As reported in prior e-mail alerts (5/21 and 5/28/04), the Board of Commissioners on the Unauthorized Practice of Law had issued a report to the Ohio Supreme Court recommending that the court find almost every activity a Workers’ Compensation Third Party Administrator (TPA) performs on behalf of an employer to be the unauthorized practice of law (Cleveland Bar Association v. CompManagement, Inc.). Yesterday, the court, largely on public policy grounds, rejected the board’s report in its entirety and held:
Nonlawyers who appear and practice in a representative capacity before the Industrial Commission and the Bureau of Workers’ Compensation in conformity to Industrial Commission Resolution No. R04-1-01 are not engaged in the unauthorized practice of law.
The key portion of the court’s decision is the reference to “...in conformity to Industrial Commission Resolution No. R04-1-01...” Given initial state-wide confusion and uncertainty as to the continued role of TPAs in the workers’ compensation system after the May 18, 2004 release of the board’s report, the commission updated its 1970s era “TPA conduct” rule with the referenced commission “Resolution No. 04-1-01” (6/2/04).
This resolution, now adopted as law by the Ohio Supreme Court, strictly limits what a TPA representative is allowed to do in a commission hearing room. For example, a TPA representative may not make any legal argument, present any witnesses, nor cross-examine a claimant or other witnesses. While the resolution (unlike the board’s recommendation) does allow TPAs to continue to process routine paperwork, including appeals and settlements, the resolution prohibits TPAs from preparing and filing legal memoranda or letters with the commission (such as in support of an appeal).
The TPA defendants in the CompManagement case are not entirely let “off the hook” in the court’s decision. The court remanded the case back to the board to determine whether, as would appear likely, any of the TPA activities complained about in the board’s report violated the new TPA conduct standards. Penalties and sanctions are thus still possible against the TPA CompManagement defendants.
