As we have explained before, one of an employer’s main defenses in a workers’ compensation claim is that the employee’s own actions – rather than the work-related injuries — have led to the employee being off work. The Ohio Supreme Court recently revisited the analysis of when an employee’s actions constitute a voluntary abandonment of employment thereby precluding receipt of temporary total disability compensation.
In State ex. rel. Robinson v. Indus. Comm., Parma Care Nursing and Rehabilitation hired Shelby Robinson in 1995, and at that time, provided her with a written job description that established her job duties and responsibilities. Further, Parma Care provided her with a copy of an employee handbook detailing Parma Care’s policies and procedures. Over the years, Parma Care disciplined Robinson for violating work rules. In a written warning on February 29, 2008, Robinson acknowledged that she had been warned that any future violations would result in her termination from employment.
On April 10, 2008, Robinson was injured at work and subsequently filed a workers’ compensation claim, which was recognized for multiple low back conditions. As a result, she returned to work in a light duty capacity. On April 15, 2008, a state surveyor reported to Parma Care that Robinson had violated state rules. Based on this infraction, Parma Care terminated Robinson’s employment.
Subsequently, Robinson’s physician certified that Robinson was temporarily and totally disabled from all employment beginning on the date of her injury. The Industrial Commission determined that Robinson’s termination amounted to a voluntary abandonment of her employment and she therefore was ineligible for temporary total compensation. Robinson appealed and the Court of Appeals upheld the Industrial Commission’s decision. Robinson appealed to the Ohio Supreme Court, which affirmed the decision and held that Robinson voluntarily abandoned her employment as a result of her termination for violating a written work rule and was not entitled to receive temporary total disability compensation.
In Ohio, when an employee is injured at work and unable to return to work, the employee is entitled to receive temporary total disability compensation. However, when an employee’s own actions take them out of the workforce, rather than the work injury, the employee is not entitled to compensation. A discharge from employment is considered to be a voluntary abandonment only when the discharge arises from a violation of a written work rule that (1) clearly defined the prohibited conduct, (2) identified the misconduct as a dischargeable offense, and (3) was known or should have been known to the employee. State ex rel. Lousiana-Pacific Corp. v. Indus. Comm., 72 Ohio St. 3d 401 (1995).
In this case, Robinson argued that Parma Care did not meet all of the parts of the test as Parma Care did not identify a written work rule that clearly defined the prohibited conduct for which Robinson was terminated. Both the Ohio Supreme Court and the Industrial Commission found that Robinson knew her actions violated Parma Care’s standard of conduct and could result in her termination. The Industrial Commission noted that Robinson was in receipt of an employee handbook that contained policies, rules and disciplinary processes. Further, her job responsibilities were articulated in her job description. Thus, the Ohio Supreme Court found that she was on notice that her actions in failing to abide by state rules could result in her termination of employment.
Robinson argued that as she had been released to work in a light duty capacity and was unable to return to her former position of employment at the time of her termination, that her termination could not be deemed to be a voluntary abandonment of employment. The Ohio Supreme Court rejected this argument based on the fact that since she was working at the time of the infraction, she was capable of voluntarily abandoning her position of employment and thus was not entitled to compensation.
Justice O’Neill wrote a lengthy dissent arguing that the Supreme Court’s ruling introduces fault into the workers’ compensation system, which was intended to be a no-fault system. He argued that Robinson’s performance-based termination was irrelevant to the issue of whether she was entitled to compensation. Justice O’Neill appears to believe that the Supreme Court’s holding stands for the proposition that only “good” employees will receive compensation when injured at work. He opined that if an employee is hurt at work and unable to work, the employee should receive temporary total disability compensation, regardless of their work behavior.
This line of argument has not carried weight with the Ohio Supreme Court since the nineties and the majority decision in Robinson demonstrates that it will not suddenly reverse itself and erase the entire line of voluntary abandonment decisions. Nevertheless, it is important to continue to monitor the Supreme Court’s voluntary abandonment decisions, which in the past have created exceptions to this general rule, particularly when the employee’s conduct prompting the termination either pre-dated or was contemporaneous with the accident causing his or her injuries. For now, an employee who violates a written work rule and is terminated will be precluded from receiving temporary total disability compensation, even when the employee was not working in a full duty capacity.
Robinson highlights the continuing importance of conveying to employees their exact responsibilities and consequences for the failing to abide by rules, policies and procedures, whether this is done through an employee handbook or in job descriptions. A useful job description includes details of job duties, responsibilities assigned to the employee and any applicable standards of care or conduct. Job descriptions and handbooks containing policies, procedures, rules and disciplinary processes should be reviewed and updated as necessary to ensure they actually reflect current practice. Whenever a new update is issued, employees should be trained on the changes and sign an acknowledgement of receipt of the new information. Whenever possible, a termination letter should refer to the exact rule, policy or procedure violated. If these simple steps are followed, an employee is injured on the job and terminated for violating a written work rule should be precluded from receiving temporary total compensation based on the employee’s “voluntary abandonment” abandonment of employment.