Tuesday, April 2, 2013

Termination for Misconduct Which Also Caused a Work Injury is Not Voluntary Abandonment of Employment

On March 13, 2013, the Ohio Supreme Court re-affirmed its holding in the Gross II case by finding that an employee who is terminated for misconduct or violation of a work rule that also caused a work injury can still receive temporary total compensation.[1] 

In State ex rel. Haddox v. Indus. Comm., Slip Opinion No. 2013- Ohio-794, the injured worker was a truck driver who already had two traffic violations when he had a third moving violation, a motor vehicle accident in which he was injured.  Because the employer’s insurance company would no longer insure the injured worker due to the three moving violations, the employer terminated him.  When the injured worker made his first request for temporary total compensation (TT) from the date of injury forward, the Industrial Commission found that he had voluntarily abandoned his employment by having three moving violations, which forced a cancellation of his insurance, resulting in the termination.  This finding of voluntary abandonment of employment was issued before the Gross II case was announced. 

Later, after Gross II had been announced, the injured worker made a second request for TT, which was a subsequent period of compensation to commence after additional conditions had been added to the claim.  A Staff Hearing Officer awarded this later period of TT compensation, finding that the Gross II case held that a discharge which was related to acts that occurred contemporaneously with or before the work injury could not preclude payment of TT. 

With this success, the injured worker once again asked for payment of the first period of TT from the date of injury.  The Industrial Commission, however, denied the injured worker’s request for TT from the date of injury because the issue had already been decided when it was found that the injured worker had voluntarily abandoned his employment.

On this victory, the employer then requested that the Industrial Commission invoke its continuing jurisdiction to vacate the second requested period of TT that was awarded to the injured worker after the additional conditions were allowed in the claim, arguing that the second period of TT should have been barred both because of the voluntary abandonment of employment and res judicata.  The Commission determined that the SHO who had awarded TT following the additional conditions had made a clear mistake of law in not relying on res judicata to deny the TT.  Additionally, the Commission determined that even if res judicata did not apply, the injured worker was not terminated because of the moving violation that caused the injury; he was fired because he was no longer covered by group liability insurance.  Thus, his voluntary abandonment of employment should preclude the TT which awarded following the additional conditions. 

From this decision, the injured worker filed a Mandamus Action, asking the Franklin County Court of Appeals to require the Industrial Commission be ordered to pay TT from the date of injury pursuant to the Gross II decision.  The Court of Appeals, and ultimately the Ohio Supreme Court, found that the injured worker’s termination was inextricably linked to the work injury, and thus his termination was involuntary and could not prevent payment of TT to compensate for loss of wages.  If an employee is injured by the very misconduct that leads to termination of employment, eligibility for TT is not prohibited, because the Gross II case, later the Upton case, and now the Haddox case, find that this type of abandonment from employment is involuntary, not voluntary.   To find otherwise, to deprive an injured worker of TT compensation due to an injury caused by the claimant’s own fault would pervert the “no fault” workers’ compensation system.

Further, the Court found that when the Industrial Commission invoked its far-reaching continuing jurisdiction to correct a mistake of law, it pushed aside any argument of res judicata.  Thus, when the Industrial Commission decided to re-open the question of whether TT was payable following the allowance of additional conditions, the Commission cannot have declared that the issue should have been  res judicata at the lower level because the very act of invoking its continuing jurisdiction eliminates this as a possibility. 

Curiously, the Court did not fully analyze the fine line between Haddox’s traffic violation and the uninsurability issue as the reason for termination.  Perhaps because the traffic violation’s natural consequence was not only the injury but the disqualification for insurance coverage, the Court did not see the need to discuss the matter, even though the Commission apparently did see a distinction.

Chief Justice O’Connor wrote a “dissent” disguised as a concurring opinion.  She acknowledged that she must follow the Gross II precedent as it stands, but clearly disagrees with it and urged the legislature to right the wrongs of that case, which she resolves was wrongly decided due solely to public criticism.

This is yet another cautionary tale for employers to check with legal counsel prior to terminating an injured employee.


[1] In State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249,2007-Ohio-4916, 874 N.E.2d 1162, a KFC worker who had been warned on several occasions not to put water in the deep fryer to clean it did so again, injuring himself and others.  When he was terminated because of because of this violation of policy which ultimately caused his injury, the court held that his termination was involuntary and could not preclude temporary total benefits.