Temporary Total Can Restart After Surgery

Temporary Total Can Restart After Surgery

Posted: December, 2007

State, ex rel. Moore v. Internatl. Truck & Engine (11/20/07), 116 Ohio St.3d 272, 2007-Ohio-6055.

Issue: When the Industrial Commission had previously found MMI, can temporary total restart after surgery if the condition had not worsened before the surgery?

Background: Moore’s temporary total was terminated because she reached maximum medical improvement. Moore had surgery and sought additional temporary total. The Commission refused temporary total because there evidence did not indicate “a new and changed circumstance.”

Moore filed a complaint for a writ of mandamus in the Court of Appeals, challenging the Commission’s decision. The Court of Appeals denied the writ and Moore appealed.

Decision: Supreme Court reverses.

Temporary total can restart when “new and changed circumstances” exist. Surgery can be a new and changed circumstance, but is not automatically a new and changed circumstance.

The Supreme Court in State ex. rel. Josephson v. Indus. Comm. (2004), 101 Ohio St.3d 195, 2004-Ohio-737, had indicated that a “worsening” of a condition which has reached MMI must occur for the possibility of improvement to support an award of further temporary total.

In the present case, no evidence indicates that Moore’s condition worsened before surgery. The evidence indicated that the surgery was part of an ongoing series of treatments. Moore’s condition did temporarily worsen after surgery.

The Court finds that a worsening of a condition after surgery justifies restarting temporary total and grants a limited writ returning the case to the Commission so that the Commission can decide whether there was a worsening of the condition which would entitled Moore to temporary total.

Editor’s Comment: The Supreme Court’s decision in the present case modifies Josephson but, unfortunately, does not overrule it. In justifying Josephson, the Supreme Court stated:

In Josephson we sought to establish a prerequisite that would help preserve the integrity of an MMI declaration. By requiring that a claimant’s condition be exacerbated before temporary total disability compensation may resume, the Josephson standard reduces the incentive for claimants to return to the commission every time their doctors suggest that new or renewed treatment could generate improvement.

This reasoning ignores the purpose of temporary total. Temporary total exists to provide compensation for injured workers when their condition is not “stabilized”, or on a “treatment plateau.” If the condition had previously reached a plateau and then later circumstances indicate the possibility of improvement, the injured worker’s condition again becomes temporary total. Nothing in the statutes or administrative code requires a worsening before perceived improvement of an injured worker’s condition justifies restarting temporary total.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.