Lead Opinion
{¶ 1} Appellee, James F. Cordell, was terminated from his employment with appellant Pallet Companies, Inc. (“Pallet”) after failing a routine drug test administered soon after a workplace accident in which he was injured. Pallet concedes that Cordell’s drug use did not cause the accident. In this appeal, we consider whether conduct prior to a workplace injury can sustain an employer’s defense of voluntary abandonment of employment and preclude temporary-total-disability (“TTD”) benefits. Cordell’s workers’ compensation claim was initially allowed for TTD compensation, but then the Industrial Commission determined that Cordell was not eligible for TTD compensation, because he voluntarily abandoned his employment by using marijuana prior to the accident. The Tenth District Court of Appeals granted Cordell a writ of mandamus compelling the commission to vacate its order denying TTD compensation and to issue an order granting Cordell TTD compensation. We affirm.
Facts and Procedural History
{¶ 2} The parties do not dispute the facts regarding Cordell’s injury. Cordell worked for Pallet from August 2009 until February 2012. He was injured in an accident in the course and scope of his employment on February 16, 2012. He was operating a tow motor on a loading dock that day when the truck he was servicing began to move away from the dock unexpectedly. Cordell jumped from the tow motor to the dock plate, but then fell from the dock plate when the truck moved a second time. He dropped between five and six feet, landing between the dock and the truck and fracturing his right fibula and tibia. At the hospital, Cordell’s urine was collected and sent for a toxicology screening. Cordell applied for workers’ compensation benefits the day after the accident.
{¶ 3} Six days later, on February 22, 2012, Cordell’s toxicology results became available, and they showed that he tested positive for marijuana metabolites, indicating that at some point during his employment, he had used marijuana. Cordell was terminated from employment that day for violating Pallet’s drug-free workplace policy. His termination notice specified that he was being terminated because he “failed postaccident drug screen.”
{¶ 4} Pallet’s drug-free-workplace policy prohibited the use of illegal substances “at any time whether on or off duty,” the violation of which was a terminable offense.
{¶ 6} Cordell appealed from the DHO order on May 9, 2012, and the matter was heard by a staff hearing officer (“SHO”) on July 2, 2012. The SHO vacated the DHO order to the extent that it denied Cordell TTD compensation. The SHO noted that State ex rel. Pretty Prods., Inc. v. Indus. Comm.,
{¶ 7} Pallet appealed to the commission on July 17, 2012, arguing that the SHO’s failure to apply State ex rel. PaySource USA, Inc. v. Indus. Comm., 10th Dist. Franklin No. 08AP-677,
{¶ 8} After initially rejecting Pallet’s appeal, the commission agreed to consider whether Cordell was entitled to TTD compensation. On May 11, 2013, a divided panel of the commission agreed with Pallet that the SHO had made a clear mistake of law by not applying PaySource. The panel found that Cordell “sustained an injury in the course of and arising out of his employment on 2/16/2012.” But the panel determined that Cordell had “voluntarily abandoned his employment” by “ ‘ingestion’ or ‘use’ of marijuana * * * prior to [his] termination on 02/22/2012” and “prior to the industrial injury.” Accordingly, the panel denied TTD compensation from the date of the injury. Consistent with that order, the BWC issued an overpayment notice on May 17, 2013, finding that Cordell had been paid $22,081.88 in TTD compensation to which he had not been entitled.
{¶ 10} On December 3, 2013, Cordell petitioned the Tenth District Court of Appeals for a writ of mandamus compelling the commission to vacate its order denying TTD compensation and declaring an overpayment and to enter an order awarding TTD compensation from the date of the injury. A magistrate for the court of appeals recommended that a writ issue after comparing PaySource, which did not apply Gross II, to the later-issued published opinion of the Tenth District Court of Appeals in State ex rel. Ohio Welded Blank v. Indus. Comm., 10th Dist. Franklin No. 08AP-772,
{¶ 11} The commission asserts the following two propositions of law.
{¶ 12} Proposition of law No. I: “Reliance on [Gross II] without considering the decision in [PaySource], creates bad public policy that rewards illegal behavior.”
{¶ 13} Proposition of law No. II: “When the Industrial Commission had some evidence to support its order that a claimant violated a written work rule thereby barring his receipt of TTD compensation, a writ of mandamus is not appropriate.”
