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Temporary Total Disability: Always Total, Seldom Temporary
When Ohio’s Legislature designed the workers’ compensation system, its goal was to protect injured workers in a manner which was expedient and fair to both workers and their employers. Prior to the codification of the law, a workplace injury could lead to a personal injury lawsuit and a potential large recovery by the injured worker. However, at the same time, employers were able to defend against such lawsuits by asserting the common law defenses of contributory negligence and assumption of the risk. A bargain was struck whereby injured workers gave up their right to pursue lawsuits (with the exception of an intentional tort) and employers gave up common law defenses, in exchange for the Industrial Commission hearing process and a set schedule of benefits. The goal of the Legislature was to provide a system for the recognition of legitimate injuries, provide benefits to those injured while they recuperated, pay appropriate medical expenses, and return the worker to employment at the earliest possible time.As this system evolved over the years, and as injured workers more frequently retained counsel to present their claims, many of the original goals of the Legislature were lost. Originally, lawyer compensation was a percentage of temporary total disability (this is no longer the case, except for accrued amounts) and permanent partial disability benefits received. In order to maximize dollars for their clients and themselves, it was always beneficial for the attorney to keep the injured worker off work and receiving "temporary" total disability benefits for as long as possible. It was also beneficial to expand the allowed conditions in a claim so that a greater permanent partial disability award could be generated. Obviously, these two goals are diametrically opposed to the Legislature’s original goals.
Perhaps the biggest thorn in the side of Ohio employers has been and remains the payment of temporary total disability benefits. Those tax-free benefits (based upon the prior wage levels of the injured worker) are designed to compensate an injured worker during the period of recuperation until a return to work. The rules require that benefits commence after the seventh day of missed work and continue until the injured worker returns. After fourteen continuous days of being off work, the first seven days are retroactively paid as well. Section 4123.56(A) of the Ohio Revised Code provides, in part:
Payments shall continue pending the determination of the matter, however payment shall not be made for the period when any employee has returned to work, when an employee’s treating physician has made a written statement that the employee is capable of returning to the employee’s former position of employment, when work within the physical capabilities of the employee is made available by the employer or another employer, or when the employee has reached the maximum medical improvement.
The statute identifies four events every employer should keep in mind regarding the termination of ongoing temporary total disability benefits. The first one is clear: the benefits stop when the employee has returned to his regular job. The second event is also clear: an employer is not liable for continued benefits if it has received a written statement from the treating physician that the employee is capable of returning to his former position of employment – whether or not he does. In those two instances, the employer can stop the payment of benefits unilaterally without a hearing before the Industrial Commission of Ohio. The third event, when work within the physical capabilities of the employee is made available, may be a bit more problematic. The best way for an employer to seek a termination of benefits in that instance is to secure written restrictions from the physician of record, provide or create a specific job within those restrictions, share the job information with the treating physician, and have him "sign off" on the return to work. If an employer takes these steps and yet the injured worker refuses to return after being given a good faith written job offer, a motion should be filed with the Industrial Commission seeking termination of benefits. A hearing officer will then have to determine if the employer has complied with Section 4123.56(A).
The last event, a finding of maximum medical improvement, could or could not lead to a hearing. If the treating physician provides the employer with written documentation that the claimant has reached maximum medical improvement, benefits can be unilaterally terminated. Maximum medical improvement has been defined as "a treatment plateau (static or well-stabilized) at which no fundamental functional or physiological change can be expected within reasonable medical probability in spite of continuing medical or rehabilitative procedures." All this really means is that the injured worker has reached a level where his condition is no longer expected to improve and he is, therefore, no longer temporarily disabled. An injured worker can attain that plateau and continue to receive medical treatment but is no longer entitled to ongoing benefits. Should an employer obtain a statement of maximum medical improvement from its physician after an independent medical evaluation, it cannot unilaterally stop benefits, but must file a motion, request a hearing, and have a hearing officer make that decision.
The fact that temporary total disability benefits may be stopped for any of the above referenced reasons does not mean the injured worker is foreclosed from future temporary total disability. The injured worker may be able to demonstrate "new and changed circumstances" such as a subsequent surgery for the allowed condition in his claim, leading to a period of recuperation and an additional period of temporary total disability.
Employers should always keep in mind these four events which terminate ongoing benefits. Employers should also be on watch for conduct solely designed to keep the injured worker off work and receiving benefits. Examples include changing the physician of record after the injured worker receives a report adverse to his continuing temporary total disability benefits or seeking a psychological allowance after temporary total disability is terminated for the underlying physical condition. These are popular "ploys" utilized by certain attorneys. Other conduct includes injured workers deliberately delaying necessary treatment and/or rehabilitation for the sole purpose of staying temporarily totally disabled.
Please feel free to contact Mike Reidy or any of the experienced workers’ compensation attorneys at RBS with questions concerning "temporary" total disability compensation and termination of the same. Also, please note Carol Strassman’s article in this edition of the newsletter for additional information on temporary total disability.