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Monday, December 16, 2024
To borrow a line from Mark Twain, Employers will be excited to hear that “voluntary abandonment” is not dead.
Since the advent of ORC 4123.56 (September 23, 2022) the statute governing the payment of temporary total compensation, Injured Workers’ counsel has seized on this language in the statute:
It is the intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section.
Repeatedly, Injured Workers’ counsels have argued at hearing that this language means that voluntary abandonment no longer exists as a defense. Instead, the only inquiry is whether the allowed conditions in the claim prevent the Injured Worker from performing his position of employment.
The Supreme Court has addressed this consideration in its November 26, 2024, decision, State ex rel. AutoZone Stores Inc. v. Indus. Comm., Slip Opinion No. 2024-Ohio-5519. In this case IW Schomaker had an allowed claim for various right arm and shoulder conditions for a date of injury of June 15, 2020. He returned to light duty until he had an altercation with a co-worker, and he was subsequently fired on September 5, 2020. After undergoing surgery on November 16, 2020, Schomaker requested temporary total compensation from the date of surgery and continuing. The SHO of the Industrial Commission granted temporary total compensation from the date of surgery and continuing based upon submission of the appropriate medical evidence.
The Employer filed an action in mandamus requesting that the SHO order be vacated based upon a misapplication of O.R.C. 4123.56(F). The Supreme Court addressed head on Schomaker’s contention that R.C. 4123.56(F) “specifically supersedes the doctrine of voluntary abandonment and prohibits” any test that would required a similar kind of analysis. Schomaker argued that there did not need to be an analysis of an employee’s reasons for not working in determining his entitlement to temporary total compensation. The Supreme Court disagreed stating that “superseding the voluntary -abandonment decisions under the third sentence of R.C. 4123.56 (F) does not eliminate the requirement of a causal relationship between the allowed injury and an actual loss of earnings.” Instead, the statute “replaces the voluntary -abandonment decisions with a “direct result” requirement, clarifying that the claimed loss of wages or inability to work must be directly caused by an “impairment arising from an injury” and not by “reasons unrelated to the allowed injury.”
The Supreme Court ruled that because he was not working at the time of his shoulder surgery on November 16, 2020, he was not entitled to receive temporary total compensation from the date of his shoulder surgery through the date of hearing. The Court reflected that the very purpose of temporary total compensation payments is to replace earnings lost while the allowed injury heals. As Schomaker, was not working at the time of his surgery, there were no wages to replace.
It is unclear what implications this will have at the hearing table and I suspect that this will follow the long tradition of the new O.R.C. 4123.56 which will produce mixed results at the Industrial Commission.
Practical Take-away:
When the issue is entitlement to temporary total compensation and the Injured Worker has been terminated, it will be important to have all necessary termination documentation, violation of policy prompting termination and employee acknowledgment.
Thursday, March 7, 2024
Since 1998, the Industrial Commission through R98-1-04 based upon State ex rel. Russell v. Indus. Comm. 82 Ohio St. 3d 516, 696 N.E. 1069(1998) has consistently ruled that when temporary total compensation is terminated based upon a finding of maximum medical improvement the appropriate termination date is the date of the termination hearing. Thereafter, Employers have the right to recoup any overpaid amounts paid after that date.
On March 6, 2024 the Supreme Court in State ex rel. Dillon v. Indus. Comm., Slip Opinion No. 2024-744 overturned Russell, ruling that pursuant to statute, an injured worker is not entitled to temporary total compensation between the time they are found to have reached maximum medical improvement and the date of the termination hearing.
Dillon, the injured worker, filed a mandamus action asserting that the overpayment caused by her temporary total compensation being terminated two months prior to the SHO hearing should be vacated. Dillon relied on Russell to argue that a finding of maximum medical improvement can only be made at the termination hearing.
The Court specifically noted that R.C. 4123.56(A) provides a prohibition on injured worker’s receiving payment after attaining maximum medical improvement. If TTD payments are made after the claimant reaches maximum medical improvement, then the claimant is not entitled to them.
Practical Application:
Under Dillon, Employers should be arguing termination of temporary total compensation as of the date of the report of maximum medical improvement. Payments of TTD through the date of the termination hearing would be subject to overpayment and recoupment provided by R.C. 4123.511(K). From a practical standpoint Dillon has insured that overpayments will likely be larger with the earlier termination date.
While it is impossible to know the practical effects of this case, it will arguably have an impact on termination of light duty and the subsequent payment of TTD. In relying on Dillon, it is conceivable that an MMI examination prior to termination of light duty would limit the subsequent request for temporary total compensation or have it denied in its entirety.
This again underscores the necessity of prompt extent of disability examinations to limit the length of temporary total compensation.
Not every workers’ compensation claim requires the help of an attorney. But if you need one, choose experience, reputation, and most importantly, someone who understands how you do business.
LL Patterson LLC is founded on the principle of providing clients with exceptional and results oriented service. The singular mission of LLP is to aggressively and exclusively protect Ohio Employers’ rights in workers’ compensation, OSHA, VSSR, and employment related issues. Whether you’re in the medical or healthcare industry, the construction field, education, the corporate world, or small business, the goal remains the same: to reach final closure of your workers’ compensation claim in as little time as possible while minimizing cost.
Lisa L. Patterson understands the complex intricacies of the Ohio workers’ comp system and has sixteen years experience working with this very specific and sensitive form of law. A seasoned Ohio employers’ advocate, she will work to ensure that all parties’ claims are fairly and efficiently executed to protect your interests and assets.
