An employee injured in the course and scope of her employment is entitled to temporary total disability benefits during the recovery phase, if the injury prevents a return to the former position of employment. However, the Ohio Supreme Court has repeatedly held that injured workers are not entitled to temporary total disability benefits if they voluntarily abandoned their former position of employment. Such was the issue in the recent decision of State ex rel. Gross v. Indus. Comm. (2006), 112 Ohio St.3d 65, 2006-Ohio-6500.
In State ex rel.Gross, the Supreme Court determined that termination of an employee for willful misconduct resulting in the industrial injury constituted a voluntary abandonment, in spite of the fact that termination was not immediate, but rather occurred months after the injury, following a subsequent investigation. The Court further held that this voluntary abandonment barred further payment of temporary total disability.
In spite of repeated warnings, specific posted safety instructions to the contrary, and a handbook outlining critical violations that can result in termination, Gross attempted to clean a pressure cooker with water, which resulted in severe burns to himself and two other employees. Following a three month investigation of the incident, Gross was terminated for his refusal to follow recognized safety procedures. Following the
investigation and termination, the employer sought to terminate temporary total disability compensation, arguing that the employee voluntarily abandoned his employment through his willful misconduct.
In reaching a determination, the Court evaluated the most fundamental principle in workers’ compensation: the causal relationship between the disability and the allowed conditions. In so doing, the Court determined that when an employee’s willful misconduct occurs simultaneous, and not sequential, to the subsequent disability, those actions can result in voluntary abandonment, and thereby preclude an award of temporary total disability. In other words, it is the conduct at the time of the incident that caused the injury that needs to be evaluated. If the employee’s actions at the time of injury warrant dismissal, the actions constitute a voluntary abandonment. As the voluntary abandonment is the cause of the employee’s loss of work, and not the injury itself, temporary total disability compensation is not warranted.
In arriving at the decision, the Supreme Court considered and rejected the lower court’s determination that the employee was discharged because he was injured in the workplace, noting that the fact that the discharge occurred after the investigation, and after temporary total compensation payments had already started was not of consequence. The Supreme Court further considered and rejected the notion that the Workers’ Compensation system was designed to remove the components of negligence and fault from the workplace- injury equation. While the Court termed the second argument “thought-provoking,” the Court relied heavily on the facts in this matter, finding that the employee’s repeated and willful violation of the rules of conduct was not simple negligence or inadvertence. Instead, the employee’s simultaneous willful misconduct was to account for his work loss.
This decision emphasizes the need for employers to maintain well-written handbooks that outline serious violations that may result in termination. When such instances arise, even if the determination is made after an investigation, the employer should examine the situation to determine if the violation causing injury would warrant termination in the absence of an injury. In those circumstances, in spite of an injury, termination of the employee for willful misconduct results in voluntary abandonment and the employer may be spared the expense associated with temporary total disability payments.
If you have questions regarding the effect of this decision on a pending claim, please feel free to contact one of our Worker’s Compensation group members.
