State ex rel. Gross v. Industrial Commission

Lundberg Stratton, J.

{¶ 1} This matter is before us on a motion for reconsideration filed by appellee David M. Gross. Gross’s request for reconsideration was supported by appellee Industrial Commission of Ohio.1 Respondent-appellant, Food, Folks & Fun, Inc., d.b.a. KFC, filed a memorandum opposing reconsideration.2

{¶ 2} We ordered oral argument on the limited issue of whether we should grant the motion for reconsideration and ordered that each party may file a brief on the issue.

{¶ 3} For the reasons that follow, we grant Gross’s motion, vacate our decision in State ex rel. Gross v. Indus. Comm., 112 Ohio St.3d 65, 2006-Ohio-6500, 858 N.E.2d 335 (“Gross I ”), and affirm the judgment of the court of appeals, which *250granted a writ of mandamus ordering the Industrial Commission to reinstate Gross’s temporary total disability (“TTD”) benefits.

Gross I

{¶ 4} In State ex rel. Gross v. Indus. Comm., 112 Ohio St.3d 65, 2006-Ohio-6500, 858 N.E.2d 335, we upheld the commission’s termination of TTD compensation to Gross for injuries he sustained in the course of and arising out of his employment with KFC. Gross had injured himself and two others on November 26, 2003, when he placed water in a pressurized deep fryer, heated the fryer, and opened the lid. KFC conducted an investigation into the accident and determined that Gross had violated a workplace safety rule and repeated verbal warnings. KFC terminated his employment on February 13, 2004. As a result, the Industrial Commission terminated Gross’s TTD benefits on the basis that he had voluntarily abandoned his employment.

{¶ 5} In Gross I, the majority determined that KFC terminated Gross for disobeying written safety rules and ignoring repeated warnings. Therefore, the court held, the conduct for which he was fired constituted a voluntary abandonment of employment that precluded continuation of his TTD compensation.

{¶ 6} Gross contends that our opinion in Gross I wrongfully injected fault into the workers’ compensation system and expanded the voluntary-abandonment doctrine.

Statutory Basis of Compensation for Temporary Total Disability

{¶ 7} Workers’ compensation law provides that an employee who is injured in the course of employment is entitled to receive “compensation for loss sustained on account of the injury.” R.C. 4123.54(A). An employee who is temporarily and totally disabled as a result of a workplace injury may be entitled to compensation for lost earnings during the period of disability while the injury heals. State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533. Generally, TTD benefits terminate when the employee returns to work, is capable of returning to work, or has reached maximum medical improvement. R.C. 4123.56.

Voluntary-Abandonment Doctrine

{¶ 8} In State ex rel. Jones & Laughlin Steel Corp. v. Indus. Comm. (1985), 29 Ohio App.3d 145, 29 OBR 162, 504 N.E.2d 451, the Tenth District Court of Appeals was asked to determine whether a claimant was entitled to the continuation of his TTD benefits after he permanently retired from the work force. The appellate court applied a two-part analysis to determine whether an injury qualified for TTD compensation. The Jones court first focused upon the disabling aspects of the injury that prevented the claimant from returning to his former *251position of employment. The court next inquired whether there was any reason other than the injury that was preventing the claimant from returning to work. Id. at 147, 29 OBR 162, 504 N.E.2d 451. This reflected the underlying purpose of TTD compensation, i.e., to compensate an employee for the loss of earnings while the industrial injury heals.

{¶ 9} Jones concluded that a claimant’s voluntary retirement with no intention of returning to the work force would be reason to terminate TTD benefits because his disability would no longer be the cause of his loss of earnings. The court held that “where 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.” Id., 29 Ohio App.3d at 147, 29 OBR 162, 504 N.E.2d 451.

{¶ 10} In State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533, this court applied the underlying principle of Jones to a claimant who was in prison. While incarcerated, Nelson Ashcraft filed a motion for TTD compensation related to an industrial injury he sustained three years earlier. The commission denied his request on the ground that his incarceration amounted to an abandonment of his former position of employment.

{¶ 11} Ashcraft argued that, unlike the claimant in Jones, his incarceration was not a permanent abandonment of the work force and it could not be regarded as voluntary. The temporary nature of his abandonment of his former employment was irrelevant, the court held. Furthermore, a person who violates the law is presumed to tacitly accept the consequences of his voluntary acts so there is a voluntary nature to incarceration. The claimant was no longer in a position to return to work while incarcerated. His loss of earnings was no longer “on account of the injury” as required by R.C. 4123.54. Therefore, the court held that he had voluntarily removed himself from the work force and was not eligible for TTD benefits.

