The Hunt for Clarity in Eligibility for Temporary Total Disability
Governor Mike DeWine signed Ohio House Bill 81 on June 16, 2021, codifying a significant change regarding eligibility for temporary total disability benefits (TTD) under Ohio Revised Code §4123.56(F). By enacting R.C. §4123.56(F), the legislature intended to leave behind decades of case law concerning the doctrine of voluntary abandonment. The new provision was meant to expand and simplify a defense to a request for TTD by dictating that an employee not working or suffering a wage loss as a direct result of reasons unrelated to the claim is not eligible to receive compensation.
Unfortunately, the intent to clarify has been anything but illuminating. R.C. §4123.56(F) reads: “If an employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease, the employee is entitled to receive compensation under this section, provided the employee is otherwise qualified. If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section. It is the intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section.”
While the provision reads simply enough, there is a difference in interpretation between the employer’s bar and the injured worker’s bar without much in the way of clarification by the courts or the Bureau of Workers’ Compensation (BWC).
Typically, when new legislation is enacted, the BWC’s legal division provides guidance to the Industrial Commission and its hearing officers as to how to interpret the new law. Strangely, this did not occur with R.C. §4123.56(F). Thus began the confusion. Claimants’ attorneys have argued that in light of the language discussing the intention to supersede any previous judicial decisions that apply the doctrine of voluntary abandonment, a claimant is entitled to temporary total disability compensation assuming the claimant’s wage loss is a direct result of their impairment arising from the injury. Employers’ attorneys have argued that the claimant must first show that they are “otherwise qualified” to receive the compensation. If the claimant is not working or has suffered a wage loss as a direct result of reasons unrelated to the allowed injury, the claimant is ineligible to receive TTD.
A case currently pending before the 10th District Court of Appeals may provide guidance. In State ex of rel. Huntington Bancshares Inc. v. Jenarius Taku et al., the claimant, Mr. Taku, worked with restrictions until Oct. 15, 2019, at which time he was laid off due to an employer-initiated reduction in force. Mr. Taku began receiving unemployment compensation following the layoff. A left knee arthroscopic procedure was performed on June 19, 2020. At that time, Mr. Taku was taken off work from June 19, 2020 until Sept. 21, 2020. A few months after the surgery, the Ohio Department of Job and Family Services issued its determination that Mr. Taku was overpaid unemployment benefits beginning June 14, 2020. In that order, the agency found, “beginning 6/14/2020, the Claimant was not able to work and therefore failed to meet the requirements of the unemployment statute.” Mr. Taku then requested TTD from the date of surgery to Oct. 13, 2020. A DHO referenced §4123.56(F) and found that Taku was not working because his employer laid him off. Thus, Mr. Taku was not working for a reason unrelated to his industrial injury, and was therefore not entitled to receive TTD. The SHO vacated the DHO order and granted TTD from June 19, 2020 through Nov. 8, 2020. The SHO explained that “there is no medical evidence contradicting the certification of TTD from all employment beginning 06/19/2020. … The sole contested issue relative to this request for (TTD) is whether Taku is entitled to receive (TTD) compensation beginning 06/19/2020 when consideration is given to provisions of R.C. §4123.56(F).” The SHO found that Taku was unable to work as a direct result of the allowed conditions, that he had searched for employment prior to his surgery, and that he had not abandoned the workforce following the employer-initiated layoff.
The employer filed an appeal in mandamus. The Industrial Commission set forth what it believes to be the proper understanding of ORC §4123.56(F) in its brief. In supporting the SHO’s decision, the Industrial Commission explained that the first step is to determine whether the claimant is unable to work or suffers a wage loss as the direct result of an impairment arising from their injury. Once there is a finding that an injured worker is unable to work as a direct result of an impairment arising from a work injury, the Industrial Commission, as fact finder, then determines whether the claimant was not working for a reason that would disqualify them from receiving TTD. The Industrial Commission theorizes that the analysis is not simply that if the claimant is working when TTD is requested then they are entitled to the lost wages. By the same token, an injured worker is not disqualified from TTD if they are not working at the time of the request.
The question becomes whether the claimant is not working for reasons unrelated to the allowed conditions. If the lost wages are related to the injury, the claimant is eligible to receive TTD compensation. The Industrial Commission suggests that in Taku’s case, he was not working for reasons related to the allowed conditions. Further, because Taku was actively searching for a job prior to his approved knee surgery and would have secured one “but for his surgery,” his reason for not working was related to his claim. The Industrial Commission suggests that R.C. §4123.56(F) anticipates that a claimant may not be working when they become disabled. So long as the absence from work is related to the work injury, the claimant would be qualified to receive TTD.
We are awaiting the 10th District’s decision on this case, but this appears to represent the first time the Industrial Commission has expressed its view of 4123.56(F). As is always the case in workers’ compensation matters, interpretation of this statute will remain largely fact sensitive and will require analysis on a case-by-case basis. We will monitor this case as it likely makes it way to the Ohio Supreme Court in hopes of some clarification of the positions taken by both sides of the bar.