentative order, the employer must provide written notice of the intent to schedule the examination at the time of the objection, and the report must be submitted within 45 days of filing the objection.

–When the injured worker files the objection

Per OAC 4123-3-15(C)(2) if the injured worker is the only party to file an objection, the employer may schedule an examination within 14 days of receipt of the injured workers’ evidence.  The report must be submitted within 45 days from the receipt of the injured worker’s medical evidence.

Submitting new evidence after the DHO hearing

Yes, you can schedule a PPD exam after the DHO hearing, but it depends….

In State ex rel. Grimm v. Indus. Comm. the 10th District Court of Appeals considered the case of an injured worker who submitted a PPD report after the DHO hearing on an application for an increase in PPD (“C-92A”).  The Staff Hearing Officer (“SHO”) refused to consider it.  On review in mandamus, the 10th District Court held that additional evidence could be submitted at the SHO level in an initial application for PPD (“C-92”).  However, the Court held that in the case of a C-92A no additional evidence could be submitted after the DHO hearing.

Note that in this case it was the injured worker’s evidence that was rejected.  While the Grimm case specifically held that either the employer or the injured worker could submit medical evidence at the SHO level on a C-92 application, the administrative rules still require that the examination must be scheduled within 14 days of receipt of the injured worker’s medical report.