THE STATE EX REL. RUSSELL v. INDUSTRIAL COMMISSION OF OHIO ET AL.
No. 96-61
Supreme Court of Ohio
Submitted March 24, 1998—Decided August 5, 1998.
82 Ohio St.3d 516 | 1998-Ohio-212
IN MANDAMUS and PROHIBITION.
The appropriate date on which to terminate disputed temporary total disability compensation on the basis of maximum medical improvement is the date of the termination hearing, and the commission may not declare an overpayment for payments received by the claimant before that date.
{¶ 1} On August 13, 1992, relator-claimant, Herbert G. Russell, received an injury in the course of, and arising out of, his employment as a firefighter/paramedic with respondents, Coventry Township Trustees. Claimant‘s workers’ compensation claim was allowed for “lumbar strain,” and he received temporary total disability (“TTD“) compensation until May 8, 1994, when compensation was terminated upon a finding of permanence.
{¶ 2} On October 24, 1994, a district hearing officer allowed the claim for the condition of “dysthymia, DSM III secondary type,” and TTD compensation was resumed. Compensation continued to be paid based on the reports of claimant‘s treating physician, James L. Helmuth, Ph.D., who opined that claimant had not reached maximum medical improvement (“MMI“) and remained temporarily and totally disabled.
{¶ 4} On July 24, 1995, a district hearing officer heard the matter and ordered as follows:
“The District Hearing Officer finds, based on [the] report of Dr. Gilbertson, that claimant reached maximum medical improvement as of 3-23-95, the date on which Dr. Gilbertson performed a medical examination or medical review of the claimant.
“The District Hearing Officer further finds that the claimant‘s temporary total disability compensation shall be and is hereby terminated as of 3-23-95, the date of the medical examination or medical review.
“The District Hearing Officer defers ruling on the issue of overpayment and recoupment under
4123.511(J) O.R.C. pending the final disposition of the Motion to Show Cause in State, ex rel. Crabtree v. Bureau of Workers’ Compensation.“The determination of termination of temporary total disability compensation by reason of maximum medical improvement is a final order. However, the issue of overpayment and recoupability of overpayment is not a final order.”
{¶ 5} This order was administratively affirmed.
{¶ 6} In identical orders dated December 18, 1995 and February 19, 1996, an overpayment was declared. These orders read:
“Pursuant to * * * State of Ohio ex rel. Roger D. Crabtree, Relator v. Ohio Bureau of Workers’ Compensation * * * and pursuant to Resolution No. R95-1-14 * * * which * * * reinstated in toto Resolution No. R95-1-02, this Hearing Officer finds an overpayment of temporary total disability compensation in this case.
“This order is a final administrative order, and is therefore not appealable or subject to reconsideration.”
{¶ 7} This cause is now before the court as an original action in mandamus and prohibition.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, for relator.
Maureen O‘Connor, Summit County Prosecuting Attorney, and James W. Armstrong, Assistant Prosecuting Attorney, for respondents Coventry Township Trustees.
Betty D. Montgomery, Attorney General, Dennis L. Hufstader and William A. Thorman III, Assistant Attorneys General, for respondents Industrial Commission and Bureau of Workers’ Compensation.
Scott, Scriven & Wahoff, William J. Wahoff, Richard Goldberg and Timothy E. Cowans, urging denial of the writs for amicus curiae, Ohio Council of Retail Merchants.
Bricker & Eckler, Charles D. Smith and Elizabeth A. Preston, urging denial of the writs for amici curiae, Ohio Chapter of the National Federation of Independent Business and Ohio Farm Bureau Federation.
Millisor & Nobil and Preston J. Garvin, urging denial of the writs for amicus curiae, Ohio Chamber of Commerce.
Squire, Sanders & Dempsey, Steven M. Loewengart and Michael Soto, urging denial of the writs for amicus curiae, Council of Smaller Enterprises.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, urging issuance of the writs for amicus curiae, Ohio AFL-CIO.
Gallon & Takacs Co., L.P.A., and Theodore A. Bowman, urging issuance of the writs for amicus curiae, Ohio Academy of Trial Lawyers.
ALICE ROBIE RESNICK, J.
{¶ 8} At issue is Resolution R95-1-02, adopted by the commission on February 9, 1995 and applied in this case, which directs commission hearing officers to terminate TTD compensation as of the date MMI was diagnosed by the nonattending physician, and to declare an overpayment for any compensation paid subsequent to that date. For the reasons that follow, this resolution cannot stand. We hold 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 payments received by the claimant before that date.
