Lead Opinion
Two issues are presented: (1) Did claimant have an adequate remedy at law via an R.C. 4123.519 appeal? and, if not, (2) May appellant recoup temporary total compensation paid from September 30, 1982 by deducting it from claimant’s future compеnsation? We answer “no” to both questions.
R.C. 4123.519 provided, at the time relevant herein, in part:
“The claimant or the employer may appeal a decision of the industrial commission * * *, other than a decision as to the extent of disability, to the court of common pleas * * *.” (Emphasis added.)
“* * * [W]ithin thirty days after the filing of the notice of appeal, file a petition containing a statement of facts * * * showing a cause of action to participate or to continue to participate in the fund * * *.”
Appellant maintains that the relevant issue here does not involve extent of disability and is therefore appеalable. We disagree.
In Miraglia v. B.F. Goodrich Co. (1980),
“ ‘* * * For the purpose of appeal under R.C. 4123.519, the question of allowance or rejection of these various claims is, by the terms of R.C. 4123.519, appealable * * *. Once finally allowed, however, the question involving the computation of monetary payment therefor is one as to “extent of disability.” * * *’ ” Id. at 130-131, 15 O.O. 3d at 164,399 N.E. 2d at 1236 , citing Zavatsky v. Stringer (1978),56 Ohio St. 2d 386 , 403, 10 O.O. 3d 503, 513,384 N.E. 2d 693 , 703.
We thus concluded:
“In the instant cause, the question concerns the extent of participation, since Miraglia’s right to participate in the Workers’ Compensation Fund has already been determined. Mandamus is the appropriate procedure to detеrmine whether Goodrich can offset the benefits given to Miraglia under R.C. 4123.56. Accordingly, the question as presented does not fall within the purview of R.C. 4123.519, and, therefore, it is not appealable to the Court of Common Pleas.” Miraglia, supra, at 181, 15 O.O. 3d at 165,399 N.E. 2d at 1237 .
Our application of Miraglia herein nullifies appellant’s reliance on State, ex rel. O.M. Scott & Sons Co., v. Indus. Comm. (1986),
We also decline to apply State, ex rel. Weimer, v. Indus. Comm. (1980),
Turning to the merits of appellant’s recoupment request, appellant relies heavily on State, ex rel. DeLong, v. Indus. Comm. (1988),
In DeLong, an employer appealed a district hearing officer’s award of temporary tоtal disability compensation. That appeal, under R.C. 4123.515, stayed the payment of compensation pending a regional board hearing. The self-insured employer, however, mistakenly paid compensation during the pendency of that hearing. After discоvering its error, the employer sought to offset the tern
Our analysis focused on the “ ‘determinаtion of the recipient’s entitlement’ * * * at the time payments were made.” (Citation omitted.) (Emphasis sic.) Id. at 347,
In the present case, R.C. 4123.56 provided:
“In the case of an employer who has elected to pay [temporary total] compensation direct, payments shall be for a duration based upon the medical reports of the аttending physician. If the employer disputes the attending physician’s report, payments may be terminated only upon application and hearing by a district hearing officer. Payments shall continue pending the determination of the matter, however, payment shall not be made for such period when any employee has returned to work or when an employee’s treating physician has made a written statement that the employee is capable of returning to his former position of employment.”
Thus, so lоng as claimant’s physician did not release him to return to his former position, appellant was statutorily required to pay temporary, total disability compensation until a commission hearing officer held otherwise. This eventually occurred on January 18, 1984. In view of appellant’s duty, claimant was entitled to the funds. DeLong and Weimer are thus distinguishable.
Moreover, the subsequent discounting of Dr. Glorioso’s reports by the commission, upon which reports temporary total disability compensation over the relevant period was based, does not transform R.C. 4123.56’s mandated payments into a recoupable overpayment. In State, ex ret. Eaton Corp., v. Lancaster (1988),
We reasoned that under R.C. 4123.515, once compensation was orderеd by the regional board, the employer was required to continue payment, regardless of appeal, until the award was terminated by an administrative order. We concluded:
“This section [R.C. 4123.515] provides that once compensation has been awarded at an administrative hearing level higher than that of district hearing officér, a self-insured employer must pay same. Thus, upon receipt of such an order, the claimant is entitled to those funds. Such is the case here, where Eaton was ordered to pay comрensation by either staff hearing officers or a regional board. Thus, regardless of the disagreement here, Eaton was required to pay compensation and claimants were entitled to its receipt.” Id. at 410,534 N.E. 2d at 53 .
