Under Ohio law either the Bureau of Workers’ Compensation or the Industrial Commission has the right to have an injured worker examined by a physician of their choosing in connection with any issue to be heard before the Industrial Commission. If the injured worker refuses to submit to the examination, their claim for compensation “is suspended during the period of the refusal or obstruction.” Similar rules apply to examinations conducted on behalf of self-insured employers. A recent Supreme Court case addressed the circumstances under which an injured worker can be compelled to attend a second examination on the same issue.
The case at issue is State ex rel. Mignella v. Indus. Comm. Mignella filed an application for permanent-total disability benefits. In connection with the application the Industrial Commission scheduled her for an examination, which determined that she could perform “light physical demand activities”. Mignella later took the doctor’s deposition, and the doctor admitted to making mistakes in her examination of Mignella. Because of the deposition testimony a Staff Hearing Officer issued an interlocutory order referring the application back to the commission to schedule Mignella for a second examination.
Mignella refused to attend the exam and her claim was suspended. She filed a writ in the 10th District Court of Appeals, which was denied. On appeal the Supreme Court of Ohio agreed, and stated that Mignella’s claim should remain suspended until she attended a second examination.
The examination at issue in the Mignella case was scheduled by the Industrial Commission. Had the examination been scheduled by a self-insured employer the Supreme Court might have looked at things differently. Industrial Commission examinations are conducted under the authority of R.C. 4123.53, which does not contain the provision in R.C. 4123.651 that an examination on behalf of a self-insured employer may be conducted “one time upon any issue asserted by the employee or a physician of the employee’s choice or which is to be considered by the commission”.
The lesson for self-insured employers? If the Industrial Commission specialist makes mistakes during the PTD examination the Industrial Commission can have a second bite at the apple. Self-insured employers might not be so fortunate.