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Has Ohio "Terminated" the Voluntary Abandonment Doctrine? Has Ohio "Terminated" the Voluntary Abandonment Doctrine?

Has Ohio "Terminated" the Voluntary Abandonment Doctrine?

The doctrine of voluntary abandonment is a traditional defense to temporary total disability benefits when a workers’ compensation claimant’s employment has been terminated for non‑injury reasons. In most states, an employee must be unable to work due to a work injury to qualify for temporary total compensation. The voluntary abandonment doctrine defeats temporary total eligibility if the employee commits a post‑injury act that causes her employment to be terminated. The rationale is that it is the voluntary act that caused the inability to work rather than the injury. The defense is typically raised when injured workers have been terminated for violating a work rule, have voluntarily quit, are retired, or have been incarcerated. In Ohio, several judicial opinions have carved out conflicting exceptions resulting in confusing applications of the voluntary abandonment doctrine. Examples of exceptions include rulings that pre-injury conduct could not be considered voluntary abandonment, and voluntary abandonment does not exist if conduct contemporaneous to the injury resulted in termination. Another case found that an injured workers’ ongoing disability at the time of termination prohibits the defense because an injured worker “could not voluntarily abandon a job from which he was already disabled.”

Recently, Ohio Governor Michael DeWine signed House Bill 81, which contains a provision that attempts to codify the voluntary abandonment doctrine. The law previously did not specify when temporary total benefits are payable nor did it state that the disability must be a direct result of the allowed injury or occupational disease. The statute only addressed when benefits are no longer payable, i.e., the employee returns to work, the physician of record releases the employee to return to her former position, or the employee has reached maximum medical improvement from which no further improvement is anticipated. The new Ohio statute establishes the requirement that there must be a causal connection between economic loss and an injury or occupational disease in order for the loss to be compensated. O.R.C. 4123.52 (F) now states:
If an employee is unable to work or suffers a wage loss as a direct result of an impairment arising from an injury or occupational disease, the employee is entitled to receive compensation under this section, provided the employee is otherwise qualified. If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section.
This statute intends to enact a single test to determine benefit eligibility—whether or not an employee’s loss of income is caused by the allowed injury or occupational disease. The new statute further attempts to settle the law by specifically stating it is intended “to supersede any previous judicial decisions that applied the doctrine of voluntary abandonment to a claim.”  Despite that intent, it remains unclear whether the case law establishing principles of voluntary abandonment has been legislatively extinguished.

Whether the Ohio General Assembly’s intent to clarify the doctrine will successfully eliminate judicially created exceptions to voluntary abandonment remains to be seen. The statute is subject to multiple interpretations. The broadest application considers the language a complete abolishment of the voluntary abandonment doctrine. Notably, the statute does not state that case law that created the doctrine no longer applies. Rather, the statute only states that judicial decisions that applied the doctrine have been superseded. A reasonable interpretation is that the voluntary abandonment doctrine itself remains in effect—it is simply the exceptions that are now eliminated.

It is not clear whether the “judicial decisions” referenced in the new statute will impact Ohio cases such as Gross II, Klein, or Louisiana Pacific, as the new statute does not focus on rule violations and employment terminations, but rather on the causal relationship between the wage loss and the injury or occupational disease. (Gross II held an employee terminated for violation of a work rule that resulted in his injury remained entitled to temporary total disability because the wage loss was causally related to the injury. Louisiana Pacific held voluntary abandonment for violation of a written work rule must be proven by the employer satisfying certain criteria. Klein held an employee injured after giving notice of intent to move to another state was entitled to temporary total until he moved and voluntarily abandoned employment.) The elimination of those holdings could now allow an employer to argue pre-injury conduct and conduct at the time of injury that results in termination as grounds to deny temporary total benefits. Similarly, pre‑injury behavior discovered after the injury such as positive drug screens can arguably now serve as the basis to contest benefits.

Ohio claims pending on or arising after September 15, 2020 are subject to the new statute regardless of date of injury. In order to best implement the defense, employers should review the last date a claimant worked upon receiving a request for temporary total disability compensation. Employers should focus on why an employee discontinued employment. If the employee was terminated, voluntarily resigned, or took a leave of absence for a reason unrelated to the injury, the employer should still assert the voluntary abandonment defense. Although it is unclear how Ohio courts will interpret the new statute, asserting the defense will help employers reserve their rights and most effectively defend claims.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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