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March 12, 2026 Get Citation Alerts Download PDF Add Note

State ex rel. Kurtz v. Indus. Comm.

Ohio Court of Appeals

• Citations: 2026 Ohio 824
• Docket Number: 24AP-395

• Judges: Edelstein

• Opinion

• Authorities (27)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.2K)

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Syllabus

The commission did not abuse its discretion in determining claimant's TTD compensation terminated as of the date of the examining physician's report opining she had reached MMI. However, the commission abused its discretion in ordering recoupment of any overpayment of TTD compensation pursuant to R.C. 4123.511(K) because the procedural posture of this case does not fall within R.C. 4123.511(K). We grant claimant a limited writ of mandamus and remand the matter to the commission for further proceedings.

Combined Opinion

[Cite as State ex rel. Kurtz v. Indus. Comm., 2026-Ohio-824.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Elizabeth Kurtz, :

Relator, : No. 24AP-395

v. : (REGULAR CALENDAR)

Industrial Commission of Ohio et al., :

Respondents. :

D E C I S I O N

Rendered on March 12, 2026

On brief: Philip J. Fulton Law Office, and Philip J. Fulton,
for relator. Argued: Philip J. Fulton.

On brief: Dave Yost, Attorney General, and Anna Isupova,
for respondent Industrial Commission of Ohio. Argued:
Anna Isupova.

On brief: Dave Yost, Attorney General, and John Smart, for
respondent Administrator, Ohio Bureau of Workers’
Compensation. Argued: John Smart.

On brief: Reminger Co., L.P.A., and Troy A. Duffy, for
respondent CG-HHC, LLC. Argued: Troy A. Duffy.

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE’S DECISION

EDELSTEIN, J.
{¶ 1} Relator, Elizabeth Kurtz, initiated this original action requesting this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
(“commission”), to vacate its order terminating her temporary total disability (“TTD”)
No. 24AP-395 2

compensation and ordering any TTD compensation paid beyond March 18, 2024 to be an
overpayment subject to recoupment by respondent, Stephanie McCloud, Administrator,
Ohio Bureau of Workers’ Compensation (“BWC”).1
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this court referred the matter to a magistrate. The magistrate issued the appended decision,
including findings of fact and conclusions of law. The magistrate determined, consistent
with R.C. 4123.56(A), that Ms. Kurtz’s TTD compensation terminated as of the date she
reached maximum medical improvement (“MMI”). Because R.C. 4123.56(A) does not
allow a claimant to receive TTD compensation after reaching MMI, the magistrate
concluded that allowing Ms. Kurtz to retain TTD compensation paid to her after reaching
MMI would violate R.C. 4123.56(A). The magistrate also concluded the commission did
not abuse its discretion in finding Ms. Kurtz reached MMI as of the date of the independent
medical examiner’s report opining she had reached MMI. Additionally, the magistrate
found the commission did not abuse its discretion in finding an overpayment of TTD
compensation to Ms. Kurtz past March 18, 2024 and ordering recoupment of that
overpayment pursuant R.C. 4123.511(K). Thus, the magistrate recommends we deny
Ms. Kurtz’s petition for a writ of mandamus.
{¶ 3} Ms. Kurtz filed objections to the magistrate’s decision. Therefore, we must
independently review the decision to ascertain whether “the magistrate has properly
determined the factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d).
I. Background
{¶ 4} As set forth more fully in the magistrate’s decision, Ms. Kurtz sustained a
workplace injury on April 22, 2023 in the course of her employment with CG-HHC, LLC
(“employer”), and the commission allowed her claim for cervical sprain, thoracic sprain,
and lumbar sprain. In a September 20, 2023 order, the commission granted Ms. Kurtz
TTD compensation from May 2 to July 15, 2023 to continue on submission of supporting
medical proof. Subsequently, on January 30, 2024, BWC requested termination of
Ms. Kurtz’s TTD compensation due to Ms. Kurtz reaching MMI. BWC referred the claim
to the commission for a hearing.

1 In her petition, Ms. Kurtz named John Logue as Administrator, BWC. Subsequent to the filing of the petition,

Stephanie McCloud, Administrator, BWC, succeeded Logue as Administrator, BWC. On October 23, 2025,
BWC filed a motion for substitution pursuant to Civ.R. 25(D)(1).
No. 24AP-395 3

{¶ 5} Dr. Christopher Holzaepfel conducted an independent medical examination
of Ms. Kurtz. In a March 18, 2024 report, Dr. Holzaepfel opined Ms. Kurtz had reached
MMI. Based on Dr. Holzaepfel’s report, a District Hearing Officer (“DHO”) of the
commission found Ms. Kurtz had reached MMI and, in an order mailed April 9, 2024,
terminated Ms. Kurtz’s TTD compensation as of March 18, 2024, the date of
Dr. Holzaepfel’s report. The commission further found any TTD compensation after
March 18, 2024 “ is overpaid and is subject to recoupment by [BWC] pursuant to the non-
fraud provisions of R.C. 4123.511(K).” (Apr. 9, 2024 Order.)
{¶ 6} Ms. Kurtz appealed the April 9, 2024 order. In an order mailed May 30,
2024, a Staff Hearing Officer (“SHO”) of the commission affirmed the DHO’s April 9, 2024
order, finding Ms. Kurtz’s TTD compensation terminated effective March 18, 2024 and
“[a]ny overpayment which may occur as a result of this finding is to be recouped pursuant
to R.C. 4123.511(K).” (May 30, 2024 Order.) Ms. Kurtz appealed the SHO’s May 30, 2024
order, and the commission refused Ms. Kurtz’s appeal. Ms. Kurtz then filed the instant
complaint for a writ of mandamus.
{¶ 7} As referenced above, the magistrate determined the commission did not
abuse its discretion when it terminated Ms. Kurtz’s TTD compensation as of March 18,
2024, the date of Dr. Holzaepfel’s report finding Ms. Kurtz had reached MMI. The
magistrate further determined the commission did not abuse its discretion in finding any
payment of TTD compensation past March 18, 2024 was an overpayment subject to
recoupment by BWC pursuant to R.C. 4123.511(K).
{¶ 8} Ms. Kurtz filed objections to the magistrate’s decision. Ms. Kurtz does not
challenge the magistrate’s recitation of the pertinent facts; however, Ms. Kurtz objects to
the magistrate’s conclusions that (1) TTD compensation should terminate on the date of
Dr. Holzaepfel’s report rather than the date of the commission hearing finding Ms. Kurtz
had reached MMI; and (2) R.C. 4123.511(K) permits recoupment of TTD overpayments
issued pursuant to R.C. 4123.56(A). We address each of Ms. Kurtz’s objections in turn.
II. Law and Analysis
{¶ 9} To be entitled to a writ of mandamus, Ms. Kurtz must demonstrate a clear
legal right to the relief sought, that the commission has a clear legal duty to provide such
relief, and that there is no adequate remedy in the ordinary course of law. State ex rel.
No. 24AP-395 4

