Four years ago, my esteemed colleague Anthony Baucco provided guidance on the issue of voluntary abandonment and the light-duty employee in an article you can find HERE. Mr. Baucco dealt with “Joe,” an employee of Acme Construction. Joe suffered a work-related injury and his treating physician, “Dr. Wright,” eventually released him to work with light duty restrictions. Acme offered Joe a temporary, light-duty position that met Dr. Wright’s restrictions. Joe accepted the light-duty job offer and returned to work at Acme.
After several weeks of light duty work, Joe and his friends decided to go to Atlantic City for a weekend trip. Undisturbed by clocks or windows in the casino, Joe got carried away with cinnamon-flavored whiskey shots, cheap beer and loose slot machines. Back at Acme, Wednesday rolled around and Joe had not shown up for work all week. On Thursday, Joe stumbled into work and explained that he hit it big playing the slots and got carried away in Atlantic City. Acme terminated Joe for a violation of the company’s no-call/no-show policy.
Joe eventually returned to Dr. Wright for a scheduled appointment. Dr. Wright felt that Joe still could not work without restrictions. Joe, by and through his attorney, requested that temporary total disability compensation resume based upon Dr. Wright’s opinion. Predictably, Acme didn’t think that Joe should be entitled to temporary total disability compensation as he was terminated.
Is Joe entitled to temporary total disability compensation?
At the time of Mr. Baucco’s article, Acme’s attorney would have argued that Joe voluntarily abandoned his employment, which precludes temporary total disability compensation. Under the Louisiana-Pacific decision, termination constitutes a voluntary abandonment of employment when an employee violated a written work rule that clearly defined the prohibited conduct, had previously been identified by the employer as a dischargeable offense, and was known or should have been known to the employee. Acme’s attorney would have also specifically cited to two decisions from the Tenth Appellate District, Adkins and Apostolic Christian Home, which both support the proposition that an injured worker can voluntarily abandon a light duty job. These two decisions would have helped Acme’s attorney counter Joe’s attorney’s position; specifically, that an injured worker cannot voluntarily abandon their former position of employment, if at the supposed time of abandonment, they were physically unable to perform their former job.
Fast-forwarding to the present, Acme’s attorney can now rely upon a decision from the Supreme Court of Ohio to support his argument that an injured worker can voluntarily abandon a light duty job, thus precluding payment of temporary total disability compensation.
In State ex rel. Jacobs v. Industrial Commission of Ohio, the Supreme Court of Ohio finally addressed voluntary abandonment and the light-duty employee. In this case, Jacobs injured her lower back and her treating physician released her to work with restrictions. Her Employer offered her a light duty job and she accepted. After an hour of working light duty, Jacobs decided to leave because she experienced some pain while working. Jacobs told her Employer that she would visit her physician to question whether her restrictions were adequate. Jacobs never returned to her physician. A few days later, Jacobs was sent a certified letter by her Employer, informing her that she left her light-duty position without permission and that as of the date of the letter, her physician supported the light-duty job. Jacobs never responded, and her Employer terminated her for violating its absenteeism policy.
Predictably, Jacobs argued that she was not physically capable of working in her former position of employment due to her work-related injury, and as such, she could not have abandoned her former position of employment. Citing the Adkins decision, the Supreme Court of Ohio rejected this argument and held that “when a claimant is discharged because of actions that were initiated by the claimant and that were not related to the industrial injury, a voluntary separation from employment has occurred that breaks the causal relationship between the industrial injury and the loss of earnings.” Although Jacobs claimed her injury caused her to leave work, no physician agreed with her personal assessment. Thus, the Supreme Court of Ohio denied her request for temporary total disability compensation after the date of her voluntary abandonment.
In a dissenting opinion, Justice O’Neill disagreed with the rest of the Court. Justice O’Neill actually disagrees with the entire concept of voluntary abandonment. Justice O’Neill believes that the “judicially created” concept of voluntary abandonment erodes the concept of a no-fault workers’ compensation system. Fortunately for Ohio employers, Justice O’Neill’s dissent did not have any other supporters and voluntary abandonment is here to stay. More importantly, it is now clear that the concept of voluntary abandonment extends to an employee working in a light-duty capacity.
If your employee violates a specific work rule after accepting a bona-fide, good faith light-duty job offer, contact your attorney immediately. The workers’ compensation attorneys at RBS are well-versed on this issue and are glad to help. As always, please feel free to contact Nick Lanphear or any of the attorneys at RBS with questions or concerns regarding any workers’ compensation matter that may arise.