{¶ 9} This court has unwaveringly held (1) that continuing TTD compensation may not be terminated prior to a hearing before a commission hearing officer so long as claimant‘s attending physician continues to certify TTD, (2) that the hearing officer may not terminate the claimant‘s TTD retroactive to a date prior to the date of the hearing, (3) that claimant is entitled to all compensation paid to the date of the hearing, and (4) that any eventual discounting of the attending
{¶ 10} In its effort to defend Resolution R95-1-02, the commission attempts to distinguish the above-cited cases, most notably AT & T and McGinnis. The commission argues that our decision in AT & T did not address the issue of the termination date for TTD benefits due to MMI, and does not preclude it from establishing the termination date as the date MMI was diagnosed by the nonattending physician. We cannot fathom how the commission could reach such a conclusion.
{¶ 11} In MTD Products, we specifically explained that “in AT & T, we held that pursuant to former
{¶ 12} The commission also argues that although this court in McGinnis “did examine the issue of the effect of denying an award before the hearing date, * * * McGinnis [was decided under] former
{¶ 13} In deference to the commission, we will construe this argument as not being limited to McGinnis, since even without McGinnis, AT & T and MTD Products would still invalidate Resolution R95-1-02. However, of the six cases cited above, all except Crabtree (which the commission would distinguish) were decided under former
{¶ 14} The problem with the commission‘s argument, however, is that it assumes too much. No relevant change in the law has been effected by these provisions that would call into question the continuing vitality of our previous decisions. While the August 22, 1986 amendments to former
{¶ 15} As early as 1982, we construed former
{¶ 16}
{¶ 17} In this case, claimant was receiving ongoing TTD compensation pursuant to a prior order, and continued to submit proof of TTD from his attending physician. This fulfills all conditions precedent to the payment of compensation and establishes claimant‘s entitlement to all payments at the time they were received, despite the existence of contrary evidence. MTD Products, 76 Ohio St.3d at 595, 669 N.E.2d at 848; Crabtree, 71 Ohio St.3d at 508, 644 N.E.2d at 365; AT & T, 68 Ohio St.3d at 57-58, 623 N.E.2d at 65; Jeep Corp., 62 Ohio St.3d at 66, 577 N.E.2d at 1097; McGinnis, 58 Ohio St.3d at 83, 568 N.E.2d at 667. A termination order does not negate the previous order pursuant to which compensation has been paid; it does not, and could not, change the eligibility requirements for the payment of compensation. Simply put, this is not a situation to which
{¶ 18} The dissent argues that “[t]he language of
{¶ 19} This language relates to the issue of unilateral termination and applies “only when there is no dispute as to whether the employee has reached maximum medical improvement.” Crabtree, 71 Ohio St.3d at 509-510, 644 N.E.2d at 366. Otherwise, “payments shall be for a duration based upon the medical reports of the attending physician. If the employer disputes the attending physician‘s report, payments may be terminated only upon application and hearing by a district hearing officer * * *.”
{¶ 20} The dissent also argues that
{¶ 21} The claimant is entitled to continuing TTD payments until they are terminated at hearing precisely because he has fulfilled the eligibility requirements. “[T]he bureau must pay TTD compensation if all conditions precedent are met. Thus, if the commission order makes payment contingent on proof of disability and the claimant tenders such evidence, the bureau must continue compensation regardless of the existence of contrary evidence.” (Emphasis sic.) Crabtree, 71 Ohio St.3d at 508, 644 N.E.2d at 365. In this case, TTD compensation was previously awarded and the claimant continued to offer proof of TTD from his attending physician. This fulfills all the “eligibility criteria” for the payment of compensation and establishes claimant‘s entitlement to all payments received.
{¶ 22} However, the dissent argues that although the claimant may have been “eligible to receive payments” made after the date of the nonattending physician‘s report,
{¶ 24} According to the dissent, the court in McGinnis “relied on the standard articulated in State ex rel. Martin v. Connor (1984), 9 Ohio St.3d 213, 9 OBR 523, 459 N.E.2d 889.” In Martin, the court compared Indus. Comm. v. Dell (1922), 104 Ohio St. 389, 135 N.E. 669, with State ex rel. Weimer v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16 O.O.3d 174, 404 N.E.2d 149, and essentially concluded that payments made under a mistake of fact cannot be recouped where the parties had a good faith belief that claimant was entitled to the payments at the time they were made. Id., 9 Ohio St.3d at 214, 9 OBR at 525, 459 N.E.2d at 891. The dissent argues that because Dell was not a recoupment case, Martin was wrongly decided, and that “in applying Martin, McGinnis only perpetuated an earlier standard that is legally unsound and fiscally untenable.”
