VOLUNTARY ABANDONMENT IN WORKERS COMPENSATION CASE LAW UPDATE

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1 VOLUNTARY ABANDONMENT IN WORKERS COMPENSATION CASE LAW UPDATE CLEVELAND METROPOLITAN BAR ASSOCIATION JUNE 12, 2013 TIMOTHY A. MARCOVY WILLACY, LoPRESTI & MARCOVY 330 WESTERN RESERVE BUILDING 1468 WEST NINTH STREET CLEVELAND, OHIO (216) (216) (fax)

MARCOVY WILLACY, LoPRESTI & MARCOVY 330 WESTERN RESERVE BUILDING 1468

2 VOLUNTARY ABANDONMENT I. What Is The Voluntary Abandonment Doctrine? A. Purpose: A defense to a request for temporary total disability compensation (TTD). A shield, not a sword, for employers. B. Guiding Principle in Interpreting the Cases: The distinctions between voluntary and involuntary departure are complicated and fact-intensive. An underlying principle, however, is that if an employee s departure from the workplace is causally related to his injury, it is not voluntary and should not preclude the employee s eligibility for TTD compensation. State ex. rel. Gross v. Industrial Commission, 115 Ohio St.3d 249, 254, 2007-Ohio C. Definitions: 1. TTD: temporary total disability [is] a disability which prevents a worker from returning to his former position of employment. *** Thus, the industrial injury must not only be such as to render the claimant unable to perform the functions of his former position of employment, but it also must prevent him from returning to that position. State ex. rel. Jones & Laughlin Steel v. Industrial Commission, 29 Ohio App. 3d 145, 146 (Franklin 1985). 2. Voluntary Abandonment: [W]here the employee has taken action that would preclude his returning to his former position of employment, even if he were able to do so, he is not entitled to continued temporary total disability benefits since it is his own action, rather than the industrial injury, which prevents his returning to such former position of employment. Id. II. Historical Development of the Doctrine A. TTD was the first and primary form of compensation. Wage replacement. B. Until 1973, TTD was limited, first by putting a time limit from d.o.i. on receipt of benefits, then by dollar maximums, which had been raised from time to time by the General Assembly. The last cap was $10, (in 1959). C. The removal of the dollar cap in 1973 necessitated other mechanisms for ending TTD. D. The 1973 statute suggested permanency as a basis for ending TTD. E. Other mechanisms, such as return to employment, the ability to return to the duties of the former job, and being offered a job within the physical capabilities of the injured worker, arose out of the nature of TTD compensation as wage replacement. Voluntary abandonment is the most recent of these mechanisms to have evolved in the case law.

An underlying principle, however, is that if an employee s departure from the workplace is causally related to his injury, it is not voluntary and should not preclude the employee s eligibility for

3 III. Leading Cases A. State ex. rel. Jones & Laughlin Steel v. Industrial Commission, 29 Ohio App. 3d 145 (Franklin 1985). [retirement] B. State ex. rel. Ashcraft v. Industrial Commission 34 Ohio St. 3d 42 (1987) [incarceration] C. State ex rel. Louisiana-Pacific Corp. v. Industrial Comm n of Ohio, 72 Ohio St. 3d 401 (1995) [violation of work rules] D. State ex rel. Gross v. Indus. Comm n, 115 Ohio St. 3d 249 (2007) [violation of work rules] E. State ex rel. McCoy v. Dedicated Transp., Inc., 97 Ohio St. 3d 25 (2002) [re-entry into the work force] IV. Applications in Specific Circumstances A. Retirement 1. State ex. rel. Jones & Laughlin Steel v. Industrial Commission, supra. 2. State ex rel. Rockwell International v. Industrial Com. of Ohio, 40 Ohio St. 3d 44, 46 ( In State ex rel. Williams v. Coca-Cola Enters., 2005 Ohio 5085, 10-12, it was held that, where an employee took a length of service retirement, instead of a disability retirement, and the retirement was motivated, at least in part, by non-industrial medical issues, the retirement was voluntary. Again, very fact-specific. B. Incarceration 1. State ex. rel. Ashcraft v. Industrial Commission,supra, at R.C (J) (adopted Aug. 22, 1986): [ Compensation or benefits are not payable to a claimant during the period of confinement of the claimant in any state or federal correctional institution, or in any county jail in lieu of incarceration in a state or federal correctional institution, whether in this or any other state for conviction of violation of any state or federal criminal law. ] 3. Ashcraft has more than historical significance Established the proposition that When a claimant has voluntarily removed himself from the work force, he no longer incurs a loss of earnings because he is no longer in a position to return to work. This logic would apply whether the claimant's abandonment of his position is temporary or permanent. C. Violation of Work Rules

3d 249 (2007) [violation of work rules] E. State ex rel. McCoy v. Dedicated Transp., Inc., 97 Ohio St. 3d 25 (2002) [re-entry into the work force] IV. Applications in Specific Circumstances A.

