How to Make Your Voluntary Abandonment Argument Stick

The Ohio Supreme Court has made it increasingly difficult to terminate temporary total disability compensation based upon voluntary abandonment of employment. Case in point, the recent decision in State ex rel. Cordell v. Pallet Cos., Inc.  In this post, I’m going to discuss how employers can still take advantage of the voluntary abandonment defense, and some ways employers can set themselves up for success in the hearing room.

Injured workers “voluntarily abandon” their employment, making them ineligible for temporary total disability, in three situations: 1) Voluntary Retirement/Abandonment of the Workforce; 2) Termination; and 3) Incarceration.

Voluntary Retirement/Abandonment of the Workforce

To constitute a voluntary abandonment, the departure must be for reasons unrelated to the injury.  Make sure you look into the circumstances surrounding the employee’s departure carefully, especially whether they still had light duty available at the time they left.

Per IC Memo D5, when considering whether an injured worker abandoned the workforce, hearing officers are to look at:

1. medical evidence of maximum medical improvement OR an ability to perform modified duty;
2. evidence that the injured worker was suffering from non-allowed conditions at the time of the departure; and
3. a lack of medical evidence that the allowed conditions were disabling at the time of the departure.

Termination

You must have a violation of a written work rule which: (1) clearly defined the prohibited conduct; (2) had been previously identified by the employer as a dischargeable offense; and (3) was known or should have been known to the employee.  State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.

This is where the employee handbook comes into play. Make sure that you have a complete copy at the hearing, hopefully signed by the injured worker.  Have a company representative present at the hearing as well.

• If you don’t have an employee handbook, you can fall back on a written warning. In State ex rel. Robinson v. Indus. Comm. the Supreme Court held that a prior written warning about misconduct was sufficient evidence to support a voluntary abandonment. The Court noted that the warning confirmed that any additional misconduct could lead to the employee’s termination.

If the disciplinary offense that resulted in the termination was the cause of the injury, you’re out of luck. Don’t pass go, don’t collect $200, keep paying TTD.  State ex rel. Gross v. Indus. Comm., http://bit.ly/2nOUSSa (“Gross II”).

If the injured worker was already disabled when their employment was terminated then voluntary abandonment is going to be an uphill battle. See State ex rel. Pretty Prods. v. Indus. Comm.; State ex rel. Reitter Stucco, Inc. v. Indus. Comm.; State ex rel. Cordell v. Pallet Cos., Inc.

• Note that this only applies to a termination. If the employee voluntarily quit, despite the fact that they were disabled at the time, they have abandoned their employment.  State ex rel. Hildebrand v. Wingate Transp., Inc.
• If the discovery of a pre-injury dischargeable offense occurred because of the injury and, at the time of the termination, the employee was medically incapable of returning to work, there is no voluntary abandonment. In Cordell the Supreme Court held that a positive post-accident drug test did not amount to a voluntary abandonment. However the Court limited its finding to circumstances where: 1) the discovery of the dischargeable offense occurred because of the injury; and 2) at the time of the discharge, the injured worker was incapable of returning to work.
  • If the discovery of the pre-injury violation did not occur as the result of the injury however, then Cordell does not apply. The language in Cordell limits its applicability to situations where the employee’s misconduct is discovered as the result of the injury.
  • What if the employee cannot return to his former job, but is capable of performing light-duty work at the time of the termination?
    • If the employer makes an offer of work within the employee’s restrictions which the employee rejects, that’s a basis for denying TTD without even going into the voluntary abandonment issue.
    • If the employee accepts an offer of light-duty work, and is subsequently terminated for a work rule violation, the employee has voluntarily abandoned their employment.  State ex. rel. Jacobs v. Indus. Comm.

If the termination occurs after the injured worker has returned work, and is based on post-injury conduct, you’re all good (assuming the requirements of Louisiana Pacific are met-see above). Don’t restart TTD unless the employee has taken another job and is still working there at the time of the claimed disability.  State ex rel. Eckerly v. Indus. Comm.

3) Incarceration – Simply put, no TTD or death benefits while you’re in jail. The concept of voluntary abandonment due to incarceration began with State ex rel. Ashcraft v. Indus. Comm..  The Ashcraft holding was subsequent codified in R.C. §4123.54(J).  In House Bill 27, passed last September, dependents were also barred from receiving death benefits while incarcerated.