Pressley v. Indus. Comm., 11 Ohio St.2d 141, 162-63 (1967). Mandamus may lie if the
commission abused its discretion by entering an order unsupported by evidence in the
record or if there is a legal basis to compel the commission to perform its duties in
accordance with law. State ex rel. Cassens Corp. v. Indus. Comm., 2024-Ohio-526, ¶ 10. If
some evidence exists in the record to support the commission’s findings, this court may not
“second-guess the commission’s evaluation of the evidence.” State ex rel. Black v. Indus.
Comm., 2013-Ohio-4550, ¶ 22. With respect to legal questions, a writ of mandamus may
issue against the commission “ ‘if the commission has incorrectly interpreted Ohio law.’ ”
Cassens at ¶ 10, quoting State ex rel. Gassmann v. Indus. Comm., 41 Ohio St.2d 64, 65
(1975).
A. First Objection – Date of TTD Termination
{¶ 10} Ms. Kurtz’s first objection to the magistrate’s decision relates to the
termination of her TTD compensation. “ ‘The purpose of TTD compensation is to
“compensate an injured employee for the loss of earnings that he [or she] incurs while the
injury heals.” ’ ” Ewell v. Montgomery Cty. Court of Common Pleas, 2014-Ohio-3047, ¶ 13
(10th Dist.), quoting Cordial v. Ohio Dept. of Rehab. & Corr., 2006-Ohio-2533, ¶ 8 (10th
Dist.), quoting State ex rel. Baker v. Indus. Comm., 2000-Ohio-168, ¶ 13. R.C. 4123.56(A),
which governs TTD compensation, provides, in pertinent part:
In the case of a self-insuring employer, payments shall be for a
duration based upon the medical reports of the attending
physician, certified nurse-midwife, clinical nurse specialist, or
certified nurse practitioner. If the employer disputes the
attending physician’s or attending nurse’s report, payments
may be terminated only upon application and hearing by a
district hearing officer pursuant to division (C) of section
4123.511 of the Revised Code. Payments shall continue pending
the determination of the matter, however payment shall not be
made for the period when any employee has returned to work,
when an employee’s treating physician, certified nurse-
midwife, clinical nurse specialist, or certified nurse practitioner
has made a written statement that the employee is capable of
returning to the employee’s former position of employment,
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.
No. 24AP-395 5

As this court has explained, pursuant to R.C. 4123.56(A), “TTD compensation will be paid
until: (1) the claimant has returned to work, (2) the claimant’s treating physician provides
a written statement that the claimant is able to return to the former position of
employment, (3) work within the physical capabilities of the claimant is made available by
the employer or another employer, or (4) the claimant has reached MMI.” State ex rel.
Camp v. Ferrellgas Inc., 2025-Ohio-464, ¶ 16 (10th Dist.), citing R.C. 4123.56(A), and State
ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630, 632 (1982) (applying former
R.C. 4123.56(A)).
{¶ 11} Ms. Kurtz does not dispute the commission had some evidence on which to
rely in concluding she had reached MMI. However, Ms. Kurtz disagrees with the date upon
which the commission determined her TTD payments should terminate. She argues the
magistrate erred in finding the commission did not abuse its discretion in terminating her
TTD payments as of March 18, 2024, the date of Dr. Holzaepfel’s report opining she had
reached MMI. Instead, Ms. Kurtz asserts her TTD payments should have continued until
the commission determined, at the April 4, 2024 hearing, that she had reached MMI. To
hold otherwise, Ms. Kurtz argues, would defy the plain language of R.C. 4123.56(A)
requiring TTD payments to continue pending the commission’s determination of the
matter.
{¶ 12} As the magistrate noted, the Supreme Court of Ohio recently considered the
issue of the proper date of termination of TTD benefits. In State ex rel. Dillon v. Indus.
Comm., 2024-Ohio-744, the Supreme Court held “R.C. 4123.56(A) does not permit a
claimant to receive TTD compensation after reaching [MMI].” Id. at ¶ 14. The Supreme
Court explained that “[a]lthough R.C. 4123.56(A) requires payments to continue ‘during
the determination of the matter,’ the provision contains an exception: TTD compensation
may not be paid for the period after the employee has reached [MMI].” Id. Thus, the
claimant is not entitled to any payments past the date of reaching MMI. Id. at ¶ 14-15. In
reaching its conclusion in Dillon, the Supreme Court expressly overruled its prior decision
in State ex rel. Russell v. Indus. Comm., 82 Ohio St.3d 516 (1998), which had determined
TTD payments continued until the date of a commission hearing formally terminating TTD.
Id. at ¶ 17. See also State ex rel. Harless v. DMR Auto Servs., 2024-Ohio-5395, ¶ 8 (10th
Dist.) (explaining Dillon, noting “the Supreme Court held the date the claimant reaches
No. 24AP-395 6

MMI, rather than the date of the commission hearing finding the claimant had reached
MMI, is the operative date for terminating TTD compensation and for calculating any
overpayment of TTD compensation”). The magistrate found Dillon was dispositive of the
issue and determined TTD compensation terminated on March 18, 2024, the date on which
Dr. Holzaepfel opined Ms. Kurtz had reached MMI.
{¶ 13} Ms. Kurtz argues the magistrate erred in applying Dillon because its facts are
distinguishable from the instant case. As Ms. Kurtz notes, the TTD order in Dillon was
initially allowed but reversed on subsequent appeal, while here, the TTD order was
terminated by the commission after BWC’s request. Though we agree with Ms. Kurtz that
there are procedural differences between Dillon and the instant case, we do not agree that
those differences extend to the fundamental question of the proper date of termination of
TTD compensation. R.C. 4123.56(A) is clear that a claimant cannot receive TTD
compensation once the claimant has reached MMI, regardless of the procedural posture of
the case. The Supreme Court’s holding in Dillon that TTD compensation terminates on the
date a claimant reaches MMI, then, is directly relevant to the question presented in
Ms. Kurtz’s request for a writ of mandamus. Therefore, the magistrate did not err in
applying Dillon to this issue, and we reject Ms. Kurtz’s argument that the magistrate failed
to perform a de novo review of the relevant statutes by relying on Dillon.
{¶ 14} Additionally, we note that even if we were to agree with Ms. Kurtz that Dillon
was meaningfully distinguishable on its facts such that this court must conduct a de novo
review of R.C. 4123.56(A), such review would nonetheless compel the conclusion that TTD
compensation shall not be paid for a period after the claimant reaches MMI. Ms. Kurtz
urges this court to read R.C. 4123.56(A) as utilizing the phrase “the medical reports of the
attending physician” as the “key point of reference” that modifies the rest of the subsection,
including the phrase “when the employee has reached the maximum medical
improvement.” (Relator’s Objs. at 12, 13.) Thus, Ms. Kurtz asserts R.C. 4123.56(A) provides
that only when the reports of the attending physician declare a claimant has reached MMI
can the commission terminate TTD compensation prior to the hearing.
{¶ 15} Ms. Kurtz’s proposed reading of R.C. 4123.56(A) defies the plain language of
the statute. Though R.C. 4123.56(A) requires “the medical reports of the attending
physician” to determine ongoing TTD eligibility, the statute does not require that only the
No. 24AP-395 7

attending physician can declare a claimant has reached MMI such that the claimant is not
entitled to TTD compensation dating back to a time prior to the hearing on the matter.
Instead, when there is a dispute regarding a claimant’s continued eligibility for TTD
compensation, the statute states: “Payments shall continue pending the determination of
the matter, however payment shall not be made for the period [1] when any employee has
returned to work, [2] when an employee’s treating physician, certified nurse-midwife,
clinical nurse specialist, or certified nurse practitioner has made a written statement that
the employee is capable of returning to the employee’s former position of employment,
[3] when work within the physical capabilities of the employee is made available by the
employer or another employer, or [4] when the employee has reached the maximum
medical improvement.” R.C. 4123.56(A). This sentence sets forth four fully independent,
alternative directives for non-payment, each introduced by the temporal clause “when” and
joined by the disjunctive “or,” signifying each condition operates separately and is not
dependent on the others. These four temporal conditions to non-payment are not modified
by or dependent upon each other, nor are they modified by or dependent upon the statute’s
separate requirement that the reports of the attending physician are necessary for a
claimant to be eligible for TTD compensation.
{¶ 16} We are unable to read the statute in the manner Ms. Kurtz suggests. Because
of the independent nature of the temporal conditions, we cannot conclude “the medical
reports of the attending physician” modify the moment TTD payment is terminated due to
MMI. If the General Assembly had intended the termination of TTD due to MMI to be
dependent on some action of the attending physician, it would have so stated, as it did in
the second of these temporal conditions by stating payment shall not be made for the period
“when an employee’s treating physician, certified nurse-midwife, clinical nurse specialist,
or certified nurse practitioner has made a written statement that the employee is capable
of returning to the employee’s former position of employment.” R.C. 4123.56(A). However,
the General Assembly did not include such a requirement that terminating TTD due to MMI
is similarly linked to an action of the treating physician.
{¶ 17} The plain language of R.C. 4123.56(A), then, directs that a claimant can reach
MMI regardless of whether “the medical reports of the attending physician” render an
opinion on MMI. We will not read words into the statute that the General Assembly did
No. 24AP-395 8

