An injured worker in Ohio is eligible to receive temporary total compensation during the temporary recovery from the allowed conditions in his/her worker's compensation claim. Injured workers are eligible for temporary total benefits also in situations where they have been released to work with restrictions, but the employer cannot accommodate the restrictions. Ohio employers have several defenses to requests for temporary total compensation, and one of them is voluntary abandonment.
An injured worker can be barred from receiving temporary total benefits when the employer proves voluntary 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 discharge of an employee is only considered voluntary when there is a violation of written work rules 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. Jacobs v. Indus Comm., Slip Opinion No. 2014-Ohio-1560, recently examined the issue of voluntarily abandoning a light duty position. The injured worker in Jacobs, Wanda Jacobs, injured her lower back on September 6, 2006 while working for her employer. She was treated and by October 2, 2006 Ms. Jacobs’s doctor released her to light duty work. The employer accommodated the light duty restrictions, and Ms. Jacobs began this light duty position. She was just an hour into the light duty job when she stated she could not continue and would follow up with her physician. Ms. Jacobs failed to report back to work or produce a contemporaneous doctor's note excusing her from light duty work. She violated the employer's absenteeism policy by not returning to work nor producing the medical evidence excusing her from light duty work by a date set by the employer. Consequently, Ms. Jacobs was terminated from her employment.
Ms. Jacobs filed a motion for temporary total disability beginning after her termination date based upon support from a new physician. The Commission denied the request on the basis of voluntarily abandonment as the injured worker violated the company's absenteeism policy and failed to accept the light duty position offered. Ms. Jacobs appealed this decision into the 10th Dist. Court of Appeals and then the Supreme Court of Ohio. The Supreme Court of Ohio held the injured worker accepted the light duty position, then claimed the job was beyond her capabilities and she was going to consult with her physician. There was no evidence that Ms. Jacobs actually went to see her physician. She simply did not return to work, resulting in her employment termination. The Court reasoned that when a claimant is discharged from employment because of the actions that were initiated by the claimant and were not related to the industrial injury, a voluntary separation from employment has occurred which breaks the causal relationship between the industrial injury and the loss of earnings, thus claimant is considered to have voluntarily departed from the workplace and is not entitled to temporary total disability compensation.
The Jacobs decision is important as it broadens the voluntary abandonment defense into the arena of light duty work. When the injured worker is cleared to return to light duty and accepts a good faith light duty offer, this stops payment of temporary total disability. More importantly, after accepting the position, if the injured worker claims that he/she is medically incapable of the performing the light duty job, they are now required to produce contemporaneous medical evidence proving they cannot work light duty because of the allowed conditions in the claim. The injured worker can no longer rely on unsupported claims that they were not capable of working the light duty position in order to overcome a defense for voluntary abandonment when the injured worker chose to leave the light duty assignment. This decision can be a useful tool for Ohio employers against requests for temporary total compensation when an injured worker decides he/she does not want to work in light duty, but never produces a medical opinion saying that the claimant is incapable of working light duty.
If you would like a copy of the Jacobs decision, or have any questions with respect to workers' compensation, please contact a member of our Workers’ Compensation Practice Group.