Voluntary Abandonment & Temporary Total Disability Compensation

On June 29, 2011, the Ohio Supreme Court ruled in State ex rel. Lackey v. Indus. Comm., 129 Ohio St.3d 119, 2011-Ohio-3089, that an employee who voluntarily resigned his employment, even though he had an active and ongoing workers' compensation claim, was ineligible to receive temporary total disability compensation after he had undergone surgery for the allowed conditions in his claim. At the time the injured worker tendered his retirement papers, he did not specifically state that his industrial injuries were at least one of the reasons for his retirement. Moreover, the medical records from his attending physician did not document his industrial injury affected his ability to work. In the seventeen (17) months following his retirement, he did not look for other work, thereby reinforcing the Industrial Commission's finding that he had effectively abandoned the entire labor market.

The Ohio Supreme Court reiterated the principle that temporary total disability must arise from a condition that was caused by the industrial injury and that has not reached maximum medical improvement. Eligibility for TTD will depend on whether the separation from employment was injury-induced. If it was not, then an injured worker can receive TTD only if he or she has found other employment and is later prevented from doing that job by a flare-up of the original allowed conditions.

In this case, the Ohio Supreme Court held that the Industrial Commission's decision was supported by some evidence. It was also noteworthy that in the year prior to his retirement, the injured worker was able to perform his regular job duties on a full-time basis and, even after he submitted his retirement papers, he worked an additional three (3) months before his retirement went into effect. The Court concluded "[t]his is hardly consistent with a condition so debilitating as to force an individually prematurely from his job."

TTD must always be related to the allowed conditions in the claim. In Lackey, the injured worker would have been eligible to receive TTD if he had worked for a new employer, even for a very brief time, and underwent surgery while he was employed with that new employer. Under those circumstances, the evidence would be clear that he had not voluntarily abandoned the entire job market and also that his temporary total disability was related to the industrial injury (i.e. surgery was directed towards the allowed conditions in the claim). Call us today. 614-221-1300.