2.28.2014

Voluntary Abandonment – Ohio Supreme Court Re-Affirms Louisiana-Pacific Test


Under Ohio Workers’ Compensation law, an employee who voluntarily abandons his or her employment for reasons not related to the industrial injury cannot receive temporary total disability compensation. Although being fired is generally considered an involuntary separation from employment, when the discharge arises from the employee’s decision to engage in conduct that he or she knows will result in termination, it may be considered a voluntary abandonment. Employment discharge is a voluntary abandonment only when the discharge arises from a violation of a written work rule that (1) clearly defined the prohibited conduct, (2) identified the misconduct as a dischargeable offense, and (3) was known or should have been known to the employee. State ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St.3d 401, 403, 650 N.E.2d 469 (1995).
  
In State ex rel. Robinson v. Indus. Comm., Slip Opinion No. 2014-Ohio-546, decided February 20, 2014, the Ohio Supreme Court re-affirmed the three-part Louisiana-Pacific test used to determine whether an employment discharge constitutes a voluntary abandonment. The Appellant in Robinson, Shelby Robinson, had been employed as a nurse with the employer.  When hired, she was given a written job description that set forth her job duties and responsibilities. She also received a copy of the employee handbook. 

During her employment, Ms. Robinson was disciplined on several occasions. On January 18 and February 29, 2008, she was written up for violating work rules.  On the February discipline form, Ms. Robinson acknowledged that she had been warned that any future violations would result in her termination.

On April 10, 2008, Ms. Robinson was injured at work. Her workers’ compensation claim was allowed for lumbar sprain, herniated disc L3-4, and herniated disc with free fragment at L5-S1 with right radiculopathy.

On April 15, 2008, the employer determined that Ms. Robinson failed to communicate a patient’s dietary order change and failed to check another patient’s feeding tube that was infusing faster than ordered by the physician. The following day, the director of nursing prepared the necessary paperwork to terminate Ms. Robinson. 

Ms. Robinson was not scheduled to work on April 16 or 17, 2008. Her supervisor called her on each of those days and each time left a telephone message asking Ms. Robinson to call back.  Ms. Robinson returned the calls on April 18, but refused her supervisor’s request for a personal meeting. On April 30, 2008, the employer sent Ms. Robinson a certified letter informing her that she had been terminated for cause effective April 16, 2008.

On April 21, 2008, after Ms. Robinson had talked with her supervisor, she visited a medical clinic. At this visit, the treating physician certified that Ms. Robinson was temporarily totally disabled from all employment beginning on the date of her injury, April 10, 2008. Ms. Robinson’s subsequent request for temporary total disability compensation was denied by the Industrial Commission upon a finding that Ms. Robinson had voluntarily abandoned her employment. 
 
On appeal to the Ohio Supreme Court, Ms. Robinson argued that the employer did not satisfy the Louisiana-Pacific test because it did not identify a written work rule that clearly defined the prohibited conduct for which Ms. Robinson was terminated. The Court disagreed. The Court found that Ms. Robinson’s receipt of the company handbook and her job description, and Ms. Robinson’s acknowledgement on the February 29, 2008 discipline form that another violation of a workplace rule would result in termination, sufficiently informed Ms. Robinson that her actions of failing to communicate a patient’s dietary order change and failing to attend to a patient’s feeding tube would result in termination. Thus, the Court held that the Louisiana-Pacific test had been satisfied and that Ms. Robinson’s termination constituted a voluntary abandonment that rendered her ineligible for temporary total disability compensation.

The Court’s re-affirmance of the Louisiana-Pacific voluntary abandonment test in Robinson should impress upon employers the crucial necessity of having written workplace rules and policies that clearly define prohibited conduct that constitutes a dischargeable offense, and the necessity of making employees aware of those rules and policies.


Contact: Alex Kipp
216.820.4204
akipp@ralaw.com 

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