Post AutoZone: The New Analysis of Entitlement to TTD under ORC 4123.56(F)
Over the last 25 years, since the decision in Louisiana Pacific (1995), Ohio courts have defined and redefined the concept of voluntary abandonment and its effect on the payment of temporary total compensation in a claim, based on specific facts and circumstances where the injured worker may have been terminated for cause or voluntarily left the workforce. However, all of this changed in September 2020 when the Ohio legislature amended ORC 4123.56(F) which eliminated the concept of voluntary abandonment. All prior caselaw which applied the concept of voluntary abandonment was wiped clean.
The legislative change in ORC 4123.56(F) raised many questions for both injured workers’ and employers as to how ORC 4123.56(F) would be applied. In the first major pronouncement on this issue, the 10th District issued a decision which significantly limits an employer’s ability to argue against the payment of temporary total compensation in certain circumstances. State ex rel. AutoZone Stores, Inc. v. Industrial Commission, 2023-Ohio-633 (March 2, 2023). The Court’s decision in AutoZone sets forth a new analysis necessary to determine eligibility for temporary total compensation.
In AutoZone, the injured worker had an allowed shoulder claim and was working light duty. He was terminated after an altercation with a co-worker and thereafter requested a period of TTD following an authorized surgery in the claim. The employer argued that claimant was off work due to his termination, not his impairment from the allowed conditions in the claim, and relied upon caselaw that applied the doctrine of voluntary abandonment which the Court in AutoZone pointed out is no longer in existence. The Court pointed out that the compensation being requested was only paid after the surgery, and it was not requested or paid after the claimant’s termination. The Court indicated that the language change in ORC 4123.56(F) requires the claimant’s inability to work “to stem immediately from an impairment arising from the injury…”, and it is not appropriate to turn the court’s gaze back to the facts and circumstances surrounding why the claimant left the workforce before his surgery. To do so is to resurrect the concept of voluntary abandonment which has been superseded by the legislature.
The employer urged the Court to consider that the claimant’s lost wages were directly related to his termination and, since he was not working at the time of his request, he was ineligible for TTD. In response, the Court indicated that this is not the correct analysis. The Court held that “the legislature did not intend to disqualify any person not working without regard for whether the reason he or she is not working is attributable to the workplace injury.”
Prior to the issuance of this decision, employers could successfully argue against a period of compensation in a claim when the injured worker’s employment ended for reasons unrelated to the claim and based on the claimant’s own actions. If the claimant was no longer in the workforce and their employment had been terminated for violation of a company policy, compensation was not payable, even if the injured worker subsequently obtained approval for surgery in the claim. However, the decision in AutoZone makes it clear that the analysis for entitlement to temporary total compensation is based on the specific facts and circumstances immediately surrounding the request for compensation and there is no “look back” at other reasons why the injured worker was not working. ORC 4123.56(f) states:
If an employee is unable to work or suffers a wage loss as the direct result of an impairment arising from an injury or occupational disease, the employee is entitled to receive compensation under this section, provided the employee is otherwise qualified. If an employee is not working or has suffered a wage loss as a direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section.
Accordingly, AutoZone requires that only the facts and circumstances immediately surrounding the request for compensation are relevant, and prior terminations for reasons unrelated to the claim are considered irrelevant. In the AutoZone case, the results may have been different if the claimant requested compensation immediately following his termination for the altercation with the co-worker and if there was not an approved surgery in the claim. Under those facts, the claimant would have been off work due to reasons unrelated to the claim and based on his own behavior. However, the Court makes it clear that the authorized surgery resulted in lost earnings from the date of the surgery forward, regardless of other prior reasons that the claimant had been out of the workforce.
Clearly, this decision limits an Ohio employer’s ability to argue against the payment of compensation in certain circumstances. It is unclear to what extent this decision applies to termination cases where the facts are distinguishable from the facts in the AutoZone case or in the case of voluntary retirement. The matter has been appealed to the Supreme Court of Ohio which will provide the Court with the opportunity to further clarify RC 4123.56(F).
If you have any further questions, please reach out to one of the Perez Morris workers’ compensation practitioners in Columbus or Cleveland.
Rick Hernandez joined Perez Morris in 2017. He is a proactive, strategic and dedicated workers’ compensation defense attorney with more than 30 years’ experience. Rick has represented self-insured and state-funded private employers, state agencies, and public and private universities in proceedings before the Industrial Commission of Ohio and at all levels of court within the state of Ohio. You can reach him at [email protected] or (614) 540-2230. Read more
Beth Weeden joined Perez Morris in 2018. With more than 30 years’ experience, she counsels employers in all aspects of their workers’ compensation and risk management programs. She represents both self-insured and state-funded employers including national and regional retail distribution centers, retail stores, staffing services, restaurants, manufacturing facilities and home health care providers. You can reach Beth at [email protected] or (614) 396-3822. Read more