SIGO Legal Updates

TTD Not Compensable under Voluntary Abandonment.

There will be no TTD compensation absence from work arises out of voluntary abandonment of employment. State ex rel Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St. 3d 401. If a claimant has the physical capacity for employment and voluntarily leaves the workplace for reasons unrelated to the allowed conditions in their workers' compensation claim, they are not entitled to Temporary Total Disability ("TTD"). In fact, "TT can never be based, even in part, on nonallowed conditions." State ex rel. Jackson Tube Services, Inc. v. Industrial Commission (2003) 99 Ohio St. 3d 1.

“Eligibility [for TTD] may be compromised when the claimant is no longer employed at that job [that caused the industrial injury]. Once a claimant is separated from the former position of employment, future TTD compensation eligibility hinges on the timing and character of the claimant’s departure.” State ex rel. Pretty Products Inc. v. Indus. Comm. (1996), 77 Ohio St. 3d 5. Timing may demonstrate that the claimant was disabled at the time of separation from employment, in which case there is no voluntary abandonment of employment to preclude TTD because “abandonment” of employment only occurs when a claimant has the physical capacity for employment. State ex rel. Brown v. Indus. Comm. (1993), 68 Ohio St. 3d 45.

Characterizing the claimant’s separation from the workplace has a dramatic impact upon eligibility for TTD. Voluntary departure from employment arises upon:

Termination of employment due to claimant's violation of a written work rule/ policy that

clearly defined the prohibited conduct,
was previously identified by the employer as a dischargeable offense, and
was known or should have been known by the employee.

Louisiana-Pacific, 72 Ohio St. 3d 401, 403. Voluntary abandonment of employment is a complete bar to TTD while the claimant remains voluntarily without employment. It is important, however, to note that the Ohio Supreme Court recently articulated that "an employee who is receiving TTD may not be discharged solely on the basis for absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition." Coolidge v. Riverdale Local School Dist. (2003), 100 Ohio St. 3d 141, syllabus. It does require employers to avoid termination of employees absent from work because of their work-related injury.

In order to become eligible for TTD after voluntarily abandoning the workplace, the claimant must satisfy two key elements. First, the claimant must re-enter the workplace and demonstrate continued employment. Second, the claimant must maintain a continued presence in the workforce. A claimant may become eligible for TTD after voluntarily abandoning his employement regardless whether they left the employment of the employer with whom he or she worked at the time of the injury in order to work for another employer or whether the claimantÕs employment was terminated under circumstances that qualify as voluntary abandonment of employment. A claimant is eligible to receive TTD pursuant to O.R.C. ¤4126.56(A) if the claimant reaggravates the original injury while working for the new employer. State ex rel Baker v. Industrial Commission (2000), 89 Ohio St. 3d 376.

The Ohio Supreme Court has previously concluded that when a claimant quits a former position of employment, then works at and abandons several other jobs, but subsequently applies for TTD upon reinjury, TTD should be denied. McCoy v. Dedicated Transport, Inc. (2002), 97 Ohio St. 3d 25 (explaining McGraw v. Industrial Commission (1990), 56 Ohio St. 3d 137). In McCoy and McGraw, the claimant was not working at the time of the aggravation of the original injury and therefore TTD was denied.