In 2024, the Ohio Supreme Court overruled decades of precedent when it held in State ex rel. Dillon v. Industrial Commission that temporary total disability (TTD) compensation is terminated on the date a claimant reaches maximum medical improvement (MMI) (or, in other words, a treatment plateau), regardless of the date when the industrial hearing solidifying that determination is held.

Now, just two years after Dillon’s landmark impact on Ohio workers’ compensation law, the Tenth District Court of Appeals has weighed in on TTD compensation in State ex rel. Kurtz v. Industrial Commission. This new decision both affirms the core holding of Dillon while also limiting how far it can be taken. Kurtz reflects a broader trend in recent years of Ohio courts revisiting the balance between claimant protection, administrative practice and legislative intent.

Dillon v. Industrial Commission

Before Dillon, Ohio followed more than 25 years of precedent established in State ex. rel. Russell v. Industrial Commission regarding TTD compensation. In Russell, the Supreme Court of Ohio held the Industrial Commission was prohibited from terminating TTD compensation earlier than the date of the industrial hearing to decide whether a claimant had reached MMI. As a result, this framework permitted claimants to continue receiving TTD compensation weeks and even months after credible medical evidence established they had reached their treatment plateau.

Dillon rejected this approach and the court instead held TTD eligibility ends at the time the claimant reaches MMI, regardless of when the industrial hearing on MMI occurs. Thus, once MMI is reached, the claimant is, by definition, no longer temporarily totally disabled. The court thereby held any TTD paid after the MMI date constituted an overpayment, subject to mandatory recoupment by the Bureau of Workers’ Compensation (BWC) or a self-insured employer. Dillon effectively eliminated “windfalls” for claimants resulting from procedural delays.

Kurtz v. Industrial Commission

Now, in Kurtz, the Tenth District Court of Appeals has offered its own spin on TTD compensation. There, an injured worker received TTD compensation for sprain injuries suffered in April 2023. In early 2024, the BWC moved to terminate TTD after an independent medical examination found the worker had reached MMI. The Commission terminated compensation at a district-level hearing, creating an overpayment. After the decision was affirmed at a later staff hearing, Kurtz appealed to court.

The Tenth District concluded that, while Dillon provided the dispositive interpretation of when TTD compensation terminates, Kurtz’s case was distinguishable on the issue of recoupment. The court held that, whereas Dillon involved a situation where an initial TTD application was awarded at a district hearing and subsequently reversed at a staff hearing, Kurtz was different because the TTD application was denied at both the district and staff hearings. In this specific situation, the court held recoupment of overpayment was prohibited, thus effectively foreclosing the ability of the BWC to recover excess payments made to the claimant.

Key takeaways for employers

Following Kurtz, Dillon’s recoupment rules have been substantially limited. At this time, it is unclear whether state fund employers will be credited for overpayment that may not be recouped.  Despite this uncertainty, however, employers can (and should) still argue for TTD termination to take effect as of the date of the independent medical examination.

An appeal of the Tenth District’s decision was filed recently with the Supreme Court of Ohio, and all eyes will be on the court’s handling of this narrow issue. Porter Wright’s workers’ compensation team will follow these developments closely.

If you have any questions, please contact Porter Wright’s workplace safety attorneys, Rebecca Levine or Chance Conaway.