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The Ohio Supreme Court ends “TTD gamesmanship” in a win for Employers, holds MMI is effective the date of exam
On March 4, 2024, in a 4-3 decision, the Ohio Supreme Court announced in State ex rel. Dillon v. Indus. Comm’n of Ohio that temporary total disability (“TTD”) compensation can be terminated effective on the date of the medical examination rather than on the date of the Industrial Commission hearing. This holding overrules the 25-year precedent that was established in State ex rel. Russell v Indus. Comm.
In order to stop disability payments, a commonly used mechanism by employers is the MMI method. The BWC or the employer schedule claimant for an independent medical examination (“IME”) on maximum medical improvement (“MMI”). If the IME doctor concludes that the claimant has reached MMI, the employer files a motion with the Industrial Commission and requests a hearing to terminate TTD. Previously under Russell if the Industrial Commission relied on the IME and terminated TTD, the termination date was the date of the hearing rather than the date of the exam, which very often occurred months prior to the hearing date. This result created a windfall where the claimant would receive months’ worth of TTD beyond the date of the IME report.
This dynamic allowed for “gamesmanship” whereby claimants who knew a motion to terminate TTD was pending, would try to delay the Industrial Commission hearing as long as possible to extend the period they might receive TTD. The Dillon decision holds that any TTD paid between the date of the exam and the date of the hearing to terminate TTD, is overpaid and the BWC or the self-insured employer may recoup that overpayment pursuant to R.C. 4123.511(K). This will drastically alter the playing field and the result should encourage all parties to want a hearing as soon as possible in order to avoid the possibility of creating large overpayments and recoupments.
In order to comply with Dillon the Industrial Commission will need to revise its policies regarding termination of TTD in IC Resolution 98-1-04 and Memo D2 of the Adjudications before the Industrial Commission Manual.
The attorneys at RBS are always available to assist employers with questions or concerns regarding this new holding and how it may impact your company.