{¶ 25} In the first place, it is pure fantasy to suggest that we have relied “on a single case—State ex rel. McGinnis.” Indeed, as we stated above, “[i]n deference to the commission, we will construe this argument as not being limited to McGinnis, since even without McGinnis, AT & T and MTD Products would still invalidate Resolution R95-1-02.” Thus, even if the dissent‘s attack on McGinnis had merit, it would not produce the result the dissent seeks.
{¶ 26} In any event, the dissent‘s argument, which has not been raised by the commission, the bureau, the claimant‘s employer, or any of their supporting amici, is entirely without merit. In McGinnis, claimant was receiving continuing TTD compensation based on the reports of his attending physician, who certified his inability to return to his former position of employment. Claimant‘s employer filed a motion to terminate, which was granted on January 18, 1984. In the order,
{¶ 27} In arguing the merits of its recoupment request, the employer in McGinnis relied heavily on State ex rel. DeLong v. Indus. Comm. (1988), 40 Ohio St.3d 345, 533 N.E.2d 729. In DeLong, an employer appealed a district hearing officer‘s award of TTD compensation. Pursuant to former
{¶ 28} In McGinnis, we rejected the employer‘s recoupment request, finding its reliance on DeLong to be misplaced. We held that pursuant to former
{¶ 29} However, in distinguishing DeLong and Weimer, we did not rely on the standard articulated in Martin. Martin is nowhere cited in the majority opinion in McGinnis, and at no time did we attempt to justify McGinnis‘s entitlement to TTD compensation on the basis of such a standard. We did not make a determination that McGinnis‘s compensation payments were made under a mistake
{¶ 30} Since, like McGinnis, the instant case has nothing whatsoever to do with the recoupability of payments made under a mistake of fact, there is no reason to revisit Martin. However, our refusal to defend Martin and its progeny is based solely on the fact that those cases are irrelevant under the present circumstances, and should in no way be construed as casting doubt on Martin‘s continued viability.
{¶ 31} Since Resolution R95-1-02 was passed without statutory authority, and since claimant has a clear legal right to those funds that the commission has declared an overpayment, the writs of mandamus and prohibition are hereby granted.
Writs granted.
DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.
LUNDBERG STRATTON, J., concurs separately.
MOYER, C.J., and COOK, J., dissent.
THE STATE EX REL. RUSSELL v. INDUSTRIAL COMMISSION OF OHIO ET AL.
No. 96-61
Supreme Court of Ohio
August 5, 1998
LUNDBERG STRATTON, J., concurring.
{¶ 32} There are four situations where temporary total disability compensation is terminated. It is not payable when the claimant (1) has returned to work, (2) is medically able to return to the former position of employment, (3) has declined suitable alternate employment, or (4) has attained permanency of the disability.
{¶ 33} The majority‘s conclusion does not appear to apply to the claimant who satisfies any one of the first three categories that terminate a claimant‘s right to TTD compensation, or when there is uncontested evidence that the claimant has reached MMI. In those instances, TTD is no longer payable on the date that the claimant has indisputably reached MMI and recoupment of overpayment is available from the undisputed date of termination.
{¶ 34} However, in situations where there is conflicting evidence as to whether or when MMI has been attained, the existence of a conflicting report from a nonattending physician is merely evidence to present at the hearing. AT & T Technologies, Inc. v. Indus. Comm. (1993), 68 Ohio St.3d 55, 58, 623 N.E.2d 63, 65. The purpose of the administrative hearing is to determine, based upon the conflicting reports, whether the claimant has reached MMI. Until the issue is resolved, the claimant remains entitled to receive TTD compensation pursuant to the existing order so long as the claimant‘s attending physician provides medical certification of the continuing disability. Thus, I concur with the majority‘s holding that payment of TTD should terminate on the date of the hearing resolving the dispute, not the date offered in the conflicting medical report. Under this scenario, recoupment of overpayments is not at issue because, until the termination order is issued, the claimant has met all the conditions of, and is entitled to, the TTD compensation.
{¶ 35} Therefore, to the extent that the majority‘s opinion strikes a fair balance between the rights of the injured worker and the rights of the employer, I concur.
THE STATE EX REL. RUSSELL v. INDUSTRIAL COMMISSION OF OHIO ET AL.
No. 96-61
Supreme Court of Ohio
August 5, 1998
{¶ 36} The majority opinion effectively permits the retention of temporary total disability (“TTD“) compensation by claimants who are not temporarily and totally disabled. I therefore respectfully dissent.
