“THE DEATH OF VOLUNTARY ABANDONMENT HAS BEEN GREATLY “EXAGGERATED.”
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.
OHIO SUPREME COURT OVERRULES RUSSELL V. INDUS. COMM.
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.
Lisa Patterson: Super Lawyer 2024
Lisa Patterson has once again been selected as Super Lawyer for the year of 2024. Lisa has been selected as a Super Lawyer every year from 2013-2024. She joins a select group of only 5% of the top attorneys who have attained a high-degree of peer recognition and professional achievement in their field.
Congratulations Lisa!
Where is the winning for Employers in Ohio workers’ compensation?
ANSWER: For an Employer, having a worker injured on the job is an immediate loss to both the Injured Worker and the Employer. The Employers I represent are not in the business to injure workers, and understand that when the system is working as it is intended the Injured worker receives the treatment they require, they heal and they return to work.
QUESTION: But what about those contested claims?
ANSWER: As an attorney, I have one job when involved in a claim:
1) get it denied, 2) get it settled and 3) get it closed.
My focus is always bringing a claim to its conclusion quickly. The longer the claim continues, the more treatment, the more compensation, and more importantly the more litigation costs can result in an unmanageable claim. If an outright denial cannot be secured it’s important that defense strategies are put in place to limit treatment/compensation.
All attorneys get unfavorable decisions, but it’s a challenge to continue to work through one in a creative way to achieve the goal. The focus in defending workers’ compensation claims should not be on a single issue or single hearing, but on the projected mapping of the life of the claim; what happens between and after hearings is every bit as important as what takes place at the hearings.
Find an attorney that’s more focused on concluding the war, rather than winning the battle.
Legislative News: Senate Bill 106
Senate Bill 106 was introduced on April 11, 2023 for consideration. This Bill would add physicians and registered nurses as qualifying professions under the state’s existing law providing testing for first responders exposed to chemicals or bodily fluids who are provided “post-exposure medical diagnostic services, consistent with the standards of medical care existing at the time of the exposure, to investigate whether an injury or 16 occupational disease was sustained.”