LOSING YOUR WORKER�S COMPENSATION BENEFITS BY “VOLUNTARILY” ABANDONING YOUR JOB

By

Henry A. Arnett

Livorno and Arnett Co., LPA

1335 Dublin Road, Suite 108-B

Columbus, Ohio 43215

Telephone: 614-224-7771

Worker�s compensation benefits are available to injured employees, right? If an employee is injured at work and unable to perform his/her job because of that injury, the injured employee should receive temporary total disability benefits until such time as (1) the employee is able to return to his/her job or (2) the employee has reached maximum medical improvement, thereby negating the temporary nature of the injury. These benefits are supposed to be available regardless of who, the employee or the employer, is at fault in the injury.

However, employers are increasingly denying temporary total disability benefits to injured employees, on the ground that the employee has “voluntarily” abandoned his employment, precluding the award or continuation of temporary total disability benefits. And just how does an employee voluntarily abandon his employment? The answer: by getting fired by his/her employer.

In other words, some employers are attempting to avoid paying an injured worker temporary total disability benefits by terminating the injured employee. For instance, the third party administrator for one employer conducted an investigation after the employee filed a worker�s compensation claim, and discovered that the employee had failed to list a previous employer on his job application. The employer terminated the employee for falsifying his application, then sought to cut off temporary total disability benefits by arguing the employee had voluntarily abandoned his employment. In a similar case, the employer conducted a background check on an employee after he was injured and his doctor recommended surgery. The employer terminated the employee when the background check disclosed a criminal conviction that had not been listed on the job application. Again, the employer sought to cut off benefits based upon the termination.

Several cases decided by the Ohio Supreme Court establish the criteria as to when a job termination amounts to a “voluntary abandonment” of the employee�s job, such that the worker�s compensation benefits can be stopped or denied. One such case is State ex rel. Gross v. Indus. Comm., decided by the Ohio Supreme Court in December, 2006. In that case, the employee, a 16-year-old high school student working part-time at a KFC restaurant, was injured when he tried to clean a pressurized deep fryer. He had placed water in the deep fryer, and was extensively burned when he later opened the lid of the fryer, containing boiling water under extreme pressure. The employer subsequently terminated his employment for violation of the employer�s safety rules and verbal warnings, and then sought to cut off his temporary total disability benefits because, according to the employer, his termination constituted a voluntary abandonment of employment, precluding the payment of benefits.

The Ohio Supreme Court initially approved the denial of benefits based upon the job termination, holding that an employee who disobeys written and verbal instructions, and is terminated because of that disobedience, is not entitled to temporary total disability benefits for the resulting injury.

The injured employee requested reconsideration, arguing that Ohio�s workers� compensation was intended to be a no-fault system, and that denying benefits in his case essentially interjected the concept of fault into the system. The decision would open the door for all employers to argue that employees who were injured could be fired, and then denied benefits, if the contention could be made that the injuries were somehow the employee�s fault.

It is not too often that the Supreme Court reconsiders one of its decisions, but the Court did decide to reconsider this one. On September 27, 2007, the Ohio Supreme Court reversed itself and ruled that an employer could not deny worker�s compensation benefits on the basis that the employee was at fault in connection with the injury. Although the employer may be permitted to terminate the employee�s employment because of the employee�s violation of a safety policy, a termination related to or based upon the industrial injury could not be used to deny benefits. The employee could collect temporary total disability benefits despite the termination.

State ex rel. Gross v. Indus. Comm. establishes the principle that an injured employee cannot be denied benefits even if that employee is terminated for the conduct that led to the injury. If the injury was the fault of the employee, even fault great enough to justify the termination of employment, worker�s compensation benefits are still available.

But what about other cases, when employees are fired for conduct not related to the injury? Several other Ohio Supreme Court cases address this issue. First, the Court has stated that a discharge may be presumed to be a voluntary abandonment of employment because an employee “may be presumed to tacitly accept the consequences of his voluntary acts.” State ex rel. Ashcraft v. Indus Comm. (1987). However, in order for a termination to be considered voluntary, it must be demonstrated that (1) the employee knew or should have known (2) that the conduct was prohibited and (3) that termination would result from the prohibited conduct. State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995).

A case decided by the Ohio Supreme Court in August, 2009, illustrates how these three criteria apply. In State ex rel. Saunders v. Cornerstone Found. Sys., Inc., the injured employee refused to operate a bulldozer, believing his medical restrictions prohibited his use of foot pedals. However, such a restriction was apparently not part of any of the restrictions ordered by his physician. The employee was fired for insubordination, and a later request for temporary total benefits was denied on the ground that the employee had voluntarily abandoned his employment.

The Ohio Supreme Court reversed. The Court noted that Saunders had received an employee handbook when he was first hired, but this handbook did not discuss insubordination or its penalties. And, although the employer had later revised its handbook to include insubordination as a basis for termination, there was no showing that Saunders had been made aware of this revision or had been supplied with a copy of the revised handbook. The Court held that there must be a “clear, written articulation of workplace rules and the penalties for their violation.” Because the workplace rule had never been made known to the injured employee, he could not have known that he was violating a rule and his termination could not, therefore, be considered a voluntary abandonment of his employment. Saunders remained eligible for worker�s compensation benefits.