Abandonment Does Not Bar Temporary Total After Return To Work

Abandonment Does Not Bar Temporary Total After Return To Work

Posted: November, 2002

State ex rel. McCoy v. Dedicated Transport, Inc. (2002), 97 Ohio St.3d 25, 2002-Ohio-5305.

Issue: When does an injured worker’s voluntary abandonment of the job they had when injured bar them from receiving temporary total?

Background: The Supreme Court consolidated two cases where the Commission denied temporary total to injured workers because they had voluntarily abandoned the job they had their injury occurred.

In the first case, McCoy returned to work after his injury and the employer later fired him for tardiness and insubordination. In the second case, the employer fired Brandgard when a drug test conducted after his injury came back with a positive result.

The Commission denied temporary total to both workers on the basis that they had “voluntarily abandoned” their jobs. Both workers challenged the denial of temporary total by filing a complaint for a writ of mandamus in the Court of Appeals. Both workers lost in the Court of Appeals.

Decision: Supreme Court affirms (7-0).

The Court’s syllabus contains the key holding of this case:

A claimant who voluntarily abandoned his or her former position of employment or who was fired under circumstances that amount to a voluntary abandonment of the former position will be eligible to receive temporary total disability compensation pursuant to R.C. 4123.56 if he or she reenters the work force and, due to the original industrial injury, becomes temporarily and totally disabled while working at his or her new job.

Applying this test to the facts of each case, the Court finds that because neither of these employees had yet returned to the job market, neither could receive temporary total.

Editor’s Comment: This case is significant because it makes it clear that an individual who returns to the job market is eligible for temporary total, even if they had previously been barred from temporary total due to the “voluntary abandonment” doctrine.

This case also contains a good summary and discussion of the history and development of the application of the “voluntary abandonment” doctrine to bar temporary total.

Is the “abandonment doctrine” necessary or appropriate? This case at least make it clear that when an injured worker returns to work, they regain temporary total eligibility. What happens if the injured worker quits or is fired and, before they can return to work, the injury acts up and they need surgery? Normally, the surgery would put the person back on temporary total. Why should it be any different because they left the employer of injury or the employer fired them?

No statute requires that an injured worker loses eligibility for temporary total in these situations. This is a Court created doctrine that punishes the worker.

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