Can A Doctor Use An Injured Worker’s Voluntary Retirement As The Sole Basis For Terminating Temporary Total Benefits?

Donald G. Drinko By Donald G. Drinko

Under Ohio Revised Code § 4123.56 an injured worker is entitled to benefits when they are temporarily and totally disabled based on a work related injury or illness. The statute also provides that these benefits can be stopped when the employee reaches maximum medical improvement (“MMI”). But can a doctor find that an injured worker has reached MMI based on the injured worker’s voluntary retirement?

The Tenth District Court of Appeals recently addressed this issue in State ex rel. Keck v. Indus. Comm., 2022-Ohio-2782. This case involved the Ohio Bureau of Workers’ Compensation’s (“BWC”) request to terminate temporary total benefits for an injured who was injured when he fell while working as a police officer. Administratively, both the DHO and SHO granted the BWC’s request and found that the claimant had reached MMI based on a report by the BWC doctor. The injured worker then filed a mandamus action in the Tenth District Court of Appeals seeking to vacate the orders, and reinstate the injured worker’s benefits, due to the Industrial Commission’s order not being based on “some evidence.” The Magistrate recommended vacating the order, finding that the BWC doctor’s report relied entirely on the fact that the injured worker voluntarily retired from his position as a police officer as the basis for finding the injured worker MMI. The magistrate recommended the court grant the injured worker’s motion and reinstate his benefits. The Industrial Commission filed objections to the magistrate’s decision.

In overruling the Industrial Commission’s objections, the Tenth District Court held that the BWC doctor’s report relied exclusively on the injured worker’s retirement and the injured worker’s statement that he was unable to return to work properly with his ongoing symptoms. The BWC doctor did not provide any discussion on the specific allowed conditions in the claim, or the treatment plateaus the conditions had reached to explain his MMI finding. The BWC only provided the date of retirement when addressing the date the injured worker reached MMI, and did not provide any discussion of the injured worker’s treatment history or its impact on his opinion. The Tenth District Court held that, “the question of whether an individual is fit or unfit to return to a former position of employment does not determine whether the allowed conditions that impair the claimant’s ability to return to work are subject to improvement through further treatment and the passage of time.” Therefore, the BWC doctor’s report could not be relied upon, and thereby the Court reinstated the injured worker’s temporary total benefits.

There are many reasons why an employee may retire, and Keck simply stands for the proposition that retirement, in and of itself, is not a basis for a finding of MMI. Whether or not an injured worker can return to his former position of employment is not the same thing as an MMI finding. If you would like to submit a question to Shop talk, or would like to discuss this or any other workers’ compensation issues, please feel free to contact me or my associate Gary Baker.