OAPFF GENERAL COUNSEL HENRY ARNETT 1380 Dublin Rd Columbus, Ohio 43215

WORKER’S COMP LAY REPRESENTATION - SAFE AGAIN

Workers’ compensation claimants and the union officials who often represent them should be relieved to know that the Ohio Supreme Court has reaffirmed the right of non-lawyers to represent individuals in connection with their workers’ compensation claims.  The Court has ruled that non-lawyers can represent parties before the Bureau of Workers’ Compensation and Industrial Commission of Ohio without violating the State’s prohibition on the unauthorized practice of law.

The case before the Supreme Court started in 2002, when the Cleveland Bar Association filed a complaint against an actuarial firm (CompManagement, Inc.) alleging that employees of that firm, who were non-lawyers, were engaging in the unauthorized practice of law by representing employers at hearings and in connection with workers’ compensation issues.  In May, 2004, the Board of Commissioners on the Unauthorized Practice of Law issued a final report, recommending that the Supreme Court find that employees of the actuarial firm had indeed engaged in the unauthorized practice of law and that the Court issue an order prohibiting them from representing clients in the workers’ compensation system.

That recommendation immediately caused the Industrial Commission to postpone hearings in a large number of cases, since in approximately 70% of its cases one or even both parties are represented by lay representatives.  In fact, by far the majority of clients (employers and claimants) have non-lawyer representatives in connection with their workers’ compensation dealings.  As an example, the Bureau of Workers’ Compensation indicated that in 2003 there were more than 12,000 active claims in which the employee was represented by a union representative.  Eventually, the Industrial Commission relented and decided to continue to allow lay representatives to practice in the system while the recommendation of the Board was pending before the Supreme Court.

On December 15, 2004, the Supreme Court decided the case.  The Court acknowledged that “all representative conduct at the administrative level falls within the broad definition of the practice of law.”  However, the history of allowing non-lawyer representation and the many public policy concerns favoring lay representation led the Court to conclude that lay representatives should continue to perform certain functions before the Bureau and Industrial Commission, without being found in violation of the State’s restrictions on the unauthorized practice of law.