An injured worker in Ohio is eligible to receive compensation during the temporary recovery from the allowed conditions in his/her worker’s compensation claim. Those benefits are called “temporary total disability” or “TTD.” The purpose of those benefits is to provide compensation to injured workers for his/her loss of earnings while the injury heals.
An employer can raise a legal defense to the payment of temporary total disability under the “voluntary abandonment” doctrine. This is a very fact specific legal defense; however, an injured worker can be barred from receiving those benefits when (1) he/she voluntarily chooses to leave his/her former job before the period of disability commences, or (2) he/she is legally determined to have abandoned his/her former job via a voluntary job abandonment. An injured worker’s discharge from employment can constitute a voluntary abandonment when it is the consequence of an action that he or she willingly undertook. The misconduct of an employee is only considered voluntary when there is a violation of a written work rule that (1) clearly defined a prohibited conduct, (2) identified the misconduct as a dischargeable offense, and (3) was known or should have been known to the employee.
The Supreme Court of Ohio in State ex rel. Haddox v. Indus. Comm., Slip Opinion No. 2013-Ohio-794, recently examined the issue of whether the traffic violations of an injured truck driver occurring prior to and contemporaneous with the industrial injury could prevent payment of temporary total benefits. The injured worker in Haddox was terminated from his employment as a truck driver because he was dropped from his employer’s liability insurance policy. Without insurance coverage he could no longer work for the employer and, was thus terminated. Mr. Haddox, in the year prior to the industrial injury, had already accumulated two moving violations. He obtained a third violation when he was involved in the same accident that led to his worker’s compensation claim. This third violation caused him to lose liability insurance eligibility and, thus, his employment.
When Mr. Haddox originally applied for temporary total disability back in 2006, his application was denied on the basis of “voluntary abandonment.” Later that next year, the Supreme Court of Ohio in State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-4916, held that the doctrine of “voluntary abandonment” had never been applied to pre-injury conduct or conduct contemporaneous with the injury to bar temporary total benefits. After the decision in Gross, Mr. Haddox filed another application for temporary total disability after his claim was amended to include some additional conditions. The Industrial Commission ultimately took jurisdiction over the issue of whether the first denial of temporary total based upon “voluntary abandonment” (rendered before the Gross decision) invalidated Mr. Haddox’s second request for temporary total. The Industrial Commission ultimately determined that the second request for temporary total should be denied on the basis of the “voluntary abandonment” doctrine.
On appeal, the Court of Appeals found in favor of Mr. Haddox and ordered not only that the second application of temporary total be paid, but also that the first application dating back to 2006 also be paid. The Supreme Court of Ohio upheld the decision of the Court of Appeals and determined that the moving violations that occurred prior to and contemporaneous with the industrial injury could not stand as a basis for “voluntary abandonment.” The Court also noted that the Industrial Commission could exercise its continuing jurisdiction over the original order denying temporary total back in 2006 (issued prior to Gross) to award compensation dating back to the date of injury.
The Haddox case is important for two reasons. First, it re-affirms the Supreme Court’s position that pre-injury work rule violations and work rule violations occurring contemporaneous with the industrial injury will not act as a way to bar temporary total benefits under the “voluntary abandonment” doctrine. Second, this case serves as a notice to Ohio employers that Commission orders issued prior to (or after) Gross in 2007 where temporary total benefits were denied solely on the basis of “voluntary abandonment” for work rule violations prior to or contemporaneous with the industrial injury can be re-visited by the Commission under their broad authority of continuing jurisdiction.
When faced with situations of an otherwise properly discharged employee for a violation of a work rule that occurred prior to or at the time of the injury, Ohio employers should continue to adhere to their current risk management practices of seeking to terminate temporary total benefits through a full duty release from the treating physician or a finding of maximum medical improvement. Ohio employers should be aware of the possibility that some claims could be re-visited by the Commission where temporary total was previously denied based upon “voluntary abandonment” for work rule violations that occurred prior to or contemporaneous with the industrial injury. In those instances, employers should be prepared to attack the requests for temporary total from a medical standpoint and, whether there is enough medical support from the injured worker’s physicians to substantiate the request for temporary total disability.
If you would like a copy of the Haddox decision, or have any questions with respect to workers’ compensation or any other employment practices liability issues, please contact a member of our Worker’s Compensation Practice Group or D&O and Employment Practices Group.