2020 Ohio 682
Ohio Ct. App.2020Background
- Relator Christopher Merritt sustained an allowed work injury (lumbar strain; aggravation of L4-5 and L5-S1 disc bulges) and was prescribed opioids as treatment.
- Employer New Avenues to Independence, Inc. (NATI) had a written drug-free workplace policy (known to Merritt) that prohibited use of listed substances (including marijuana) and warned discipline up to termination; the policy emphasized confidentiality of test results and stated termination notices "will list misconduct" when substance testing results in termination.
- Merritt tested positive for marijuana (urine screen with THC metabolites). He was terminated effective August 24, 2015; the termination form did not state a reason but allowed reapplication after six months.
- Merritt applied for temporary total disability (TTD) compensation beginning August 19, 2015. A district hearing officer (DHO) granted TTD, but a staff hearing officer (SHO) vacated that order and denied TTD, finding Merritt voluntarily abandoned his former position by violating the employer's drug-free policy and that there was no evidence he had returned to the workforce.
- The Industrial Commission refused further appeal; Merritt sought a writ of mandamus from the court of appeals to compel the commission to award TTD.
Issues
| Issue | Merritt's Argument | NATI/Commission's Argument | Held |
|---|---|---|---|
| Whether there was evidence Merritt was terminated for a positive drug test | Termination form did not list "misconduct" or state drug-test as reason, so no evidentiary basis that positive test caused discharge | Policy confidentiality explains why termination form omits drug-test detail; other indicia (policy, positive test, reapply-after-6-months option) support inference of discharge for a positive test | Court held there was some evidence to support the commission's finding that termination resulted from the positive drug test; objection overruled |
| Whether termination for violating a known written work rule bars TTD as voluntary abandonment | Merritt contends he did not voluntarily abandon employment because termination reason is unclear and commission lacked proof he abandoned workforce | Where employee violates a known written rule that can result in discharge, termination may be treated as voluntary abandonment that precludes TTD | Court held commission did not abuse its discretion in finding voluntary abandonment of his former position by violating the drug-free policy, so TTD denied |
| Whether Merritt could obtain TTD by showing inability to work after returning to any employment | Merritt argued absence from hearing prevented him from showing job-search/return-to-work efforts | Commission required evidence of a return to some employment and that injury now prevented work; record contained no evidence he had returned to workforce | Court held Merritt failed to prove he returned to work and was prevented from working by the allowed conditions; TTD not warranted |
Key Cases Cited
- State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401 (1995) (termination for violation of a known written work rule may constitute voluntary abandonment that bars TTD)
- State ex rel. Ashcraft v. Indus. Comm., 34 Ohio St.3d 42 (1987) (factors other than injury that remove claimant from workforce preclude TTD)
- State ex rel. Rockwell Internatl. v. Indus. Comm., 40 Ohio St.3d 44 (1988) (retirement causally related to injury is not voluntary abandonment)
- State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm., 29 Ohio App.3d 145 (10th Dist. 1985) (two-part test: injury must prevent return to former position and there must be no independent act removing claimant from workforce)
- State ex rel. Watts v. Schottenstein Stores Corp., 68 Ohio St.3d 118 (1993) (firing can constitute voluntary abandonment when resulting from claimant's own disqualifying conduct)