I respectfully dissent.
Nothing in the record before us indicates that Richard Hisle voluntarily abandoned his employment with SanMar Corporation. Instead, the record clearly demonstrates that SanMar Corporation used Hisle's serious injuries as an excuse to conduct a drug screen and then fire him based upon a finding that sometime in the past Mr. Hisle had smoked marijuana. In fact, the sample for the drug screen was taken in the emergency room of the hospital.
The Supreme Court of Ohio needs to call a halt to or curtail the use of the fiction that a person who has been seriously injured on the job has somehow voluntarily abandoned his or her employment based upon facts discovered after the injuries have occurred.
Hisle broke his clavicle and at least one rib. He struck his head so hard that he caused bleeding under the skull and a concussion. He suffered these injuries because he was elevated in a cherry picker doing work for SanMar Corporation.
The silliness of the fiction that Hisle voluntarily abandoned his employment is especially obvious here. When exactly did he abandon his employment? When he smoked marijuana at some unknown time prior to the fall? In the air while falling from the cherry picker? When he hit the ground fracturing bones and causing head injuries? While he was lying on the ground, broken and bleeding?
I do not condone Hisle's use of marijuana or his prior use of cocaine. However, I do not believe that the Industrial Commission of Ohio can consider someone to have voluntarily abandoned his or her employment under circumstances such as presented here.
I would grant the requested writ of mandamus. Since the majority of this panel does not, I respectfully dissent. *Page 554