On September 27, 2018, the Ohio Supreme Court reversed prior Ohio law regarding an injured worker’s eligibility for temporary total disability compensation (“TTD”). The Court found an injured worker is not eligible for TTD if they abandon their job, even if they are disabled from the position at the time. The case is Klein v. Precision Excavating & Grading Company, et al. In Klein, the Supreme Court overruled two of its earlier decisions which ruled that an injured worker could not abandon a position he or she was medically unable to perform.
In Ohio, when a worker is medically incapable of returning to the position of employment due to the disabling effect of an industrial injury, that worker is eligible for TTD compensation. However, when the worker’s voluntary actions, rather than the industrial injury, cause the separation from employment, that worker is not eligible for TTD – this is called the voluntary abandonment doctrine. It applies to workers who quit their jobs or voluntarily violate a workplace rule they know will result in termination. In two prior cases, Reitter Stucco v. Industrial Commission (2008) and OmniSource v. Industrial Commission (2007), the Ohio Supreme Court carved out an exception to the voluntary abandonment doctrine: if a claimant is already disabled when the separation from employment occurs, they remain eligible for TTD payments.
In Klein, Plaintiff John Klein was employed with Precision Excavating. On November 5, 2014, Klein sustained a workplace injury which left him with fractured ribs and other related complications. His physician issued a report stating that he was temporarily unable to return to work from the date of injury, November 5, 2014 through January 5, 2015. Klein filed a request for TTD payments.
At an Industrial Commission hearing in February of 2015, Klein testified that he was planning to quit his job and move to Florida before his injury for better weather and job opportunities. A representative for the employer also testified that prior to the injury Klein was asking about the proper procedures for quitting his job. A coworker attested that two-days prior to the injury, Klein told him he intended to quit his job in two weeks and move to Florida. Another coworker attested that when she took Klein to the hospital on the date of injury, Klein informed her he had recently given his two-week notice and intended to move to Florida. On November 13, 2014, Klein informed the BWC that he was moving to Florida on November 20, 2014.
The hearing officer granted TTD for only a closed period of November 5, 2014 through November 20, 2014, and that decision was affirmed in a subsequent hearing. Klein appealed, arguing that he was entitled to TTD after November 20, 2014 because he was still unable to work. The Court of appeals relied upon Reitter Stucco and Omnisource and found that because Klein was still medically unable to work after November 20, 2014, he could not abandon his job and was still eligible for TTD after that date.
The Supreme Court reversed the Court of Appeals, restoring the Industrial Commission’s finding that Klein was ineligible for TTD after November 20, 2018, the date he moved to Florida. The Court overruled its prior rulings in Reitter Stucco and Omnisource, finding they are practically unworkable. The Court held that, if a worker voluntarily removes him/herself from employment for reasons unrelated to the workplace injury, they are not eligible for TTD even if they remain disabled at the time of separation. Applying this principle to the facts of the case, the Court held that the totality of Klein’s statements and actions demonstrate that even before his injury, Klein intended to leave his position of employment permanently. It was his own actions, not his injury, that prevented his return to his position of employment.
The Court left intact, however, its recent decision in State ex rel. Cordell v. Pallet Cos., Inc. (2016), in which the Court concluded that a worker’s pre-injury rule violation discovered because of his injury did not disqualify the worker from TTD. In Cordell, the worker was fired upon a post-accident drug test positive for marijuana. Importantly, the parties in Cordell conceded that Cordell’s marijuana use had nothing to do with his injury. In Ohio, employees are not entitled to compensation for loss if the industrial injury was proximately caused by the employee’s being intoxicated or under the influence of illegal substances. The law creates a rebuttable presumption that a claimant’s being intoxicated or under the influence of drugs was the proximate cause of the injury. If the employer believes the employee was intoxicated at the time of injury, and that the injury could have been the result of the intoxication, the employer should carefully follow the procedures for drug testing to take advantage of the rebuttable presumption upon a positive test.
After Klein, Ohio Employers should carefully investigate the circumstances involving an employee claiming TTD. The Klein decision does not automatically mean that a worker who moves away after a workplace injury will be ineligible for TTD, but the circumstances may warrant denial.
Attorneys at Fishel Downey Albrecht & Riepenhoff LLP routinely advise and defend employers regarding workers’ compensation matters, whether in the Industrial Commission or Court. For questions about this case or any other matter, please contact David Riepenhoff (driepenhoff@fisheldowney.com), Paul Bernhart (pbernhart@fisheldowney.com) or (gbacon@fisheldowney.com) by email or phone (614) 221-1216.