{¶ 14} Pallet asserts the following three propositions of law.
{¶ 15} Proposition of law No. I: An injured worker who fails a postinjury drug test and is terminated based on his employer’s drug-free-workplace policy voluntarily abandoned his employment and is not eligible for TTD.
{¶ 16} Proposition of law No. II: Gross II,
{¶ 17} Proposition of law No. Ill: The commission has the exclusive authority to resolve factual issues, and to that extent, its determination that the injured worker’s conduct, which was not contemporaneous with his injury, constitutes a
{¶ 18} Because the second proposition of law asserted by the commission and the third proposition of law asserted by Pallet address this court’s standard of review, we will address them first.
Analysis
The commission’s second proposition of law and Pallet’s third proposition of law
{¶ 19} R.C. 4123.512 limits this court’s authority to act as an appellate body with respect to decisions made by the commission concerning the extent of disability. State ex rel. Elliott v. Indus. Comm.,
{¶20} Here, the extent of Cordell’s injuries is not disputed. Therefore, we limit our review in this case to whether the law was correctly interpreted. We conclude that the commission did not correctly interpret the law in this case.
{¶ 21} For the reasons discussed below, the relevant statutes and this court’s decisions in Gross II and State ex rel. Reitter Stucco, Inc. v. Indus. Comm.,
The commission’s first proposition of law and Pallet’s first and second propositions of law
{¶ 22} We hold that pursuant to R.C. 4123.54 and 4123.56 and our decisions in Gross II and Reitter Stucco, an employee who is medically incapable of returning to work as a result of a workplace injury and who is terminated after the injury for preinjury conduct that was discovered as a result of the injury has not voluntarily abandoned employment.
{¶ 23} In 1912, Ohio amended the Ohio Constitution to establish a framework for the resolution of claims for work-related injuries. Article II, Section 35 of the Ohio Constitution provides that compensation from the workers’ compensation
{¶ 24} Ohio’s workers’ compensation system is a system of mutual compromise. Blankenship v. Cincinnati Milacron Chems., Inc.,
{¶ 25} In Ohio, employees are not entitled to compensation for loss if the industrial injury was proximately caused by the employee’s being intoxicated or under the influence of illegal substances. R.C. 4123.54(A)(2). Further, R.C. 4123.54(B) creates a rebuttable presumption that a claimant’s being intoxicated or under the influence of drugs was the proximate cause of the injury. It is important to reiterate that in this case, Pallet concedes that Cordell’s marijuana use had nothing to do with his injury. Accordingly, those statutes are not at issue in this case.
{¶ 26} R.C. 4123.56(A) provides that employees shall receive a portion of their wages when they are temporarily and totally disabled as a result of a workplace injury. “[T]he purpose of temporary total disability benefits under R.C. 4123.56 is to compensate for loss of earnings * * State ex rel. Ramirez v. Indus. Comm.,
{¶ 27} In addition, this court has consistently held that when a claimant has left a former position of employment and his leaving was not due to a work-related injury, the claimant has voluntarily abandoned the workplace and TTD benefits may properly be denied. State ex rel. Rockwell Internatl. v. Indus. Comm.,
{¶ 28} Determining whether an employee voluntarily abandoned employment becomes more complicated in the context of termination. In State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.,
{¶ 29} In Pretty Prods., 77 Ohio St.3d 5,
{¶ 30} In Reitter Stucco,
(¶ 31} In Gross II,
{¶ 32} In Gross II, an employee was injured when, in defiance of a workplace-safety rule and repeated warnings, he placed water in a pressurized deep fryer, heated the fryer, and then opened the lid. As a result of his violation of the rule, he was terminated. The termination letter sent to the employee by the employer said that it was the violation of the work rule that resulted in his injury that triggered the investigation and his subsequent termination. Because of this, this court concluded that his discharge was related to his workplace injury. Accordingly, this court found that for purposes of TTD benefits, the employee’s termination did not equate to voluntary abandonment.
