Type: Law Bulletins
Date: 01/30/2015

Supreme Court Upholds Finding of MMI Despite Approval of Treatment Plan

More often than not, an employer’s attempt to terminate temporary total disability benefits is met with a request for treatment in an effort to thwart the termination of compensation. Consider this: your employee has been receiving temporary total disability for what seems like ages. It’s time to get the disability benefits terminated, right? Your TPA schedules an independent medical exam (IME) on the issue of maximum medical improvement (MMI). The doctor writes a favorable report declaring the claimant MMI. A motion is then quickly filed with the BWC requesting termination of temporary total disability benefits. Because only a hearing officer can terminate the benefits, another month of benefits continues until the matter finally comes to hearing. The hearing takes place and claimant’s attorney produces a C9 form completed by the treating physician stating that additional treatment is necessary; hence, the claimant cannot be found MMI. The employer’s motion is denied and disability benefits continue until the next go round. Sound familiar?

Aside from the allowance of a claim that should never have been allowed in the first place, there is probably nothing more frustrating for an employer than a denial of MMI at hearing when the claimant’s evidence is just a one page form asking for more treatment. On Jan. 20, 2015, the Supreme Court made it a little easier for employers to prevail at hearing on the issue of MMI, even when faced with a request for treatment.

In State ex rel. McCormick v. McDonald’s, Slip Opinion No. 2015-Ohio-123, the Supreme Court held that even if a treatment plan has been requested and approved, a finding of MMI can still be made. In the case, McCormick was injured in 2002 from a slip and fall that occurred while working at a McDonald’s restaurant. Her claim was allowed for various lower back conditions. On Aug. 13, 2010, Dr. Chauhan performed an IME on the extent of McCormick’s disability. Dr. Chauhan reviewed her medical history, which included conservative treatment until 2006, followed by a two-year lapse in treatment, and then resumption of treatment with a chiropractor in 2008. Dr. Chauhan determined that McCormick had reached a treatment plateau — no additional treatment was necessary — and found her MMI.

A few weeks after the exam, McCormick’s treating physician, Dr. Donatelli requested steroid injections. The MCO, for unknown reasons, approved the request despite Dr. Chauhan’s opinion that no further treatment was necessary. Consequently, McCormick’s chiropractor, Dr. Getsy, issued a report stating McCormick was not MMI due to the approved injections. Nevertheless, a motion was filed to terminate TTD benefits based upon Dr. Chauhan’s finding of MMI.

On Oct. 8, 2010, a district hearing officer granted the motion to terminate TTD compensation. McCormick appealed, but prior to the hearing before a staff hearing officer she underwent the series of approved injections. On Nov. 17, 2010, the staff hearing officer affirmed the prior order finding McCormick MMI and terminating benefits. A third level appeal by McCormick was denied, and she filed a mandamus action in the Court of Appeals, which found no abuse by the Industrial Commission in terminating TTD benefits. She then appealed to the Supreme Court, arguing the commission improperly relied on the report of Dr. Chauhan in terminating benefits because Dr. Chauhan was unaware of the subsequently approved injections at the time of his exam. Therefore, his finding of MMI was premature and factually inaccurate.

In ruling against McCormick, the Supreme Court pointed out that at the time of Dr. Chauhan’s examination no treatment plan was in place. His opinion was based on the fact that McCormick had received years of treatment, and Dr. Chauhan did not know that two weeks after his examination McCormick’s treating physician would request and gain approval to perform steroid injections. In other words, Dr. Chauhan’s opinion was not automatically rendered premature or invalid because other evidence came into existence after the finding of MMI was made. Had the MCO approved the treatment plan prior to Dr. Chauhan’s exam, or even on the day of his exam, such circumstances might have produced a different result. However, this was not the case here.

The rationale behind the court’s decision is pretty straightforward. It defies logic to throw out a physician’s finding of MMI or to reverse the commission’s finding of MMI when a request for treatment is approved after the fact. That is to say, the absence of a crystal ball does not invalidate a medical examiner’s finding of MMI. Indeed, the hearing officer could have chosen not to rely on the report of Dr. Chauhan, knowing that steroid injections were approved and had taken place, but having chosen otherwise McCormick could not argue there was an abuse of discretion. Simply put, employers and their representatives need not fear that eleventh hour requests for treatment will thwart a finding of MMI at the hearing table.

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