Posted: January, 2004
Temporary Total Continued after Firing Due to Absenteeism
Resulting from Injury
State, ex rel. NIFCO, L.L.C. v. Woods (12/4/03), Franklin App. No.
02AP-6468, 2003-Ohio-6468.Issue: Does an employee who is receiving temporary total disability compensation and is then fired because of absenteeism resulting from the injury remain eligible for temporary total?
Background: Woods suffered a shoulder injury at work. She was incapable of working her job as a result of the injury, and she was awarded temporary total disability.
The employer fired Woods based on its absenteeism policy. In calculating "points" under this policy, the employer included days that Woods missed work as a result of being temporarily and totally disabled.
The Commission continued temporary total compensation after Woods was terminated. The employer filed a writ of mandamus contending that Woods was not entitled to temporary total because she abandoned her employment when she was fired because of violating the employer's attendance policy.
Decision: Court of Appeals denies writ.
The abandonment doctrine bars temporary total where an injured worker has voluntarily abandoned their employment. Normally, if an employee is fired for violating a work rule, the employee is considered to have abandoned their employment.
However, that doctrine does not apply in the present case. The Court notes that the periods of work missed were due to the industrial injury. In State ex rel. Pretty Products, Inc. v. Indus. Comm. (1996), 77 Ohio St.3d 5, the Ohio Supreme Court found that where an employee is fired as a result of absenteeism resulting from an industrial injury, the loss of employment is not considered "voluntary."
The employer also claimed that the absenteeism should not be found due to the industrial injury because the employer claimed it had offered a lighter duty job, within Woods' work restrictions, which was refused. The Court also rejects this claim because Ohio Administrative Code 4121-3-32(A)(6) requires a written job offer in order to terminate temporary total. The Court applies that rule to this situation, which it characterizes as the employer attempting to "preclude" compensation.
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