State ex rel. Russell v. Industrial Commission

[This opinion has been published in Ohio Official Reports at 

82 Ohio St.3d 516

.]




   THE STATE EX REL. RUSSELL v. INDUSTRIAL COMMISSION OF OHIO ET AL.
         [Cite as State ex rel. Russell v. Indus. Comm., 

1998-Ohio-212

.]
Workers’ compensation—Appropriate date on which to terminate disputed
        temporary total disability compensation on the basis of maximum medical
        improvement—Industrial Commission may not declare an overpayment for
        payments received by the claimant, when.
The appropriate date on which to terminate disputed temporary total disability
        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.
       (No. 96-61—Submitted March 24, 1998—Decided August 5, 1998.)
                           IN MANDAMUS and PROHIBITION.
                                  __________________
        {¶ 1} On August 13, 1992, relator-claimant, Herbert G. Russell, received an
injury in the course of, and arising out of, his employment as a firefighter/paramedic
with respondents, Coventry Township Trustees.                       Claimant’s workers’
compensation claim was allowed for “lumbar strain,” and he received temporary
total disability (“TTD”) compensation until May 8, 1994, when compensation was
terminated upon a finding of permanence.
        {¶ 2} On October 24, 1994, a district hearing officer allowed the claim for
the condition of “dysthymia, DSM III secondary type,” and TTD compensation was
resumed. Compensation continued to be paid based on the reports of claimant’s
treating physician, James L. Helmuth, Ph.D., who opined that claimant had not
reached maximum medical improvement (“MMI”) and remained temporarily and
totally disabled.
                               SUPREME COURT OF OHIO




          {¶ 3} At the behest of respondent, Ohio Bureau of Workers’ Compensation,
claimant was examined by a psychologist, Alan D. Gilbertson, Ph.D. On March
23, 1995, Dr. Gilbertson issued a report opining that claimant had reached MMI.
Based on this report, the bureau filed a request for formal hearing with respondent,
Industrial Commission of Ohio, to terminate claimant’s TTD compensation.
          {¶ 4} On July 24, 1995, a district hearing officer heard the matter and
ordered as follows:
          “The District Hearing Officer finds, based on [the] report of Dr. Gilbertson,
that claimant reached maximum medical improvement as of 3-23-95, the date on
which Dr. Gilbertson performed a medical examination or medical review of the
claimant.
          “The District Hearing Officer further finds that the claimant’s temporary
total disability compensation shall be and is hereby terminated as of 3-23-95, the
date of the medical examination or medical review.
          “The District Hearing Officer defers ruling on the issue of overpayment and
recoupment under 4123.511(J) O.R.C. pending the final disposition of the Motion
to Show Cause in State, ex rel. Crabtree v. Bureau of Workers’ Compensation.
          “The determination of termination of temporary total disability
compensation by reason of maximum medical improvement is a final order.
However, the issue of overpayment and recoupability of overpayment is not a final
order.”
          {¶ 5} This order was administratively affirmed.
          {¶ 6} In identical orders dated December 18, 1995 and February 19, 1996,
an overpayment was declared. These orders read:
          “Pursuant to * * * State of Ohio ex rel. Roger D. Crabtree, Relator v. Ohio
Bureau of Workers’ Compensation * * * and pursuant to Resolution No. R95-1-14
* * * which * * * reinstated in toto Resolution No. R95-1-02, this Hearing Officer
finds an overpayment of temporary total disability compensation in this case.
                                  January Term, 1998




