The Ohio Supreme Court has substantially limited the “voluntary abandonment” doctrine in claims for temporary total disability compensation under the Ohio Workers’ Compensation Act.
That means employers may have to pay temporary total disability payments to employees even if they were injured while breaking safety rules.
An injury, followed by firing
David Gross, a 16-year-old fast-food worker employed by KFC, suffered serious burns after being sprayed with boiling water he had heated in a pressure cooker. Gross’s boss and co-workers had warned him several times not to put water in the pressure cooker to clean it. The employee manual and a label on the pressure cooker also noted the danger.
Because his injuries occurred on the job, Gross applied for and received temporary total disability (TTD) compensation. TTD benefits are intended to replace wages lost by an employee who is unable to work because of a workplace injury.
After extensive investigation into the incident that led to Gross’s injuries, KFC terminated him for violating its work rules. The company then filed a motion with the state Industrial Commission (IC) to terminate Gross’s TTD benefits. The IC granted KFC’s motion, ruling that because Gross had knowingly violated arule for which he previously had been warned, he voluntarily abandoned his employment and was no longer eligible for TTD benefits.
In other words, Gross lost wages not because of his injury, but because he violated a workplace safety rule. Gross appealed this decision, eventually to the Ohio Supreme Court.
Voluntary abandonment doctrine
The Ohio Supreme Court recognized the voluntary abandonment doctrine in the 1985 case, State ex rel. Jones and Laughlin Steel Corp. v. Indus. Comm. In Jones, the court was asked to decide if a claimant was entitled to continued TTD benefits after he permanently retired from the work force.
The Jones court said no—when Jones retired, his disability ceased to be the reason for his loss of earnings. His retirement was. The court held that “where the employee has taken action that would preclude his returning to his former position of employment, even if he were able to do so, he is not entitled to continued temporary total disability benefits because it is his own action, rather than the industrial injury, which prevents his returning to such former employment.”
Another state Supreme Court case—State ex rel. Louisiana Pacific—addressed voluntary abandonment in the context of a work rule violation. The court reasoned that discharge resulted from behavior that the employee willingly undertook, making it voluntary in nature. The court held that termination for violation of a work rule will be considered a voluntary abandonment of employment where the termination was the result of violating a written work rule or policy that:
- Clearly defined the prohibited conduct.
- Had been previously identified by the employer as a dischargeable offense.
- Was known or should have been known by the employee.
The court applied the Louisiana Pacific rules to the Gross case, holding that he voluntarily engaged in the conduct that led to his termination, thus voluntarily abandoning his employment.
The initial Gross decision (we’ll call it Gross I) met with fierce criticism from injured workers and their attorneys. Eventually, the case wound its way back to the Supreme Court (Gross II).
On reconsideration, Gross focused his argument on the contention that workers’ compensation in Ohio is designed to be a no-fault system. He argued that, because he was terminated for conduct that directly resulted in his injury, the Gross I decision had added an element of fault to the determination of whether an employee was eligible to receive TTD.
Because the termination letter issued by KFC stated that the termination was for violation of a safety rule, which resulted in his injury, the Gross II court held that termination was “causally related” to the claimant’s injury, and therefore was not the result of a voluntary act of the employee.
The Gross II court emphasized that its decision was limited to the facts presented. However, based on the language of the decision, it appears that employers may be prohibited as a matter of law from denying TTD benefits to employees who are injured in the course of misconduct.
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