Posted: November, 2002
Abandonment Does Not Bar Temporary Total After Return To Work
State ex rel. McCoy v. Dedicated
Transport, Inc. (2002), 97 Ohio St.3d
25, 2002-Ohio-5305.Issue: When does voluntary abandonment of the job an injured worker was doing when injured bar the injured worker from receipt of temporary total?
Background: The Supreme Court consolidated two cases where temporary total was denied to injured workers because they had voluntarily abandoned the job they had been doing when injured.
In the first case, McCoy returned to work after his injury and was later fired for tardiness and insubordination. In the second case, Brandgard was fired when a drug test conducted after his injury came back with a positive result.
Both workers were denied temporary total on the basis that they had "voluntarily abandoned" their jobs. Both workers challenged the denial of temporary total by filing a complaint for a writ of mandamus in the Court of Appeals. Both workers lost in the Court of Appeals.
Decision: Supreme Court affirms (7-0).
The key holding of this case is contained in the Court's syllabus:
A claimant who voluntarily abandoned his or her former position of employment or who was fired under circumstances that amount to a voluntary abandonment of the former position will be eligible to receive temporary total disability compensation pursuant to R.C. 4123.56 if he or she reenters the work force and, due to the original industrial injury, becomes temporarily and totally disabled while working at his or her new job.Applying this test to the facts of each case, the Court finds that because neither of these employees had yet returned to the job market, neither was entitled to temporary total.
Editor’s Comment: This case is significant because it makes it clear that an individual who returns to the job market is eligible for temporary total, even if they had previously been barred from temporary total due to the "voluntary abandonment" doctrine.
This case also contains a good summary and discussion of the history and development of the application of the "voluntary abandonment" doctrine to bar temporary total.
Is the "abandonment doctrine" necessary or appropriate? This case at least make it clear that a return to work washes out the previous "abandonment." What happens if the injured worker quits or is fired and, before he/she can return to work, the injury acts up and the person needs surgery? Normally, the surgery would put the person back on temporary total. Why should it be any different because he/she left the employer of injury or was fired by the employer of injury?
There is no statute requiring that temporary total not be paid in these situations. This is a Court created doctrine that ends up punishing the worker because that worker left the job of injury.
This information was provided courtesy
of the Ohio
Workers'
Compensation Bulletin. Click on the case name to
view this decision on
the Supreme Court's web site.