The Supreme Court of Ohio has significantly expanded an employer’s ability to limit and recoup payment of temporary total disability compensation (TTD) after a finding of maximum medical improvement (MMI). In a narrow 4-3 decision, the Court held the Industrial Commission may consider a date prior to the date of hearing when determining MMI and terminating TTD. Additionally, the Court held that the Ohio Bureau of Workers’ Compensation (BWC) or a self-insuring employer shall recoup any TTD amount paid to an injured worker after the MMI date. State ex rel. Dillon v. Indus. Comm., Slip Opinion No. 2024-Ohio-744.
Until this recent decision, State ex rel. Russell v. Indus. Comm., 82 Ohio St.3d 516 (1998) was the controlling case law on termination of TTD. In Russell, the Court held that TTD must be paid through the date of the Industrial Commission hearing if there was conflicting medical evidence as to the injured worker’s MMI status and that compensation may not be terminated prior to hearing so long as the injured worker’s attending physician continued to certify TTD. However, the Supreme Court has now specifically overruled Russell and held that it was wrongly decided.
In State ex rel. Dillon, a DHO allowed the injured worker’s claim for one of several alleged conditions, denied the remaining conditions, and awarded TTD. The injured worker appealed the DHO order as to the denied conditions and received TTD for the allowed condition while awaiting the SHO hearing. Before the SHO hearing on the injured workers’ appeal, the employer obtained an independent medical examination (IME) that found the injured worker had reached MMI for the allowed condition. On appeal, the SHO affirmed the DHO order as to the conditions alleged, relied upon the IME to find MMI, and terminated TTD as of the date of the examination. Since the injured worker was paid TTD through the date of the SHO hearing, an overpayment resulted. The BWC issued an order to recoup the overpayment that was ultimately affirmed by the Industrial Commission.
Dillon sought mandamus relief, arguing the Industrial Commission abused its discretion by ordering the BWC to recoup the overpayment. The Supreme Court denied the relief and held that an injured worker is not entitled to receive TTD once they have reached MMI, regardless of when a formal termination hearing is held. Thus, the BWC or self-insuring employer, are entitled to recoup the amount of TTD paid to an injured worker for any period after they are deemed MMI. This decision removes the prohibition of retroactive termination of TTD previously applied to Industrial Commission adjudications.
This decision will have a significant impact on employers across the state. Going forward, employers may now argue for retroactive termination of temporary total disability and a finding of MMI based upon the date of an IME, rather than the date of the termination hearing. Additionally, if retroactive termination of TTD is granted, the BWC or self-insuring employer have the authority to declare an overpayment and recoup any compensation paid between the date of an MMI finding and the Industrial Commission hearing that terminates TTD. This should result in a substantial savings to employers.
If you have any questions regarding this decision, or any workers’ compensation matter, please contact any member of our Workers' Compensation Practice Group.
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