If your employer raises a voluntary abandonment defense to deny your application for permanent total disability (PTD) or temporary total disability (TTD) under Ohio’s workers’ compensation program, he may have opened a can of worms that could turn into a long legal battle.
If you're facing this defense, run—don’t walk—to a workers’ comp attorney. As I've discussed in an earlier blog, the voluntary abandonment defense is based on court decisions, not a statute or rule, so it’s anyone’s guess on how a hearing officer will decide.
What Is Voluntary Abandonment?
Although voluntary abandonment defenses are never simple, the idea behind them is relatively straightforward.
If you're collecting PTD or TTD or applying for these benefits, and you retire, get fired for breaking a rule, or quit working altogether; your employer or the Bureau of Worker’s Compensation can claim you voluntarily abandoned your employment and are therefore ineligible for benefits.
Once the company makes a claim, it's up to the hearing officer to determine if you have voluntarily abandoned your job. Past rulings have been inconsistent, with some judges interpreting the defense much more strictly than others.
Ohio Industrial Commission Amends Its Information
- In April 2019, the Ohio Industrial Commission (BWC) amended the section on voluntary abandonment in its manual on adjudications—apparently to clarify past rulings. While not introducing any new guidelines, the memo defines three types of actions that could be considered voluntary abandonment:
- Voluntary retirement. When a worker retires for reasons unrelated to the injury or illness he or she suffered at work, this can give rise to a finding of voluntary abandonment.
- Termination. If someone is fired for breaking a written rule or condition of employment he or she should know, there could be cause for voluntary abandonment.
- Abandonment of the workforce. If a worker is capable of performing light-duty or modified work but fails to return to the workforce, it may be considered abandonment.
Cases are decided individually. Evidence can be presented on your behalf to counter the affirmative defense, but you'll need help to build a persuasive argument.
Consult an Ohio Worker’s Comp Attorney
A voluntary abandonment defense might create a difficult battle for you. If your employer or the BWC raise this as a defense in your claim, you must consult an attorney to protect yourself. To learn more, request a free download of my book, The Worker’s Guide to Injury Compensation in Ohio, and call me to discuss your situation.