Discharge Based on Unwritten Rule Does Not Bar Temporary Total

Discharge Based on Unwritten Rule Does Not Bar Temporary Total

Posted: September, 2001

State ex rel. McKnabb v. Indus. Comm. (2001), 92 Ohio St.3d 115.

Issue: Does an injured worker lose eligibility for temporary total compensation when the employer fires him job based on an unwritten policy?

Background: McKnabb had an allowed claim for a low back injury and lost time. He returned to work but the employer fired him, allegedly for tardiness. His company (CCA) had no written employment or disciplinary policy.

McKnabb obtained another job but left it because of his back condition. He received temporary total. CCA claimed that McKnabb’s tardiness and subsequent termination constituted a voluntary abandonment which precluded temporary total compensation.

The Commission found his termination a voluntary abandonment which barred temporary total. The Commission looked to Louisiana Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 491, which held that voluntary abandonment from employment precludes temporary total when:

  1. there has been a violation of a written work rule or policy that clearly defined the prohibited conduct;
  2. it had previously been identified by the employer as a dischargeable offence; and
  3. the rule was known or should have been known to the employee.

The Commission found the employer’s decision to fire McKnabb satisfied these requirements because (1) the employer’s representative testified that the employer had a strict company policy that all employees must report on time and must call if they would be late; (2) the employer explained this policy to McKnabb when it hired him and told him that repeated violations could result in termination; and (3) McKnabb knew of the policy and the consequences for violating it.

McKnabb filed a mandamus challenge. The Court of Appeals granted mandamus, finding that Louisiana Pacific only bars temporary total where the employer fires an injured worker for violation of a written work rule.

Decision: Supreme Court affirms.

The Court says that written rules not only define prohibited conduct, they also set forth a standard of enforcement. Verbal rules can be selectively enforced. Written policies help prevent arbitrary sanctions and are important when dealing with employment terminations that may block eligibility for certain benefits.

Editor’s Comment: Didn’t State ex rel. Baker v. Indus. Comm. (2000), 89 Ohio St.3d 376) and State, ex rel. Staton v. Indus. Comm. (2001), 91 Ohio St.3d 407, clarify that the abandonment doctrine only applies where the injured worker leaves the workforce?

Shouldn’t that principle carry over to termination cases? A termination does not mean the injured worker abandoned the workforce.

McKnabb and Louisiana Pacific encourage employers to find reasons to discharge an injured worker so they can save on temporary total. The injured worker loses because they are hurt, terminated, denied temporary total, and they then have difficulty finding another job due to the termination.

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