Claimant Replaced after Strike Remains Eligible for Temporary Total

State, ex rel. Angell Mfg. Co. v. Long (12/4/03), Franklin App. No. 02AP-1389, 2003-Ohio-6469:

Issue:  Does an injured worker who was replaced by the Employer after participating in a lawful strike remain eligible for temporary total?

Background: Long was injured at work. She worked restricted duty until her union went on strike.

During the strike, the Employer hired replacement workers. Therefore, when the strike ended Long was not permitted to return to work because she had been replaced. Although she was subject to recall, she was never recalled.

An SHO denied temporary total for the period of the strike.

After that period, Long needed surgery due to her injury. Her doctor certified her as temporarily and totally disabled. The Commission ordered temporary total paid. The Employer filed a mandamus action to challenge the award.

Decision:  Court refuses writ sought by employer.

Initially, the Court finds that the first denial of temporary total does not bar subsequent temporary total. The Employer had argued that the first temporary total denial operated as a finding that Long was ineligible for temporary total. Instead, the Court views it as a limited finding that temporary total is denied based on the fact that Long was on strike during the period of claimed temporary total.

The Court next rejects the argument that a claimant who engages in a strike has "voluntarily abandoned" their employment. The court notes that R.C. § 4123.61, the statute which explains how to calculate the average weekly wage, indicates that time a worker is off work due to participation in a lawful strike is designated as a period of unemployment beyond the control of the injured worker.

Therefore, the Court says that being off work as the result of a strike is not the same as being fired for violating a written work rule and Long is not considered to have voluntarily abandoned her employment. As a result, she has not lost eligibility for temporary total compensation.

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