not elect to include. Schmitt v. Schmitt, 2022-Ohio-1685, ¶ 16 (10th Dist.) (“[t]o agree with
the trial court’s interpretation of [the statute], we would have to add language to the statute
that does not exist. The rules of statutory construction prohibit such a reading of the
statute”), citing In re Certificate of Need Application for Project “Livingston Villa,”
Cuyahoga Cty., 2017-Ohio-196, ¶ 38 (10th Dist.) (“[w]hen interpreting a statute, ‘[c]ourts
may not delete words used or insert words not used’ ”), quoting Columbia Gas Transm.
Corp. v. Levin, 2008-Ohio-511, ¶ 19. Therefore, we do not agree with Ms. Kurtz’s proposed
interpretation of R.C. 4123.56(A).
{¶ 18} Ms. Kurtz advocates for pre-Dillon reasoning that a claimant cannot be
ineligible for TTD for reaching MMI until the commission makes that finding following a
hearing. However, as explained above, Dillon directly answered this question and
determined the date a claimant reaches MMI is the operative date, not the date of the
commission hearing making the finding the claimant has reached MMI. See Harless, 2024-
Ohio-5395, at ¶ 8 (10th Dist.). As we are bound by the Supreme Court’s decision in Dillon,
and it is not meaningfully distinguishable on this issue, we must agree with the magistrate
that, pursuant to R.C. 4123.56(A) and Dillon, a claimant is no longer entitled to TTD
compensation on the date the claimant reaches MMI, and the commission, therefore, did
not abuse its discretion by terminating Ms. Kurtz’s TTD compensation benefits as of
March 18, 2024, the date of Dr. Holzaepfel’s report opining Ms. Kurtz had reached MMI.
We overrule Ms. Kurtz’s first objection to the magistrate’s decision.
B. Second Objection – Recoupment Under R.C. 4123.511(K)
{¶ 19} In her second objection to the magistrate’s decision, Ms. Kurtz argues the
magistrate erred in concluding that any payment of TTD compensation she received past
March 18, 2024 is an overpayment subject to recoupment by BWC under R.C. 4123.511(K).
{¶ 20} In the SHO’s May 30, 2024 order, the commission affirmed the finding that
Ms. Kurtz had reached MMI as of March 18, 2024 and terminated her TTD compensation
as of that date. The commission then stated “[a]ny overpayment which may occur as a
result of this finding is to be recouped pursuant to R.C. 4123.511(K).” (May 30, 2024
Order.) Ms. Kurtz asserts R.C. 4123.511(K) does not allow for recoupment of overpayments
issued pursuant to R.C. 4123.56(A) and instead allows for recoupment only when TTD
compensation was previously allowed but subsequently reversed on appeal. The parties
No. 24AP-395 9

refer to compensation previously allowed but subsequently reversed on appeal as a
“straight-line appeal,” describing a situation where a commission DHO grants an initial
request for TTD compensation, the employer administratively appeals the award to a
commission SHO, and the SHO reverses the award on appeal and declares an overpayment.
For ease of discussion, we will use the “straight-line appeal” nomenclature as we consider
the parties’ arguments. As Ms. Kurtz notes, any overpayment here was not the result of a
straight-line appeal but instead was the result of a commission order terminating TTD at
BWC’s request. Thus, Ms. Kurtz argues both the commission and the magistrate erred in
applying R.C. 4123.511(K) to her claim.
{¶ 21} We must determine whether R.C. 4123.511(K) applies to recoupment of
overpayment that results from a commission order terminating TTD at BWC’s request
rather than from a straight-line appeal. R.C. 4123.511(K) provides:
Upon the final administrative or judicial determination under
this section or section 4123.512 of the Revised Code of an
appeal of an order to pay compensation, if a claimant is
found to have received compensation pursuant to a
prior order which is reversed upon subsequent
appeal, the claimant’s employer, if a self-insuring employer,
or the bureau, shall withhold from any amount to which the
claimant becomes entitled pursuant to any claim, past, present,
or future, under Chapter 4121, 4123, 4127, or 4131 of the
Revised Code, the amount of previously paid compensation to
the claimant which, due to reversal upon appeal, the claimant
is not entitled, pursuant to the following criteria:

(1) No withholding for the first twelve weeks of temporary total
disability compensation pursuant to section 4123.56 of the
Revised Code shall be made;

(2) Forty per cent of all awards of compensation paid pursuant
to sections 4123.56 and 4123.57 of the Revised Code, until the
amount overpaid is refunded;

(3) Twenty-five per cent of any compensation paid pursuant to
section 4123.58 of the Revised Code until the amount overpaid
is refunded;

(4) If, pursuant to an appeal under section 4123.512 of the
Revised Code, the court of appeals or the supreme court
reverses the allowance of the claim, then no amount of any
compensation will be withheld.
No. 24AP-395 10

The administrator and self-insuring employers, as appropriate,
are subject to the repayment schedule of this division only
with respect to an order to pay compensation that
was properly paid under a previous order, but which
is subsequently reversed upon an administrative or
judicial appeal. The administrator and self-insuring
employers are not subject to, but may utilize, the repayment
schedule of this division, or any other lawful means, to collect
payment of compensation made to a person who was not
entitled to the compensation due to fraud as determined by the
administrator or the industrial commission.

(Emphasis added.)
{¶ 22} A court’s duty is to give effect to the words used in a statute, not to delete or
insert words. Ayers v. Cleveland, 2020-Ohio-1047, ¶ 17; State v. Jordan, 89 Ohio St.3d
488, 491 (2000) (“[T]he cornerstone of statutory construction and interpretation is
legislative intention.”). “In order to determine legislative intent, it is a cardinal rule of
statutory construction that a court must first look to the language of the statute itself.”
Jordan at 492. When the text of the statute is plain and unambiguous, we must give effect
to the legislature’s intent by simply applying the law as written. State v. Kreischer, 2006-
Ohio-2706, ¶ 12; State v. Hairston, 2004-Ohio-969, ¶ 13, citing Sears v. Weimer, 143 Ohio
St. 312 (1944), paragraph five of the syllabus (stating that, if a statute is not ambiguous, “we
need not interpret it; we must simply apply it”).
{¶ 23} From its plain language, the statute sets forth a compulsory recoupment
mechanism for an overpayment of TTD that applies in a very specific situation: when “a
claimant is found to have received compensation pursuant to a prior order which is
reversed upon subsequent appeal.” R.C. 4123.511(K). We agree with the parties that this
compulsory recoupment mechanism applies, by its plain language, when a TTD
overpayment is the result of a straight-line appeal. Respondents concede, and we agree,
that the overpayment of TTD here was not the result of a straight-line appeal. Nonetheless,
both the commission and BWC urge us to agree with the magistrate that because nothing
in R.C. 4123.511(K) prohibits the commission from ordering recoupment under
additional circumstances beyond straight-line appeals, the commission did not err in
applying R.C. 4123.511(K) here. Ms. Kurtz responds that nothing in R.C. 4123.511(K)
extends the compulsory recoupment mechanism to the instant facts: an overpayment of
No. 24AP-395 11