{¶ 33} In Gross II, we observed that the voluntary-abandonment doctrine has been applied only in postinjury circumstances, when the employee, “by his or her own volition, severed the causal connection between the injury and loss of earnings that justified his or her TTD benefits.” Id. at ¶ 19. And we recognized that the distinctions between voluntary and involuntary are fact-intensive. However, for purposes of TTD benefits, if the claimant’s termination is causally related to his injury, the termination is not voluntary and should not preclude the claimant’s eligibility for TTD benefits. Id. at ¶ 23, citing Rockwell,
{¶ 34} Applying the relevant statutes and precedents from this court to the facts of this case, Cordell is entitled to TTD benefits. There is no dispute that Cordell was injured while working for Pallet. Cordell’s use of marijuana was not the proximate cause of his injury. When Cordell was terminated by Pallet, he had not returned to work, he had not been released by his doctor to return to work, he had not reached maximum medical improvement, and he was physically incapable of returning to work. Accordingly, under R.C. 4123.54 and 4123.56, Cordell was entitled to TTD benefits.
{¶ 36} This case is about a termination for violation of a work rule when the violation occurs before the injury and is discovered as a result of the injury. Gross II and Reitter Stucco resolve the legal issue in this case. As in Gross II, Cordell’s injury resulted in the discovery of his work-rule violation. As in Reitter Stucco, Cordell was medically incapable of returning to work when he was terminated. Accordingly, Cordell’s termination did not constitute voluntary abandonment. To be clear, Pallet had the right to terminate Cordell for violating one of its work rules. But the fact that Pallet had the right to fire Cordell does not change the facts that Cordell was injured in the course and scope of his employment and that at the time of his termination, he was temporarily and totally disabled.
{¶ 37} The commission’s proposition that reliance on Gross II to support TTD compensation in this case creates bad public policy that rewards illegal behavior is an argument that is properly addressed to the Ohio General Assembly. Workers’ compensation is not a reward; it is compensation to cover medical treatment and to replace lost wages for workers injured in the workplace. Likewise, it guarantees that employers have immunity from negligence actions brought by workers injured in the workplace. Ohio’s workers’ compensation system is a creature of statute and is designed to operate without regard to fault on the part of the employee or the employer. The Ohio General Assembly expressly excludes workers’ compensation benefits for injuries that are the result of the employee’s being under the influence of marijuana. R.C. 4123.54. Again, this is not a case where intoxication or drug use caused the workplace injury.
{¶ 39} The result of our decision today is consistent with the compromise between employees and employers that is the foundation of Ohio’s Workers’ Compensation Act. Denial of statutory TTD benefits to an injured employee who was fired after an injury for conduct that occurred prior to the injury would encourage employers to investigate injured employees’ preinjury conduct for any dischargeable offenses and would undermine the core principles of workers’ compensation law and increase litigation in the state. This is a policy decision that should be made by the Ohio General Assembly, not by this court.
Conclusion
{¶ 40} Ohio’s system of workers’ compensation is a no-fault system that is the result of compromise between employers and employees. Pursuant to R.C. 4123.54 and 4123.56 and consistent with our decisions in Gross II and Reitter Stucco, we hold that when an employee is terminated after a workplace injury for conduct prior to and unrelated to the workplace injury, his termination does not amount to a voluntary abandonment of employment for purposes of TTD compensation when (1) the discovery of the dischargeable offense occurred because of the injury and (2) at the time of the termination, the employee was medically incapable of returning to work as a result of the injury.
Judgment affirmed.
Notes
. Likewise, because the employee was not tested for drugs until the day after he was injured, it is unclear whether his drug use occurred prior to or following his injury.
Dissenting Opinion
dissenting.
{¶ 41} Respectfully, I dissent.
{¶ 43} Temporary total disability (“TTD”) compensation “is intended to compensate an injured worker who is temporarily unable to return to the duties of his or her former position of employment as a result of a workplace injury.” State ex rel. Hildebrand v. Wingate Transport, Inc.,
To be eligible for TTD compensation, “the claimant must show not only that he or she lacks the medical capability of returning to the former position of employment but that a cause-and-effect relationship exists between the industrial injury and an actual loss of earnings. In other words, it must appear that, but for the industrial injury, the claimant would be gainfully employed.”
