An Ohio appellate court has again concluded that the doctrine of voluntary abandonment does not bar an injured worker’s entitlement to TTD compensation in a case involving a pre-injury infraction—here, marijuana use—undetected until after injury, where there was no showing that the employee’s use of marijuana adversely affected her judgment [State ex rel. Tolle v. Spherion of Mid-Ohio, Inc., 2015-Ohio–3593, 2015 Ohio App. LEXIS 3496 (Sept. 3, 2015)].
Tolle’s arm was crushed when her supervisor hit a wrong button while she was loading a braider. While at the hospital for treatment for the injury, a post-injury drug screen resulted in a positive test for marijuana. The employer terminated Tolle because her positive test for marijuana was a violation of company policy.
A staff hearing officer found that Tolle was eligible for TTD compensation based on State ex rel. Ohio Welded Blank v. Indus. Comm., 2009-Ohio–4646, 2009 Ohio App. LEXIS 3950 and State ex rel. Gross v. Indus. Comm., 115 Ohio St.3d 249, 2007-Ohio–4916, 874 N.E.2d 1162 (“Gross II”). Ultimately, the commission disagreed, finding instead that State ex rel. PaySource USA, Inc. v. Indus. Comm’n, 2009 Ohio App. LEXIS 5938 (June 30, 2009), applied and that Tolle was not entitled to TTD compensation and had been overpaid $11,278.49. Tolle filed a mandamus action. When the magistrate issued a decision recommending that the appellate court grant Tolle’s request, both the employer and the Commission filed objections to the magistrate’s decision.
The appellate court observed that it had addressed the same issue in State ex rel. Cordell v. Pallet Cos., 2014-Ohio–5561, 2014 Ohio App. LEXIS 5374 [see my earlier discussion of Cordell here]. In Cordell, the court relied on Gross II and Ohio Welded Blank and concluded that the doctrine of voluntary abandonment did not apply to receipt of TTD compensation in a case involving a pre-injury infraction undetected until after injury. While the employer might well be justified in terminating the employee, that justification did not extend to denial of TTD benefits as there had been no voluntary abandonment of the employment.
As the instant case was virtually identical to Cordell, the appellate court adopted the magistrate’s decision as its own, overruled the employer’s and the Commission’s objections to the magistrate’s decision and granted Tolle’s request for a writ of mandamus ordering the commission to vacate its order denying Tolle TTD compensation. The court also ordered the Commission to vacate its order finding overpayment of TTD compensation, and to issue an order awarding Tolle TTD compensation.