By Ronald Fresco

Since 1995 Ohio’s employers have had a defense to the payment of temporary total compensation where an injured worker was terminated for violation of a written work rule.  Almost since the inception of this defense the courts have expressed concern about arbitrary employment sanctions being used to block eligibility for certain workers’ compensation benefits.  Until now review of the cases involving the voluntary abandonment defense centered on questions concerning whether the employee knew of the work rule and whether the work rule was identified as one that would lead to termination.  Now, it appears the courts are prepared to take a step further and will begin looking at the actual merits of the termination to see if the voluntary abandonment defense applies.

In State ex rel Demellweek vs. Industrial Commission, 10th Dist. No. 16AP-874, 2018-Ohio-714, Mr. Demellweek had returned to work after his on-the-job injury.  He was later terminated when he was observed operating an order picker while not wearing a harness and tether.  When hired the injured employee was provided a set of work rules that contained Class A, Class B and Class C violations.  Class A violations led to immediate termination while Class B and C violations led to differing progressive discipline steps. 

The specific safety rule in Demellweek that led the employer to conclude that a Class A violation occurred was a rule that required employees to wear a safety belt or harness as well as fall protection during the operation of order pickers and lift trucks.  The facts of the case revealed that at the time Mr. Demellweek was observed operating his picker without his safety gear he was only a few inches off the ground. 

When Mr. Demellweek later became disabled he contested the application of the voluntary abandonment defense by asserting his conduct did not amount to a Class A violation because a safety harness would not have protected him from further injury in the event of a fall from a few inches off the ground.  In reversing the decision of the Industrial Commission, the Tenth District Court of Appeals noted that there was no indication in the record that Mr. Demellweek had endangered himself or others by not wearing a harness or tether under the circumstances of being only a few inches off the ground.  The court further noted that there was no indication that Mr. Demellweek acted as he did on the date of his termination on a regular or frequent basis, and further noted that there were no claims that he had been previously disciplined for this violation or any related conduct.

In the context of the magistrate’s discussion the court’s opinion accepted that there was no evidence that the violation amounted to a Class A offense.  As written, the opinion demonstrates for the first time a court’s willingness to look at the substance of the violation to determine if it warranted application of the voluntary abandonment defense.  Here, the court set aside the strict reading of the Class A definition and work rule, undertook an analysis of the substance of the violation, and made a judgment that the conduct did not amount to a dischargeable offense.  In so doing the court noted that the voluntary abandonment defense was not meant to be a vehicle which allowed a self-insured employer to rid itself of injured workers for minor violations of a work rule, written or not.  This singular finding now gives rise to the idea that the voluntary abandonment defense can be rebutted by an argument that the violation was “minor.” 

Under the Demellweek decision no longer should employers think of the voluntary abandonment defense for the violation of a work rule as one that will receive strict application.  Employers can now be expected to have to explain the seriousness of a violation and why it should be considered something more than a minor infraction.  This case is also illustrative of the need to be precise in the drafting of employment policies as well as the need for termination documentation to be clear on the reasons why a termination took place. 

Should you have any questions regarding voluntary abandonment of employment, or any other matter impacting your Ohio workers’ compensation program, please do not hesitate to contact one of the members of our Workers’ Compensation Practice Group members

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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