It’s hard to conceive of a bigger hot button issue in Ohio workers’ compensation over the past few years than voluntary abandonment of employment. It is a concept that has continued to evolve and expand as employers come up with new and creative arguments attempting to deny payment of compensation for work-related injuries. Some arguments have succeeded, others have not.
"Voluntary abandonment” is a defense raised by an employer or the Bureau of Workers’ Compensation (BWC) to an injured worker’s claim for temporary total disability compensation (TTD) or permanent total disability compensation (PTD). This defense is not mentioned in the statutes (Ohio Revised Code) or rules (Ohio Administrative Code) governing workers’ compensation in Ohio; rather, it is a court-created defense to an otherwise valid claim for compensation.
Generally, voluntary abandonment occurs when an injured worker actually quits or walks off the job for reasons unrelated to the industrial injury or when the worker is fired by the employer for violating work rules.
Specifically, the voluntary abandonment defense may be raised when the injured worker violates a written work rule that clearly defines the prohibited conduct, that the worker knew (or should have known) about and that the employer had identified as a dischargeable offense.
The overall issue in the first scenario is whether the injured workers’ disability results from the allowed conditions in the claim or an unrelated cause. If the result of the on-the-job injury, then the employer and/or BWC have no defense. However, the battle is joined if there’s evidence that the disability is unrelated to the industrial claim.
Given that voluntary abandonment cases are governed by court decisions and not by statute or administrative rules that would give concrete guidance about how they are to be evaluated, the law continues to evolve as ever more creative arguments are raised. Abandonment defenses are raised often and decisions rendered by hearing officers and courts case-by-case. Over the past 20 years, there have been literally hundreds of cases brought before the state appellate courts and the Ohio Supreme Court. The stakes are high: if an employer establishes that a claimant voluntarily abandoned his/her employment, then TTD and/or PTD compensation is not payable. Even if the injured worker requires surgery for allowed injuries and experiences a lengthy recovery period, compensation for the time off work is not paid (medical bills are still payable).
The standard governing voluntary abandonment also differs in claims for TTD versus those for PTD. In the former, if the claimant re-enters the workforce, s/he is again eligible for compensation if the allowed conditions render her/him disabled while s/he is working. In the latter situation, a finding of intent to abandon the workforce precludes payment of PTD.
A voluntary abandonment defense typically results in contentious hearings, appeals and even court challenges. This is a complex, ever-evolving area of workers’ compensation law. If you have any indication that your employer or the BWC may raise this as a defense in your claim, strongly consider consulting with an attorney. The financial implications of a voluntary abandonment defense succeeding against you in your claim can be huge!