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Comp Connection Vol. 15 No. 5

Comp Connection Vol. 15 No. 5.pdf

Tenth District Court of Appeals Grants Mandamus and Reverses Voluntary Abandonment Finding

State ex rel. Tolle v. Spherion of Mid-Ohio, Inc., 10th Dist. No. 14AP-717, 2015-Ohio-3593 (September 3, 2015)

Claimant sustained a work related injury when a supervisor hit a wrong button, causing a machine to be activated, crushing her arm.  Following the injury she tested positive for marijuana which violated a written work rule and her employment was terminated.  Her claim was allowed but claimant’s motion for temporary total disability compensation (“TTD”) was denied by the District Hearing Officer, who found claimant voluntarily abandoned her employment when she tested positive for marijuana.  The Staff Hearing Officer vacated the order and found claimant did not voluntarily abandon her employment, citing State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio-4916, and finding a pre-injury infraction undetected until after the injury is not grounds for voluntary abandonment.  The company appealed to the full Commission which found the company met its burden of proving the order contained a clear mistake of law and granted the request for reconsideration.  After hearing the issue on the merits the Commission determined claimant was not entitled to TTD because she voluntarily abandoned her employment when she tested positive for marijuana violating a written work rule.  Claimant filed a mandamus action in the Tenth District Court of Appeals and the court adopted the Magistrate’s decision and granted a Writ of Mandamus.  The Court emphasized the employer never argued the use of marijuana adversely affected her judgment or proximately caused the injury.  The court found the doctrine of voluntary abandonment did not apply to the receipt of TTD compensation in a case involving a pre-injury infraction undetected until after injury.

Voluntary abandonment does not apply to prohibit receipt of TTD in a case involving a pre-injury infraction (marijuana use) undetected until after injury (in a post injury drug test).

 

 

Win Exclusive Prizes At Our Annual Labor & Employment Law Seminar By Following Our LinkedIn Seminars & Trainings Page

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Register for the October 1, 2015 seminar and follow our LinkedIn Seminars & Trainings page for full details and a chance at all 3 prizes!

Statewide Hearing Officer Training Seminar To Be Held On September 28, 2015

The Industrial Commission of Ohio will host a Statewide Hearing Officer Training seminar on September 28, 2015 in the L2 Auditorium, 30 West Spring Street, Columbus, Ohio 43215. Below is the full agenda.  For registration information click here.

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