One of the benefits an injured worker in Ohio can receive during the temporary recovery from the allowed conditions in his/her worker’s compensation claim is temporary total disability. In the rare occasion, an injured worker can be barred from receiving those benefits when he/she either voluntarily chooses to leave his/her former job before the period of disability commences, or is legally determined to have abandoned his/her former job via a voluntary job abandonment. An employee who voluntarily abandons his or her former position of employment cannot receive temporary total compensation. 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. Brown v. Hoover Universal, Inc., 132 Ohio St.3d 520, 2012-Ohio-3895, recently examined the issue of whether the Industrial Commission properly analyzed the circumstances of an injured worker’s termination, which lead to the denial of his temporary total benefits. The injured worker in Brown was terminated from his employment for excessive absenteeism. The attendance policy at issue gave
each non-probationary employee 16 hours of unpaid leave every three months. Brown was discharged for exceeding his allotted 16 hours of unpaid leave for a three month period. The employer maintained that Brown had violated a known written work rule. Brown, on the other hand, insisted that he had not violated the policy because he had not exceeded his allotted 16 hours for the 3 month time period. In support of this contention, Brown advanced a signed C-84 arguing that he should have been charged a lesser amount of unpaid leave hours. A staff hearing officer denied temporary total based on voluntary abandonment. The staff hearing officer did not mention the disputed issue of whether the C-84 on file precluded the employer from assessing an extra amount of hours for unpaid leave against Brown, which ultimately led to his termination.
According to the Supreme Court of Ohio, the hearing officer’s failure to mention the dispute with the C-84 on file was unacceptable. The Supreme Court of Ohio recognized the great potential for abuse in allowing simple allegations of misconduct to preclude a claimant’s temporary total disability. The Court therefore determined that it is imperative to carefully examine the totality of the circumstances when such a situation exists. The Supreme Court of Ohio in Brown ordered the matter back to the Industrial Commission for further examination on the issue of the C-84 on file and the employer’s absentee policy.
The Brown case is a departure from the strict black and white written work rules under State ex rel. Louisiana Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401, to which employers have grown accustom since 1995. This case interjects an element of subjectiveness into the black and white world of known, written work rules. Based upon this case, it is expected that claimant’s will start to argue that they did not intend to violate a written work rule. It can also be expected that claimant’s will start to argue that there was no just cause for the termination, which led to the voluntary abandonment. Thus, in order to protect themselves from these types of arguments in the future, employers should undertake several steps to ensure an adequate voluntary abandonment defense, and they are: (1) make sure every new employee and all current employees are provided with the most up to date work rules; (2) have documentation in each personnel file acknowledging receipt of the written work rules; (3) for all current employees when a new policy is implemented be certain to document receipt of the new policy in all personnel files; (4) when a termination must occur for violating a work rule, employers must follow their own procedures set forth in the written work rules for disciplining or terminating employees; and (5) when a decision to terminate an employee for violating a written work rule is made, make sure to document the rule violated, cite what evidence supports the violation, and inform the employee of the decision. Performing these simple steps can eliminate several defenses any claimant may have against an employer’s voluntary abandonment argument. When there is evidence in a claim that just cause might not exist for the termination, or other possible discriminatory actions may be at issue, an additional analysis should be undertaken by the employer. Employers should begin to treat the possible negative implications of a discrimination suit following a voluntary abandonment argument much like they do with unemployment hearings. The value of challenging temporary total based upon voluntary abandonment should be weighed against the impact of a possible discrimination or retaliatory discharge claim if there is a likelihood of negative testimony or evidence being presented at any Commission level hearing. This is because negative testimony or evidence that comes out in a voluntary abandonment hearing could later on be used against the employer in a discrimination or retaliatory discharge claim. Thus, the decision to argue voluntary abandonment should be weighed on a case by case basis.
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