Voluntary Abandonment while Disabled Bars Temporary Total Eligibility
State ex rel. Klein v. Precision Excavating & Grading Co., ___ Ohio St. 3d ___, 2018-Ohio-3890 (9/27/18).
Issue: Do injured workers who are disabled at the time they voluntarily abandon their employment lose eligibility for temporary total?
Background: Klein was injured at work on November 5, 2014. His claim was allowed and his doctor certified temporary total through January 5, 2015. Before the injury, he told coworkers he planned to quit work and move to Florida. Klein moved to Florida on November 20, 2014.
At the hearing on temporary total, the district hearing officer awarded a closed period of temporary total from November 6 to November 19th, finding that Klein had voluntarily terminated his employment for reasons unrelated to his injury on November 20th and therefore was no longer eligible for temporary total. The staff hearing officer agreed and the Industrial Commission refused further appeal.
Klein filed a mandamus complaint. The Magistrate relied on State ex rel. Reitter Stucco, Inc. v. Indus. Comm, and concluded that Klein could not voluntarily abandon his employment if he remained medically unable to work. The Magistrate recommended the Court issue a limited writ of mandamus to return the case to the Commission to determine whether Klein was medically unable to return to his former position of employment and, if so, to award temporary total. The Court of Appeals adopted the Magistrate’s decision. The Commission appealed the decision to the Supreme Court.
Decision: Supreme Court reverses and overrules precedent.
The Court states that when an injured worker’s actions, rather than the injury, cause a loss of wages then the injured worker is no longer eligible for temporary total.
There has been an exception where the voluntary abandonment occurs when the injured worker is disabled. In those cases, the injured worker was still eligible for temporary total. See State ex rel. Reitter Stucco, Inc., v. Indus. Comm, 117 Ohio St.3d 71, 2008-Ohio-499, State ex rel. Omni-Source Corp. v. Indus. Comm., 113 Ohio St.3d 303, 2007-Ohio-1951. The Supreme Court overrules these cases.
The Court states that temporary total is to compensate for loss of earnings due to an injury. In State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, the Court held that when injured workers remove themselves from employment for reasons unrelated to the work-related injury, they are no longer eligible for temporary-total-disability compensation. The voluntary abandonment — and not the injury — has caused their loss of wages.
The Court claims that Reitter Stucco and OmniSource were a “radical departure” from precedent. The Court in those cases held that
even if a separation from employment satisfies all the criteria of voluntary abandonment, the claimant remains eligible for temporary-total-disability compensation if he or she is still disabled at the time of the separation.
The Court now states that this exception to the voluntary abandonment rule “immunizes claimants from the consequences of their own voluntary conduct and it authorizes compensation in scenarios for which temporary-total-disability compensation was not intended.”
According to the Court, temporary total disability is for a disability which prevents a worker from returning to the former position of employment. When the employee’s action prevents a return to employment, ” the employee is not entitled to temporary-total-disability compensation ‘because the purpose for which [temporary total disability compensation] was created * * * no longer exists.’ ” State ex rel. Baker v. Indus. Comm., 89 Ohio St.3d 376 (2000).
The Court finds that by awarding temporary total to workers “who by their own actions have prevented have prevented their return to their former position of employment, Reitter Stucco and OmniSource contravene both our precedent and the purpose of temporary-total-disability compensation.”
The Court indicates that previous attempts to limit the applicability of Reitter Stucco and OmniSource to cases where employees were discharged for misconduct and not in cases where employees voluntarily quit or retire has just made the law more confusing, and indicates that there “is no logical distinction between discharge and voluntary resignation for purposes of temporarytotal-disability compensation. Both constitute a departure from employment unrelated to the workplace injury. And both sever the causal connection between the industrial injury and the loss of earnings. It’s time to get rid of this arbitrary distinction.”
In looking to the facts of this case, the Court finds that there was some evidence for the Commission to rely on to find that Klein voluntarily abandoned his employment.
Editor’s Comment: The “voluntary abandonment” doctrine is a court-created doctrine. R.C. § 4123.56 does not provide for termination of temporary total (or barring temporary total) when an injured worker “abandons” their employment.
The Court’s previous position had recognized that an injured worker cannot “abandon” a position they are incapable of performing. What does this decision mean for a worker who would have continued to work at their job but for their injury, but
“abandons” that job due to the effects of the injury?