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.