Under Ohio law, the Industrial Commission can suspend an injured worker’s claim for failing to appear for a medical examination, or to fill out medical release forms. Way back when I was a young lawyer, that code section was colorfully introduced to me by a more senior colleague, as follows: “O.R.C. 4123.651, I’ve got it tattooed on my a**.”
Although I did not go out and get myself a similar tattoo, I have remembered Ohio’s statutory provision for suspending a workers’ compensation claim since that time. A decision issued by the Tenth Appellate District recently addressed how the provisions of O.R.C. 4123.651 are applied to an injured worker’s attendance at a medical examination. Before I get into the details of that case however, here’s a brief reminder as to how and when a workers’ compensation claim can be suspended.
The statute provides that an employer has the right to require an injured worker to be examined by a physician of the employer’s choosing “one time upon any issue asserted by the employee or [the physician of record in the claim] or which is to be considered by the commission.” In other words, if an employer receives a C-9 for treatment it does not feel appropriate, or is receiving temporary total disability compensation the employer does not feel is warranted, or is making any other request the employer contests, they can require the injured worker to attend an examination. The employer also can require the employee to attend an examination pertaining to any issue which will be scheduled for hearing before the Industrial Commission. The employer is entitled to one examination only on each issue. Those requirements are set out in O.R.C. 4123.651(A).
The employer can also require that an injured worker provide, upon request, a “current signed release of [medical] information.” See O.R.C. 4123.651(B). If, “without good cause”, an employee refuses to submit to an examination, or refuses to execute a release of information, the employee’s right to have a claim for compensation considered by the Industrial Commission or to receive any payment for compensation or benefits previously granted is suspended during the period of refusal.
In other words, any rights to temporary total disability compensation or medical benefits stop, and the Industrial Commission cannot consider any issue raised by the injured worker until he or she provides a medical release. I’ve discussed the issue of medical release forms several times in recent posts: Will Ohio’s New Standard Medical Release Form Stand Up to HIPAA Scrutiny?; Does Ohio’s New Standard Medical Release Form Apply to Workers’ Compensation Claims?
Over the years, courts have applied O.R.C. 4123.651 to various circumstances. For instance, the 10th Appellate District found that while it was unreasonable to require an injured worker to travel outside of Ohio, it was not unreasonable to require an injured worker to travel to an Ohio city outside of the injured worker’s residence to attend the examination.
On February 28, 2019, the 10th Appellate Court of Appeals upheld the Industrial Commission’s suspension of a claim based upon an injured worker’s refusal to undergo psychological testing. See State ex rel. Calhoun v. Industrial Comm’n of Ohio, 2019-Ohio-720, 2019 Ohio App. LEXIS 770 (Feb. 28, 2019). The full text of the decision can be found here.
Calhoun filed a motion to additionally allow his claim for a psychological condition. His employer scheduled him for an examination by a psychologist. Calhoun attended the examination, but refused to take the Minnesota Multiphasic Personality Inventory (“MMPI”). His employer filed a motion to suspend his claim, and the Industrial Commission issued an order suspending the claim until Calhoun attended the complete examination scheduled by the employer, which included taking the MMPI.
Calhoun appealed to the 10th Appellate District. He argued that he had the right to refuse to take the MMPI, and cited to Industrial Commission’s medical examination manual, which reads:
MMPI and Bender-Gestaldt are considered part of a psychological exam and are not billable. Injured Worker may decline testing, and if this is the case, note the refusal and base opinions on the available data.
The 10th Appellate District upheld the suspension. The Industrial Commission determined that the manual was not binding on BWC doctors or on doctors conducting examinations at the request of self-insured employers, and the Court agreed. The Court also noted that the question was not whether Calhoun had the right to refuse psychological testing, which he did. However, his refusal to take the MMPI was not “good cause” under R.C. 4123.651(C), preventing the suspension of his claim.