An Ohio appellate court recently held that the state’s Industrial Commission did not err when it suspended the claim of an injured worker based on his refusal to undergo psychological testing [State ex rel. Calhoun v. Industrial Comm’n of Ohio, 2019-Ohio-720, 2019 Ohio App. LEXIS 770 (Feb. 28, 2019)]. Noting that the claimant had objected to the testing based on a provision of the Industrial Commission’s medical examination manual which purportedly allowed claimant to refuse, the court stressed the issue was not whether the claimant had the right to refuse psychological testing. Rather, the question was whether claimant had good cause for such refusal under Ohio Rev. Code § 4123.651(C). The court concluded the claimant had failed to show such good cause and that his claim had appropriately been suspended.
In 2000, claimant sustained an industrial injury to his back. In April 2017, at his own request, claimant was examined by a psychologist, who diagnosed claimant as suffering from major depression. The psychologist indicated the depression was a direct and proximate result of his 2000 work injury. Psychological counseling was recommended. Citing the psychologist’s report, claimant moved that the claim be additionally allowed for the psychological condition.
The self-insured employer objected and scheduled claimant for examination by a second psychologist. Claimant appeared for the examination but, on the advice of his attorney, claimant refused psychological testing. Based on that refusal, the second psychologist was unable to complete the required report and the employer moved for suspension of the claim pursuant to Ohio Rev. Code § 4123.651.
At a hearing on the issue, counsel for the claimant argued that claimant had the right to decline taking significant portions of the psychological testing based on the Industrial Commission’s medical examination manual. The manual provides in pertinent part:
MMPI and Bender-Gestaldt are considered part of a psychological exam and are not billable. Injured Worker may decline testing, and if this is the case, note the refusal and base opinions on the available data.
The Commission determined that the manual was not binding on Bureau of Workers’ Compensation doctors or on the employer’s doctors. It entered an order suspending the claim.
Claimant May Refuse Examination, But Not Without Consequences
The appellate court stressed that the question before the court was not whether the claimant had the right to refuse psychological testing. Rather, the question was whether his refusal to subject himself to psychological testing by his employer’s examining physician constituted good cause under R.C. 4123.651(C), thereby preventing the suspension of his claim. The court concluded that it did not. Claimant had advanced no other argument for why he had good cause to refuse psychological testing by the employer’s doctor. Absent a showing of good cause, suspension of the claim was required during the period of refusal.