2014 Ohio 5561
Ohio Ct. App.2014Background
- Cordell was injured at work on Feb. 16, 2012 (fractured tibia and fibula) and immediately became temporarily totally disabled (TTD).
- A post-accident drug screen (results available Feb. 22, 2012) showed marijuana metabolites and morphine; employer terminated Cordell Feb. 22 for violating its drug-free workplace policy.
- BWC initially allowed the claim and awarded TTD beginning Feb. 17, 2012; employer appealed and the commission later vacated the SHO order after reconsideration and, following hearing, denied TTD on grounds of voluntary abandonment.
- The commission relied on this court’s earlier PaySource memorandum decision and concluded Gross II was limited to cases where the rule violation caused the injury.
- The magistrate and this court disagreed, applying Gross II and related Supreme Court precedent to hold that a pre-injury infraction, discovered only after the injury, does not bar TTD when the claimant was disabled at the time of discharge.
- Court granted mandamus directing the commission to vacate its order and award TTD to Cordell.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a post-injury discovery of a pre-injury drug-policy violation bars TTD | Cordell: violation detected after injury does not sever causal link; he was disabled at discharge so TTD remains payable | Pallet: Cordell’s pre-injury drug use (detected later) is the real misconduct that led to termination and thus constitutes voluntary abandonment barring TTD | Post-injury discovery of pre-injury misconduct that did not cause the injury does not preclude TTD if the claimant was disabled at the time of discharge (follow Gross II and related cases) |
| Whether public-policy concerns or Louisiana-Pacific/McCoy/Cobb compel denying TTD here | Cordell: public-policy arguments cannot override Supreme Court precedent protecting disabled employees; Louisiana-Pacific/related cases do not automatically bar TTD when disabled at discharge | Pallet: public policy and earlier authorities (including PaySource and Louisiana-Pacific line) support denying TTD for rule violations that predate injury | Court: bound by Supreme Court precedent (Gross II, Pretty Prods., Reitter Stucco); public policy concerns should be addressed by legislature or Supreme Court; objections overruled |
Key Cases Cited
- State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249 (2007) (Gross II) (voluntary-abandonment doctrine not applied to pre-injury conduct detected after injury where the violation did not cause the injury)
- State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995) (three-part test for when a work-rule violation can be treated as voluntary abandonment)
- State ex rel. Pretty Prods., Inc. v. Indus. Comm., 77 Ohio St.3d 5 (1996) (timing of separation matters; if claimant was already disabled when separation occurred, abandonment inquiry may be unnecessary)
- State ex rel. Reitter Stucco, Inc. v. Indus. Comm., 117 Ohio St.3d 71 (2008) (clarifies interplay of Louisiana-Pacific and Pretty Products: even voluntary terminations do not bar TTD if claimant was disabled at termination)
- State ex rel. Cobb v. Indus. Comm., 88 Ohio St.3d 54 (2000) (work-rule termination can bar benefits in some contexts; distinguished where pre-injury conduct is detected post-injury)
- State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25 (2002) (discusses voluntary-abandonment principles in TTD context)
- State ex rel. OmniSource Corp. v. Indus. Comm., 113 Ohio St.3d 303 (2007) (termination for post-conviction loss of license did not bar TTD where claimant was disabled at termination)
- State ex rel. Nick Strimbu, Inc. v. Indus. Comm., 106 Ohio St.3d 173 (2005) (pre-injury misconduct discovered post-injury did not bar TTD where claimant was disabled at termination)