TTD compensation issued pursuant to BWC’s motion to terminate TTD under
R.C. 4123.56(A). Thus, Ms. Kurtz argues that applying R.C. 4123.511(K) to the facts of this
case would require this court to impermissibly broaden the application of the statute. Based
on a plain reading of R.C. 4123.511(K), we agree with Ms. Kurtz.
{¶ 24} To ignore the procedural posture of the overpayment, as the commission and
BWC urge us to do, would be to ignore the plain language of R.C. 4123.511(K). Importantly,
in addition to the compulsory recoupment of an overpayment of TTD resulting from a
straight-line appeal, the plain language of R.C. 4123.511(K) sets forth one additional
circumstance for its application. The last sentence of the statutory subsection provides
“[t]he administrator and self-insuring employers are not subject to, but may utilize,
the repayment schedule of this division, or any other lawful means, to collect payment of
compensation made to a person who was not entitled to the compensation due to fraud
as determined by the administrator or the industrial commission.” (Emphasis added.)
R.C. 4123.511(K). The statute, therefore, identifies exactly two circumstances for
application of the recoupment method—one mandatory and one discretionary—and, by
omitting any catch-all or analogous-circumstances provision, limits its reach to those two
discrete situations. Applying the statute as written, we do not agree with the commission
and BWC that the procedural posture of the overpayment is a distinction without a
difference. See, e.g., Columbus v. 71-73 E. Norwich Ave., L.L.C., 2025-Ohio-2240, ¶ 25
(10th Dist.) (“[A] court’s duty is to give effect to the words used in a statute, not to delete or
insert words.”). (Emphasis omitted.) Rather, the procedural posture of the overpayment
is a necessary prerequisite to the application of R.C. 4123.511(K). Based on our de novo
review of R.C. 4123.511(K), we find the statute’s plain language does not apply to an
overpayment of TTD resulting from a motion to terminate TTD filed pursuant to
R.C. 4123.56(A).
{¶ 25} Despite the plain language of R.C. 4123.511(K), respondents argue there is
some precedent for broadening the application of the statute to situations other than a
straight-line appeal. In State ex rel. Wooton v. Indus. Comm., 2004-Ohio-6505, the
claimant was awarded permanent total disability (“PTD”) compensation, and the employer
filed a complaint in mandamus alleging the commission had abused its discretion in
awarding PTD. Wooton at ¶ 3. This court determined the commission did not adequately
No. 24AP-395 12

explain its decision and issued a limited writ returning the cause to the commission for
further consideration. Id. On reconsideration, the commission determined the claimant
was not entitled to PTD compensation, and the claimant did not appeal. Id. at ¶ 4.
Subsequently, BWC determined claimant had been overpaid and specified the
overpayment was to be repaid using the withholding method contained in former
R.C. 4123.511(J), now renumbered as R.C. 4123.511(K). Id. at ¶ 4. Claimant
administratively appealed the overpayment determination, and this court, in mandamus,
upheld the commission’s order. Id. The Supreme Court also affirmed the overpayment
determination, finding that where compensation is reversed “on administrative
reconsideration,” former R.C. 4123.511(J) applied. Id. at ¶ 7.
{¶ 26} This court considered a similar argument in State ex rel. Knedler v. Indus.
Comm., 2013-Ohio-5537 (10th Dist.). In Knedler, an SHO granted the claimant’s request
for PTD compensation, and the employer subsequently requested the commission
reconsider the SHO’s order. Knedler at ¶ 4. Following a hearing on reconsideration, the
commission vacated the SHO’s order and denied the claimant’s application for PTD
compensation. Id. at ¶ 6. After vacating the SHO’s order, the commission mailed an order
declaring an overpayment of PTD and stating the overpayment would be collected as a
percentage of future awards. Id. at ¶ 7. Claimant administratively appealed, and an SHO
found there would be no repayment of the overpayment because (1) claimant received the
compensation in good faith, (2) R.C. 4123.511(K) applies for recollection only after final
administrative determination of appeal, and (3) R.C. 4123.511(K) does not provide for
repayment upon reconsideration. Id. at ¶ 7. Instead, the SHO determined the overpayment
should be charged to the statutory surplus fund. Id. At the requests of the employer and
BWC, the commission exercised continuing jurisdiction, found the SHO erred by charging
the overpayment to the surplus fund, and ordered the overpayment be collected from the
claimant pursuant to R.C. 4123.511(K).
{¶ 27} In a mandamus action in this court, the claimant argued the commission
could not recoup an overpayment of PTD compensation under R.C. 4123.511(K) where the
overpayment of PTD resulted from the commission exercising continuing jurisdiction and
not from a straight-line appeal. Knedler at ¶ 27. Asserting that the overpayment authority
in R.C. 4123.511(K) is limited only to appeals, the claimant argued the commission could
No. 24AP-395 13

not recoup any overpayment from him. Id. This court rejected the claimant’s argument by
relying on Wooton for the proposition that “[w]hen the compensation was stopped because
the order awarding it was reversed on administrative reconsideration, R.C. 4123.511(K) was
applicable.” Id. at ¶ 28. Thus, we determined the commission did not err in declaring an
overpayment and ordering recovery pursuant to R.C. 4123.511(K). Id. at ¶ 29.
{¶ 28} In both Wooton and Knedler, the specific procedural posture of the case was
determinative of the applicability of R.C. 4123.511(K). Both cases involved a challenge to
the initial determination that the claimant was eligible for TTD, and, in both cases, the court
deemed the reversal of that initial determination upon administrative reconsideration
satisfied R.C. 4123.511(K)’s requirement of a claimant “found to have received
compensation pursuant to a prior order which is reversed upon subsequent appeal.” Unlike
those two cases, the instant case involves neither a straight-line appeal from the order
initially allowing TTD compensation nor an administrative reconsideration of the award of
TTD compensation. Instead, Ms. Kurtz was granted TTD compensation and, subsequently,
BWC sought to terminate TTD on the basis that Ms. Kurtz had reached MMI. This fact
pattern is distinct from either the employer or BWC challenging the initial grant of TTD
through a straight-line appeal, a challenge in mandamus, or the invocation of the
commission’s continuing jurisdiction. Thus, we find Wooton and Knedler inapplicable.
{¶ 29} Similarly, the facts here are also meaningfully distinguishable from Dillon on
this question. We are mindful that the Supreme Court in Dillon concluded “if the claimant
is not entitled to [TTD] payments, then R.C. 4123.511(K) requires the bureau to withhold
the amount previously paid from compensation that the claimant may receive in the
future.” Dillon, 2024-Ohio-744, at ¶ 15. The magistrate relied on this portion of Dillon to
conclude that “allowing claimant in this case to retain the overpayments after the granting
of BWC’s motion to terminate would permit claimant to retain payments after having
reached MMI, which would be in direct contravention of R.C. 4123.56(A) and the Supreme
Court’s decision in Dillon.” (Appended Mag.’s Decision at ¶ 57.) We conclude, however,
the magistrate’s reliance on Dillon as it relates to the application of R.C. 4123.511(K) to the
procedural posture of this case is misplaced.
{¶ 30} As outlined above, Dillon involved two distinct issues. First, the Supreme
Court in Dillon determined the date on which a claimant is no longer entitled to TTD
No. 24AP-395 14

