By Ron Fresco
The Ohio Supreme Court first addressed this question in 1991. In State ex rel. B.O.C. Group, General Motors Corp. v. Indus. Comm., 58 Ohio St.3d 199 (1991), the injured worker was working a light duty position when she was placed on an indefinite layoff. The Industrial Commission awarded temporary total compensation over the period of the layoff. In affirming the Commission’s decision the court first noted that the industrial injury must not only render the claimant unable to engage in her former position of employment, but it must also prevent the injured worker from returning to that position. The court then went on to indicate that an employer-initiated departure is still considered involuntary as a general rule. Then, in perhaps what was the first indication of the now current status of the voluntary abandonment doctrine, the court held that the lack of a causal connection between termination and injury has no bearing where the employer laid off the employee.
As recently as 2002 B.O.C. was still being applied to award temporary total compensation during a layoff. In State ex rel. General Mills v. Indus. Comm'n, 2002-Ohio-4727, the injured worker was working a light duty position when his plant shut down twice. Each time he returned to light duty after the shutdown. Following B.O.C., the court rejected the argument that because the employer had laid off most of its employees the injured worker was not suffering a loss of wages due to the injury. In addressing this argument the court noted that because the injured employee was not able to return to his former position of employment at the time of layoff, was not at maximum medical improvement, and had not refused a bona-fide offer of light duty employment that it was the injury that prevented a return to the former position of employment, not the layoff. Additionally, the court rejected the argument that the injured worker should not be entitled to temporary total compensation during the requested time periods because he was laid-off pursuant to the seniority provisions of the collective bargaining agreement. This argument asserted that by being a member of the bargaining unit, the injured worker had essentially “waived” his entitlement to temporary total compensation by agreeing to be laid off based on seniority. The court noted the provision itself would be invalid as a matter of law as R.C. 4123.80 specifically provides that, "no agreement by an employee to waive his rights to compensation under this chapter is valid."
In the final analysis, those light duty employees who are laid off due to an employer’s response to COVID-19 are entitled to temporary total compensation. That being said, General Mills is instructive. Those employers who have light duty employees but have not yet implemented layoffs should immediately issue MMI letters to treating physicians that ask the question of MMI and upcoming treatment plans. Those employers who have implemented layoffs of light duty employees should begin evaluating case facts to determine that a goal-oriented treatment plan is in place and that MMI exams are appropriately planned. Further, in light of the increasing demand for volunteers in our collective time of need, this may be the appropriate time to implement a Modified Duty Off-Site (“MDOS”) program whereby light duty employees are assigned to social agencies that can accommodate claim-related restrictions. A refusal of such an assignment can be asserted as a refusal of an offer of light duty employment.
Please keep in mind that this analysis applies only to those employees working light duty in lieu of the receipt of temporary total compensation. Where an injured worker is claiming entitlement to wage loss compensation, and temporary total is not at issue, the courts have consistently held that economic conditions can be considered in determining if the claimed loss in wages is proximately caused by the workplace injury.
As always, we are here to help. Our lawyers continue to be connected, both remotely and in-office, to assist you in your risk management planning. Please do not hesitate to reach out regarding this or any other item facing your workers’ compensation program.
