*By Scott Coghlan
On September 27, 2018, the Ohio Supreme Court limited Temporary Total Disability (“TTD”) benefits for injured workers. See State ex rel. Klein v. Precision Excavating & Grading Co., Slip Opinion No. 2018-Ohio-3890. The purpose of TTD is to compensate an injured worker for lost wages on the account of a workplace injury. Despite TTD’s purpose, the Court has muddied the waters regarding TTD eligibility over the past three decades. According to Klein, the Court is now holding claimants responsible for their own voluntary conduct and limiting benefits for employees who voluntarily abandon employment for reasons unrelated to their injury.
Prior to Klein, the Court held that claimants could never voluntarily abandon their employment if they were physically unable to perform their job. As a result, claimants could engage in conduct that resulted in the termination of their employment yet remain eligible to receive TTD benefits. Rather than focus solely on a worker’s physical capacity, the Court now focuses on whether an injured worker’s voluntary abandonment of employment is the cause of the lost wages as opposed to the alleged injury.
In the recognizing its past mistakes, the Court’s concurring opinion in Klein relied on Bilaver. In Bilaver, the attorneys of Zashin & Rich Co., L.P.A. successfully represented an employer in defeating a TTD claim. State ex rel. Bilaver v. Indus. Comm., 126 Ohio St.3d 1560, 2010-Ohio-4221, 933 N.E.2d 269. The plaintiff in Bilaver requested a seven week leave of absence to travel to Croatia. His employer denied the request and Bilaver gave a verbal two week notice of resignation. The employer promptly noted his resignation in his personnel file. Before his last day, Bilaver suffered a workplace injury. However, he still traveled to Croatia and then sought TTD compensation. In ruling in favor of the employer, the Court explained that Bilaver voluntarily abandoned his employment in the truest sense – he quit – and therefore was not entitled to TTD compensation.
Like Bilaver, Klein notified his employer several days before his work related injury that he was moving to Florida and inquired about proper procedures to quit his job. There was also evidence that prior to his injury, he told co-workers that was resigning and moving to Florida. The Court denied his request for TTD benefits after he moved to Florida, finding that his lost wages were due to his voluntary abandonment of his employment which was unrelated to his workplace injury.
Employers should be aware of this change in the law, that is, if an employee voluntarily removes himself from employment for reasons unrelated to a workplace injury, the employee is no longer eligible for TTD. Likewise, employers should immediately document any acts of voluntary abandonment. If, at any point, an employee expresses intent to resign from employment or violates a work rule, the employer should be quick to record the employee’s actions in writing to limit their liability. It may also be beneficial to accept an employee’s voluntary resignation on the spot, thank the employee for his service and pay him his next week’s salary. If the employers in Bilaver and Klein did that, the work-related injuries would have been avoided altogether.
*Scott Coghlan chairs the firm’s workers’ compensation group. He has over 20 years of experience defending workers’ compensation claims and representing employers in administrative proceedings and appeals to courts. For more information about temporary total disability or workers’ compensation issues, please contact Scott (sc@zrlaw.com) at 216.696.4441