compensation is the date the claimant reaches MMI. This portion of Dillon relates to the
meaning of R.C. 4123.56(A), and, as such, is directly related to the question raised in
Ms. Kurtz’s first objection to the magistrate’s decision. The second distinct issue in Dillon
is the recoupment of TTD “compensation payments made in accordance with an
order that is subsequently reversed on appeal.” (Emphasis added.) Dillon at ¶ 7.
Dillon examined recoupment under R.C. 4123.511(K) in the specific procedural posture of
TTD compensation reversed in a straight-line appeal and held, relative to that specific
procedural posture, that R.C. 4123.511(K) requires BWC to recoup overpayments of TTD.
Thus, the holding in Dillon that an overpayment of TTD compensation is subject to
recoupment under R.C. 4123.511(K) is limited to the procedural posture in which
R.C. 4123.511(K) applies: reversal of TTD compensation in a straight-line appeal. Because
we have concluded R.C. 4123.511(K) does not apply to the procedural posture of this case,
we similarly conclude Dillon is not applicable to the recoupment of TTD compensation
here.
{¶ 31} Based on our de novo review of the statute, R.C. 4123.511(K) does not apply
to an overpayment resulting from a motion to terminate TTD filed pursuant to
R.C. 4123.56(A). To the extent respondents assert recoupment must be permitted given
R.C. 4123.56(A)’s prohibition on TTD compensation once a claimant reaches MMI, we note
R.C. 4123.56(A) does not address recoupment of overpayment, and, in any event, the
commission did not order recoupment pursuant to R.C. 4123.56(A). Instead, the
commission ordered recoupment pursuant to R.C. 4123.511(K), a statute that does not
apply to the procedural posture here.2 Because R.C. 4123.511(K) does not apply to the facts
of Ms. Kurtz’s case—overpayment resulting from the termination of TTD compensation
following BWC’s motion to terminate—the commission erred in ordering recoupment
pursuant to R.C. 4123.511(K), and the magistrate erred in finding the commission did not
abuse its discretion related to recoupment. See State ex rel. Ohio Presbyterian Retirement
Servs., Inc. v. Indus. Comm., 2017-Ohio-7577, ¶ 13 (mandamus may issue against the

2 The employer advances a slightly different argument, suggesting the commission did not order recoupment

pursuant to R.C. 4123.511(K) but simply adopted the framework of repayment contained in R.C. 4123.511(K)
as part of an independent recoupment plan. We find this argument defies the face of the commission’s order
which plainly states any overpayment “is to be recouped pursuant to R.C. 4123.511(K).” (May 30, 2024 Order.)
Thus, we reject the employer’s argument.
No. 24AP-395 15

commission when the commission fails to follow the law or incorrectly interprets the law).
Though respondents argue there may exist separate authority conferring the commission
with the ability to order recoupment, that question is not properly before us at this juncture.
Our role is to review what the commission did, not to hypothesize what the commission
could have done.3 The commission’s order ordered recoupment pursuant to
R.C. 4123.511(K) and, as such, contained an error of law. Accordingly, we sustain Ms.
Kurtz’s second objection to the magistrate’s decision.
III. Disposition
{¶ 32} Following our independent review of the record under Civ.R. 53, we find the
magistrate did not err in concluding the commission did not abuse its discretion in
determining Ms. Kurtz’s TTD compensation terminated as of March 18, 2024. However,
we find the magistrate erred in concluding the commission did not abuse its discretion in
ordering recoupment of any overpayment of TTD compensation pursuant to
R.C. 4123.511(K). Accordingly, we adopt the magistrate’s findings of fact and conclusions
of law related to the date of termination of TTD compensation but not the conclusions of
law related to recoupment pursuant to R.C. 4123.511(K). We therefore overrule Ms. Kurtz’s
first objection but sustain her second objection to the magistrate’s decision. For the reasons
set forth herein, we grant Ms. Kurtz a limited writ of mandamus vacating the portion of the

3 The employer argues the commission has the “inherent ability” to determine overpayments in different

scenarios. (Employer’s Memo Contra at 24.) See State ex rel. Weimer v. Indus. Comm., 62 Ohio St.2d 159,
161 (1980) (where injured worker was overpaid due to a clerical error and the commission ordered
recoupment by deducting amounts from future compensation, the Supreme Court held “[i]n view of the
fiduciary responsibility of the commission for the state insurance fund and the grant of power to it under
R.C. 4123.52, the acts of the commission and its agents were lawful”). Additionally, the employer asserts the
commission derives authority to recover overpayments from Adm.Code 4121-3-32(B) and this authority
affords the commission the discretion to identify a reasonable method of repayment, including adopting the
recoupment structure contained in R.C. 4123.511(K). Consideration of this argument would require a
determination of whether the repayment provisions in Adm.Code 4121-3-32(B) are a proper exercise of the
commission’s statutory authority under R.C. 4123.56(A). See State ex rel. Ashcraft v. Indus. Comm., 15 Ohio
St.3d 126, 128 (1984) (the commission is a statutory entity limited to the powers explicitly granted to it by the
legislature, and the commission cannot, through administrative rulemaking, exceed the powers granted to it
by statute). Again, however, because the commission’s order here is clear that it ordered recoupment
“pursuant to R.C. 4123.511(K),” we will not, at this juncture, engage in the purely academic exercise of
determining what the commission could have done instead. If and when the commission takes further action
to order recoupment, whether on remand in the instant case or through some other proceeding, the propriety
of that action may come before this court at that time. We also reject the magistrate’s characterization of any
overpayment here as a “windfall.” (Appended Mag.’s Decision at ¶ 58.) Any overpayment to Ms. Kurtz was a
result of BWC’s use of the statutory mechanism of R.C. 4123.56(A) to terminate TTD, not from any action or
inaction on the part of Ms. Kurtz.
No. 24AP-395 16

May 30, 2024 order related to recoupment pursuant to R.C. 4123.511(K), and we remand
this matter to the commission for further proceedings in accordance with this decision.
Objections overruled in part and sustained in part;
limited writ of mandamus granted; cause remanded.

DORRIAN J, concurs.
LELAND, J., concurs in part and dissents in part.

LELAND, J., concurring in part and dissenting in part.
{¶ 33} While I concur with the judgment of the majority in overruling the first
objection to the magistrate’s decision, I dissent from the decision to sustain the second
objection. I would overrule both objections, adopt the magistrate’s decision, and deny
Ms. Kurtz’s request for a writ of mandamus.
{¶ 34} The majority finds R.C. 4123.511(K) inapplicable to the procedural posture of
this case and sustains an objection to the magistrate’s decision on the recoupment question.
It concludes “R.C. 4123.511(K) does not apply to an overpayment resulting from a motion
to terminate TTD filed pursuant to R.C. 4123.56(A).” (Majority Decision at ¶ 31.) The
majority instead believes recoupment under R.C. 4123.511(K) is limited to the “very specific
situation” in which an overpayment is “ ‘reversed upon subsequent appeal.’ ” (Majority
Decision at ¶ 23, quoting R.C. 4123.511(K).) Put another way, the majority argues the
statute applies only in the context of a straight-line appeal, described as “a situation where
a commission DHO grants an initial request for TTD compensation, the employer
administratively appeals the award to a commission SHO, and the SHO reverses the award
on appeal and declares an overpayment.” (Majority Decision at ¶ 20.)
{¶ 35} Such a conclusion eschews the legal holdings of two Supreme Court of Ohio
decisions and one decision of our court on the basis that their facts differ from the present
case. Although the procedural posture of our case is not a straight-line appeal, case law tells
us R.C. 4123.511(K) does not so stridently limit recoupment to only one form of procedure.
In State ex rel. Wooton v. Indus. Comm., 2004-Ohio-6505, for example, the commission
reversed a PTD order following reconsideration imposed by a writ of mandamus. The
commission determined the claimant was overpaid and subject to recoupment under
R.C. 4123.511(J), the predecessor statute to the current R.C. 4123.511(K). The Supreme
Court affirmed the recoupment order, yet the procedural posture of the case was assuredly
No. 24AP-395 17