{¶ 12} Since Ashcraft, we have continued to apply the voluntary-abandonment doctrine to situations in which the claimant has left his former position of employment following his injury. In Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678, we clarified that the abandonment of employment must be voluntary, not involuntary, to act as a bar to TTD compensation. In Rockwell, the claimant had retired while on disability. There was some evidence, however, that his retirement was causally related to his industrial injury. Therefore, we upheld the commission’s determination that the claimant’s retirement was not voluntary and he continued to be eligible for TTD benefits. “We find that a proper analysis must look beyond the mere volitional nature of a *252claimant’s departure. The analysis must also consider the reason underlying the claimant’s decision to retire. We hold that where a claimant’s retirement is causally related to his injury, the retirement is not ‘voluntary’ so as to preclude eligibility for temporary total disability compensation.” Id. at 46, 531 N.E.2d 678.

{¶ 13} In State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d 469, we were asked to determine whether an employee’s termination for violating work rules could be construed as a voluntary abandonment of employment that would bar TTD compensation. In that case, the employer was notified that the claimant was medically released to return to work following a period of TTD. When the claimant did not report to work for three consecutive days, he was automatically terminated for violation of the absentee policy in the company’s employee handbook.

{¶ 14} The claimant subsequently moved for additional TTD benefits, arguing that being fired was an involuntary departure from employment. “ ‘Although not generally consented to, discharge, like incarceration, is often a consequence of behavior that the claimant willingly undertook, and may thus take on a voluntary character.’ ” Louisiana-Pacific, 72 Ohio St.3d at 403, 650 N.E.2d 469, quoting State ex rel. Watts v. Schottenstein Stores Corp. (1993), 68 Ohio St.3d 118, 121, 623 N.E.2d 1202. “[W]e find it difficult to characterize as ‘involuntary’ a termination generated by the claimant’s violation of a written work rule or policy that (1) clearly defined the prohibited conduct, (2) had been previously identified by the employer as a dischargeable offense, and (3) was known or should have been known to the employee.” Id. We explained that a departure under such circumstances must be considered voluntary because “an employee must be presumed to intend the consequences of his or her voluntary acts.” Id.

{¶ 15} Since Rockwell, we have reviewed various types of job terminations in terms of “voluntary” or “involuntary”: retirement, layoff, firing, incarceration, and resignation, and cases in which the claimant was seeking TTD compensation when working at a job other than the one at which the injury occurred. In State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, we examined the evolution of the voluntary-abandonment doctrine as a bar to TTD compensation. Our analysis in McCoy is instructive: 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.” Id. at ¶ 35.

{¶ 16} “[T]he voluntary abandonment rule is potentially implicated whenever TTD compensation is requested by a claimant who is no longer employed in the position that he or she held when the injury occurred. But characterizing the *253claimant’s departure from the former position of employment as ‘voluntary’ does not automatically determine the claimant’s eligibility for TTD compensation. Instead, voluntary departure from the former position can preclude eligibility for TTD compensation only so long as it operates to sever the causal connection between the claimant’s industrial injury and the claimant’s actual wage loss.” Id. at ¶ 38.

{¶ 17} In this case, the commission deemed Gross’s discharge to be voluntary and terminated his TTD benefits. In the court of appeals, the magistrate strictly applied the Louisiana-Pacific analysis and likewise recommended denial of relief to Gross. However, the appellate court concluded that the employer’s termination letter expressly connected the employer’s decision to terminate with the accident. Thus, the court concluded that his “termination was causally related to his injury” and his departure was involuntary. State ex rel. Gross v. Indus. Comm., Franklin App. No. 04AP-756, 2005-Ohio-3936, 2005 WL 1806457, ¶ 11.

{¶ 18} Nevertheless, Gross I narrowly focused on Gross’s willful violation of work rules justifying his discharge. The parties have perceived our language in Gross I as an expansion of the voluntary-abandonment doctrine and a potential encroachment upon the no-fault nature of our workers’ compensation laws. Because of the confusion and misunderstanding that Gross I has generated, it is necessary for us to address the issues raised in Gross’s motion for reconsideration.

