Posted: December, 2005
Permanent Partial Payments Do Not Bar Temporary Total for
Same Time Period
State ex rel. Advantage Tank
Lines v. Indus. Comm. (11/16/05), 107 Ohio
St.3d 16, 2005-Ohio-5829Issue: Can an injured worker receive a permanent partial award and a temporary total award for the same condition over the same time period?
Background: Marshall was granted a permanent partial award for physical and psychological injuries resulting from a workplace accident. He later sought temporary total compensation for his psychological injuries.
The Commission granted temporary total and backdated the award of temporary total so that it overlapped with the period over which he had received the permanent partial award.
The employer challenged the Commission’s decision to award temporary total for the period during which the permanent partial award had been paid by filing a mandamus complaint in the Court of Appeals. That Court ruled against the employer, and the employer appealed.
Decision: Supreme Court affirms.
The Court states that terms such as “permanent”, “temporary”, “partial” and “total” have specific meanings in workers’ compensation. The everyday meaning of these terms is not relevant.
Under R.C. § 4123.56, “temporary total” relates to the injured worker’s ability to return to their work. Thus a condition is “permanent” when it reaches a position where it will not be expected to improve so that the injured worker can return to work. When a temporary total condition is “permanent”, temporary total is not paid.
“Permanent partial”, under R.C. § 4123.57, does not involve the issue of whether the injured worker can return to work. It is more like a damages award. The term “permanent” in this context means the “permanent” physical impairment caused by the condition.
Because of the differences in the two types of compensation, the term “permanent” does not have the same meaning for permanent partial and temporary total. As a result, a condition can be “permanent” for purposes of the R.C. § 4123.57(A) permanent partial award, and “temporary” for purposes of the R.C. § 4123.56(A) temporary total award at the same time.
Editor’s Comment: There is no reason to talk about “permanent” with respect to temporary total compensation. In fact, temporary total is not terminated based on “permanency”, but based on the concept of “maximum medical improvement.” R.C. § 4123.56, the temporary total statute, states that temporary total is terminated when the injured worker’s condition reaches “maximum medical improvement”, not “permanency.”
Use of the term “maximum medical improvement” instead of “permanent” resolves the confusion which the Employer tried to create in this case.
Another troubling problem with the Supreme Court’s discussion of the term “permanent” with respect to temporary total compensation is its discussion of the ability to return to work. A claimant can be temporarily and totally disabled even if they will never be able to return to work, a fact that the Supreme Court appears to recognize later in its opinion in its discussion of the term “permanent” in the permanent partial concept. This is made clear by the Administrative Code, O.A.C. 4121-3-32(A)(1), which defines “maximum medical improvement” 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.There is no language in this provision referring to an ability to ultimately return to work.
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