Challenges of the Voluntary Abandonment of Employment Doctrine
Few areas of Ohio workers’ compensation jurisprudence cause as much confusion and consternation for employers and employees alike than the voluntary abandonment doctrine. Even the Industrial Commission of Ohio has been confounded by the Ohio Supreme Court and Tenth District decisions, which seemingly contradict established legal precedent.
One recent case that was litigated on behalf of an Ohio employer shows the difficulty in reaching consensus on this principle.
The Cordell case began its saga over three and a half years ago. The claimant, James Cordell, was injured on February 16, 2012, while working for the employer, Pallet Companies, Inc. (IFCO Systems). Claimant was utilizing a forklift to load a tractor trailer with pallets. The driver of the tractor trailer pulled forward without knowing Claimant was still loading the trailer, which caused the forklift to become lodged between the loading dock and the trailer. Claimant dismounted the forklift to enlist assistance. The tractor trailer again pulled forward and Claimant fell several feet to the concrete loading bay and suffered serious injuries to his ankle.
At the hospital, he was administered a standard post-accident drug test, for which he tested positive for marijuana. Based on that positive drug test and pursuant to the employer’s drug-free workplace policy, Claimant was terminated just days after the injury. The employer asserted a voluntary abandonment of employment defense to Claimant’ request for temporary total on that basis.
Industrial Commission of Ohio Decisions
After contradictory decisions from the district and staff hearing officers, the employer requested, and was granted, reconsideration of the denial of a voluntary abandonment finding. The Industrial Commission denied temporary total disability compensation to Claimant. It was determined that the violative conduct, leading to Claimant’s termination occurred prior to his work injury and thus, at a time when he was not disabled.
In a 2-1 decision, the Industrial Commission specifically distinguished these types of pre-injury drug use cases from the situation involved in the Gross Supreme Court decision. The Industrial Commission noted that Gross involved a work rule violation that occurred simultaneously with and was the cause of the work injury itself; a situation quite distinguishable from Cordell’s case and other pre-injury drug use cases generally. Because of that distinction, the Industrial Commission found that Gross does not apply to these types of situations and rendered a finding of voluntary abandonment based upon Cordell’s pre-injury drug use (when he was not “disabled” and thus, at a time when he had the capacity to abandon his former position of employment).
In this decision, the Industrial Commission took the time to elaborate its position on its perceived misapplication of Gross in specific relation to positive post-accident drug tests and their use in establishing a voluntary abandonment of employment:
“The Commission … questions whether the Court’s direction in Gross contemplated its holding being interpreted that an employee who tests positive for a drug test following a work injury is still eligible for temporary total disability compensation. If that is the Court’s holding in Gross, then in the state of Ohio, a post-accident drug test is irrelevant and has no effect on eligibility for temporary total disability compensation. The Commission rejects this position as Gross did not contemplate or consider the effect of a positive drug test on eligibility for temporary total disability compensation.”
Court of Appeals Decision
Claimant, unhappy with the Industrial Commission’s finding of a voluntary abandonment, filed for relief in mandamus. The Tenth District Court of Appeals, through its magistrate and then the full panel of judges, overturned the decision and rationale employed by the Industrial Commission. The Tenth District Court of Appeals reverted to citing those cases that prohibit a voluntary abandonment finding when a claimant is already “disabled” at the time of his or her termination of employment (even if it was justifiable under a work policy) and also cited Gross as the basis for its decisions.
The employer, as well as the Industrial Commission, filed appeals of right to the Supreme Court of Ohio. All parties filed briefs in late 2015 and early 2016, and in a rare occurrence, the Supreme Court of Ohio granted the employer’s request for oral argument.
The Ohio Supreme Court Argument
Though both the Industrial Commission and the employer appealed the Tenth District Court of Appeals’ decision, the Industrial Commission deferred its right to argue, thus leaving the employer to present the appellants’ arguments. It seemed as though less than a minute passed before the questions from the justices began. The justices posed numerous and often pointed (especially to Claimant’s attorney) questions as to the applicability and proposed distinguishability of the very cases that led to being in this venue in the first place. Claimant merely relied upon the repeatedly cited and misapplied cases as support for the Tenth District’s rejection of a voluntary abandonment defense.
The employer emphasized the argument asserted in Paysource and a few previously decided cases supporting that decision. (The McCoy case, often invoked in post-voluntary abandonment situations, involved a companion case in which the claimant was found to have voluntarily abandoned his former position of employment due to a positive post-accident drug test.) Though there is support for that position, in hopes of further persuading the Court to abolish the misapplication of the Gross decision in regards to pre-injury violative conduct, the employer submitted that perhaps a hard and fast rule is not appropriate to employ when determining the applicability of the voluntary abandonment defense, regardless of whether the violative conduct occurred prior to or after the work injury. The employer submitted that the Industrial Commission, as the adjudicator of issues involving the credibility and weight of the evidence, should be allowed the leeway to determine whether a voluntary abandonment defense can be established. In making that determination, the Industrial Commission could and should evaluate the timing of the violative conduct, the timing and basis of the termination, and the possibility that the termination may be pre-textual. Of course, the Industrial Commission’s decision could always be contested by way of mandamus where the inquiry would be whether the Industrial Commission abused its discretion in making its decision.
Ironically, though the employer argued that a bright line test should not be adopted in these voluntary abandonment cases, the justices seemed as though they were asking that some type of bright line test be proposed so that they could adopt it. Past decisions of the Supreme Court would suggest that adopting a flexible standard of review, and one that allows the Industrial Commission its ability to exercise discretion to account for and address the very fact-specific nature of these claims and associated defenses, would be preferable to adopting a highly delineated standard of review.
Somewhat perplexingly, the justices also seemed to co-mingle the idea of a rebuttable presumption and/or proximate cause defense to the allowance of a claim with the voluntary abandonment defense against eligibility for temporary total. Some of the justices seemed as though they felt an all or nothing approach defense to a claim involving a positive post-accident drug test should be employed in these types of situations. However, as the employer rebutted, that would do nothing more than force more claims to be contested unnecessarily and delay allowance and payment of medical benefits for an otherwise compensable claim.
Oral argument occurred at the end of August, and the decision of the Supreme Court is expected by year end. Though we have no way to predict the outcome, based on past decisions by these justices, we think three justices can be convinced of our position and two will not accept our arguments. This will leave two justices to ultimately tip the scales of justice.
We certainly hope the Gross decision will be clarified so as to not prevent a voluntary abandonment finding for any and all conduct prior to and contemporaneous with a work injury.