Termination Does Not Always Lead to a Voluntary Abandonment Defense in Ohio
Labor & Employment @lert
Date: October 17, 2017
A recent Ohio Supreme Court decision restricts an employer’s use of a voluntary abandonment defense against an injured worker’s request for temporary total disability compensation in a workers’ compensation claim. In State, ex rel. Cordell v. Pallet Companies, Inc., (2016) 149 Ohio St. 3d 483, James Cordell sustained a right leg fracture when he fell from a dock plate to the ground on February 16, 2012. Six days later, Cordell’s date of injury toxicology results became available, revealing that he tested positive for marijuana, and he was terminated for violating his employer’s drug-free workplace policy.
Cordell requested temporary total disability compensation for his lost time subsequent to the February 16, 2012 injury. Hearing the matter on reconsideration, the Ohio Industrial Commission denied his request, relying upon the holding in State, ex rel. PaySource USA, Inc. v. Industrial Commission, (2009) 10th Dist. Franklin No. 08 AP‑677. PaySource held that the injured worker voluntarily abandoned his employment when he used drugs prior to the injury, and he was terminated for a work rule violation (drug-free workplace policy) post‑date of injury after his employer received his date of injury drug screen results. Given the voluntary abandonment of his employment, the PaySource court held that the injured worker was not eligible to receive temporary total disability compensation. The court’s rationale in PaySource was that the injured worker made a voluntary choice to use drugs knowing that drug use violated his employer’s work rule and could result in his termination. Therefore, the injured worker’s lost time is the result of his work rule violation, not the industrial accident.
In the Cordell case, Ohio’s 10th District Court of Appeals reversed the Industrial Commission’s decision, finding that Cordell was eligible to receive his temporary total disability compensation. The court reasoned that at the time the employer received the positive drug test results (six days after date of injury), Cordell was disabled and an injured worker cannot voluntarily abandon a job he is incapable of performing.
The Supreme Court affirmed the Court of Appeals, holding that:
When an employee is terminated after a workplace injury for conduct prior to and unrelated to the workplace injury, his termination does not amount to a voluntary abandonment of employment for purpose of temporary-total-disability compensation when (1) the discovery of the dischargeable offense occurred because of the injury and (2) at the time of the termination, the employee was medically incapable of returning to work as a result of the injury.
All voluntary abandonment defenses are considered on a case‑by‑case basis. The Cordell decision makes it clear that the timing of a work rule violation and how the violation is discovered are critical to the success of a voluntary abandonment defense to an employee’s request for temporary total disability compensation following a work-related injury in Ohio.
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