State ex rel. Russell v. Industrial Commission

Alice Robie Resnick, J. At issue is Resolution R95-1-02, adopted by the commission on February 9, 1995 and applied in this case, which directs commission hearing officers to terminate TTD compensation as of the date MMI was diagnosed by the nonattending physician, and to declare an overpayment for any compensation paid subsequent to that date. For the reasons that follow, this resolution cannot stand. We hold that the appropriate date on which to terminate disputed TTD compensation on the basis of maximum medical improvement is the date of the termination hearing, and the commission may not declare an overpayment for payments received by the claimant before that date. This court has unwaveringly held (1) that continuing TTD compensation may not be terminated prior to a hearing before a commission hearing officer so long as claimant’s attending physician continues to certify TTD, (2) that the hearing officer may not terminate the claimant’s TTD retroactive to a date prior to the date of the hearing, (3) that claimant is entitled to all compensation paid to the date of the hearing, and (4) that any eventual discounting of the attending physician’s reports certifying TTD does not transform those payments into a recoupable overpayment. State ex rel. MTD Products, Inc. v. Indus. Comm. (1996), 76 Ohio St.3d 593, 669 N.E.2d 846; State ex rel. Crabtree v. Ohio Bur. of Workers’ Comp. (1994), 71 Ohio St.3d 504, 644 N.E.2d 361; AT & T Technologies, Inc. v. Indus. Comm. (1993), 68 Ohio St.3d 55, 623 N.E.2d 63; State ex rel. Jeep Corp. v. Indus. Comm. (1991), 62 Ohio St.3d 64, 577 N.E.2d 1095; State ex rel. McGinnis v. Indus. Comm. (1991), 58 Ohio St.3d 81, 568 N.E.2d 665; State ex rel. Youghiogheny & Ohio Coal Co. v. Kohler (1990), 55 Ohio St.3d 109, 564 N.E.2d 76. In its effort to defend Resolution R95-1-02, the commission attempts to distinguish the above-cited cases, most notably AT & T and McGinnis. The commission argues that our decision in AT & T did not address the issue of the — 520 — termination date for TTD benefits due to MMI, and does not preclude it from estabhshing the termination date as the date MMI was diagnosed by the nonattending physician. We cannot fathom how the commission could reach such a conclusion. In MTD Products, we specifically explained that “in AT & T, we held that pursuant to former R.C. 4123.56, where an attending physician’s reports support TTD, a self-insured employer who successfully challenges the attending physician’s reports is not entitled to a termination of TTD retroactive to the date MMI was diagnosed by the nonattending physician.” Id., 76 Ohio St.3d at 595-596, 669 N.E.2d at 848. Indeed, even the dissent in AT & T recognized that “[t]he majority holds that when the attending physician’s report supports compensation for temporary total disability * * *, the termination date for TTD benefits paid by self-insured employers is the date on which the district hearing officer orders the payments terminated.” Id., 68 Ohio St.3d at 58, 623 N.E.2d at 65 (Wright, J., dissenting).1 The commission also argues that although this court in McGinnis “did examine the issue of the effect of denying an award before the hearing date, * * * McGinnis [was decided under] former R.C. 4123.56, which did not contain the provisions .in current R.C. 4123.56 requiring denial of temporary total compensation for the period when the claimant reaches maximum medical improvement * * * [and] prior to the enactment of Ohio Adm.Code 4121-3-32 and R.C. 4123.511(J) which specifically provide for withholding against future awards.” Thus, the commission concludes, “unlike the period governed by McGinnis, the Industrial Commission and the courts now have direct and specific statutory and administrative code authority which requires the Industrial Commission to declare an overpayment, and which requires the Bureau of Workers’ Compensation or the self-insured employer to withhold the overpayment in the manner provided by the statute.” (Emphasis sic.) In deference to the commission, we will construe this argument as not being limited to McGinnis, since even without McGinnis, AT & T and MTD Products — 521 — would still invalidate Resolution R95-1-02. However, of the six cases cited above, all except Crabtree (which the commission would distinguish) were decided under former R.C. 4123.56 (138 Ohio Laws, Part 1,1893-1894) and without regard to Ohio Adm.Code 4121-3-32(B)(2)(d) or R.C. 4123.511(J). If the commission is correct in its assertion that these provisions changed the law in this area, then the issue now before us would have to be reevaluated in light of the change. The problem with the commission’s argument, however, is that it assumes too much. No relevant change in the law has been effected by these provisions that would call into question the continuing vitality of our previous decisions. While the August 22, 1986 amendments to former R.C. 4123.56 added the language that payment shall not be made for the period “when the employee has reached the maximum medical improvement,” this language added nothing that we had not already construed to be part of former R.C. 4123.56. 141 Ohio Laws, Part I, 766. As early as 1982, we construed former R.C. 4123.56 to require that TTD compensation terminate when the claimant’s temporary disability has become permanent. State ex rel. Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d 518, 433 N.E.2d 586. Our decision in AT & T specifically adhered to this construction of former R.C. 4123.56, and, in Jeep Corp., 62 Ohio St.3d at 66, 577 N.E.2d at 1097, we rejected the commission’s argument to the contrary. The 1986 amendments did not change our construction of R.C. 4123.56, but codified it. Thus, there is no basis on which to decide the issue differently today. R.C. 4123.511(J) was enacted as part of Am.Sub.H.B. No. 107, effective October 20, 1993. 145 Ohio Laws, Part II, 2990, 3152-3153. As the commission correctly states, R.C. 4123.511(J) supersedes Ohio Adm.Code 4121-3-32(B)(2)(d). However, R.C. 4123.511(J) simply provides for withholding future payments to recoup an overpayment when a claimant is found to have received compensation to which he was not entitled. The question of claimant’s entitlement to receive ongoing TTD compensation until a hearing officer rules otherwise is governed by R.C. 4123.56, not 4123.511(J). To say that under R.C. 4123.511(J) a claimant must repay compensation to which he or she was not entitled begs the question of whether claimant was entitled in the first place to receive such compensation. In this case, claimant was receiving ongoing TTD compensation pursuant to a prior order, and continued to submit proof of TTD from his attending physician. This fulfills all conditions precedent to the payment of compensation and establishes claimant’s entitlement to all payments at the time they were received, despite the existence of contrary evidence. MTD Products, 76 Ohio St.3d at 595, 669 N.E.2d at 848; Crabtree, 71 Ohio St.3d at 508, 644 N.E.2d at 365; AT & T, 68 Ohio St.3d at 57-58, 623 N.E.2d at 65; Jeep Corp., 62 Ohio St.3d at 66, 577 N.E.2d at 1097; McGinnis, 58 Ohio St.3d at 83, 568 N.E.2d at 667. A termination order does not negate the previous order pursuant to which compen — 522 — sation has been paid; it does not, and could not, change the eligibility requirements for the payment of compensation. Simply put, this is not a situation to which R.C. 4123.511(J) applies. The dissent argues that “[t]he language of R.C. 4123.56(A) conflicts with the majority’s position,” placing emphasis on the phrase “however[,] payment shall not be made for the period in which any employee has * * * reached the maximum medical improvement.” The dissent is confused. This language relates to the issue of unilateral termination and applies “only when there is no dispute as to whether the employee has reached maximum medical improvement.” Crabtree, 71 Ohio St.3d at 509-510, 644 N.E.2d at 366. Otherwise, “payments shall be for a duration based upon the medical reports of the attending physician. If the employer disputes the attending physician’s report, payments may be terminated only upon application and hearing by a district hearing officer * * R.C. 4123.56(A). As Justice Cook pointed out in MTD Products, 76 Ohio St.3d at 595-596, 669 N.E.2d at 848, the employer who successfully challenges the attending physician’s report is not entitled to a termination of TTD compensation retroactive to the date MMI was diagnosed by the nonattending physician. The dissent also argues that R.C. 4123.511(J) “demonstrates a legislative expectation that compensation will be repaid by claimants who do not meet the eligibility criteria. [In] eligibility is the key to the right to recoupment. The payment of continued benefits pending a hearing to determine eligibility does not equate with eligibility.” Again the dissent is confused. The claimant is entitled to continuing TTD payments until they are terminated at hearing precisely because he has fulfilled the eligibility requirements. “[T]he bureau must pay TTD compensation if all conditions precedent are met. Thus, if the commission order makes payment contingent on proof of disability and the claimant tenders such evidence, the bureau must continue compensation regardless of the existence of contrary evidence.” (Emphasis sic.) Crabtree, 71 Ohio St.3d at 508, 644 N.E.2d at 365. In this case, TTD compensation was previously awarded and the claimant continued to offer proof of TTD from his attending physician. This fulfills all the “eligibility criteria” for the payment of compensation and establishes claimant’s entitlement to all payments received. However, the dissent argues that although the claimant may have been “eligible to receive payments ” made after the date of the nonattending physician’s report, R.C. 4123.511(J) should apply to allow a determination that the claimant is “ineligible to retain those payments.” (Emphasis sic.) Yet the dissent does not question our decisions in AT & T and MTD Products prohibiting the termination of TTD retroactive to the date of the nonattending physician’s report. In actuality, therefore, the dissent’s argument translates to the absurd — 523 — proposition that the district hearing officer may declare a reeoupable overpayment from the date of the nonattending physician’s report even though he or she is prohibited from terminating compensation retroactive to that date. The dissent, therefore, lacks statutory support for its position. In addition, the dissent has been unable to cite even the slightest dictum from any case to support its view. Instead, the dissent incredibly argues that “[t]he majority relies on a single case-State ex rel. McGinnis * * *, a case which we ought to reconsider because the cases it relies upon do not justify the decision.” According to the dissent, the court in McGinnis “relied on the standard articulated in State ex rel. Martin v. Connor (1984), 9 Ohio St.3d 213, 9 OBR 523, 459 N.E.2d 889.” In Martin, the court compared Indus. Comm. v. Dell (1922), 104 Ohio St. 389, 135 N.E. 669, with State ex rel. Weimer v. Indus. Comm. (1980), 62 Ohio St.2d 159, 16 O.O.3d 174, 404 N.E.2d 149, and essentially