Henry A. Arnett
Livorno and Arnett Co., LPA
1335 Dublin Road, Suite 108-B
Columbus, Ohio 43215
In an October, 2009, article posted on our website’s Firm News pages, we discussed how employers were increasingly denying injured workers their temporary total disability (TTD) benefits, on the ground that the employee had “voluntarily” abandoned his/her employment. A voluntary abandonment of employment would preclude the award or continuation of temporary total disability benefits. Employers and the Ohio Bureau of Workers Compensation often argued that an employee who was terminated by the employer or had otherwise been separated from employment had “abandoned” his/her job and was therefore ineligible for TTD benefits.
However, in two cases decided by the Ohio Supreme Court in 2007 and 2008, the Court had given some protection to injured workers, ruling that a workers compensation claimant who is said to have voluntarily abandoned his/her employment is nonetheless still entitled to TTD benefits if the worker was medically incapable of returning to work at the time of the alleged abandonment. In other words, if the claimant is already disabled when the separation of employment occurs, the claimant is not disqualified from receiving TTD benefits.
Unfortunately, the Ohio Supreme Court has now overruled those two cases. The Court in State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St.3d 78, held that an injured worker could be denied benefits under the voluntary abandonment theory even if the worker was medically incapable of returning to work at the time of the alleged abandonment.
In Klein, the employee was injured on November 5, 2014. Before that date, he had told other employees that he intended to quit his job and move to Florida to live with his mother. Klein in fact did move to Florida after his injury.
The Ohio Supreme Court held that Klein’s move to Florida, combined with evidence showing that he intended to leave his employment at Precision Excavating & Grading Co. permanently, constituted a voluntary abandonment of his job. The Court stated the following:
“Klein intended to leave his position of employment permanently. It is Klein’s own actions, and not his workplace injury, that prevented his return to his former position of employment.”
Accordingly, Klein was not entitled to TTD benefits even though he was disabled at the time of his separation from employment.
The Supreme Court holding puts injured workers like Klein in a box. Although he moved to Florida, he presumably wanted to find other employment in his new location. However, his injury would have prevented him from finding a job similar to the one he had when he was injured. Despite this, he is not entitled to TTD during his recovery period.