Having been recently reminded that sometimes this blog is a bit too “lawyerly” (read boring??), I am going to try and make this case update as exciting as possible. In this case, it will be relatively easy. For starters, the Ohio Supreme Court just reversed itself. More importantly, for those of us who represent employers, this reopens a great potential defense to temporary total disability (“TTD”) requests, which the Ohio Supreme Court had previously taken away.
For years, the principle in Ohio has been that an employee who quits his or her job is not eligible to receive TTD. That principle is known as “voluntary abandonment”. However, in 2008, the Ohio Supreme Court held that if the employee was not physically capable of returning to his or her former job at the time they were separated from employment, the principle of voluntary abandonment does not apply. Injured workers who were prevented from returning to their former position of employment due to the allowed conditions in the claim remained eligible for TTD even if they voluntarily abandoned their job. See State ex. rel Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d, 2008-Ohio-4999.
Yesterday, the Ohio Supreme Court changed its mind. Here is the Court’s most recent take on the subject, taken directly from the decision released in Klein v. Precision Excavating & Grading Co., Slip Opinion No. 2018-Ohio-3890
“When a claimant voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury, the claimant is no longer eligible for temporary-total-disability compensation, even if the claimant remains disabled at the time of his separation from employment.”
In the Klein case, the injured worker was certified as being unable to work, and subsequently informed the Ohio Bureau of Workers’ Compensation that he intended to move to Florida, for “better weather and more job opportunities.” The Industrial Commission granted an initial period of TTD but denied TTD following Mr. Klein’s decision to move to Florida on the grounds that he had voluntarily terminated his employment with the employer of record.
The 10th Appellate District, citing to State ex. rel Reitter Stucco, Inc. (see above), reversed, and held that if Mr. Klein was medically unable to work at the time he left his former job, he could not be denied TTD on the grounds of voluntary abandonment.
On appeal, the Ohio Supreme Court announced that it was reversing its decision in Reitter Stucco. In summary, the Court felt that TTD compensation should be reserved for those who “but for the industrial injury…would be gainfully employed.” The Court went on to say that “by authorizing compensation to workers who by their own actions have prevented their return to their former position of employment, Reitter Stucco and OmniSource contravene both our precedent and the purpose of temporary-total-disability compensation.”
Although it’s exciting reading for a workers’ compensation law geek such as myself, I will not bore you with further details regarding the case. Suffice it to say that the law has changed, and if an injured worker voluntarily resigns their former position of employment, they are no longer entitled to TTD compensation, regardless of their physical condition at the time they resign. For those of you who want to read more, because in some ways this decision opens as many questions as it answers, here’s the link to the Court’s decision. If you have any questions or comments, please leave them on the blog, or e-mail me.