Supreme Court of Ohio Expands Reach of “Voluntary Abandonment” Defense
By Anthony A. Baucco
Under Ohio workers’ compensation law, a claimant’s voluntary departure from his employment will act to preclude temporary total disability compensation. In 1995, the Supreme Court of Ohio expanded on this premise and held that the firing of a claimant for a violation of a written work rule may constitute a voluntary abandonment of a former position of employment. The Court held that although a discharge is generally not consented to, it is often a consequence of prohibited behavior that a claimant willingly undertook, thus taking on a voluntary character. Since 1995, employers have successfully argued “voluntary abandonment” when a claimant violates a written work rule and is then subsequently terminated, usually in claims involving unexcused post-injury absences and post-injury positive drug screens. In these specific cases, employers have been able to limit the amount of temporary total disability compensation a claimant may receive, thereby effectively managing an otherwise problematic claim.
A recent decision by the Supreme Court of Ohio has expanded the reach of the “voluntary abandonment” defense in favor of employers and has many predicting a fundamental change in the basic “no-fault” principle inherent in workers’ compensation law. In the case before the Supreme Court, a claimant was severely burned while cleaning a pressure cooker at his place of employment, a fast-food restaurant. During orientation, the claimant received an employee handbook that specifically discussed safety rules pertaining to the cleaning of the pressure cooker. The handbook also discussed “critical violations” that would warrant immediate termination. One such “critical violation” was a violation of health, security or safety guidelines that could cause illness or injury. The pressure cooker itself also had a warning label affixed to the top concerning proper cleaning procedures.
Despite these warnings, the claimant improperly cleaned the pressure cooker and was reprimanded on one occasion prior to his injury. On the date of his injury, the claimant’s co-workers again saw the claimant improperly cleaning the cooker. The claimant ignored the instructions and warnings of his co-workers, which then resulted in the claimant’s burn injury. Two other individuals were also burned in the accident. The claimant subsequently filed a workers’ compensation claim, which was allowed. The claimant then began receiving temporary total disability payments. The employer completed an accident investigation three months post-injury and determined that the claimant’s unsafe cleaning practice and his failure to heed recognized safety procedures, express instructions and warnings were in violation of written work rules. As such, the claimant was terminated, effective immediately.
The employer then successfully argued before the Industrial Commission of Ohio that the claimant’s temporary total disability compensation should be terminated as of the date he was fired. The employer contended that the claimant’s termination for workplace misconduct constituted a voluntary abandonment of his employment. The Court of Appeals disagreed with the Commission, and the case came before the Supreme Court on the employer’s appeal.
The claimant argued that because he was already disabled when the termination occurred, there can be no abandonment. To support this proposition, the claimant cited prior decisions holding that one can only abandon his employment if he has the physical capacity for that employment at the time of abandonment or removal. The Court disagreed, and held that the claimant’s disability and the misconduct that precipitated the finding of voluntary abandonment occurred simultaneously, not sequentially. The Court noted that the date of disability onset preceded the date of termination only because the employer conducted an investigation, rather than firing the claimant on the spot.
After dismissing the claimant’s arguments pertaining to involuntary separation, the Court discussed the “elephant in the room,” that is, the notion that workers’ compensation was intended to remove any and all negligence and fault by an employee from the equation. The Court found that the particular facts of this case were not conducive to a further discussion of that proposition. The Court simply stated that the claimant had willfully ignored repeated warnings not to improperly clean the pressure cooker, yet wished to ascribe his behavior to simple negligence or inadvertence, which was inaccurate. As such, the Supreme Court reversed the Court of Appeals and held that the claimant voluntarily abandoned his employment, thereby forfeiting his right to continued temporary total disability compensation.
Although a huge victory for the employer, it is unclear how this decision will stand the test of time. The dissent in this case opined that workers’ compensation laws do not permit the introduction of fault. Further, many lawyers and law professors worry that this decision could upset the delicate balance struck by workers’ compensation laws. However, this decision clearly illustrates the importance of workplace safety and offers employers a defense when employees willfully and flagrantly ignore express instructions and warnings.
Did your employee “voluntarily abandon” his position of employment? Please contact Tony or any of the workers’ compensation attorneys at RBS to discuss this potential defense or any other workers’ compensation matter that’s on your mind.