        “ * * * [A]n overpayment is declared from the date of termination of
temporary total disability compensation as established previously by a Hearing
Officer, to the date on which the Bureau of Workers’ Compensation or self-insured
employer paid temporary total disability compensation. Further, this overpayment
is to be recouped by the Bureau of Workers’ Compensation or the self-insured
employer pursuant to the provisions of Sections 4123.511(J) of the Ohio Revised
Code as set forth in Resolution No. R95-1-02 and Policy Statement and Guideline
Memorandum No. C.8 of the Hearing Officer Manual.
        “This order is a final administrative order, and is therefore not appealable
or subject to reconsideration.”
        {¶ 7} This cause is now before the court as an original action in mandamus
and prohibition.
                              __________________
        Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy,
for relator.
        Maureen O’Connor, Summit County Prosecuting Attorney, and James W.
Armstrong, Assistant Prosecuting Attorney, for respondents Coventry Township
Trustees.
        Betty D. Montgomery, Attorney General, Dennis L. Hufstader and William
A. Thorman III, Assistant Attorneys General, for respondents Industrial
Commission and Bureau of Workers’ Compensation.
        Scott, Scriven & Wahoff, William J. Wahoff, Richard Goldberg and Timothy
E. Cowans, urging denial of the writs for amicus curiae, Ohio Council of Retail
Merchants.
        Bricker & Eckler, Charles D. Smith and Elizabeth A. Preston, urging denial
of the writs for amici curiae, Ohio Chapter of the National Federation of
Independent Business and Ohio Farm Bureau Federation.




                                          3
                              SUPREME COURT OF OHIO




        Vorys, Sater, Seymour & Pease, Robert A. Minor and Robin R. Obetz,
urging denial of the writs for amici curiae, Ohio Manufacturers’ Association and
Ohio Self-Insurers’ Association.
        Millisor & Nobil and Preston J. Garvin, urging denial of the writs for
amicus curiae, Ohio Chamber of Commerce.
        Squire, Sanders & Dempsey, Steven M. Loewengart and Michael Soto,
urging denial of the writs for amicus curiae, Council of Smaller Enterprises.
        Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy,
urging issuance of the writs for amicus curiae, Ohio AFL-CIO.
        Gallon & Takacs Co., L.P.A., and Theodore A. Bowman, urging issuance of
the writs for amicus curiae, Ohio Academy of Trial Lawyers.
                                __________________
        ALICE ROBIE RESNICK, J.
        {¶ 8} 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.
        {¶ 9} 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
                               January Term, 1998




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

.
       {¶ 10} 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
termination date for TTD benefits due to MMI, and does not preclude it from
establishing the termination date as the date MMI was diagnosed by the
nonattending physician. We cannot fathom how the commission could reach such
a conclusion.
       {¶ 11} 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




                                         5
                                  SUPREME COURT OF OHIO




payments terminated.” 

Id.,

68 Ohio St.3d at 58

, 

623 N.E.2d at 65

 (Wright, J.,
dissenting).1
         {¶ 12} 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.)
         {¶ 13} 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 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 I, 1893-1894) and
without regard to Ohio Adm.Code 4121-3-32(B)(2)(d) or R.C. 4123.511(J). If the

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 self-insuring-
employer 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).
                                 January Term, 1998




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.
          {¶ 14} 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.
          {¶ 15} 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.
          {¶ 16} 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




                                          7
                            SUPREME COURT OF OHIO




question of whether claimant was entitled in the first place to receive such
compensation.
       {¶ 17} 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
compensation 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.
       {¶ 18} 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.
       {¶ 19} 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
                                January Term, 1998




termination of TTD compensation retroactive to the date MMI was diagnosed by
the nonattending physician.
       {¶ 20} 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.
       {¶ 21} 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.
       {¶ 22} 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 proposition
that the district hearing officer may declare a recoupable overpayment from the date
of the nonattending physician’s report even though he or she is prohibited from
terminating compensation retroactive to that date.




                                          9
                             SUPREME COURT OF OHIO




       {¶ 23} 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.”
       {¶ 24} 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.”
       {¶ 25} 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.
       {¶ 26} 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,
                                January Term, 1998




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.
       {¶ 27} 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 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.
       {¶ 28} 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

.
       {¶ 29} 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




                                         11
                             SUPREME COURT OF OHIO




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.
       {¶ 30} 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.
       {¶ 31} 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.
       MOYER, C.J., and COOK, J., dissent.
                              __________________
       LUNDBERG STRATTON, J., concurring.
       {¶ 32} There are four situations where temporary total disability
compensation is terminated. It is not payable when the claimant (1) has returned to
work, (2) is medically able to return to the former position of employment, (3) has
declined suitable alternate employment, or (4) has attained permanency of the
disability. R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm. (1982), 

