A case decided on April 9, 2019 by the Ohio Supreme Court dealt with an injured worker who retired; claimed that she re-entered the workforce by “working” on her farm; had surgery; and then requested temporary total disability (“TTD”) compensation. Before we get into the specifics of the case, let’s do a brief rundown of the concepts involved.
First of all, what exactly do courts mean when they discuss “voluntary abandonment”? Although there’s a lot of complicated case law on the subject, the basic concept is fairly straightforward. Injured workers are entitled to temporary total disability compensation when they sustain an injury that prevents them from working. As the Ohio Supreme Court put it: “(t)here can be no lost earnings…or even a potential for lost earnings, if the claimant is no longer part of the active work force.” State ex rel. Pierron v. Indus. Comm. That principle led to the concept of “voluntary abandonment”.
The courts have determined three ways an injured worker will be considered to have “voluntarily abandoned” employment, thereby forfeiting the right to temporary total disability compensation. Those three ways are:
- retirement,
- termination for violation of a written work rule or policy, and
- abandonment of the work force.
Today, we’re going to concentrate on the issue of abandonment of the workforce. But before getting to that, one more background issue:
Voluntary Abandonment Does Not Mean That an Injured Worker Can Never Be Entitled to TTD in the future.
When I started practicing law, once an injured worker was found to have voluntarily abandoned their employment that was it. Game over. No TTD for you (a little Seinfeld reference to prove how long ago I started practicing). But the laws have changed since then. Injured workers who leave their former position of employment, reenter the workforce, and become disabled due to the original injury while working at their new job can now qualify for temporary total disability compensation.
This rule applies equally to those who reenter the workforce as family business workers, including farmers. But to be eligible for temporary total disability compensation, those workers, like any others, must be actively engaged in gainful employment. That is to say, their work—though it may be full- or part-time—must be regular, not sporadic. And they must, on account of that work, receive earnings that will be lost due to their industrial injury.
The most brazen attempt to defeat the voluntary abandonment argument I’ve seen over the course of my practice is the injured worker who submitted a statement, from what proved to be a friend, that he had begun working part-time as a parking lot attendant three weeks before he had surgery. Interestingly, he was paid cash….hmmm.
Mowing the grass and picking up trash on your farm isn’t enough to get you back on TTD
In State ex rel. Vonderheide v. Multi-Color Corp, Ms. Vonderheide was on TTD for many years. She entered a vocational rehabilitation program but withdrew from it after several months. In 2002, she began receiving Social Security retirement benefits. That same year, the Industrial Commission determined that the she had reached maximum medical improvement (“MMI”). In other words, her condition had stabilized and there was no chance of significant functional improvement. Since her disability was no longer “temporary”, she was no longer entitled to TTD.
Ms. Vonderheide testified that after 2002, she worked primarily at her family farm, helping her husband raise cows and grow tobacco. At the end of each year, her husband gave her a portion of the farm’s net profits as payment for her activities. When her husband died in 2009, she sold all the cattle and leased the farmland to others. She testified that after that, her activity at the farm involved tasks such as mowing the grass and picking up trash in the yard. According to her tax returns, the income she received from the farm varied significantly from year to year.
In July 2012, she had surgery for the allowed conditions in her claim, and requested temporary total disability compensation. The Industrial Commission denied her request on the grounds that, at the time she requested TTD compensation, she had abandoned the workforce and never returned. The 10th Appellate District Court reversed that decision.
What did the Supreme Court look at?
The Supreme Court reversed the 10th Appellate District and denied temporary total disability compensation. The Court looked at several factors. First, Vonderheide chose to begin receiving Social Security retirement benefits in 2002, at age 62. The Supreme Court has considered the choice to seek retirement benefits as evidence that a claimant was no longer in the workforce. The Court also added that tax records showed that Vonderheide’s earnings fluctuated greatly from year to year both before and after her husband’s death. She earned more in some of the years that she physically did little work at the farm, and less in some of the years in which she performed more work at the farm. In short, there was no demonstrated relationship between the amount of work she performed and her earnings. Lastly, the court pointed out that there was no evidence that Vonderheide sought employment outside of the work on the farm, in spite of the fact that, after her husband’s death, she sold the farm’s cattle and leased its land out to be farmed by others.
What’s the takeaway from the Vonderheide case? Well, if you have left the labor market, and are planning on having surgery for conditions allowed in your workers’ compensation claim, you might want to consider getting a job that gives you regular, documented paychecks. As the Supreme Court pointed out, re-entry into the workforce doesn’t mean you have to go back to full time work. You just need to leave your farm, so to speak.
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