not a straight-line appeal. Wooton. In State ex rel. Knedler v. Indus. Comm., 2013-Ohio-
5537 (10th Dist.), the court held the BWC could recoup funds pursuant to R.C. 4123.511(K)
after the commission exercised continuing jurisdiction to vacate an order of PTD
compensation. Knedler at ¶ 28-29. Knedler’s use of continuing jurisdiction to vacate PTD
compensation distinguishes it from a typical straight-line appeal, yet this court allowed
recoupment under R.C. 4123.511(K). And while State ex rel. Dillon v. Indus. Comm., 2024-
Ohio-744, followed a more typical procedure, its interpretation of the law is instructive. In
Dillon, the Supreme Court held R.C. 4123.56(A) prohibits a claimant from “receiving
payments after attaining” MMI, and, as a result, R.C. 4123.511(K) requires the BWC to
recoup any TTD payments made after the claimant attained MMI. Dillon at ¶ 15. Common
among these cases is a straightforward statutory policy: “claimants are not entitled to
windfalls of compensation where they have been wrongfully paid.” State ex rel. Murphy v.
Indus. Comm., 2006-Ohio-1480, ¶ 25 (10th Dist.).
{¶ 36} The majority claims it is merely applying the unambiguous language of
R.C. 4123.511(K), but, in reality, its interpretation is at odds with the case law of this court
and the Supreme Court. It attempts to draw a line between the procedural postures of
Wooton, Knedler, and Dillon on the one hand, and the posture of the present case on the
other hand. This attempt to partition the statute’s applicability serves only to confuse. Why
would R.C. 4123.511(K) allow for recoupment in the case of reversals after writs of
mandamus, continuing jurisdiction, and straight-line appeals, but not in the case of
reversal due to a request to terminate TTD compensation? The “reversed upon subsequent
appeal” language of R.C. 4123.511(K) is ambiguous, thereby undermining the majority’s
effort to delineate which administrative procedures should and should not allow for
recoupment under this statute.
{¶ 37} The BWC “shall” recoup funds “a claimant is found to have received . . .
pursuant to a prior order which is reversed upon subsequent appeal.” R.C. 4123.511(K).
Because this language could conceivably include or exclude the procedural posture of
Wooton, Knedler, and the present case, I agree with the direction of recent case law that
“subsequent appeal” is not so restrictive a term. Administrative procedures that are appeals
in effect, if not in name, can nevertheless be subject to R.C. 4123.511(K), as was the case in
Wooton and Knedler. And here, while the reversal of an order granting TTD compensation
No. 24AP-395 18

at the request of the BWC was not, strictly speaking, an appeal, its effect was
indistinguishable from an administrative appeal. Under these circumstances, the policy of
our statutory scheme and recent case law convinces me the BWC may recoup funds from
Ms. Kurtz under R.C. 4123.511(K). TTD payments “shall not be made for the period . . .
when the employee has reached the maximum medical improvement.” R.C. 4123.56(A).
As the Supreme Court reasoned in Dillon, R.C. 4123.511(K) requires the BWC to recoup
funds paid to claimants who were not entitled to receive them. See Dillon at ¶ 15.
{¶ 38} Because I would overrule both objections, adopt the magistrate’s decision,
and deny Ms. Kurtz’s request for a writ of mandamus, I respectfully concur in part and
dissent in part.
[Cite as State ex rel. Kurtz v. Indus. Comm., 2026-Ohio-824.]

APPENDIX
IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Elizabeth Kurtz, :

Relator, :
v. No. 24AP-395
:
Industrial Commission of Ohio et al., (REGULAR CALENDAR)
:
Respondents.
:

MAGISTRATE’S DECISION

Rendered on September 18, 2025

Philip J. Fulton Law Office, and Philip J. Fulton, for relator.

Dave Yost, Attorney General, and Anna Isupova, for
respondent Industrial Commission of Ohio.

Dave Yost, Attorney General, and John Smart, for respondent
Administrator, Ohio Bureau of Workers’ Compensation.

Reminger Co., L.P.A., and Troy A. Duffy, for respondent CG-
HHC, LLC.

IN MANDAMUS

{¶ 39} Relator, Elizabeth Kurtz (“claimant”), has filed this original action requesting
that this court issue a writ of mandamus ordering respondent Industrial Commission of
Ohio (“commission”) to vacate its order that terminated claimant’s temporary total
disability (“TTD”) compensation and ordered any TTD compensation paid beyond
March 18, 2024, was an overpayment subject to recoupment by respondent John Logue,
Administrator, Ohio Bureau of Workers’ Compensation (“BWC”).
No. 24AP-395 20

Findings of Fact:
{¶ 40} 1. Claimant was injured on April 22, 2023, during the course of her
employment with respondent CG-HHC, LLC (“employer”) when she was lifting a patient.
{¶ 41} 2. On September 20, 2023, a district hearing officer (“DHO”) for the
commission allowed the workers’ compensation claim for the conditions of cervical sprain,
thoracic sprain, and lumbar sprain and granted claimant TTD compensation from May 2
to July 15, 2023, to continue upon submission of supporting medical proof.
{¶ 42} 3. On January 30, 2024, the BWC requested that TTD compensation be
terminated due to claimant’s reaching maximum medical improvement (“MMI”) and
referred the claim to the commission for a hearing.
{¶ 43} 4. Christopher Holzaepfel, M.D., performed an independent medical
examination (“IME”) on claimant. In a March 18, 2024, report, Dr. Holzaepfel found the
following: (1) claimant has reached MMI; (2) claimant has undergone appropriate
treatment for the conditions, including an initial period of rest and anti-inflammatory
medication; (3) claimant underwent one session of massage therapy but has not sought any
further treatment; (4) claimant indicates that her symptoms have overall improved; (5)
claimant’s symptoms have been statis and well-stabilized over the last three months and,
as such, have reached MMI; and (6) claimant’s request for massage therapy is not
reasonable, necessary, or appropriate, as the treatment will provide no functional
improvement.
{¶ 44} 5. On April 9, 2024, the DHO found claimant had reached MMI based upon
Dr. Holzaepfel’s report; terminated TTD compensation as of March 18, 2024, which was
the date of Dr. Holzaepfel’s report; and found an overpayment subject to recoupment by
the BWC pursuant to R.C. 4123.511(K).
{¶ 45} 6. Claimant appealed the DHO’s order, and on May 24, 2024, a staff hearing
officer (“SHO”) affirmed the DHO’s order, finding the following: (1) TTD compensation is
terminated, effective March 18, 2024, the date of Dr. Holzaepfel’s report; (2) Dr. Holzaepfel
determined that claimant’s symptoms are static and well-stabilized, and claimant has had
appropriate treatment for the allowed conditions; (3) claimant has reached MMI; and (4)
any overpayment that may occur as a result of the order is “to be recouped pursuant to R.C.
4123.511(K).”
No. 24AP-395 21

{¶ 46} 7. Claimant appealed the SHO’s order, but the commission refused claimant’s
appeal.
{¶ 47} 8. On June 26, 2024, claimant filed a petition for writ of mandamus, naming
the BWC, the commission, and the employer as respondents.
{¶ 48} 9. On July 23, 2024, claimant filed an amended complaint, adding language
that the BWC issued her a letter on June 24, 2024, advising her that it would recoup her
overpayment per Ohio statutory law, but the BWC lacks legal authority under
R.C. 4123.511(K) to recoup an overpayment and such is an abuse of discretion.