{¶ 37} The language of
“[P]ayments shall be for a duration based upon the medical reports of the attending 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 the period in which any employee has * * * reached the maximum medical improvement.” (Emphasis added.)
{¶ 38} The recoupment provisions of
{¶ 39} The majority relies upon a single case—State ex rel. McGinnis v. Indus. Comm. (1991), 58 Ohio St.3d 81, 568 N.E.2d 665, a case which we ought to reconsider because the cases it relies upon do not justify the decision. In McGinnis, claimant‘s ongoing TTD compensation was challenged by his employer, which alleged that as of September 30, 1982, claimant could return to his former position
{¶ 40} The court of appeals found that the commission abused its discretion in assessing an overpayment, and this court affirmed. This court relied on the standard articulated in State ex rel. Martin v. Connor (1984), 9 Ohio St.3d 213, 9 OBR 523, 459 N.E.2d 889. There, the court ruled that compensation could be recouped from a claimant only where (1) subsequent information revealed the claimant was not entitled to the money, and (2) the parties believed at the time of payment that the claimant was not so entitled.
{¶ 41} In applying Martin, McGinnis reasoned that
{¶ 42} Martin involved Disabled Workers’ Relief Fund (“DWRF“) benefits to a claimant from 1976 to 1981. Because the DWRF amount was tied to the amount of disability Social Security benefits (“DSS“) received, a subsequent discovery of DSS underpayment meant that DWRF had been overpaid. Efforts by the Bureau of Workers’ Compensation to recover the overpayment via compensation offset were opposed in mandamus.
{¶ 43} This court permitted the claimant to keep the nine thousand dollar overpayment. To do so, however, it was necessary to distinguish State ex rel. Weimer v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16 O.O.3d 174, 404 N.E.2d 149, which four years earlier had upheld the commission‘s recovery of an overpayment generated by clerical error.
{¶ 44} Martin compared Weimer with an even earlier case—Indus. Comm. v. Dell (1922), 104 Ohio St. 389, 135 N.E. 669. Martin stated that the difference between Weimer and Dell was the parties’ good faith belief in compensation entitlement when payment occurred. Martin held that neither the bureau nor the claimant in Weimer could have legitimately believed that claimant was entitled to the overpaid amount, even when made. Martin, therefore, relied on Dell—a case which, according to the Martin majority, prohibited recoupment from one with an initial good faith belief in compensation entitlement.
{¶ 45} The problem is that Dell said no such thing. Dell was a continuing jurisdiction case, not a recoupment case. Dell involved the receipt of death benefits by a widow whose decedent also had an undisclosed and undivorced first wife. Dell addressed the commission‘s continuing jurisdiction to reopen the issue of benefit eligibility and stop payments to the second woman. Dell never discussed the status of payments already made and never stated—expressly or impliedly—that the second wife could keep the money. To the contrary, this passage from Dell suggests the opposite:
“The commission should be held to have inherent power to prevent the misappropriation or the misapplication of the insurance fund to claimants who are afterwards found not to be entitled thereto. The state insurance fund is in the nature of a trust fund and it is the duty of the commission to impartially distribute the same among persons entitled thereto and not permit the fund to be depleted or become the object of fraud or imposition, and it being clearly their moral and legal duty to correct any mistake or fraud or imposition which will result in a misapplication or a misappropriation of any part of the fund the law should not be so construed, even in case of the ambiguity, neither should the legislature be held to have intended to enact any provisions which would hamper in any manner or interfere with the
members of the commission in their efforts to properly protect the fund.” Id. at 396-397, 135 N.E. at 672.
{¶ 46} In attempting to equate Weimer and Dell, Martin created a recoupment standard that lacks legal foundation. This, in turn, discredits McGinnis‘s premise. Equally important, Dell embodies a pivotal question, that is, why a claimant who is not temporarily and totally disabled can be permitted to retain TTD benefits?
{¶ 47} The majority‘s decision disregards three workers’ compensation tenets: Dell‘s prohibition against fund misapplication; the prohibition against claimant windfalls pronounced in State ex rel. Wireman v. Indus. Comm. (1990), 49 Ohio St.3d 286, 551 N.E.2d 1265; and the “some evidence” rule. In addition, it essentially renders meaningless the prerequisites to TTD compensation set down in State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586.
{¶ 48} For the reasons stated above, I would deny the writs of mandamus and prohibition.
MOYER, C.J., concurs in the foregoing dissenting opinion.