Voluntary Abandonment, Termination and TTD Compensation

Saturday, February 24, 2007 | 0

State ex rel. Gross v. Industrial Commission, 112 Ohio St.3d 65

A recent decision issued by the Ohio State Supreme Court has some employers and many claimants overreacting. The Court issued its decision on December 27, 2006, in State ex rel. Gross v. Industrial Commission.

By way of a brief background, Mr. Gross was injured on the job, his claim was allowed, and he was awarded temporary total disability compensation. Subsequently, his employer undertook an investigation as to the cause of the injury. The company concluded the injury was caused by the employee disregarding safety warnings. At the conclusion of the internal investigation, the company terminated Mr. Gross. After the termination, the employer filed a Motion with the Industrial Commission requesting temporary total disability compensation be terminated based upon the "voluntary abandonment" of employment by the claimant. The Industrial Commission granted the Motion and terminated the compensation as of the date of termination from employment. According to the Commission, the "claimant's termination for workplace misconduct constituted a voluntary abandonment of his employment that barred further temporary total disability compensation."

The claimant filed a Mandamus Action, and the Ohio Supreme Court eventually denied the Writ and upheld the decision of the Industrial Commission. The Court concluded the claimant did indeed abandon his employment by violating a company policy, thus precluding him from receiving temporary total disability compensation.

So, what is the cause of the overreaction? This case does not establish any new theory or causeof action. The facts are quite clear. The underlying claim was allowed by the Commission. Temporary total disability compensation was denied based upon a voluntary abandonment from the workforce, i.e. a termination for a violation of a written work rule. This case falls directly inline with the Court's previous holding in State ex rel. Louisiana-Pacific Corporation v. Indus-trial Commission (1995), 72 Ohio St.3d 401.

This decision does not impact or affect the underlying claim. The claimant is still entitled to medical benefits. In fact, if the claimant would sustain a flare-up after he returns to work with a different employer, he might be entitled to compensation.

The argument that we are now on a slippery slope is not true. While the dissent in this case stated that the Court is "injecting fault into a no-fault system of compensation," the facts do not support that claim. There is also the argument that the termination occurred after the claimant was receiving compensation. While true, the termination actually occurred after the company had completely investigated the incident. Only then did they decide to terminate the claimant. Isn't that the type of investigation we want, one that is thorough as opposed to a knee-jerk reaction? The claimant was terminated for violating a well-documented company work rule. After the employer completed its internal investigation, it terminated the claimant and filed a Motion to stop temporary total disability compensation. This case will not allow an employer to argue in favor of terminating compensation unless the employee was terminated for a violation of a company work rule; and, even then, the facts have to fall in line with the three-part test established in Louisiana-Pacific. In order for a termination to be considered voluntary the employer must establish the termination was: [1] due to an employee's violation of a written work rule or policy that defined the prohibited conduct, [2] was identified by the employer as a dischargeable offense, and [3] the employee knew, or should have known, of the policy. Keep in mind that the underlying claim was untouched by this determination.

The totality of the circumstances leading to the termination needs to be reviewed and properly evaluated before attempting to deny and/or terminate compensation to insure compliance with the tenants of both Louisiana-Pacific as well as the Court's previous decision in Coolidge. In this case, the employer properly undertook an investigation before concluding the claimant should be terminated. The Court, in this case, correctly concluded the claimant voluntarily abandoned his position of employment and, as such, was not entitled to temporary total disability compensation. A Motion for Reconsideration has been filed with the Ohio Supreme Court by claimant's counsel; however, the Court has not yet ruled on that request.

This column was orginially printed as workers' compensation law alert by the attorneys at Roetzel & Andress. Roetzel & Andress is a law firm with ten offices located in Akron, Cincinnati, Cleveland, Columbus, and Toledo, Ohio; Fort Myers, Naples, Orlando, and Tallahassee, Florida; and Washington, DC. Its Web site is http://www.ralaw.com/.