concluded that payments made under a mistake of fact cannot be recouped where the parties had a good faith belief that claimant was entitled to the payments at the time they were made. Id., 9 Ohio St.3d at 214, 9 OBR at 525, 459 N.E.2d at 891. The dissent argues that because Dell was not a recoupment case, Martin was wrongly decided, and that “in applying Martin, McGinnis only perpetuated an earlier standard that is legally unsound and fiscally untenable.” In the first place, it is pure fantasy to suggest that we have relied “on a single case — State ex rel. McGinnis.” Indeed, as we stated above, “[i]n deference to the commission, we will construe this argument as not being limited to McGinnis, since even without McGinnis, AT & T and MTD Products would still invalidate Resolution R95-1-02.” Thus, even if the dissent’s attack on McGinnis had merit, it would not produce the result the dissent seeks. In any event, the dissent’s argument, which has not been raised by the commission, the bureau, the claimant’s employer, or any of their supporting amici, is entirely without merit. In McGinnis, claimant was receiving continuing TTD compensation based on the reports of his attending physician, who certified his inability to return to his former position of employment. Claimant’s employer filed a motion to terminate, which was granted on January 18, 1984. In the order, the commission’s hearing officer had terminated TTD compensation retroactive to September 30, 1982. Subsequently, the hearing officer declared an overpayment from September 30, 1982 to February 7, 1984 and permitted the employer to offset the payments made against any future compensation awarded to claimant. The court of appeals granted a writ of mandamus in favor of claimant, after finding that no overpayment had occurred. In arguing the merits of its recoupment request, the employer in McGinnis relied heavily on State ex rel. DeLong v. Indus. Comm. (1988), 40 Ohio St.3d 345, 533 N.E.2d 729. In DeLong, an employer appealed a district hearing officer’s — 524 — award of TTD compensation. Pursuant to former R.C. 4123.515, that appeal stayed the payment of compensation pending a regional board hearing, but claimant’s employer mistakenly paid compensation during the pendency of that hearing. We upheld the employer’s right to recoupment in DeLong because, in light of R.C. 4123.515’s stay on payment, it was unlikely that claimant had had a good faith belief that he was entitled to the funds at the time payments were made. In McGinnis, we rejected the employer’s recoupment request, finding its reliance on DeLong to be misplaced. We held that pursuant to former R.C. 4123.56, “so long as claimant’s physician did not release him to return to his former position, appellant was statutorily required to pay temporary total disability compensation until a commission hearing officer held otherwise. This eventually occurred on January 18, 1984. In view of appellant’s duty, claimant was entitled to the funds. DeLong and Weimer are thus distinguishable.” Id., 58 Ohio St.3d at 83, 568 N.E.2d at 667. However, in distinguishing DeLong and Weimer, we did not rely on the standard articulated in Martin. Martin is nowhere cited in the majority opinion in McGinnis, and at no time did we attempt to justify McGinnis’s entitlement to TTD compensation on the basis of such a standard. We did not make a determination that McGinnis’s compensation payments were made under a mistake of fact or inquire into the parties’ belief at the time payments were made. To the contrary, the payments made to McGinnis were statutorily required and not made under a mistake of fact at all. McGinnis is simply not a mistake-of-fact case, and this is what distinguishes it from DeLong, Weimer, or Martin. Thus, even if Martin is legally infirm, such an infirmity would not affect the viability of McGinnis. Since, like McGinnis, the instant case has nothing whatsoever to do with the recoupability of payments made under a mistake of fact, there is no reason to revisit Martin. However, our refusal to defend Martin and its progeny is based solely on the fact that those cases are irrelevant under the present circumstances, and should in no way be construed as casting doubt on Martin’s continued viability. Since Resolution R95-1-02 was passed without statutory authority, and since claimant has a clear legal right to those funds that the commission has declared an overpayment, the writs of mandamus and prohibition are hereby granted. Writs granted. Douglas, F.E. Sweeney and Pfeifer, JJ., concur. Lundberg Stratton, J., concurs separately. — 525 — Moyer, C.J., and Cook, J., dissent. Footnotes [1] In AT & T, as with all our previous cases on this issue except for Crabtree, the claimant was an employee of a self-insured employer. The claimant in the present case is a State Fund employee. The commission does not argue that self-insured cases in this area do not apply to State Fund claims, and indeed relies on that portion of R.C. 4123.56(A) that begins, “In the case of a self-insuring employer.” We agree that the provisions of R.C. 4123.56 governing the termination of TTD payments apply to the bureau in State Fund claims as well as to self-insuring employers. In Crabtree, we analyzed the State Fund claimant’s entitlement to a termination hearing, and to reinstatement of his TTD compensation while determination is pending, under the seR-insuringemployer provision of R.C. 4123.56(A). As pointed out by Justice Douglas, such uniformity of application is required by R.C. 4121.31(C). Id., 71 Ohio St.3d at 510-511, 644 N.E.2d at 367 (Douglas, J., concurring).