October 9, 2013
Voluntary Abandonment of Employment

by Justice Paul E. Pfeifer

George H. Haddox was a truck driver for Forest City Technologies, Inc. when he was injured in a work-related traffic accident on December 20, 2005. His back was hurt in the accident and his workers’ compensation claim was allowed for “sprain lumbar region.”

Unfortunately, it was George’s third accident in 2005. As a result, his employer’s liability insurance would no longer cover him. Forest City terminated his employment in January 2006.

After his termination, George filed a request for temporary-total-disability compensation (“TTD”), to begin on the date he was injured. A staff hearing officer for the Industrial Commission – which handles such issues – denied the request. The hearing officer concluded that George’s discharge constituted a voluntary abandonment of employment because he had violated a company policy that required termination of employment for a third traffic violation.

The purpose of TTD is to compensate an injured employee for lost earnings during the period of disability while the injury heals. To qualify for TTD, an injured worker must demonstrate that he is medically unable to return to work and that the injury is the reason for the loss of earnings.

When the employee no longer has a loss of earnings, TTD benefits terminate. This occurs when the employee returns to work or is capable of returning to work. TTD benefits may also terminate if the employee voluntarily leaves the workforce.

When an employee is fired for misconduct, the dismissal may be deemed a voluntary abandonment of employment “when it arises from the employee’s decision to engage in conduct that he or she knows will result in termination.”  The Industrial Commission therefore must look to the underlying facts and circumstances of the discharge, including its timing and nature, when classifying the employee’s departure as voluntary or involuntary. The underlying principle is that the employee’s departure from employment must be caused by the injury for the employee to be eligible for TTD.

Although George’s claim for TTD was denied, the Commission later approved another claim for two additional conditions related to the accident. George then filed a second claim for TTD based on the additional conditions.

A district hearing officer denied the request, finding that George’s discharge was related to his inability to drive a truck because of his traffic violations, not due to his injuries. But a staff hearing officer – the next step up the chain – reversed that decision. The staff hearing officer made the reversal based on a 2007 decision by our court in a case involving a man named David Gross.

Gross was an employee at a KFC Restaurant who burned himself and two others when he placed water in a pressurized deep fryer, heated the fryer, and then opened the lid. KFC fired him for violating a workplace safety rule and defying repeated verbal warnings. When the Commission examined his claim, it said this was a voluntary abandonment of his employment and terminated Gross’s TTD.

But our court ultimately ordered the Commission to reinstate benefits. Our decision in Gross’s case reiterated that the underlying issue in a voluntary-abandonment case is “whether his injury or his termination ... is the cause of his loss of earnings.”

In Gross’s case, we examined the evidence and concluded that KFC’s termination letter – in which KFC stated that it was Gross’s rule violation, resulting in the injury, that had led to his termination – established that his discharge was related to the injury. Thus, Gross’s termination was involuntary and did not bar TTD.

In George’s case, the staff hearing officer – using the Gross case as a guide – awarded TTD because George’s discharge was related to acts that occurred contemporaneously with or before his injuries.

This led George to file a third request, asking for TTD compensation dating back to his initial injury. A district hearing officer concluded that the Commission had previously adjudicated the issue of voluntary abandonment for the original action and that it was settled. The hearing officer rejected George’s argument that the previous orders could be vacated on the basis of our decision in Gross’s case.

Eventually, Forest City Technologies asked the Commission to reconsider George’s TTD that was awarded after his second application. Forest City argued the order was based on a clear mistake of law because the finding of voluntary abandonment in the initial denial of compensation had been settled.

The Commission ultimately determined that the staff hearing officer had made a clear error of law by awarding George compensation in his second request after the matter had already been settled from his first request.

The Commission’s decision led George to file a complaint in the court of appeals asking for TTD compensation beginning on the date of his initial injury. Because the traffic violations that resulted in George’s inability to be insured had occurred prior to and contemporaneously with his injury, the court of appeals concluded that his discharge could not be considered a voluntary abandonment that would make him ineligible for TTD.

Applying our decision in Gross’s case to the facts of George’s case, the court of appeals ordered the Commission to vacate the denials of TTD that were based on abandonment of employment, to reinstate one award of compensation, and to redetermine the remaining request for TTD compensation on the medical evidence.

After that, the case came before us – the Supreme Court of Ohio – for a final review.

In reaching its decision, the court of appeals had concluded that because George’s traffic violations occurred prior to and contemporaneously with the injury, his termination was not a voluntary abandonment. Under the terms established in our decision in Gross’s case, the court of appeals determined that George’s actions “prior to and concurrent with his industrial injury did not form a basis for concluding he voluntarily abandoned his employment ...”

We agreed. Because George was discharged for the same misconduct that caused his industrial injury, the discharge did not amount to a voluntary abandonment of employment that would preclude TTD compensation. Therefore, by a four-to-three vote, we affirmed the judgment of the court of appeals.

EDITOR'S NOTE: The case referred to is State ex rel. Haddox v. Indus. Comm., 135 Ohio St.3d 307, 2013-Ohio-794. Case No. 2011-1622. Decided March 12, 2013. Opinion Per Curiam>.