On March 5, 2024, the Ohio Supreme Court issued a significant decision in State ex rel. Dillon v. Industrial Commission (Slip opinion No. 2024-Ohio-744) by ruling that any Temporary Total Disability Benefits (TTD) received by a claimant subsequent to achieving Maximum Medical Improvement (MMI) can be recouped by employers. While on its face this may not seem like a major change in the current law, this landmark decision overrules prior case law and sets the stage for potential widescale determination of overpayments in many Ohio Workers’ Compensation claims.
For almost 26 years, the termination of TTD by way of a finding of MMI was governed by the Supreme Court’s decision in State ex rel. Russell v. Indu. Comm., 82 Ohio Std.3d 516, (1998). In Russell, the Court determined that a claimant’s TTD benefits may not be terminated prior to a hearing before an Industrial Commission hearing officer so long as the claimant’s attending physician continues to certify TTD and that a hearing officer may not terminate a claimant’s TTD benefits retroactive to a date prior to the date of hearing. Moreover, the Russell Court further stated that a claimant is entitled to all compensation paid up to the date of
the hearing. The Russell Court then summarily concluded that “…the appropriate date on which to terminate disputed TTD compensation on the basis of maximum medical improvement is the date of the termination hearing and the commission may not declare an overpayment for the payments received by the claimant before that date.” Id at 519. This is no longer the case.
In Dillon, the Bureau of Workers’ Compensation (BWC) allowed Dillon’s claim for “lumbar strain.” On appeal, a district hearing officer once again allowed Dillon’s claim for only the “lumbar strain” but granted TTD compensation for that condition. Dillon subsequently appealed the denial of her additional requested conditions to the staff hearing officer (SHO) level, and her employer obtained an independent medical examination (IME). The employer’s IME concluded that Dillon had reached MMI as of August 8, 2019. The SHO hearing was held on October 28, 2019, at which time the SHO affirmed the disallowance of Dillon’s addition requests and also found Dillon to be MMI as of
August 8, 2019, the date of the employer’s IME. However, between August 8, 2019, and the time of the October 28, 2019, SHO hearing, Dillon had received TTD payments totaling $5,549.40. The BWC issued an Order attempting to recoup these funds. The Ohio Industrial Commission found that recoupment was appropriate, which gave rise to Dillon seeking a writ of mandamus from the Tenth District Court of Appeals. The court of appeals denied the writ, which gave rise to this matter before the Ohio Supreme Court.
The Ohio Supreme Court in Dillon denied the requested writ but took a de novo review of the issue since the court of appeals decision involved an issue of statutory interpretation. The Dillon Court concluded that claimants are not entitled to receive payments after attaining MMI pursuant to ORC 4123.56(A), and that if the claimant is not entitled to those payments, ORC 4123.511(K) requires that those payments be recouped. The Dillon Court concluded that the reasoning by the Russell Court ran counter to the plain language of those statutes and, therefore, overruled Russell.
So, where do we go from here? The practical effect of Dillon is that employers will now argue at hearings that a claimant should be determined MMI as of the date of the employer’s IME. Furthermore, since all IMEs relied upon at hearing predate the actual hearings themselves, it is safe to conclude that any and all claims where a claimant is found to be MMI will have a resulting overpayment determination – an overpayment that both the BWC in state-funded claims as well as self-insured employers will be quick to attempt to recover.
However, other areas of the workers’ compensation practice may be impacted as well. The timely scheduling of the Ohio Industrial Commission’s MMI hearings, the granting of a requested continuance of said hearings, the management of claims by both claimant’s and employer’s counsel, and the impact that these overpayments (and the timing of the overpayment determinations) may have on settlements are areas to watch as we all adjust to this new way of handling the timing of MMI issues.
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