Can Employers Request the Retroactive Termination of TTD? The Supreme Court of Ohio Says Yes They Can!

On March 5, 2024, in State ex rel. Dillon v. Indus. Comm., Slip Opinion No. 2024-Ohio-744, the Supreme Court of Ohio overruled its prior authority in State ex rel. Russell v. Indus Comm., 82 Ohio St.3d 516 (1998), which has been the law of the land since 1998, holding that the Industrial Commission of Ohio (“ICO”) can find that a claimant has reached a level of maximum medical improvement (“MMI”) and terminate temporary total disability (“TTD”) on the date in which an independent medical exam (“IME”) physician renders a finding of MMI, prior to the date of a hearing. In addition, an employer can recoup the TTD paid to the claimant between the date of the physician’s MMI finding and the date of the ICO hearing. Prior to this decision, under the Russell case, TTD was required to be paid through the date of the ICO hearing if there was conflicting medical evidence as to the claimant’s MMI status and the claimant’s treating physician continued to certify TTD.

In Dillon, the claimant sustained a work-related injury on April 2, 2019 and the Bureau of Workers’ Compensation (“BWC”) allowed the claim for a lumbar strain/sprain. The Employer filed an appeal and the issue was heard before a district hearing officer (“DHO”) of the ICO who allowed the claim for lumbar strain/sprain, denied various additional conditions and awarded the payment of TTD. The claimant appealed the denial of the additional conditions and the employer obtained an IME which was performed on August 8, 2019. The IME doctor opined that claimant had reached a level of MMI. The claimant’s appeal was addressed by a staff hearing officer (“SHO”) at a hearing on October 28, 2019, who relied upon the employer’s IME to affirm the allowance of lumbar strain/sprain, deny the additional conditions, find that claimant had reached MMI and retroactively terminate TTD effective August 8, 2019, the date of the employer’s IME. The BWC sought recoupment of the TTD paid to claimant after the August 8, 2019 MMI finding. The BWC issued an overpayment order and the claimant filed an appeal to same. The issue proceeded to the ICO where the recoupment was deemed appropriate. The claimant filed an action in the Tenth District Court of Appeals, requesting a writ of mandamus to compel the ICO to vacate the order that declared an overpayment of TTD and to issue a new order dissolving the overpayment.  In support of her argument that recoupment was not warranted, Dillon relied on the Russell case which concluded that the appropriate date on which to terminate disputed TTD is the date of the ICO hearing, and the ICO may not declare an overpayment for TTD received by the claimant before that date. The Tenth District Court of Appeals denied the claimant’s writ of mandamus finding that the recoupment was proper under R.C. 4123.511 (K). The court reasoned that as Dillon’s request was for an initial period of TTD, it was distinguishable from the Russell case as that case involved the termination of ongoing TTD.

Upon appeal, the Supreme Court of Ohio went a step further by overruling the Russell decision finding that it was contradicted by the language contained in R.C. 4123.56(A) which provides that “payment shall not be made for the period when….the employee has reached the maximum medical improvement.” The court explained that if a claimant is paid TTD after being found to have reached MMI by a physician, then the claimant has received benefits to which they are not entitled under R.C. 4123.56 (A), and those benefits may be reimbursed as an overpayment pursuant to R.C. 4123.511 (K).

This decision should have a significant impact on employers throughout the state of Ohio, as there is typically a delay between the date of an IME and the date the issue of MMI is adjudicated at an ICO hearing. Under Dillon, employers can now request that the ICO retroactively terminate the claimant’s TTD based on the date of an IME, rather than the date of an MMI hearing.

 Moreover, the ICO will need to revise its policy relating to termination of TTD as set forth in Memo D2 of the Adjudications Before the Industrial Commission and IC Resolution 98-1-04 which rely upon Russell.

 Frantz Ward will keep you apprised of all developments related to this case. If you have any questions regarding this decision, or any other workers’ compensation matter, please feel free to contact Maris McNamara or any member of Frantz Ward’s Workers’ Compensation Practice Group.