On September 27, 2007 the Ohio Supreme Court vacated its own opinion in Gross v. Indus. Comm., 2007-Ohio-4916 and held that temporary total disability compensation cannot be terminated following an employee's discharge for violation of a work rule if the violation occurred before or simultaneously with the employment injury. Upon a motion for reconsideration, the court found that the discharge was related to the workplace incident and did not preclude temporary total compensation. The decision was based upon the court's interpretation of language in the written notice of termination provided to the employee by the employer.
This decision raises serious questions regarding the application of the voluntary abandonment standard to preclude recovery of temporary total compensation. Ohio employers may now be forced to compensate former employees who were rightfully discharged unless the employer can present evidence that the discharge is completely unrelated to the incident and injury. Employers may be able protect themselves from this type of result by clearly indicating throughout the termination process a reason for terminating the employment relationship that is completely unrelated to the employee's temporary total disability compensation and the triggering incident. Employers should carefully draft termination letters before terminating an employee who is or may become eligible for temporary total disability compensation and consider reviewing their employment policies in light of the court's reversal.