The Ohio Supreme Court Expands and Clarifies the Voluntary Abandonment Doctrine
The Ohio Supreme Court issued a decision on September 27, 2018 which clarifies the “voluntary abandonment” doctrine, and expands the circumstances under which a claimant’s own actions may preclude the payment of temporary total compensation in State, ex rel. Klein v. Precision Excavating & Grading Co., 2018-Ohio-3890.
In Klein, the Court addressed a situation in which the claimant had informed his employer in late October 2014 that he would be resigning his position to relocate to Florida. Prior to his resignation, Klein was injured at work on November 5, 2014. He did not return to work following his injury and followed through with his planned relocation to Florida. The Industrial Commission awarded only a closed period of temporary total compensation, concluding Klein had voluntarily terminated his employment on November 20, 2014, for reasons unrelated to his injury.
The Court of Appeals disagreed, relying upon previous decisions which held that if an injured worker remained medically unable to return to work the injured worker was likewise unable to voluntarily abandon employment and thus would remain eligible for temporary total compensation.
On appeal, the Supreme Court disagreed. The Court explicitly overruled its previous decisions in Reitter Stucco and OmniSource, finding that both of those previous decisions had mistakenly contradicted the fundamental principle of temporary total compensation, which requires that the injury must cause the loss of earnings in order for the claimant to be eligible for temporary total compensation.
The Court explained that it would not serve the purpose of temporary total compensation to award compensation to an injured worker whose own actions, rather than the workplace injury, prevent a return to the former position of employment.
The Court also clarified that there is no logical basis for distinguishing between abandonment caused by an employee’s termination for violation of a written company policy and those caused by a voluntary resignation. In the case of Klein, since he had already expressed an intention to leave his employment and move to Florida before his injury, the Industrial Commission had correctly denied temporary total compensation since Klein’s own actions rather than his workplace injury prevented his return to his former position of employment.
In its decision, the Court did clarify that, in at least three situations, a termination of the employment relationship will not act as a bar to temporary total compensation. First, if the employee is terminated for conduct which both violates a written company policy and causes the injury, the termination will not be a bar to temporary total compensation. Second, if the termination is “causally related” to the injury by way of a positive post-accident drug test, the termination will not act as a bar to temporary total compensation. Third, and finally, if an employee is terminated for absenteeism induced by the work-related injury then the termination will not act as a bar to temporary total compensation.
All seven justices agreed that the Industrial Commission properly denied Klein’s request for temporary total compensation based upon his relocation to Florida pursuant to his pre-injury plan. Three of the justices, however, argued for an even broader interpretation of the voluntary abandonment doctrine, suggesting that it should apply in all situations where the causal connection between the injury and the loss of wages is severed. If adopted, that interpretation would provide for an exception to the voluntary abandonment doctrine only where an employee is terminated for absenteeism caused by the work-related injury. This opinion on behalf of the concurring justices may signal additional changes to the voluntary abandonment doctrine in the near future.
As a result of the decision in Klein, employers should carefully consider whether temporary total compensation should be disputed in any workers’ compensation claim where the employment relationship has been terminated for reasons unrelated to the industrial injury. If you have any questions involving such a situation, please contact a member of Dinsmore Workers’ Compensation Group.