The Ohio Supreme Court rejected a recommendation from the Board of Commissioners on the Unauthorized Practice of Law regarding activities performed by third-party administrators on behalf of employers in state workers’ compensation claim proceedings.
On Dec. 14, 2004, the court held that nonlawyers who assist and represent employers at hearings held before the Industrial Commission of Ohio are not engaged in the unauthorized practice of law if their activities conform to guidelines adopted by the ICO in response to this case.
Cleveland Bar Association v. Compmanagement Inc. was originally filed in 2002 with the Board of Commissioners on the Unauthorized Practice of Law and asserted that Compmanagement Inc. and some of its employees engaged in the unauthorized practice of law at adjudicatory hearings on disputed workers’ compensation issues held before the ICO.
The board reviewed the complaint and in May 2004 filed its report with the court, finding that one of the named employees had engaged in the unauthorized practice of law. After the board’s report was issued, there was widespread concern in Ohio that this case would affect other third-party administrators, businesses, labor unions and government across the state. The ICO went so far as to suspend workers’ compensation hearings statewide for a short period of time following the board’s report.
In response to the report, the ICO issued a resolution that set reasonable standards for attorneys, agents and representatives who practice before the Bureau of Workers’ Compensation and the ICO, and specifically addressed the activities that nonlawyers could perform in a claims proceeding.
According to the resolution, nonlawyers can investigate or assist employers with respect to a claim; assist an employer with claims administration, including the filing of claims and appeals; attend ICO hearings; complete and submit records and reports to the BWC or ICO; file protests within the BWC and appear at hearings on these protests; prepare reports to employers regarding claim information; and advise employer or injured workers to seek legal representation.
The resolution also identified activities that nonlawyers could not perform, such as examining or cross examining witnesses; making legal arguments; making or giving legal interpretation with respect to evidence submitted or file any pleading; commenting or giving opinions with respect the evidence, credibility of witnesses or legal significance of a claim; providing legal advice to injured workers or employers; giving or rendering legal opinions; and providing representation at a hearing without providing other services for a fee.
But the Ohio Supreme Court rejected the board’s report and held that nonlawyers could continue to handle workers’ compensation claims and it would not be considered the unauthorized practice of law as long as they complied with the ICO’s resolution. The court based its decision largely on public policy grounds indicating that ” … that there are multiple interests to consider in determining whether a particular legal activity is acceptably performed by nonlawyers. In this way, we can freely assume that all representative conduct at the administrative level falls within the broad definition of the practice of law, yet still authorize lay representatives to perform certain functions in the administrative setting when public interest so demands.”
Cleveland Bar Association v. Compmanagement Inc. sets forth a new era in workers’ compensation in Ohio in which nonlawyers can continue to represent employers within new standards set forth by the ICO and not be considered engaging in the unauthorized practice of law. It is important for employers to be aware of the limitations now imposed on nonlawyers when representing their interests in workers’ compensation claim disputes.
Cathryn R. Ensign is a partner with Brouse McDowell. Reach her at (216) 830-6830 or [email protected].
