Is This the End of Voluntary Abandonment in Ohio?
R.C.4123.56(F) was enacted and became effective September 15, 2020 and applies to claims arising on or after July 1, 2020. Prior to the amendment, voluntary abandonment of employment was an affirmative defense to the receipt of temporary total disability compensation (“TTD”). Under the prior law, voluntary removal from employment for reasons unrelated to the injury could result in disqualification from TTD. Claimants who were terminated from employment for reasons unrelated to the industrial claim were ineligible to receive TTD compensation so long as their termination was a result of a known violation of a rule or a voluntary separation from that employment.
If an employee is unable to work or suffers a wage loss as the 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. It is the intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section.
In the March Comp Connection we reported on State of Ohio ex rel. AutoZone Stores Inc. v. Indus. Comm., 10th Dist. No. 21AP-294, 2023-Ohio-633, decided on March 2, 2023. The Autozone court developed a 2 part test to analyze R.C. 4123.56(F) and held a claimant is entitled to TTD if (1) claimant is unable to work as a direct result of the allowed conditions; and (2) claimant is otherwise qualified to receive TTD. “Otherwise qualified” relates back to the disqualifications set forth in R.C. 4123.56(A) which provides claimant is ineligible for receipt of TTD if he has returned to work, has a statement from his doctor opining he is capable of returning to his former position of employment, has refused a light duty job offer or has reached MMI. In Autozone a claimant who was terminated for misconduct was still eligible for TTD following a surgery since the surgery was for the allowed conditions in the claim and he was “otherwise qualified” for TTD. His termination did not render him ineligible for TTD. Autozone is currently pending before the Ohio Supreme Court.
Recently, in State ex rel. Butler Village v. Indus. Comm.,10th Dist. Franklin No. 22AP-274, 2023-Ohio-3774, decided October 17, 2023, claimant was injured while working as a mayor’s court clerk. Employer paid salary continuation until April 13, 2021. On May 18, 2021, claimant voluntarily resigned her employment in writing noting the village had reorganized her position and she felt she was unable to perform the job. Claimant filed a motion requesting TTD beginning June 28, 2021 based on a medco-14 which certified she could not return to her former position of employment. Despite the resignation, the commission awarded TTD. The SHO noted claimant testified she felt badly for needing the assistance of another worker to perform all her work duties and did not want to be paid for work she was not fully performing. The SHO concluded she resigned due to her industrial injury.
The employer filed a mandamus action in the 10th District Court of Appeals. The magistrate analyzed the issue under R.C. 4123.56(F) and the Autozone test for TTD eligibility. The court emphasized under Autozone, claimant is no longer required to prove she is unable to work solely due to an impairment arising from the injury. The medco-14 provided evidence she was unable to return to her former position of employment based on the allowed conditions. The magistrate also noted she was “otherwise qualified” to receive TTD under R.C. 4123.56(A). The magistrate recommended mandamus be denied. Because there were no objections to the magistrate’s decision the court adopted it as its own and held there was some evidence supporting the commission’s decision to grant TTD.
Unfortunately, Autozone and Butler are making it much easier for claimants with dates of injury after July 1, 2020, to collect TTD even when they do not have a job to return to. We will continue to monitor this issue and keep you up to date on the current caselaw analyzing R.C. 4123.56(F). Please contact the lawyers at Bugbee & Conkle with any questions about this issue.