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State ex rel. Jones v. Indus. Comm.4/30/1996
COOK, J.
The narrow question before us is whether the language of Ohio Adm.Code 4121-3-32(B)(2)(d) precludes the termination of TTD upon the finding of an RBR that the claimant has been offered a suitable job.
R.C. 4123.56(A) establishes the conditions for payment of Jones's TTD:
"* * * Payments shall continue pending the determination of the matter, however payment shall not be made for the period when * * * work within the physical capabilities of the employee is made available by the employer or another employer, or when the employee has reached the maximum medical improvement. * * *" (Emphasis added.)
CTC argues that the RBR had authority to determine Jones's continuing entitlement to TTD based on the reasoning in State ex rel. Webb v. Indus. Comm. (Sept. 26, 1989), Franklin App. No. 88AP-429, unreported, 1989 WL 111002. The claimant in Webb maintained, as Jones does here, that new evidence of disqualifying factors must be submitted first to a DHO, who possesses original jurisdiction in "contested claims matters" involving TTD under R.C. 4121.34(B). The Webb court disagreed, holding that the RBR had jurisdiction to review all aspects of a claimant's TTD eligibility, including evidence that the claimant's condition had become permanent, notwithstanding that the issue of permanency or maximum medical improvement ("MMI") had not been determined initially bsthe DHO. The reasoning of Webb is instructive in this case because under R.C. 4123.56(A), MMI and an offer of suitable employment are equals in precluding the continued payment of TTD.
In effect, Webb reasoned that "contested claims matters," as used in former R.C. 4121.34(B)(2) (now R.C. 4121.34 ), granted DHOs authority to resolve the claimant's overall TTD eligibility, which depends on whether the claimant qualified initially for benefits and continues to be qualified. Accord State ex rel. Jeep Corp. v. Indus. Comm. (1991), 62 Ohio St.3d 64, 66, 577 N.E.2d 1095, 1097 (claimant's right to continued compensation contingent on successive medical reports that claimant has burden to produce). The Webb court concluded that where the claimant seeks TTD, the "contested matter" is the challenged allowance of the entire claim, not the various considerations, such as permanency, that may factor into this determination. The DHO in Webb had already exercised original jurisdiction in initially awarding TTD. Thus, the court concluded that the administrative appeal necessarily placed before the RBR developments occurring since the DHO's order that could disqualify the claimant from receiving TTD.
We agree with the court's analysis in Webb and we conclude that Ohio Adm.Code 4121-3-32(B) does not dictate a contrary holding.
Ohio Adm.Code 4121-3-32(B)(2) establishes the conditions under which a self-insured employer or the Bureau of Workers' Compensation may terminate TTD after a hearing notwithstanding administrative appeal or a final order of the commission. Paragraph (B)(2) states:
" emporary total disability compensation may be terminated after a hearing as follows:
"* * *
"(d) Upon the finding of a district hearing officer that the employee has received a written job offer of suitable employment."'
The court of appeals read the DHO hearing provision in Ohio Adm.Code 41213-32(B)(2)(d) as an absolute procedural prerequisite for the termination of TTD when the employer has offered a claimant suitable employment. By its terms, however, the rule establishes only the conditions under which self-insured employers and the bureau may cut off TTD without a,final commission order, thsrule does not es
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