69 Ohio St.2d 630

, 

23 O.O.3d 518

, 

433 N.E.2d 586

; Vulcan Materials Co. v. Indus. Comm.
(1986), 

25 Ohio St.3d 31

, 25 OBR 26, 

494 N.E.2d 1125

. Because the majority’s
opinion narrowly addresses only those situations where there is conflicting medical
                                 January Term, 1998




evidence concerning the claimant’s maximum medical improvement, I agree that,
so long as the claimant’s attending physician continues to certify the claimant as
temporarily and totally disabled, TTD compensation should continue until a
termination order is rendered.
          {¶ 33} The majority’s conclusion does not appear to apply to the claimant
who satisfies any one of the first three categories that terminate a claimant’s right
to TTD compensation, or when there is uncontested evidence that the claimant has
reached MMI. In those instances, TTD is no longer payable on the date that the
claimant has indisputably reached MMI and recoupment of overpayment is
available from the undisputed date of termination.
          {¶ 34} However, in situations where there is conflicting evidence as to
whether or when MMI has been attained, the existence of a conflicting report from
a nonattending physician is merely evidence to present at the hearing. AT & T
Technologies, Inc. v. Indus. Comm. (1993), 

68 Ohio St.3d 55, 58

, 

623 N.E.2d 63, 65

. The purpose of the administrative hearing is to determine, based upon the
conflicting reports, whether the claimant has reached MMI. Until the issue is
resolved, the claimant remains entitled to receive TTD compensation pursuant to
the existing order so long as the claimant’s attending physician provides medical
certification of the continuing disability. Thus, I concur with the majority’s holding
that payment of TTD should terminate on the date of the hearing resolving the
dispute, not the date offered in the conflicting medical report. Under this scenario,
recoupment of overpayments is not at issue because, until the termination order is
issued, the claimant has met all the conditions of, and is entitled to, the TTD
compensation.
          {¶ 35} Therefore, to the extent that the majority’s opinion strikes a fair
balance between the rights of the injured worker and the rights of the employer, I
concur.
                                 __________________




                                          13
                             SUPREME COURT OF OHIO




        COOK, J., dissenting.
        {¶ 36} The majority opinion effectively permits the retention of temporary
total disability (“TTD”) compensation by claimants who are not temporarily and
totally disabled. I therefore respectfully dissent.
        {¶ 37} The language of R.C. 4123.56(A) conflicts with the majority’s
position. It states:
        “[P]ayments 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 * * *. Payments shall continue pending the determination of the matter,
however payment shall not be made for the period in which any employee has * *
* reached the maximum medical improvement.” (Emphasis added.)
        {¶ 38} The recoupment provisions of R.C. 4123.511(J), in correlation with
the above-emphasized language, further undermine the majority’s position.
Directed at claimants who have been “found to have received compensation to
which the claimant was not entitled,” R.C. 4123.511(J) demonstrates a legislative
expectation that compensation will be repaid by claimants who do not meet the
eligibility criteria. Non-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. A claimant may be eligible to receive payments, but later
determined to be ineligible to retain those payments. Continuing payments is a fair
method to accommodate the reality that the system does not permit instantaneous
hearings.
        {¶ 39} The majority relies upon a single case—State ex rel. McGinnis v.
Indus. Comm. (1991), 

58 Ohio St.3d 81

, 

568 N.E.2d 665

, a case which we ought to
reconsider because the cases it relies upon do not justify the decision. In McGinnis,
claimant’s ongoing TTD compensation was challenged by his employer, which
alleged that as of September 30, 1982, claimant could return to his former position
                                January Term, 1998




of employment. However, because claimant’s attending physician continued to
certify an inability to return to work, TTD compensation continued until the January
18, 1984 district hearing officer hearing. At the hearing, the district hearing officer
(“DHO”) terminated compensation effective September 30, 1992. The DHO
specifically discounted the attending physician’s reports because he had considered
nonallowed conditions. Later, all TTD compensation paid after September 30,
1982 was declared overpaid, prompting claimant’s mandamus challenge.
       {¶ 40} The court of appeals found that the commission abused its discretion
in assessing an overpayment, and this court affirmed. This court 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

