The doctrine of “voluntary abandonment” as a basis for denying temporary total benefits was effectively “abandoned” itself on September 15, 2020, in favor of the “proximate cause” standard described in R.C. §4123.56(F). (Essentially, were the Claimant’s own actions the proximate cause of their lost time?) However, this statute has only been applied to claims occurring after the statue was enacted, and the “voluntary abandonment” doctrine is still used for older claims. So using the old standard, is an employee still entitled to temporary total benefits after their age related retirement?
The answer is the injured worker would likely not be entitled to temporary total benefits after their age-related retirement. The Tenth District Court of Appeals recently addressed this issue in State ex rel. Walmart, Inc. v. Hixson, 2021-Ohio-3802. In Hixson, the injured worker sustained injuries to their left shoulder and wrist as a result of a work-related injury. A Staff Hearing Officer (“SHO”) issued an order granting temporary total disability compensation (“TTD”) for a closed period from September 11, 2017 to March 6, 2018, but found that the injured worker voluntarily retired for non-injury reasons (age) on March 6, 2018. (She testified that she first intended to retire due to turning 65 on December 1, 2017.) The full Industrial Commission vacated the SHO order on appeal, and concluded that the injured worker was entitled to compensation through May 12, 2018 and to continue, based on the finding that she did not “voluntarily abandon” her employment on March 6, 2018 as she was still disabled due to the allowed conditions of the claim. The employer filed a mandamus action, and a magistrate issued a decision recommending the Court grant a writ of mandamus, and order the Industrial Commission to award compensation only up to the date of the voluntary retirement. The Claimant appealed those findings to the Tenth District.
In adopting the Magistrate’s decision, the Tenth District Court applied of State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890. In Klein, the Supreme Court overruled prior “voluntary abandonment” case law and held that “when a workers’ compensation claimant voluntarily removes himself from his former position of employment for reasons unrelated to a workplace injury, he is no longer eligible for temporary-total-disability compensation, even if the claimant is disabled at the time of his separation from employment.” The Tenth District found that the injured worker’s right to benefits was not a “vested right” that would be excluded from retroactive application of State ex rel. Klein, and also that there was no dispute as to the date of the claimant’s retirement to warrant a return of the matter to the Commission. The Tenth District Court granted the mandamus action and ordered the Commission to vacate their order, and issue a new order awarding compensation only up to the retirement date.
While the proximate cause standard used in R.C. §4123.56(F) is the current law, it has not been applied to older claims. Therefore, it is still important for employers to be aware of how courts such as that in Hixon apply the voluntary abandonment doctrine. If you would like to submit a question to Shop Talk, or would like to discuss this or any other workers’ compensation issues, please feel free to contact me or my associate Gary Baker.