One of the most frequently litigated issues under the workers’ compensation laws of Ohio is whether an injured worker should be precluded from receiving benefits due to his "voluntary abandonment" of employment. Obviously, both temporary total and permanent total disability compensation are costly benefits to the employer in a workers’ compensation claim. Voluntary abandonment is an affirmative defense to an injured worker’s request for temporary total disability or permanent total disability compensation.
The evolution of voluntary abandonment started in 1985 when the Ohio Supreme Court decided a case in which an individual quit his job and later requested temporary total disability benefits. Over the years, the voluntary abandonment defense has been expanded to include situations where an injured worker is fired for violating an employer’s written work rule and later requests temporary total disability. The circumstances under which that defense applies, however, are not always so clear.
In State, ex rel., Jones & Laughlin Steel Corp. vs. Industrial Commission (1985), 22 Ohio App. 3d 145, the injured worker made a voluntary choice to retire from his job and further indicated that he was retiring from the entire workforce. His request for temporary total disability benefits subsequent to his retirement was disallowed.
The Ohio Supreme Court held that the injured worker’s inability to work was not the result of his industrial injury but rather was due to a voluntary action he took, i.e., retirement from the workforce. In other words, his voluntary choice to retire prevented the injured worker from returning to his job even if he were physically able to do so.
On August 21, 2012, the Ohio Supreme Court decided State, ex rel., Rouan v. Industrial Commission, 133 Ohio St. 3d 249. The court held that when determining whether an employee’s retirement bars a subsequent request for temporary total compensation, two considerations must be evaluated: Was the retirement precipitated by the industrial injury or allowed conditions in a claim, and did the claimant remain in the workforce after retiring? In this case, it concluded that a voluntary abandonment occurred when the employee retired as a result of a nonindustrial injury.
Ms. Rouan suffered a leg injury in 2004. She received temporary total benefits until mid-2005 when her physician found she had reached maximum medical improvement. Also in 2005, she was approved for a disability retirement, with the Ohio Public Employees Retirement System attributing her inability to work exclusively to a major depressive disorder condition that was not an allowed condition in her industrial claim. Ms. Rouan never returned to the workforce. Starting in 2007, she filed various claims for total disability. Ultimately, the Supreme Court held that Ms. Rouan had voluntarily abandoned the workforce when she retired due to a nonindustrial condition and upheld the denial of her workers’ compensation claim.
In a similar and perhaps more clear-cut case, the Ohio Supreme Court held that a claimant voluntarily abandoned his former position of employment when he quit for reasons unrelated to his industrial injury. See State, ex rel., McGraw vs. Industrial Commission, 56 Ohio St. 3d 137 (1990). In this case, the employee, who had a compensable workers’ compensation claim, quit his job at the employer of record and moved to Pennsylvania, where he worked sporadically in different jobs. The court affirmed the Industrial Commission’s denial of temporary total disability benefits, holding:
In the case before us, appellant quit his job at which he was injured for reasons unrelated to his injury. Even if appellant were able to perform his former duties, his own actions eliminated any opportunity for return to that position at Kenworth long before his alleged disability arose.
Involuntary Departure From Work
Not all retirements are voluntary abandonments, however. In State, ex rel., Rockwell International vs. Industrial Commission , 40 Ohio St. 3d 44 (1988), the claimant retired from Rockwell and later requested temporary total disability compensation. The claimant established the reason he decided to retire was that he could no longer withstand the physical aspects of his job as a result of his allowed industrial injuries. The court held that the claimant’s departure from work was involuntary and therefore not a voluntary abandonment of employment.
One thing is clear: The voluntary abandonment area of workers’ compensation law, more than any other, requires close fact analysis on a case-by-case basis. Be prepared to present work rules, applications for retirement and medical records supporting your defense.