The Voluntary Abandonment Doctrine Takes a Hit

Mark A. Shaw and Jade L. Robinson

Man using pallet as a ladder.   Ohio courts have long recognized the principle of the “voluntary abandonment” doctrine as it relates to the Ohio workers’ compensation system. Generally, the voluntary abandonment doctrine is a defense to a claimant’s application for temporary total disability benefits when the claimant’s voluntary actions, rather than the workplace injury, causes a loss of wages. Under the voluntary abandonment doctrine, if the claimant was terminated for workplace misconduct and applied for temporary total benefits after the termination, then the employer could rely on the voluntary abandonment doctrine to argue the temporary total disability benefits should be denied as the claimant’s voluntary action, violating workplace rules, was the cause of the loss of wages – not the workplace injury.  However, as Eastman & Smith reported previously, the Ohio legislature recently passed Ohio Revised Code 4123.56(F) which provides, in the pertinent part, as follows:

   “If an employee is not working or has suffered a wage loss as the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive [temporary total disability] compensation. It is the intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section.”

   The Firm previously asserted that it remained to be seen how ORC 4123.56(F) would settle the law on voluntary abandonment. However, as the law has been in effect since September 15, 2020, no Ohio courts had issued any decisions regarding the impacts of ORC 4123.56(F).

   On March 2, 2023, the Tenth District Court of Appeals issued the first appellate decision regarding how ORC 4123.56(F) affects the voluntary abandonment doctrine. In State ex rel. Autozone Stores, Inc., v. Industrial Commission, the Tenth District determined the Ohio legislature’s intent in passing ORC 4123.56(F) was to supersede the voluntary abandonment doctrine affirmative defense to claimants’ applications for temporary total disability benefits.  Under the specific facts of the case, the Court rejected the employer’s argument that the claimant was ineligible for temporary total disability benefits due to his termination for violation of a written work rule. The Court specifically found that the language of ORC. 4123.56(F) does not require that the workplace injury be the sole reason for the claimant being unable to work; rather, ORC 4123.56(F) sets forth two operative questions for a claimant’s eligibility for temporary total disability benefits: (1) Is the claimant unable to work as a direct result of an impairment arising from an injury or occupational disease?; and (2) Is the claimant otherwise qualified to receive temporary total disability benefits?

   We note that the Autozone case was a mandamus appeal from an administrative decision of the Ohio Industrial Commission.  The standard of review is whether there was “some evidence” to support the Industrial Commission order.  Perhaps under a set of different facts, the Industrial Commission, and the Court, may determine that a claimant’s lost wages are directly the result of reasons unrelated to the injury and deny temporary total disability compensation under ORC 4123.56(F).

   The Autozone case may still be appealed to the Ohio Supreme Court which may provide more clarity to this issue.  Moreover, it is likely there will be more cases addressing ORC 4123.56(F).  We will continue to provide updates regarding these issues. 

   If you have any questions regarding this article or any other workers’ compensation issue, please contact Mr. Shaw or Ms. Robinson.  


   Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.