Calfee, Halter & Griswold LLPOhio Industrial Commission Issues Interpretive Memorandum on “Voluntary Abandonment” as a Bar to Receipt of Temporary Total or Permanent Total Compensation

June 27, 2017

At the end of last year, the Ohio Supreme Court issued its decision in State ex rel. Cordell v. Pallet Cos. (12/29/16; reconsideration denied on 3/15/17), holding that a post-accident positive drug test leading to employment termination did not bar the receipt of temporary total (wage replacement) compensation, even though the claimant had no job to return to as a result of his drug use. The Court found that such off-work benefits could not be denied where: (1) the employee was medically incapable of returning to work at the time of termination due to the injury; and (2) the discovery of the dischargeable offense occurred because of the injury. [See Calfee First Alert 2/21/17].

The Cordell decision simply was the latest in a long line of court rulings on when employment retirements, abandonments, and terminations can prevent the receipt of off-work wage replacement benefits for a temporary or a permanent inability to work -- all under the logical theory that if there is no job to return to, then there is no need for wage replacement benefits. While the court cases are too numerous and complex to summarize here, readers now should be aware that the Ohio Industrial Commission took the occasion of the Cordell case to issue an interpretative memorandum on how the “voluntary abandonment” doctrine should be applied in hearings before it (IC Memorandum D5 effective 5/17/17).

This well-written memorandum breaks down “voluntary abandonment” cases into three logical types. The most straight-forward type is a voluntary retirement from the workforce. The rule here is simple – if the retirement is related to the allowed conditions in the claim (i.e., the worker can no longer perform the job because of the industrial injury), then the retirement is deemed not truly “voluntary” and entitlement to off-work wage replacement benefits would not be affected. However, if the retirement is unrelated to the medical conditions covered in a claim, then it is deemed truly “voluntary” and, based upon this voluntary choice of the worker, future off-work compensation (temporary total or permanent total) generally would be barred.

The second form of “voluntary abandonment” addressed by the Commission’s memorandum is in essence simply an off-shoot of the first – “abandonment of the entire workforce.” This situation can occur when an employee suffers an injury, is permanently unable to perform the job held at the time of injury, but thereafter makes little to no effort to seek other employment even though the individual would appear able to work in another capacity. Factual scenarios supporting a finding of “abandonment of the entire workforce” typically involve an injury, followed by a period or periods of temporary total compensation, a relatively lengthy passage of time (years) with no attempt to re-enter the workforce, and then a later request for additional temporary total compensation after a surgery or like medical intervention. When there is an abandonment of the entire workforce, future wage replacement benefits also should be barred.

The third type of “voluntary abandonment” precluding off-work benefits addressed by the Commission is that seen in the Cordell case – a discharge from employment for violating a written work rule, known to the claimant, that the claimant nonetheless violates leading to his discharge. Negligent or careless actions can rise to the level of such dischargeable conduct; the Commission advises that this must be reviewed on a case-by-case basis. However, consistent with Cordell, the memorandum also advises that a termination occurring when an employee is medically incapable of returning to work as a result of the workplace injury and the discovery of the offense occurred because of the injury, “voluntary abandonment” does not apply and off-work benefits are to be paid.

One thing that the court cases, together with the new Commission memorandum, all appear to be in agreement on is that every “voluntary abandonment” case must be viewed and decided on its own facts. As such, Industrial Commission hearings can become mini-employment “just cause” termination hearings, complete with witnesses, documents, cross-examinations, and the like. Proper presentation involving a joint effort between employer and counsel is advisable.

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