(Emphasis added.) Id. at ¶ 15, quoting State ex rel. McCoy v. Dedicated Transport, Inc.,
{¶ 44} “An employee who voluntarily abandons his or her employment for reasons not related to the industrial injury cannot receive [TTD] compensation.” (Emphasis added.) State ex rel. Robinson v. Indus. Comm.,
{¶ 45} The majority’s reliance on the holding in State ex rel. Reitter Stucco, Inc. v. Indus. Comm.,
{¶ 46} The majority’s reliance on Gross II is also misplaced. In that case, a KFC employee sustained injury when he placed water in a pressurized deep fryer to clean it, heated the closed fryer, and then opened the lid. Following an investigation into the incident, KFC determined the employee violated a workplace safety rule and ignored repeated verbal warnings, and it terminated him. Subsequently, the Industrial Commission terminated the employee’s TTD benefits on the basis of voluntary abandonment of employment, and the Tenth District Court of Appeals granted a writ of mandamus ordering the commission to reinstate those benefits.
{¶ 47} In affirming, this court observed that the doctrine of voluntary abandonment “has never been applied to preinjury conduct or conduct contemporaneous with the injury.” Gross II,
{¶ 48} Our holding in Gross II was not controlled by the timing of the employee’s misconduct; rather, we based our holding on the fact that the same misconduct caused both the injury and the termination. Under these circumstances, the termination could not sever the causal connection between the injury and actual wage loss, and a finding of voluntary abandonment would, in effect, result in the denial of TTD compensation based on the employee’s fault in causing his injury, in contravention of the no-fault nature of the workers’ compensation scheme.
{¶ 49} In the instant case, it is my view that Cordell abandoned his position with Pallet Companies when he used marijuana in violation of his employer’s written Alcohol and Drug-Free Workplace Policy—a policy that prohibits the use of “illegal controlled substances at any time” and further states that such use
{¶ 50} The fact that Pallet Companies did not discover the drug use or discharge Cordell until after he sustained injury is in my view immaterial. Pursuant to the Alcohol and Drug-Free Workplace Policy, drug testing “will be conducted * * * [w]hen an employee is involved at any time directly in an equipment or vehicular work-related accident, or in any unsafe and/or negligent use of Company property.” Thus, the majority is incorrect that Cordell’s injury resulted in the discovery of his drug use because the policy mandated that Cordell be drug tested after the accident regardless of whether he sustained injury. Accordingly, it cannot be said that but for the industrial injury, Cordell would be gainfully employed because even if he had not been injured, the mandatory postaccident testing would have revealed the marijuana use that prompted his termination.
{¶ 51} Cordell’s violation of the drug free workplace policy severed the causal connection between his industrial injury and his actual wage loss. Accordingly, the Industrial Commission lawfully exercised its discretion in denying TTD compensation, and therefore, I would reverse the judgment of the court of appeals.
Dissenting Opinion
dissenting.
{¶ 52} Because the majority opinion narrows the circumstances under which the voluntary-abandonment doctrine applies to exclude the situation in which an employee, prior to sustaining a workplace injury, uses an illegal drug in violation of a written drug-free-workplace policy, I dissent. Our precedent establishes that when an employee uses illegal drugs in violation of a written drug-free-workplace policy, that misconduct severs the causal connection between the injury and the wage loss, precluding temporary-total-disability (“TTD”) compensation. See State ex rel. Cobb v. Indus. Comm.,
{¶ 54} One general principle to keep in mind when analyzing workers’ compensation cases is that “workers’ compensation cases are, to a large extent, very fact specific. [Therefore], no one test or analysis can be said to apply to each and every factual possibility.” Fisher v. Mayfield,
{¶ 55} This court has recognized that under R.C. 4123.56, TTD “is defined as a disability which prevents a worker from returning to his former position of employment.” State ex rel. Ramirez v. Indus. Comm.,
{¶ 56} In Ashcraft, an injured worker who had been receiving TTD compensation was incarcerated. To answer the question whether that incarcerated injured worker was entitled to continue receiving TTD compensation, this court examined a decision of the Tenth District that concluded:
[W]here the employee has taken action that would preclude his returning to his former position of employment, even if he were able to do so, he is not entitled to continued temporary total disability benefits since it is his own action, rather than the industrial injury, which prevents his returning to such former position of employment.
State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm.,
While a prisoner’s incarceration would not normally be considered a “voluntary” act, one may be presumed to tacitly accept the consequences of his voluntary acts. When a person chooses to violate the law, he, by his own action, subjects himself to the punishment which the state has prescribed for that act.
Based on the foregoing, we find that relator’s incarceration constitutes a factor which, independently of his previously recognized work-related injury, would preclude his receipt of temporary total disability compensation.
Ashcraft at 44-45.
