The Ohio Supreme Court recently decided a case that involved a retired injured worker who requested payment of temporary total disability compensation following a post-retirement surgery. The injured worker had an allowed claim for a knee injury that continued to bother him prior to his retirement but he continued to work without restrictions. When he decided to retire he did not mention his knee injury as a reason for his retirement, but his attorney sent a letter to the employer stating that he retirement was injury-related. Following his retirement the injured worker did not seek other employment. About a year after the retirement, the injured worker required surgery for the allowed knee conditions and sought payment of temporary total disability compensation. The Industrial Commission denied the request for compensation finding that the retirement was not injury-related and that the injured had abandoned the entire work force. The Ohio Supreme Court agreed. The court held that in circumstances where the retirement is not injury-related, temporary total compensation is payable only if the injured worker returns to employment at another job and then has a flare-up of the allowed injury that causes a new period of disability. In cases where the retirement is injury-related, the court held that the injured worker does not need to have returned to gainful employment to be eligible for post-retirement temporary total compensation, but the injured worker must show that he/she has not abandoned the entire workforce.
See, State ex rel. Lackey v. Indus. Comm., 129 Ohio St. 3d 119, 2011-Ohio 3089.
Historically, if an injured worker retired due to injury-related considerations and later had surgery based upon the allowed conditions, temporary total compensation was payable. There was no requirement that the injured worker show that he had not abandoned the entire workforce. In Lackey the injured worker was unable to show that his retirement was injury-related and therefore the requirement that he also show that he had not abandoned the entire workforce was not at issue. Even so, the court stated that such a requirement exists. This represents a significant change in the prior standard regarding injury-related retirement.
If you voluntarily retire for non-injury related reasons you will not be entitled to temporary total disability compensation for a post retirement injury-related period of disability unless you have returned to the workforce prior to the period of disability.
If you retire for physical reasons related to your work injury you will be entitled to temporary total disability compensation for a post retirement injury-related period of disability even if you have not returned to the workforce provided that you can show that you have not permanently abandonded the entire workforce. Presumably, this will require that you submit to the BWC and Industrial Commission evidence that you have been seeking employment. At the time of your injury-related retirement, you want to be sure to have medical evidence that your retirement was in fact precipitated by physical problems related to your work injury.