Wage Loss Eligibility Does Not Justify Termination of Temporary Total
State, ex rel. Nestlé USA-Prepared Foods Div., Inc. v. Indus. Comm. (4/14/04), 101 Ohio St.3d 386, 2004-Ohio-1667.
Issue: Can a self-insured employer terminate temporary total when an injured worker’s doctor indicates that she cannot return to her former position of employment, but could do light duty?
Background: Chesnick was receiving temporary total from her self-insured employer. Her doctor released her to return to light duty work, but indicated that she could not return to her former position of employment.
The self-insured employer informed Chesnick that it did not have any light duty work available, and fired her. The self-insured employer also told Chesnick that it would no longer pay temporary total because she was capable of working. The self-insurer told Chesnick that she should file for wage loss compensation.
Chesnick filed a self-insurer’s complaint. The Self-Insuring Employers Evaluation Board ordered the self-insurer to pay temporary total. The self-insurer sought to have the Industrial Commission declare Chesnick ineligible for temporary total.
The Commission found that Chesnick remained eligible for temporary total because her treating doctor indicated that she was incapable of performing her former employment. Where the treating doctor indicates that an injured worker’s condition remains temporary total, as in Chesnick’s case, a self-insurer cannot unilaterally terminate temporary total.
The self-insured employer filed a mandamus complaint in the Franklin County Court of Appeals, claiming that it acted properly when it unilaterally terminated temporary total. The self-insurer also claimed that Chesnick was not entitled to further temporary total and, therefore, temporary total should be terminated. The Court of Appeals refused the self-insured employer’s request. The self-insurer appealed.
Decision: Ohio Supreme Court affirms.
Chesnick’s situation fits the definition of temporary total because her doctor indicated that she cannot return to her former employment. The self-insurer claimed that Chesnick lost eligibility for temporary total because her doctor indicated that she could perform light duty work (even though it had no such work available and fired her as a result of this restriction).
The self-insurer argued that because she could perform light duty work, Chesnick was eligible for wage loss compensation. As a result of being eligible for wage loss compensation, the self-insurer claimed Chesnick lost eligibility for temporary total compensation.
The Supreme Court rejects this argument. The Court notes that it is not unusual for an injured worker to be eligible for more than one type of compensation. The Court points out that there is an overlap between wage loss and temporary total: an overlap “so great that (excluding the job search usually required for wage loss) a claimant who qualifies for TTC often qualifies for wage-loss compensation and vice versa.”
The Court also reviews the four criteria set forth in R.C. §4123.56(A) for the termination of temporary total. Because eligibility for wage loss is not listed as one of the criteria, wage loss eligibility does not justify termination of temporary total.
Editor’s Comment: The self-insurer’s argument in this case is completely contrary to the purpose of temporary total. Temporary total exists to provide a healing period. The self-insurer would eliminate this healing period by requiring the injured worker to return to a different job. It would also force injured workers to give up their job of injury to immediately return to another job, rather than letting them heal until they became well enough to return to their previous employment (assuming they worked for employers who didn’t fire them, as this employer did, when learning of their restrictions).
The self-insurer’s actions in this case violated the procedure required in temporary total cases. Under R.C. §4123.56, where there is a question over continued eligibility, a self-insured employer is supposed to move for a hearing, so that the Commission can decide. The hearing requirement exists to prevent a self-insurer from making a unilateral decision to terminate temporary total when the injured worker’s condition remains temporary total.
Implicit in this decision is that the treating doctor’s opinion also indicated that Chesnick’s condition was temporary, i.e., that it would be expected to improve. There was no declaration of maximum medical improvement.