January 3, 2006
The Unauthorized Practice of Law Continues
More on what TPA’s can and cannot do.
By John Slater

In December of 2004, the Ohio Supreme Court issued its much anticipated decision regarding Third Party Administrators (TPA’s) and the unauthorized practice of law. Although the court did put some restrictions on TPA’s, it basically rejected the recommendation of the Board on the Unauthorized Practice of Law. However, the court remanded this matter to the Board with instructions to consider whether certain actions of the TPA were in violation of Industrial Commission resolution 04-1-01, which was simply the Industrial Commission’s response to the entire matter of TPA’s and the unauthorized practice of law. On 12-14-05, the Board released its report on the specific activities of the TPA and concluded that the TPA had engaged in the unauthorized practice of law in the following areas. It must be remembered that this opinion by the Board is only a recommendation to the Supreme Court, which will make a final decision.

Settlements. The Board concluded that settlement negotiations require legal participation and therefore the TPA engaged in the unauthorized practice of law when it negotiated settlements on behalf of employers. As a cautionary note, most TPA’s are now taking very limited roles, if any, in any settlement negotiations.
Direct and indirect examination, including cross-examination, of witnesses during hearings.
Presentation of employer concerns, arguments, submissions of evidence, conclusions regarding the import of factual information and/or closing statements on behalf of employers during hearings.
Recommendation and advice to employers as to taking appeals and other legal action.

As indicated above, the Board’s findings are only a recommendation to the Supreme Court. In 2004, the court rejected the harsh recommendations of the Board and it may do so again. However, as they did earlier, some hearing officers may use the Board’s recommendations to enforce tougher standards on TPA’s in the hearing room. Even after the court issues its opinion, SI employers will simply have to evaluate the need for an attorney at hearing on a claim by claim basis.

Contemporaneous Temporary Total and Permanent Partial

State ex. rel. Advantage Tank Lines v. Indus. Comm., 107 Ohio St. 3d 16

On 11-16-05, the Supreme Court held that the Industrial Commission could order permanent partial disability compensation (PPD) and temporary total disability compensation (TTD) simultaneously for the same injury. In this case, the injury occurred on 02-22-01. One year later, the injured worker was awarded permanent partial disability compensation. Eight months after the PPD award, the injured worker requested temporary total disability compensation. The Industrial Commission granted TTD and backdated the award, making it effective for part of the period covered by the
 Contemporaneous Temporary Total and Permanent Partial (continued)
State ex. rel. Advantage Tank Lines v. Indus. Comm., 107 Ohio St. 3d 16

PPD award. The Supreme Court upheld the award on the basis that “permanent” is not defined the same way for both permanent partial and temporary total compensations. The court ruled that the injured worker’s condition may be permanent in that there will always be some degree of impairment and yet at the same time be temporary in that the condition will not always prevent the injured worker from returning to his former position of employment. The court ignored altogether the requirement of Ohio Revised Code 4123.57 that the PPD application cannot be filed until at least 40 weeks after the termination of TTD.