{¶ 19} First, Gross I was not intended to expand the voluntary-abandonment doctrine. Until the present case, the voluntary-abandonment doctrine has been applied only in postinjury circumstances in which the claimant, by his or her own volition, severed the causal connection between the injury and loss of earnings that justified his or her TTD benefits. State ex rel. Nick Strimbu, Inc. v. Indus. Comm., 106 Ohio St.3d 173, 2005-Ohio-4386, 833 N.E.2d 286; State ex rel. Hammer v. Indus. Comm., 99 Ohio St.3d 334, 2003-Ohio-3960, 792 N.E.2d 184; State ex rel. Daniels v. Indus. Comm., 99 Ohio St.3d 282, 2003-Ohio-3626, 791 N.E.2d 440; State ex rel. Ohio Treatment Alliance v. Paasewe, 99 Ohio St.3d 18, 2003-Ohio-2449, 788 N.E.2d 1035; State ex rel. McClain v. Indus. Comm. (2000), 89 Ohio St.3d 407, 732 N.E.2d 383; State ex rel. Smith v. Superior’s Brand Meats, Inc. (1996), 76 Ohio St.3d 408, 667 N.E.2d 1217. The doctrine has never been applied to preinjury conduct or conduct contemporaneous with the injury. Gross I did not intend to create such an exception.

{¶ 20} The General Assembly, in its expression of public policy, has enacted certain exceptions to a claimant’s eligibility for benefits. For instance, R.C. 4123.54(1) expressly prohibits a claimant from receiving benefits while incarcerated. In addition, the statute creates a rebuttable presumption that a claimant’s being intoxicated or under the influence of drugs is the proximate cause of an *254injury, R.C. 4123.54(B), which forfeits the employee’s eligibility for benefits, R.C. 4123.54(A). However, the statute contains no exception for willful or deliberate violation of workplace rules. It is the role of the legislature, not the judiciary, to carve out exceptions to a claimant’s eligibility for TTD compensation.

{¶ 21} Second, it was not our intention in Gross I to inject fault into the analysis of voluntary abandonment or to otherwise undermine the no-fault nature of our workers’ compensation system. To the extent that our opinion in Gross I has been interpreted as injecting fault into the system, we expressly reject that interpretation.

Conclusion

{¶ 22} The no-fault nature of our workers’ compensation scheme is a statutory mandate. R.C. 4123.01(C) defines “injury” without qualification so long as it arises out of the course of employment. Except as expressly set out in the statute, workers’ compensation benefits may not be denied on the basis of fault to a claimant who was injured in the course and scope of employment. R.C. 4123.54(A); Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 110, 522 N.E.2d 489.

{¶ 23} There is no question that Gross sustained a disabling injury. The issue is whether his injury or his termination (because of the violation of a rule) is the cause of his loss of earnings. The distinctions between voluntary and involuntary departure are complicated and fact-intensive. An underlying principle, however, is that if an employee’s departure from the workplace “is causally related to his injury,” it is not voluntary and should not preclude the employee’s eligibility for TTD compensation. State ex rel. Rockwell, 40 Ohio St.3d at 46, 531 N.E.2d 678; State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51. The Tenth District Court of Appeals followed that principle. The court concluded from KFC’s termination letter that “relator’s termination was causally related to his injury. The letter states expressly that the employer’s actions arose from ‘the accident’ that caused relator’s injury.” State ex rel. Gross, 2005-Ohio-3936, 2005 WL 1806457, ¶ 11.

{¶ 24} We agree. Although KFC appears justified in firing Gross for violating workplace rules, the termination letter established that his discharge was related to his industrial injury. Gross had violated the same rules on prior occasions without repercussion. However, according to the termination letter, it was Gross’s latest violation resulting in injury that triggered KFC’s investigation and subsequent termination.

{¶ 25} Therefore, upon reconsideration, we hold that Gross’s termination was involuntary. Any reference to deliberate, willful, or wanton behavior in Gross I was intended to describe his behavior that violated work rules and that provided *255grounds for his termination. That language was not intended to set a new standard for voluntary abandonment.

{¶ 26} Consequently, we grant Gross’s motion, vacate our decision in State ex rel. Gross v. Indus. Comm., 112 Ohio St.3d 65, 2006-Ohio-6500, 858 N.E.2d 335, and affirm the judgment of the court of appeals, which ordered the Industrial Commission to reinstate Gross’s TTD benefits.

Judgment accordingly.

Moyer, C.J., and Pfeifer, O’Donnell, and Cupp, JJ., concur. O’Connor and Lanzinger, JJ., dissent.

. Amici curiae Ohio AFL-CIO, Ohio State Building and Construction Trades Council, the Ohio Academy of Trial Lawyers, United Auto, Aerospace & Agricultural Implement Workers of America, and the Fraternal Order of Police of Ohio, Inc. supported Gross’s request for reconsideration.

. Amici curiae Ohio Chamber of Commerce, the Ohio Self-Insurers Association, the Ohio Chapter of the National Federation of Independent Business, Ohio Manufacturers Association, and the Ohio Council of Retail Merchants filed a memorandum opposing reconsideration.