Ohio Supreme Court Clarifies and Clouds Voluntary Abandonment of Employment

Workers' Compensation & OSHA

In State ex rel. Klein v. Precision Excavating & Grading Co., Slip Opinion No. 2018-Ohio-3890, all seven Ohio Supreme Court Justices agreed that the Franklin County Court of Appeals had rendered a decision that needed to be reversed. Klein had fractured his ribs on November 5, 2014. His doctor completed papers stating he would not be able to return to work until January 5, 2015. Prior to the injury, Klein had informed Precision management and coworkers that he was going to move to Florida on or about November 20, 2014. The Industrial Commission awarded Temporary Total Disability Compensation (TT) for the closed period of November 6 through November 19, 2014, determining that Klein’s employment ended for reasons unrelated to his industrial injury. 

Klein filed a mandamus complaint in the Franklin County Court of Appeals alleging that the Industrial Commission had abused its discretion by terminating his TT prior to the date when he was medically able to return to work. The Court of Appeals issued a limited writ, returning the case to the Industrial Commission to determine if Klein remained medically unable to return to his former position of employment as of November 20, 2014. If he was, then Klein was entitled to further TT. The Industrial Commission appealed to the Ohio Supreme Court.

All seven justices wanted to overturn the writ of mandamus. A majority opinion authored by Justice French held: “…(W)hen a workers’ compensation claimant voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury, he is no longer eligible for temporary-total-disability compensation, even if the claimant remains disabled at the time of his separation from employment.” (Emphasis added.) The remaining three justices joined in an opinion written by Justice Kennedy, believing that the majority had not gone far enough in defining “reasons unrelated to a workplace injury.”

To reach its conclusion, the French majority felt it necessary to overrule two recent precedents as “wrongly decided,” State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71 (2008), and State ex rel. OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303 (2007). Both cases stood for the proposition that a claimant still medically eligible for TT could not voluntarily abandon employment even if the criteria which normally would constitute voluntary abandonment had been met. In Reitter, the claimant had been recovering from a compensable back surgery. He was fired for making disparaging remarks about the company’s president. OmniSource involved a commercial truck driver who lost his driver’s license due to being convicted of driving while intoxicated. Obviously unable to drive legally, he was discharged while still on TT.

According to the French majority, Reitter and OmniSource had inadvertently created an illogical and unworkable distinction between claimants terminated for misconduct and those who voluntarily retired. Overruling Reitter and OmniSource left the basic holding of State ex rel. Pretty Prods, Inc., 77 Ohio St.3d 5 (1996), intact: termination for violation of a work rule is not voluntary abandonment if the industrial injury precipitated the violation.

The Kennedy concurrence, however, traced the problem to Pretty Prods. itself, asserting that the majority “…does nothing to address how this faulty analysis continues to infect our recent decisions…” Most troublesome to the Kennedy concurrence were State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249 (2007) (Gross II) and State ex rel. Cordell v. Pallet Cos., Inc., 149 Ohio St.3d. The concurrence advocated a broader legal proposition: “…(T)he causal connection between the workplace injury and the loss of wages is severed by the worker’s departure from employment for reasons unrelated to the injury.”

This legal proposition would have denied TT in both Gross II and Cordell. In Gross II, the Claimant was injured when he ignored his supervisor’s insistence on the proper procedure to clean a chicken fryer. The fryer exploded, burning Gross and coworkers. Weeks later, while the claimant was still receiving treatment, the self-insured employer terminated his TT. Eventually the Ohio Supreme Court held that TT could not be terminated because it was punishing the conduct which resulted in an industrial injury. To do so was to reinject fault into what is supposed to be a “no fault system,” workers’ compensation. Cordell worked for an employer with a “drug free workplace” program.

He fell off a loading dock and sustained a fracture. While he was being treated at the hospital a drug test was positive for marijuana. The employer accepted the underlying injury but contested the TT due to the positive drug test. The Ohio Supreme Court concluded that, but for the industrial injury, the punishable violation of the drug free policy would not have been discovered. Therefore, TT was payable.

Somewhere between the French and Kennedy positions there are various potential sets of facts which might cause one justice or another to alter his or her position. Employers would be well advised to pursue the details of an accident diligently and document the results of any investigation. What ultimately resulted in Klein’s employer’s victory on the TT was the documentation it provided of his intent to move to Florida in the administrative litigation before the Industrial Commission.

For additional information on how this Court’s opinion may affect your organization, and/or to request a review of your policies and procedures in the event of an accident, please consult with your regular Calfee contact, one of the attorneys listed in the sidebar or your personal or company attorney.

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