Conclusions of Law and Discussion:
{¶ 49} The magistrate recommends this court deny claimant’s petition for writ of
mandamus.
{¶ 50} In order for this court to issue a writ of mandamus, a relator must ordinarily
show a clear legal right to the relief sought, a clear legal duty on the part of the respondent
to provide such relief, and the lack of an adequate remedy in the ordinary course of law.
State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967).
{¶ 51} A clear legal right to a writ of mandamus exists where the relator shows that
the commission abused its discretion by entering an order that is not supported by any
evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On
the other hand, where the record contains some evidence to support the commission’s
findings, there has been no abuse of discretion and mandamus is not appropriate. State ex
rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of
credibility and the weight to be given evidence are clearly within the discretion of the
commission as fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 52} TTD compensation awarded pursuant to R.C. 4123.56 is compensation for
wages lost where a claimant’s injury prevents a return to the former position of
employment. Upon that predicate, TTD compensation shall be paid to a claimant until one
of four things occurs: (1) the claimant has returned to work; (2) the claimant’s treating
physician provides a written statement that the claimant is able to return to the former
position of employment; (3) work within the physical capabilities of the claimant is made
available by the employer or another employer; or (4) the claimant has reached MMI.
R.C. 4123.56(A); State ex rel. Ramirez v. Indus. Comm., 69 Ohio St.2d 630 (1982).
No. 24AP-395 22

{¶ 53} Adm.Code 4121-3-32(A)(1) provides the definition of MMI for workers’
compensation purposes:
“Maximum medical improvement” is a treatment plateau
(static or well-stabilized) at which no fundamental functional
or physiological change can be expected within reasonable
medical probability in spite of continuing medical or
rehabilitative procedures. An injured worker may need
supportive treatment to maintain this level of function.

R.C. 4123.56(A) provides, in pertinent part, the following:
In the case of a self-insuring employer, payments shall be for
a duration based upon the medical reports of the attending
physician, certified nurse-midwife, clinical nurse specialist, or
certified nurse practitioner. If the employer disputes the
attending physician’s or attending nurse’s report, payments
may be terminated only upon application and hearing by a
district hearing officer pursuant to division (C) of section
4123.511 of the Revised Code. Payments shall continue
pending the determination of the matter, however payment
shall not be made for the period when any employee has
returned to work, when an employee’s treating physician,
certified nurse-midwife, clinical nurse specialist, or certified
nurse practitioner has made a written statement that the
employee is capable of returning to the employee’s former
position of employment, 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.

R.C. 4123.511(K) provides, in pertinent part, the following:
Upon the final administrative or judicial determination under
this section or section 4123.512 of the Revised Code of an
appeal of an order to pay compensation, if a claimant is found
to have received compensation pursuant to a prior order
which is reversed upon subsequent appeal, the claimant’s
employer, if a self-insuring employer, or the bureau, shall
withhold from any amount to which the claimant becomes
entitled pursuant to any claim, past, present, or future, under
Chapter 4121., 4123., 4127., or 4131. of the Revised Code, the
amount of previously paid compensation to the claimant
which, due to reversal upon appeal, the claimant is not
entitled, pursuant to the following criteria:

(1) No withholding for the first twelve weeks of temporary
total disability compensation pursuant to section 4123.56 of
the Revised Code shall be made;
No. 24AP-395 23

(2) Forty per cent of all awards of compensation paid pursuant
to sections 4123.56 and 4123.57 of the Revised Code, until the
amount overpaid is refunded;

(3) Twenty-five per cent of any compensation paid pursuant
to section 4123.58 of the Revised Code until the amount
overpaid is refunded;

(4) If, pursuant to an appeal under section 4123.512 of the
Revised Code, the court of appeals or the supreme court
reverses the allowance of the claim, then no amount of any
compensation will be withheld.

The administrator and self-insuring employers, as
appropriate, are subject to the repayment schedule of this
division only with respect to an order to pay compensation
that was properly paid under a previous order, but which is
subsequently reversed upon an administrative or judicial
appeal.

The administrator and self-insuring employers are not subject
to, but may utilize, the repayment schedule of this division, or
any other lawful means, to collect payment of compensation
made to a person who was not entitled to the compensation
due to fraud as determined by the administrator or the
industrial commission.

{¶ 54} In the present case, claimant presents two arguments: the first pertains to the
proper termination date for her TTD benefits; and the second pertains to recoupment of
overpayments. With regard to the first argument, claimant asserts that the commission
abused its discretion when it terminated her TTD benefits as of March 18, 2024, the date of
Dr. Holzaepfel’s IME report. Claimant contends that, despite the clear language in
R.C. 4123.56(A) that payment must continue pending the determination of the matter, and
the consistent statements from her treating physician that she remained temporarily and
totally disabled, the commission terminated her TTD benefits as of the date of
Dr. Holzaepfel’s IME report and not the date of the DHO hearing. Claimant argues that the
Supreme Court of Ohio has consistently held that the language of R.C. 4123.56(A)(1)
prohibits the termination of continuing TTD compensation prior to a hearing before a
commission hearing officer as long as the claimant’s physician continues to certify TTD.
{¶ 55} However, in State ex rel. Dillon v. Indus. Comm., 2024-Ohio-744, the
Supreme Court of Ohio analyzed R.C. 4123.56(A) and found contrary to relator’s argument.
No. 24AP-395 24

In Dillon, the worker suffered a work-related back injury, the bureau allowed her claim for
several conditions, and she was awarded TTD compensation. The worker appealed the
disallowance of other conditions, and her employer obtained an IME. The reviewing
physician opined that she had reached MMI on August 8, 2019. An SHO affirmed the
disallowance of the additional conditions, agreed that she had attained MMI, and
terminated her TTD compensation as of August 8, 2019. However, because the worker had
continued to receive TTD compensation after August 8, 2019, the BWC issued an order
seeking to recoup the overpayment. Upon the worker’s writ of mandamus in this court to
vacate the order declaring an overpayment, this court denied the writ and found any
payments after August 8, 2019, were overpayments subject to recoupment pursuant to R.C.
4123.51(K).
{¶ 56} Upon appeal, the Supreme Court in Dillon first addressed R.C. 4123.511(K).
The court found that because the worker had previously received compensation pursuant
to a prior order that was reversed upon subsequent appeal, she was not entitled to TTD
compensation after August 8, 2019, and was not allowed to retain what she had been
previously paid under the reversed order. Thus, under the plain language of R.C.
4123.511(K), the BWC correctly recouped the “previously paid” TTD compensation that the
worker received after she reached MMI.
{¶ 57} The court then addressed R.C. 4123.56(A) and State ex rel. Russell v. Indus.
Comm., 82 Ohio St.3d 516 (1998), which construed a prior version of R.C. 4123.56(A) and
the predecessor to R.C. 4123.511(K), former R.C. 4123.511(J). The court in Russell found
that the question of a claimant’s entitlement to receive ongoing TTD compensation until a
hearing officer rules otherwise is governed by R.C. 4123.56, not R.C. 4123.511(J). Relying
on R.C. 4123.56(A), the court in Russell had concluded that the appropriate date on which
to terminate disputed TTD compensation on the basis of MMI is the date of the termination
hearing, and the commission may not declare an overpayment for payments received by
the claimant before that date.
{¶ 58} However, the court in Dillon disagreed with its prior analysis in Russell. The
court found that R.C. 4123.56(A) does not permit a claimant to receive TTD compensation
after reaching MMI. The court reasoned that, although R.C. 4123.56(A) requires payments
to continue “during the determination of the matter,” the provision contains an exception:
TTD compensation may not be paid for the period after the employee has reached MMI.
No. 24AP-395 25

