Temporary Total Denied when Injured Worker had Terminated Employment with Employer of Injury

Temporary Total Denied when Injured Worker had Terminated Employment with Employer of Injury

Posted: March, 2000; Updated: April, 2001

State, ex rel. Baker v. Indus. Comm. (1/26/00), 87 Ohio St.3d 561.

NOTE: The Supreme Court granted reconsideration in this case by a 4-3 vote, and issued a new decision which holds that an injured worker remains eligible for temporary total after leaving the job they had been doing when injured to work at a different job. The following decision has no effect, because of the Supreme Court’s decision on reconsideration.

Issue: Has an injured worker abandoned his employment and forfeited temporary total eligibility when he leaves the job he was performing when injured for a different job?

Background: Baker was injured in 1989. He was released to return to light duty on July 15, 1990.

On the next day he signed a termination notice with his employer of injury, stating as the reason for termination that he had accepted other employment. He began his new job which had the same physical demands as a light duty job at the previous employer.

He worked until September 24, 1990 at the new job. He then had surgery because of his industrial injury. He filed for temporary total from September 24, 1990 through April 14, 1999.

The Commission denied temporary total, finding that Baker had voluntarily abandoned his position of employment when he terminated his employment at the original employer and returned to work for a different employer in a job requiring about the same physical activities. Baker filed a complaint seeking a writ of mandamus. The Court of Appeals denied writ.

Decision: Supreme Court affirms denial of mandamus.

The Court cites State, ex rel. McGraw v. Indus. Comm. (1990), 56 Ohio St.3d 137, which held that a claimant who chooses to leave the former position of employment for reasons unrelated to the industrial injury forfeits temporary total eligibility.

The Court refuses to overrule McGraw. The Court also refuses to find that the injury caused Baker’s departure from the employer because the new job had the same physical demands. Baker also argued that the plant manager at the original job made comments that made him believe his job was in jeopardy, but the Court says only the Commission can evaluate credibility.

Editor’s Comment: Baker filed a motion for reconsideration.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.