Employee Fired for Omitting Prior Job from Job Application Remains Entitled to Temporary Total

Employee Fired for Omitting Prior Job from Job Application Remains Entitled to Temporary Total

Posted: October, 2005

State ex rel. Nick Strimbu, Inc. v. Indus. Comm. (9/7/05), 106 Ohio St.3d 173, 2005-Ohio-4386

Issue: Does an injured worker fired for omitting information on his employment application remain eligible for temporary total compensation?

Background: Marshall worked as a truck driver. He was injured in an accident and his workers’ compensation claim was allowed.

When Marshall was hired, he filled out an employment application which asked him to list all of his previous employers for the past 10 years. The application indicated that providing false or misleading information could be grounds for discharge.

After Marshall applied for temporary total, the employer’s TPA called the employer’s human resources director and told him that Marshall had omitted an employer from the list of employers he had worked for in the past 10 years. The TPA told the employer that it could fire Marshall and not have to pay temporary total. The next day, the employer sent Marshall a letter firing him.

The employer claimed that its decision to terminate Marshall for leaving the information about one previous employer over the past ten years off of his employment application made him ineligible for temporary total under State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401. However, the Commission found that Louisiana-Pacific does not apply because Marshall did not violate a written work rule.

The Commission also found no “intent to deceive” behind Marshall’s not listing one of his previous employers. The Commission accepted Marshall’s testimony at the hearing that he had not remembered about the omitted employer.

The employer challenged Marshall’s decision by filing a complaint seeking a writ of mandamus in the Tenth District Court of Appeals. That Court denied the writ, and the employer appealed.

Decision: Supreme Court affirms.

The issue in temporary total cases where an employee is fired is whether to consider the firing a “voluntary abandonment” of the employment. The Court points out that while a firing may not be “consented to”, if it arises out of an employee’s “willing conduct” a firing may be considered “voluntary.”

In most cases, under Louisiana-Pacific, there must be a violation of a written work rule which:

  1. clearly defined the prohibited conduct,
  2. had been previously identified by the employer as a dischargeable offense, and
  3. was known or should have been known to the employee.

In this case, the Commission found that there was no violation of a written work rule. Instead, this employer claimed that the language in the employment application which stated that providing “false or misleading information . . . may result in discharge” justified firing Marshall.

The Supreme Court indicates that, in order for a firing based on an omission in an employment application to constitute a “voluntary abandonment” of employment, the omission must be “deliberate and motivated by an intent to deceive.” The Commission accepted Marshall’s testimony that he left the employer off of the application because he forgot. This factual determination by the Commission resolves the issue.

Editor’s Comment: It is nice to see that TPAs are now calling employers and telling them to fire injured workers.

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