{¶ 57} This court refined the holding in Ashcraft in State ex rel. Rockwell Internatl. v. Indus. Comm.,
{¶ 58} After Rockwell, we considered whether the doctrine of voluntary abandonment could be applied to a termination of employment for violating a written absence policy in State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.,
{¶ 60} In Cobb, this court addressed for the first time the issue whether an employee who was terminated for violating a drug-free-workplace policy had voluntarily abandoned employment.
{¶ 61} In McCoy, this court again considered whether illegal drug use in violation of a workplace policy that resulted in the firing of the claimant constituted voluntary abandonment.
{¶ 62} This court refined the application of the three-part Louisiana-Pacific test in Reitter Stucco,
{¶ 63} In Reitter Stucco, the claimant injured his back at work in 2003. After surgery and while he was rehabilitating, the claimant made comments about the company’s president, for which he was fired in April 2005. This court held that
{¶ 64} In recent cases interpreting the voluntary-abandonment doctrine, we have held that an employee’s discharge for violating a workplace-safety rule that was causally related to the injury did not constitute a voluntary abandonment. Gross II,
{¶ 65} It is clear from our precedent that when determining whether an employee has voluntarily abandoned employment by violating a workplace rule, a two-step analysis is required. First, using the three-part test of Louisiana-Pacific, we must determine whether the employer had a clearly defined workplace rule that prohibited the conduct as a dischargeable offense and whether the employee knew of or should have known about the rule. Louisiana-Pacific,
{¶ 66} Applying the two-step analysis here, there is no dispute that the three-part test of Louisianar-Pacific was met. Appellant Pallet Companies, Inc. (“Pallet”) had a written drug-free-workplace policy that clearly defined as a dischargeable offense the use of illegal drugs, and Cordell knew or should have known of the policy because he signed and initialed every page of the policy on August 4, 2009. The second step requires us to examine when the alleged abandonment occurred. The timing is important because an employee can abandon employment only when he has the physical capacity for employment. Pretty Prods.,
{¶ 67} The majority focuses on the timing of the discovery of the misconduct, but it is the timing of the misconduct itself that is relevant because it was the misconduct that resulted in the termination. And at the time of the misconduct, Cordell had the physical capacity to perform his employment. Moreover, contrary to the majority’s conclusion, this court’s determination in McCoy,
{¶ 68} The majority attempts to distinguish McCoy by stating, “[T]he legal issue in McCoy was not whether the employee had voluntarily abandoned his employment.” Majority opinion at ¶ 35. While the majority is correct that the issue in McCoy was whether an employee who reenters the workforce but due to
{¶ 69} Moreover, the majority’s focus on the timing of the discovery of the misconduct is misplaced. The majority incorrectly views the positive drug test as the offense for which Cordell was terminated and holds that because the testing occurred after he was injured, Cordell cannot lose his TTD compensation, citing Gross II and Reitter Stucco. Majority opinion at ¶ 36. I disagree with that analysis. Cordell’s preinjury use of marijuana was the offense for which he was terminated. The drug test was merely the means employed to detect the violation of the written drug-free-workplace policy.
{¶ 70} Here, the connection between the industrial injury and the loss of wages was severed by Cordell’s preinjury use of marijuana. Because Cordell violated his employer’s drug-free-workplace policy when he used an “illegal controlled substance,” he severed his employment at the time of use. The discovery of the use of the illegal substance was not a violation of company policy. Pallet’s policy also clearly states that its employees will be drug tested when they are “involved * * * in an equipment or vehicular work-related accident.” The policy also makes clear that the discipline for violating the illegal-substance policy is “immediate termination.” Therefore, Cordell voluntarily abandoned his employment prior to his injury because he knew that his use of marijuana would result in his termination if the use was discovered.
{¶ 71} When the two-step analysis dictated by Louisiana-Pacific and Reitter Stucco is applied to the facts of this case, it is clear that Cordell voluntarily abandoned his employment when he used an illegal substance prior to sustaining his workplace injury. Therefore, I dissent and would reverse the judgment of the Tenth District Court of Appeals and deny the writ of mandamus against the Ohio Industrial Commission.
. While Ashcraft was pending in this court, the General Assembly enacted a provision that prohibits the payment of any workers’ compensation benefits when a claimant is confined in any state or federal correctional institution. See R.C. 4123.54(J).