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As an update to our prior client alert addressing the enactment of R.C. §4123.56(F), there has been a recent decision in State ex rel. Butler v. Indus. Comm.
Dist. Franklin No. 22AP-274, 2023-Ohio-3774 holding that a claimant is no longer required to prove that the inability to work is solely due to an impairment arising from the workers’ compensation injury. In this case, the claimant resigned her employment and then requested the payment of temporary total disability (“TTD”). The Industrial Commission of Ohio (“ICO”) awarded the TTD as it was determined that claimant resigned her employment due to her workers’ compensation injury. The employer filed a mandamus action with the Court of Appeals contending that the ICO abused its discretion by granting TTD following claimant’s resignation causing unemployment for reasons unrelated to the workers’ compensation injury. The Court held that claimant was entitled to the payment of TTD, based on a Medco-14 form completed by her physician of record, which provided evidence that she was unable to return to her former job based on the allowed conditions in the workers’ compensation claim. The Court did not address the claimant’s resignation as they found that they were no longer required to do so, in accordance with the amendment to R.C. §4123.56(F) and the AutoZone
Prior to September 15, 2020, when a workers’ compensation claimant’s departure from the workplace was “voluntary” and for reasons unrelated to the industrial claim, claimant was ineligible for the payment of TTD – commonly referred to as the judicially-created defense of “voluntary abandonment”. In short, when a claimant removed himself from employment for reasons unrelated to the work injury, he was no longer eligible for TTD since the voluntary abandonment (not the injury) caused the loss of wages.
When the Ohio legislature enacted §4123.56(F) on September 15, 2020, it superseded any prior judicial decisions applying the doctrine of “voluntary abandonment”. As we previously discussed in our September 11, 2020 client alert, the amended statute expressly wiped out all prior case law regarding the voluntary abandonment doctrine and now states that if a wage loss is a direct result of the allowed conditions in a claim, TTD is payable, and if the wage loss is a direct result of something other than the allowed conditions, it is not.
R.C. §4123.56(F) provides:
If an employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease, the employee is entitled to receive compensation under this section, provided the employee is otherwise qualified. If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section. It is the intent of the general assembly to supersede any previous judicial decision that applied to the doctrine of voluntary abandonment to a claim brought under this section.
Some contend that the intent behind the new law was to eliminate the concept of voluntary abandonment from Ohio’s workers’ compensation law altogether. Others argue that the intent was to bring clarity to conflicting case law and eliminate judicially-created exceptions to voluntary abandonment issues.
The first case to address the new law was State of Ohio ex rel. AutoZone Stores Inc. v. Indus. Comm.
Dist. No. 21AP-294, 2023-Ohio-633, decided on March 2, 2023, where the claimant had been terminated from his employment while working light duty and prior to his request for TTD. The claimant’s request for TTD was based on the fact that he had undergone surgery for the allowed conditions in the workers’ compensation claim. The employer argued that since the claimant voluntarily abandoned his position due to his termination, he was not entitled to TTD.
court found that R.C. §4123.56(F) sets forth two operative questions to be eligible for TTD:
- Whether claimant is unable to work as a direct result of an impairment arising from the injury or occupational disease; and
- Whether claimant is otherwise qualified to receive TTD. (“Otherwise qualified” related back to the disqualifications set forth in R.C. §4123.56(A) which provides claimant is ineligible for receipt of TTD if he has returned to work, has a statement from his doctor opining he is capable of returning to his former position of employment, when work within the physical capabilities of the employee is made available by the employer or another employer, or when the employee has reached maximum medical improvement.)
court held that claimant was entitled to the payment of TTD and did NOT consider whether claimant’s departure (i.e., his termination) from his workplace was “voluntary” in determining his eligibility for TTD. The Court held that R.C. §4123.56 (F) requires a claimant’s inability to work to stem from an impairment arising from an injury. The Court declined to address an additional requirement that a claimant prove he is unable to work ONLY due to an impairment from an industrial injury. AutoZone
is currently on appeal and pending before the Ohio Supreme Court.
As referenced above, the more recent case of Butler
adopted the finding of AutoZone
by holding that a claimant is no longer required to prove that an inability to work is solely due to an impairment arising from the workers’ compensation injury.
In sum, the courts in AutoZone
have found that even when they do not have a job to return to, claimants are entitled to TTD.
While the change in the law and subsequent court cases clearly present a challenge to employers, it goes without saying that workers’ compensation cases are extremely fact specific and determined on a case-by-case basis. It is possible that with a different set of circumstances, the Industrial Commission of Ohio and/or the courts may find that a claimant’s lost wages are directly the result of reasons unrelated to the industrial injury and deny the payment of TTD.
Frantz Ward will continue to monitor similar workers’ compensation decisions closely and provide updates.