Industrial Commission Adopts Resolution Applying Russell Decision

On August 5, 1998, the Supreme Court decided in Russell  that  the Commission's policy of retroactively terminating temporary total is invalid.

In response to Russell, on August 6, 1998, the Commission adopted a new resolution, R98-1-04. That resolution instructs hearing officers to apply the Russell decision as follows:

• the Commission rescinded its previous Resolution No. R95-1-02 (dated February 9, 1995) and Hearing Officer Manual Memo C.8.
• the Commission indicated that where "continued payment of temporary total disability compensation is disputed on the basis of maximum medical improvement" the hearing officer who terminates temporary total by finding that maximum medical improvement has been reached should terminate temporary total disability compensation on "the date of hearing at which the determination to terminate temporary total disability compensation was made."
• the Commission instructed hearing officers that they should not retroactively terminate temporary total in such a situation (in other words, they should not terminate temporary total before the hearing date) "where the continued payment of temporary total disability compensation is disputed on the basis of maximum medical improvement as long as the attending physician's medical reports certify that the claimant remains temporarily and totally disabled."
  

The Commission also indicated that past claims, where temporary total had been improperly retroactively violated, should be identified and corrected. The Commission ordered that in such cases supplemental orders should be issued finding that "the appropriate date to terminate temporary total disability by reason of maximum medical improvement is the date of the hearing held by the Hearing Officer that issued the order" and ordering the Bureau of Workers' Compensation, or self-insurer, to "make the necessary adjustments consistent with this order."

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