Voluntary abandonment is an interesting term that sometimes comes up in relation to workers’ compensation claims. The term usually came up when an employer offered, in good faith, an injured employee suitable alternative employment. If the employee accepted this offer, he/she could more quickly return to work and the employer could save on the claim. However, in many situations the employee would refuse the offer for alternative employment, resulting in the employee not returning to work and the underlying claim costs escalating.
Recently, two separate court cases in Ohio reaffirmed the employer’s right to raise voluntary abandonment as an affirmative defense to an injured worker’s request for temporary total benefits. In the first case, State ex rel Ryan Alternative Staffing, Inc v. Moss., the Ohio Supreme Court ruled that nothing permits an injured worker to receive temporary total compensation after refusing a good-faith offer of suitable alternative employment, regardless of whether the worker provided a good faith basis for refusing that offer.
The second case, State ex rel. Ohio State Univ. v. Pratt, the Ohio Tenth District Court of Appeals ruled that 4123.56 applies prospectively. Any cases of voluntary abandonment which occurred prior to that date are controlled by State ex rel. Klein v. Precision Excavating & Grading Co. In Klein, the Ohio Supreme Court ruled a claimant who voluntarily removes him or herself from their former position of employment for reasons unrelated to the workplace injury is no longer eligible for temporary total disability compensation, even if the claimant remains disabled at the time of his separation from employment.
Also, House Bill 81, which was signed into law by Governor DeWine in June 2021, created a statutory recognized basis for voluntary abandonment and vacated any prior voluntary abandonment case law in Ohio. Not all schools will face the issue of voluntary abandonment with respect to a worker’s compensation claim. However, in the event that your district does run into a situation where an injured worker is refusing your good faith offer of alternative employment, voluntary abandonment may become a term worth knowing.
As always, the OSBA division of legal services continues to monitor the legal landscape and will post information as it becomes available. If you have questions, please contact the division at 1-855-OSBA-LAW.