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Inaccurate Employment Application Not Enough to Deny Temporary Total Disability Compensation Benefits
By Eric Daniel, Esq.
On September 7, 2005, the Ohio Supreme Court ruled that an inaccurate employment application was not sufficient to terminate temporary total disability benefits without additional proof that there was an “intent to deceive.”
In Strimbu v. Industrial Commission (2005), 106 Ohio St. 3d 173, Willie E. Marshall had completed an employment application for Nick Strimbu, Inc. in which he was asked to list all of his employers for the last ten years. Strimbu, 106 Ohio St. 3d 173. The application further required Mr. Marshall to acknowledge, by his signature, his understanding that “false or misleading information given in [his] application or interview(s) may result in discharge.” Id. at 173-74.
After Mr. Marshall was hired, he sustained an injury in the course and scope of his employment with Nick Strimbu, Inc. Id. at 174. He filed a claim through the Bureau of Workers’ Compensation which was allowed. Id. Thereafter, he filed a request for temporary total disability compensation. Id.
On September 27, 2000, Strimbu’s Human Resources Director was informed that Mr. Marshall had failed to state his prior employment with PI&I Motor Express on his employment application. Strimbu, 106 Ohio St. 3d 173, 174. Strimbu sent Mr. Marshall a discharge letter the following day, alleging that he had falsified his employment application. Id.
As a result of this termination, Nick Strimbu, Inc. asserted the defense of voluntary abandonment of employment at the Industrial Commission hearings. Id. A voluntary abandonment of employment can support a denial of temporary total disability compensation benefits. Id. at 174. See also, State ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St. 3d 44, 45. Firing can constitute a voluntary abandonment of a person’s former position of employment. Strimbu, 106 Ohio St. 3d 173, 175. See also, State ex rel. Louisiana-Pacific Corp. (1995), 72 Ohio St. 3d 401 at 403. A voluntary termination is one “generated by the claimant’s violation of a written work rule or policy that (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.” Strimbu at 175, citingLouisiana-Pacific Corp., 72 Ohio St. 3d at 403.
Although Mr. Marshall had failed to list one of his former places of employment, the Industrial Commission found that Mr. Marshall’s discharge did not constitute a voluntary abandonment. Strimbu at 175. It was determined that an omission, in order to constitute falsification, must be deliberate and motivated by an intent to deceive. Id. Here, the Industrial Commission concluded that the failure to list a former place of employment had not been deliberate in nature. Id. Since the Industrial Commission was persuaded by Mr. Marshall’s testimony that the omission was inadvertent, his termination was not deemed to be an abandonment of employment. Id. The Ohio Supreme Court determined that there was no abuse of discretion by the Industrial Commission in reaching this conclusion. Id. Therefore, the lower court’s judgment was affirmed. Id.
Under the Ohio Supreme Court’s decision in Strimbu, an omission on an employment application will not be grounds for termination and, subsequently, a denial of temporary total disability compensation, unless it is further established that the injured worker had an intent to deceive when filling out the application. Even if the intent to deceive is established, the other requirements set forth in Louisiana-Pacific Corp. will need to be met. Specifically, the actions leading to termination must constitute a violation of a written work rule or policy that (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.” Strimbu at 175, citingLouisiana-Pacific Corp., 72 Ohio St. 3d at 403.