4 1. State ex rel. Watts v. Schottenstein Stores Corp., 68 Ohio St. 3d 118, 121 sets out the essential nature of the defense that termination for violation of a work rule is a voluntary separation from employment. NOTE: Watts also holds that the voluntary abandonment doctrine cannot be used as a defense to a claim for wage loss under (B). 2. State ex rel. Louisiana-Pacific Corp. v. Industrial Comm n of Ohio, supra. at 403 sets out the basic rules for applying the termination for work-rule violation defense. [ we find it difficult to characterize as involuntary a termination generated by the claimant s violation of a written work rule or policy that (1) clearly defined the prohibited conduct, (2) had been previously identified by the employer as dischargeable offense, and (3) was known or should have been known to the employee. ] 3. The need for written work rules was explained in State ex. rel. McNabb v. Industrial Comm n. 92 Ohio St.3d 559, 561 [ Written rules do more than just define prohibited conduct. They set forth a standard of enforcement as well. Verbal rules can be selectively enforced. Written policies help prevent arbitrary sanctions and are particularly important when dealing with employment terminations that may block eligibility for certain benefits. ] 4. But submitting the rule book into evidence is not the only means of proof available. State ex. rel. Galligan v. Industrial Comm n. 124 Ohio St.3d 233,236, 2010-Ohio-3, Where a work rule requires intent on the part of the employee, failure of proof of that intent will destroy the defense to TTD. State ex rel. Nick Strimbu, Inc. v. Indus. Comm n, 106 Ohio St. 3d 173, 175, 2005-Ohio- 4386, 9 6. Note that the timing of the separation from employment is a critical factor to be considered. State ex. rel. Pretty Products v Industrial Comm n, 77 Ohio St. 3d 5, 6 (1996) [ The timing of a claimant s separation from employment can, in some cases, eliminate the need to investigate the character of departure. For this to occur, it must be shown that the claimant was already disabled when the separation occurred. [A] claimant can abandon a former position or remove himself or herself from the work force only if he or she has the physical capacity for employment at the time of the abandonment or removal. (footnote omitted) ] 7. And, medical certifications of TTD at or near the time of a discharge for cause after an employee has returned to work will be looked on with skepticism by the Industrial Commission and the courts. State ex rel. Ohio Treatment Alliance v. Paasewe, 99 Ohio St. 3d 18, 19-20, 2003-Ohio- 2449, 8. A significant limitation on the rule is that the violation of the work rule cannot be causally related to the injury that, itself, produces the disability. State ex. rel. Gross v. Industrial Comm n, 115 Ohio St. 3d 249, 253; 2007 Ohio 4916, 19 Note: (1) In other cases, pre-injury conduct has been held to contribute to a record of work-rule violations which, post-injury,

NOTE: Watts also holds that the voluntary abandonment doctrine cannot be used as a defense to a claim for wage loss under 4123.56(B). 2. State ex rel. Louisiana-Pacific Corp. v. Industrial Comm n of Ohio, supra.

5 resulted in termination being deemed a voluntary abandonment. And, (2) although applied as recently as March 12 of this year, the Gross exception to the general rule in. Louisiana-Pacific Corp has come under fire [see O Connor s concurrence. in State ex rel. Haddox v. Indus. Comm n of Ohio, 135 Ohio St. 3d 307, 2013-Ohio-794. D. Re-Entering Work Force 1. Early cases seemed to suggest that once TTD was barred by a voluntary departure from the work force, it was forever barred. This carried over the initial conclusion of the court in State ex. rel. Jones & Laughlin Steel v. Industrial Commission, which suggests a permanent removal from the work force. A series of cases, culminating in State ex rel. McCoy v. Dedicated Transp., Inc. dispelled that notion. 2. In order to qualify under McCoy, the employee must be working at the time of the subsequent period of disability. State ex rel. Eckerly v. Indus. Comm n, 105 Ohio St. 3d 428, 429, 2005-Ohio-2587, 9 3. If an employee returns to work at a light duty job, then is terminated under circumstances amounting to a voluntary abandonment, then, before the employee can qualify for a new period of TTD, the employee must return to work somewhere, and then leave again as a result of disability caused by the original injury. State ex rel. Adkins v. Indus. Comm n, 2008 Ohio 4260 (Franklin App.) 56. This is a limited exception to the rule in Pretty Products, which says that an employee is not precluded from receiving TTD because of a voluntary separation if he or she was disabled at the time of the separation. 4. Another issue is presented in State ex rel. Cline v. Abke Trucking, Inc., 2012 Ohio 1914 (Franklin App.) in which the 10 th District Court of Appeals held that if you were not separated from the employer of injury because of circumstances amounting to voluntary abandonment, the if such circumstances arise with a subsequent employer, the subsequent circumstances do not bar TTD thereafter. Cline is currently on appeal and pending a decision in the Supreme Court (Case No ). V. Questions

Early cases seemed to suggest that once TTD was barred by a voluntary departure from the work force, it was forever barred. This carried over the initial conclusion of the court in State ex. rel.

[Cite as State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224, 2007-Ohio- 4920.]

[Cite as State ex rel. Ellis Super Valu, Inc. v. Indus. Comm., 115 Ohio St.3d 224, 2007-Ohio- 4920.] THE STATE EX REL. ELLIS SUPER VALU, INC., APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.