Voluntary Abandonment and House Bill 81
Governor Dewine has signed House Bill 81 this past Tuesday, June 16, 2020. It is effective in 90 days (approximately September 14, 2020). The bill is available to read here. So injuries that happen after the date the changes go into effect will be subject to the new changes.
Why am I posting about a house bill. Doesn’t the Ohio legislature release new laws and changes to laws all the time. The reason are two changes made to the Ohio Revised code which may have significant impact on your Ohio Workers’ Comp claim. Specifically 4121.471 and 4123.52(F).
Less Time to File a VSSR Claim
Under the updated 4121.471, you will now only have a year within which to file an application for a VSSR award. VSSR being a “violation of a specific safety requirement.” Previously you had two years within which you could file a VSSR. Not really sure the rational for reducing the time to file from two years to one year. Anytime you reduce the amount of time an injured worker can do something, I don’t feel its a good thing for the injured workers.
The magical math to calculate the VSSR award is the following: the max comp rate for the year of the violation multiplied by the number of weeks of compensation already paid in the claim multiplied by the percentage of the award. So if you had two years within which to file a VSSR award, the number of weeks of compensation that could have been in the calculation was approximately 104 (52 weeks in a year times 2). Now it will be limited to approximately 52 weeks.
Part of the rational behind the VSSR award is to penalize the employer. That is accomplished because the employer is on the hook for the VSSR award. This incentives the employer to correct their unsafe practices. Now, the employer’s monetary penalty can therefore potentially be much less. Less incentive to change.
The injured workers potential amount of compensation they may receive through the vssr award may be much less. Again not a fan of this change.
Removal of Judicially Created Docrtrine of Voluntary Abandonment
4123.52 (F) is read as follows:
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 the direct result of reasons unrelated to the allowed injury or occupational disease, the employee is not eligible to receive compensation under this section. It is the intent of the general assembly to supersede any previous judicial decision that applied the doctrine of voluntary abandonment to a claim brought under this section.
I’m not sure how this change to the revised code changes anything. I’ve created a number of articles and videos about voluntary abandonment including a discussion of a more recent case Klein v. Precision Excavating. In a nutshell, the voluntary abandonment doctrine is something along the following lines, if after you are injured you do some act that causes you to be terminated, This act severs your entitlement to compensation (temporary total disability and possibly permanent total disability). Your voluntary act removed you from the workplace, not your work injury. In order to qualify for temporary total disability compensation your work injury must have removed you from the workplace.
So the sequence of events goes like this. You get injured, you get certified as temporary totally disabled by a doc, you may be entitled to ttd comp. With voluntary abandonment, you get injured, you do some act after the injury occurred that causes you to be terminated, regardless of whether or not you are certified temporarily and totally disabled by a doc, you ARE NOT entitled to ttd comp. You “voluntarily abandoned” workplace. Some examples of voluntary abandonment include getting fired because you cursed out your boss, you resigned or quit from your job, you violated a “no show, no call” policy whereby you didn’t show up at work or call in sick.
Effects of the Changes
The newly revised code section wipes the slate clean as to voluntary abandonment, it supersedes any previous judicial decision. But is that really how this thing is going to work out. To me it seems to codify the voluntary abandonment doctrine. Are Ohio courts going to walk back from relying on decisions from cases like Klein v. Precision Excavating, or are they going to make the same judicial decisions, which will then be set in stone by the Ohio Supreme Court.
In addition, in the past the voluntary abandonment doctrine was not applied to pre-injury conduct and conduct that happened at the same time as the injury. So for instance if you smoked a joint over the weekend, according to a case called Cordell you can be terminated for cause for violating a drug free work place policy, but still receive ttd compensation. Likewise following the Gross II case, aka “fried chicken case”, if you’re injury was caused by a workplace rule violation, again you can be fired for cause for violating that workplace rule, but still receive compensation.
I suspect these changes to the law will cause more litigation and confusion rather than clarifying things.