Posted: September, 2001
Discharge Based on Unwritten Rule Does Not Bar Temporary Total
State ex rel. McKnabb v. Indus. Comm. (2001), 92 Ohio St.3d 115.Issue: Does an injured worker lose eligibility for temporary total compensation when he is fired from his job based on the employer's unwritten policy?
Background: McKnabb had an allowed claim for a low back injury and lost time. He returned to work but was fired, allegedly for tardiness. His company (CCA) had no written employment or disciplinary policy.
McKnabb obtained another job but left it because of his back condition. He was paid temporary total. CCA requested the award be vacated claiming that McKnabb's tardiness and subsequent termination constituted a voluntary abandonment and precluded temporary total compensation.
The Commission found that his termination was a voluntary abandonment and precluded temporary total. The Commission looked to Louisiana Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 491, which held that voluntary abandonment from employment precludes temporary total when:
- there has been a violation of a written work rule or policy that clearly defined the prohibited conduct;
- it had previously been identified by the employer as a dischargeable offence; and
- the rule was known or should have been known to the employee.
The second part of the test was met because the employer made it clear that when McKnabb was hired this policy was explained to him and he was told that repeated violations could result in termination.
The third part of the test was met because McKnabb knew of the policy and the consequences for violating it. McKnabb filed a mandamus.
Court of Appeals granted mandamus finding that under Louisiana Pacific, temporary total is barred only where the claimant is discharged for violation of a written work rule.
Decision: Supreme Court affirms (5-2, with one justice concurring in judgment only).
Court says that written rules not only define prohibited conduct, they also set forth a standard of enforcement. Verbal rules can be selectively enforced. Written policies help prevent arbitrary sanctions and are important when dealing with employment terminations that may block eligibility for certain benefits.
Editor’s Comment: Wasn't the Court created abandonment doctrine clarified in State ex rel. Baker v. Indus. Comm. (2000), 89 Ohio St.3d 376) and State, ex rel. Staton v. Indus. Comm. (2001), 91 Ohio St.3d 407 to apply only where the injured worker leaves the workforce?
Shouldn't that principle carry over to the termination cases? The termination does not mean the person is abandoning the workforce.
McKnabb and Louisiana Pacific encourage employers to find reasons to discharge so they can save on temporary total. The injured worker loses by being hurt, by being terminated, by being denied temporary total, and by having difficulty finding another job because of the termination.
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