Thus, the court concluded, the worker was not entitled to receive TTD compensation once
she reached MMI and her condition became permanent. In overruling Russell, the court
explained that the conclusion in Russell cannot be squared with R.C. 4123.56(A)’s
prohibition on a claimant’s receiving payments after attaining MMI. If TTD payments may
not be made after the claimant reaches MMI, then the claimant is not entitled to them, and
if the claimant is not entitled to those payments, then R.C. 4123.511(K) requires the BWC
to withhold the amount previously paid from compensation that the claimant may receive
in the future.
{¶ 59} The magistrate finds Dillon is dispositive of claimant’s first argument in the
present case. Here, claimant was receiving TTD payments pending determination of the
BWC’s request to terminate TTD compensation due to MMI. Dr. Holzaepfel’s March 18,
2024, report found claimant to have reached MMI. Thus, consistent with the language in
R.C. 4123.56(A) and Dillon, claimant’s TTD compensation terminated as of March 18,
2024, the date she reached MMI. The commission did not abuse its discretion when it found
the same.
{¶ 60} Claimant contends in her second argument that the commission and BWC
abused their discretion when they declared that any payments made beyond March 18,
2024, were overpayments subject to recoupment by the BWC pursuant to R.C. 4123.511(K).
Claimant asserts that R.C. 4123.511(K) explicitly provides that recoupment for
overpayments is available only with respect to an order to pay compensation that was
properly paid under a previous order but that was subsequently reversed upon an
administrative or judicial appeal. Claimant contends that her TTD compensation was not
terminated by an appeal of a previous order to pay compensation but, rather, pursuant to
the BWC’s motion to terminate relator’s ongoing receipt of TTD, which is not the “straight-
line” appeal procedure necessary for the recoupment of an overpayment as set forth in R.C.
4123.511(K).
{¶ 61} The magistrate finds claimant’s argument unpersuasive. Adm.Code 4121-3-
32(B) provides, in pertinent part, the following:
If the district hearing officer, staff hearing officer, deputy or
the industrial commission determines that the injured worker
was not justified in receiving temporary total disability
compensation prior to the date of the hearing, he shall declare
an overpayment from the date the injured worker was no
longer justified in remaining on temporary total disability
No. 24AP-395 26

compensation. Such payment shall be recovered from future
awards related to the claim or any other claim. The recovery
order shall provide a method for the repayment of any such
overpayment as is reasonable, taking into account such
factors as the amount of money to be recouped, the length of
the periodic payments to be made under any future award,
and the financial hardship that would be imposed upon the
employee by any specific schedule of repayment.

Thus, a DHO, an SHO, a deputy, or the commission is required to declare an overpayment
and recover the payments from future awards when it is determined that an injured
worker was not entitled to receive TTD,
{¶ 62} To comply with Adm.Code 4121-3-32(B), DHOs, SHOs, deputies, and the
commission must fashion a method for recovery of overpaid funds that is “reasonable.”
Although Adm.Code 4121-3-32(B) sets forth several factors to consider when fashioning a
method of recoupment, R.C. 4123.511(K) also provides a method for ordering recoupment
that includes several criteria. Claimant here contends that R.C. 4123.511(K) only applies to
“straight-line” appeals based upon the use of the word “appeal” several times in the
provision. However, R.C. 4123.511(K) does not say that. Even if claimant were correct that
the enunciated criteria must be followed when ordering recoupment of overpayments when
an underlying order is vacated on appeal, there is nothing in R.C. 4123.511(K) that prohibits
DHOs, SHOs, deputies, or the commission from ordering recoupment using the criteria in
R.C. 4123.511(K) in situations other than “straight-line” appeals, i.e., motions to terminate
TTD, like here. In this case, the commission ordered that the overpayments must “be
recouped pursuant to R.C. 4123.511(K),” and there is nothing in that provision that prevents
such discretionary use of the criteria in that section in this situation. Indeed, other cases
have addressed recoupment orders that applied R.C. 4123.511(K) in situations other than
those involving “straight-line” appeals. See e.g. State ex rel. Witt v. Indus. Comm. of Ohio,
2018-Ohio-1693 (involving continuing jurisdiction based upon BWC’s notification that it
was recalculating full weekly wage and average weekly wage); State ex rel. Knedler v. Indus.
Comm. of Ohio, 2013-Ohio-5537, ¶ 28 (10th Dist.) (involving reconsideration), citing State
ex rel. Wooton v. Indus. Comm., 2004-Ohio-6505; State ex rel. McCormick v. McDonald’s,
2013-Ohio-766 (10th Dist.) (involving a motion to terminate based upon MMI); State ex
rel. Huffman v. Indus. Comm., 2012-Ohio-1609 (10th Dist.) (involving a motion to
terminate based upon MMI). Thus, claimant here cannot demonstrate that the commission
No. 24AP-395 27

was prohibited from ordering recoupment in this case and, in doing so, ordering that the
recoupment follow the criteria in R.C. 4123.511(K).
{¶ 63} The decision in Dillon is also instructive. Applying R.C. 4123.511(K), the court
in Dillon found that because the worker had previously received compensation pursuant to
a prior order that was reversed upon subsequent appeal, she was not entitled to TTD
compensation after the doctor’s finding of MMI, and she was not allowed to retain what she
had been previously paid under the reversed order. In the present case, the commission
granted TTD compensation, the BWC requested that it be terminated due to claimant’s
reaching MMI, and the commission subsequently terminated TTD compensation as of
March 18, 2024, the date of the doctor’s MMI report. Although claimant here seeks to
distinguish the present circumstances from Dillon and R.C. 4123.511(K) because TTD
compensation was terminated here pursuant to a motion to terminate due rather than by
appeal of a previous order to pay TTD compensation, Dillon explicitly found that if a
claimant is not entitled to TTD payments made after the claimant reaches MMI, then R.C.
4123.511(K) requires the BWC to withhold the amount previously paid from compensation
that the claimant may receive in the future. To find recoupment is not permitted in a case
involving a motion to terminate TTD, as opposed to a “straight-line” appeal, would conflict
with R.C. 4123.56(A)’s explicit prohibition that “payment shall not be made for the period.
. . when the employee has reached the maximum medical improvement.” Thus, allowing
claimant in this case to retain the overpayments after the granting of BWC’s motion to
terminate would permit claimant to retain payments after having reached MMI, which
would be in direct contravention of R.C. 4123.56(A) and the Supreme Court’s decision in
Dillon. For these reasons, the SHO did not abuse his discretion in finding an overpayment
and ordering recoupment pursuant to the method set forth in R.C. 4123.511(K).
{¶ 64} Finally, this court has been mindful that “[c]laimants are entitled to receive
the compensation due them but are not entitled to receive a windfall when they are paid
money to which they are not entitled.” State ex rel. Murphy v. Indus. Comm., 2006-Ohio-
1480, ¶ 26 (10th Dist.). Although the recoupment amount here was a relatively small sum,
in some cases the overpayments could be, and are, substantial. Finding that a worker is not
subject to recoupment for overpayments after achieving MMI would result in a windfall to
that worker.
No. 24AP-395 28

{¶ 65} Accordingly, it is the magistrate’s decision that this court should deny
claimant’s petition for writ of mandamus.

/S/ MAGISTRATE
THOMAS W. SCHOLL III

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court’s adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b). A party may file written objections to the
magistrate’s decision within fourteen days of the filing of the
decision.