Posted: May, 2007
Firing Does Not Bar Temporary Total
State, ex rel. Luther v. Ford Motor Co., Batavia Transmission Plant (4/4/07), 113 Ohio St.3d 144, 2007-Ohio-1250.Issue: What effect does an employer’s decision to fire an employee have on temporary total compensation when the employee was disabled at the time of firing and/or when the reason used to justify the firing was the effect of the industrial injury?
Background: Luther suffered a back injury in 1991, which was allowed as a workers’ compensation claim. He had surgery for the condition in 1998. After that surgery, his doctor restricted him to light duty work. Luther was never released from those restrictions, or certified to return to his former work.
Luther was employed in light duty work for a time. Eventually, no light duty work was available and Luther again began receiving temporary total. Due to a gap in submitting medical evidence, the self-insurer stopped paying temporary total, although Luther’s doctor indicated that he continued to be temporary total. Luther moved to have temporary total awarded.
While this motion was pending, the self-insured employer notified Luther that his sick leave had expired and he had five days to report to work, or submit medical evidence. If he did not do so, he would be terminated. Luther did not respond and the self-insurer fired him.
The Commission then awarded temporary total up to the date that Luther was fired, but denied temporary total after that point upon a finding that Luther had voluntarily abandoned his employment. The finding that Luther had abandoned his employment was based on State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, which held that an employee voluntarily abandons their employment when they are terminated for violating a written work rule which
- “clearly definite the prohibited conduct”;
- “had been previously identified by the employer as a dischargeable offense”; and
- “was known or should have been known to the employee.”
Decision: Supreme Court affirms.
Although the self-insurer’s decision to fire Luther meets the standard of Louisiana-Pacific, the Court finds that Louisiana-Pacific is not the only test to consider. The Court also considers State ex rel. Pretty Prods., Inc. v. Indus. Comm. (1996), 77 Ohio St.3d 5.
The Court states that Pretty Products stands for two important principles which must be considered when deciding whether Luther is entitled to temporary total. First, under Pretty Products an injured worker who was disabled when they were fired is not barred from temporary total by “voluntary abandonment.” Second, Pretty Products indicated that where an employee was fired for conduct resulting from the allowed injury, Louisiana-Pacific does not bar temporary total.
Because the Commission did not consider this issue, the Court returns the case to the Commission for it to consider the effect of Pretty Products and issue a new order.
Editor’s Comment: The Court’s decision to return the case to the Commission, rather than order the Commission to award temporary total, does not make sense because the Commission found that Luther was disabled (and entitled to temporary total) up to the point he was fired. Because of this, it is clear that he was disabled when he was fired and entitled to temporary total under Pretty Products.
Also, the Supreme Court is holding an oral argument in May to decide whether it should grant reconsideration in State, ex rel. Gross v. Indus. Comm. (12/27/06), 112 Ohio St.3d 65, 2006-Ohio-6500. In Gross, the Supreme Court initially found that an employee who was fired because of his conduct which led to the injury was barred from temporary total.
Luther demonstrates that the Supreme Court should grant reconsideration in Gross. The injured worker in Gross was disabled when he was fired and also fired because his conduct caused the allowed injury.
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