. There, the court ruled that compensation could be
recouped from a claimant only where (1) subsequent information revealed the
claimant was not entitled to the money, and (2) the parties believed at the time of
payment that the claimant was not so entitled.
       {¶ 41} In applying Martin, McGinnis reasoned that R.C. 4123.56(A)
mandated continued TTD compensation in the event of a dispute. As such, claimant
was entitled to the funds, and they could not be taken away. Unfortunately, closer
review reveals that in applying Martin, McGinnis only perpetuated an earlier
standard that is legally unsound and fiscally untenable.
       {¶ 42} Martin involved Disabled Workers’ Relief Fund (“DWRF”) benefits
to a claimant from 1976 to 1981. Because the DWRF amount was tied to the
amount of disability Social Security benefits (“DSS”) received, a subsequent
discovery of DSS underpayment meant that DWRF had been overpaid. Efforts by
the Bureau of Workers’ Compensation to recover the overpayment via
compensation offset were opposed in mandamus.
       {¶ 43} This court permitted the claimant to keep the nine thousand dollar
overpayment. To do so, however, it was necessary to distinguish State ex rel.
Weimer v. Indus. Comm. (1980), 

62 Ohio St.2d 159

, 

16 O.O.3d 174

, 

404 N.E.2d 15

                             SUPREME COURT OF OHIO




149, which four years earlier had upheld the commission’s recovery of an
overpayment generated by clerical error.
       {¶ 44} Martin compared Weimer with an even earlier case—Indus. Comm.
v. Dell (1922), 

104 Ohio St. 389

, 

135 N.E. 669

. Martin stated that the difference
between Weimer and Dell was the parties’ good faith belief in compensation
entitlement when payment occurred. Martin held that neither the bureau nor the
claimant in Weimer could have legitimately believed that claimant was entitled to
the overpaid amount, even when made. Martin, therefore, relied on Dell—a case
which, according to the Martin majority, prohibited recoupment from one with an
initial good faith belief in compensation entitlement.
       {¶ 45} The problem is that Dell said no such thing. Dell was a continuing
jurisdiction case, not a recoupment case. Dell involved the receipt of death benefits
by a widow whose decedent also had an undisclosed and undivorced first wife. Dell
addressed the commission’s continuing jurisdiction to reopen the issue of benefit
eligibility and stop payments to the second woman. Dell never discussed the status
of payments already made and never stated—expressly or impliedly—that the
second wife could keep the money. To the contrary, this passage from Dell
suggests the opposite:
       “The commission should be held to have inherent power to prevent the
misappropriation or the misapplication of the insurance fund to claimants who are
afterwards found not to be entitled thereto. The state insurance fund is in the nature
of a trust fund and it is the duty of the commission to impartially distribute the same
among persons entitled thereto and not permit the fund to be depleted or become
the object of fraud or imposition, and it being clearly their moral and legal duty to
correct any mistake or fraud or imposition which will result in a misapplication or
a misappropriation of any part of the fund the law should not be so construed, even
in case of the ambiguity, neither should the legislature be held to have intended to
enact any provisions which would hamper in any manner or interfere with the
                              January Term, 1998




members of the commission in their efforts to properly protect the fund.” Id. at
396-397, 135 N.E. at 672.
       {¶ 46} In attempting to equate Weimer and Dell, Martin created a
recoupment standard that lacks legal foundation.       This, in turn, discredits
McGinnis’s premise. Equally important, Dell embodies a pivotal question, that is,
why a claimant who is not temporarily and totally disabled can be permitted to
retain TTD benefits?
       {¶ 47} The majority’s decision disregards three workers’ compensation
tenets: Dell’s prohibition against fund misapplication; the prohibition against
claimant windfalls pronounced in State ex rel. Wireman v. Indus. Comm. (1990),

49 Ohio St.3d 286

, 

551 N.E.2d 1265

; and the “some evidence” rule. In addition, it
essentially renders meaningless the prerequisites to TTD compensation set down in
State ex rel. Ramirez v. Indus. Comm. (1982), 

69 Ohio St.2d 630

, 

23 O.O.3d 518

,

433 N.E.2d 586

.
       {¶ 48} For the reasons stated above, I would deny the writs of mandamus
and prohibition.
       MOYER, C.J., concurs in the foregoing dissenting opinion.
                             __________________




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