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Ohio Supreme Court Narrows Voluntary Abandonment Defense

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By Kevin R. Sanislo and Rebecca A. Rayner

March 27, 2017

Ohio’s workers’ compensation system is a no-fault system arising from a mutual compromise between employers and injured workers. The system protects employers from personal injury lawsuits from injured workers and provides a means for injured workers to receive timely compensation for time missed from work due to their workplace injuries. Specifically, injured workers who are disabled due to their workplace injuries are eligible for temporary total disability (“TTD”) benefits while they recover.  This compensation is neither a reward to injured workers, nor a penalty to employers.

However, when an injured worker is terminated for the violation of a known written work rule his/her termination is considered a voluntary abandonment of his/her employment and his/her eligibility for TTD is lost. Under State ex rel. Louisiana Pacific Corp. v. Indus. Comm., voluntary abandonment occurs when 1.) there is written work rule that defines prohibited conduct; 2.) prior to claimant’s violation, the prohibited conduct is defined as a dischargeable offense; and 3.) the rule was known or should have been known by claimant.

In the recently decided Supreme Court case, State ex rel. Cordell v. Pallet Cos., Inc. 2016-Ohio-8446, James Cordell (“Cordell”) sustained a compensable injury in the course and scope of his employment. As result of his injury, he was unable to return to his former position of employment. On the day of the accident, and while receiving treatment for his injuries, he underwent a post-accident drug test and tested positive for marijuana. The positive test results indicated Cordell used marijuana while employed, a direct violation of his employer’s drug-free-workplace policy. This drug-free-workplace policy prohibited illegal drug use by employees both on and off duty. As a result, Cordell was terminated. Despite his positive drug test, the employer conceded that Cordell’s drug use did not cause Cordell’s injury.

After multiple appeals from both parties, the Industrial Commission found that Cordell had in fact “voluntarily abandoned his employment” by using marijuana in violation of the employer’s drug-free-workplace policy, and was therefore not entitled to TTD. Cordell appealed the Industrial Commission’s decision to the 10th District Court of Appeals, which reversed and held that Cordell did not voluntarily abandon his employment and was therefore entitled to TTD benefits. The employer appealed the decision of the Court of Appeals to the Supreme Court of Ohio who affirmed the decision holding that it was Cordell’s injury which caused his loss of income and not his violation of a known written work rule.

In deciding the Cordell case, the Supreme Court of Ohio narrowed the scope of its prior decisions regarding voluntary abandonment. The Court held that when an employee is terminated after a workplace injury for conduct prior to and unrelated to the workplace injury, his/her termination does not amount to a voluntary abandonment of employment for purposes of TTD compensation when, 1.) the discovery of the dischargeable offense occurred because of the injury and 2.) at the time of the termination the employee was medically incapable of returning to work as a result of the workplace injury.  Cordell stands for the proposition that the defense of voluntary abandonment of employment can no longer be used in situations where pre-injury conduct is discovered after the injury and the termination occurs at a point in time when the injured worker is unable to return to his/her former position of employment.  

Cordell is a perfect example of how fact-specific workers’ compensation claims can be, particularly in regard to the defense of temporary total disability, and how those facts can not only impact the overall stability of an employer’s workers’ compensation program but also impact stated workplace policies. It is our hope that the court will address these issues during the reconsideration process before the Supreme Court of Ohio.  Rest assured that if the current status of Cordell changes we will bring to you our thoughts and recommendations. 

If you have any further questions regarding this decision, or any other issue in workers’ compensation, please do not hesitate to contact a member of our Workers’ Compensation Practice Group

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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