In light of R.C. 4123.56 and the reasoning set forth in Eaton, the court of appeals correctly determined the claimant’s entitlement to the temporary total disability compensation and consequent absence of overpayment. We thus find that appellant’s re
Accordingly, the appellate court’s judgment is affirmed.
Judgment affirmed.
Dissenting Opinion
I concur in the majority’s opinion which determines that the claimant, Michael R. McGinnis, does not have an adequate remedy at law. See Miraglia v. B.F. Goodrich Co. (1980),
The salient facts in this case are that the claimant was receiving compensation based on reports frоm his doctor, who certified claimant’s inability to return to his former position of employment. Subsequently, upon a motion by appellant, a commission district hearing officer determined that claimant’s doctor had considered nonallowed conditions and, for that reason and others, the hearing officer terminated temporary total compensation as of September 30, 1982. The district hearing officer’s order included the following findings and determinations:
“* * * An independent orthopedic specialist, F. B. Hawkins, M.D., indicates ‘The changes present in the thoracic spine and cervical spine, in my opinion, are not compensatory but are simply pre-existing changes in the spine. * * *’ [Emphasis sic.]
“GRANT employer’s motion filed 2-22-83 requesting termination of temporary total disability compensation effectivе 9-30-82 as Dr. J. B. Webster indicates that as of the date of his exam on 9-30-82 claimant ‘is eligible to participate in unrestricted employment.’ * * *11
Thus, as of September 30, 1982, employee was fully able to return to employment and his former employer was entitled to discontinuе temporary total disability compensation. Consequently, any funds disbursed by or on behalf of the employer to the claimant beyond September 30,1982 were purely an overpayment. The district hearing officer's termination order was administratively affirmed.
Next, employer sought and received an offset of the overpayment against any future awards granted to the claimant by the Industrial Commission. The refusal of both the court of appeals and this court to allow employer’s recoupment of funds paid
The majority relies on State, ex rel. Eaton Corp., v. Lancaster (1988),
In State, ex rel. Ramirez, v. Indus. Comm. (1982),
“ ‘An employee is entitled to be paid temporary total disability when injured and unable to work until one of the following three things occur[s]: (1) he has rеturned to work, (2) his treating physician has made a written statement that he is capable of returning to his former position of employment, or (3) the temporary disability has become permanent.’ ” In logically interpreting the criteria set forth in Ramirez, it is evident that where а commission finds that a treating physician has erroneously permitted a claimant to remain ineligible to return to work and such claimant is deemed “eligible to participate in unrestricted employment,” the claimant’s rights to compensation are cut оff as of the date the claimant is determined to be able to return to employment.
In a case analogous to the one at bar, this court permitted recoupment of payments based on a mistake of fact. State, ex rel. DeLong, v. Indus. Comm. (1988),
Accordingly, for the foregoing reasons I dissent, since I would reverse the judgment of the court of appeals.
Notes
In his ordеr, the district hearing officer rendered a specific factual finding with respect to the quality of the medical report of claimant’s attending physician, Dr. Glorioso, by stating:
“The attending physician’s estimation of temporary total disability must be discounted at the present time, as he considers several conditions which have not been formally recognized in this claim. This period of disability may be subsequently readjusted if claimant secures the formal additional allowance of said conditions in his claim.” (Emphasis sic.)
The majority, in its haste to allow the claimant to retain his compensation, neglects the fact that the district hearing officer terminated benefits on January 18, 1984; therefore, under the majority’s own analysis the employer was entitled to recoup its overpayments from January 18, 1984 through February 7, 1984. The majority opinion reads:
“* * * [AJppellant was statutorily required to pay temporary total disability compensation until a commission hearing officer held otherwise. This eventually occurred on January 18, 1984. * * *”
Thus, the employer mistakenly compensated the claimant from January 18, 1984 to February 7, 1984 and, therefore, the employer is entitled to/recoup at least these funds under our- analysis in State, ex rel. Martin, v. Connor (1984),