Ohio Supreme Court Strengthens Voluntary Abandonment Defense

The Ohio Supreme Court recently strengthened the defense of voluntary abandonment in the area of workers’ compensation temporary total disability benefits.  State ex rel. Lackey v. Indus. Comm., 129 Ohio St. 3d 119.  The Court ruled that if an injured worker voluntarily retires from his or her job, or abandons an existing job and never returns to the workforce; they are prohibited from ever receiving any additional temporary total disability benefits.  This is true even if additional conditions are added to the claim and additional treatment is sought for those additional conditions.  If the claimant fails to provide any proof that he or she left their prior employment and failed to return to any gainful employment due to reasons clearly associated with their prior industrial injury, then the voluntary retirement defense can be used to block future benefits.

In Lackey, the claimant suffered a knee injury while driving a truck for Penske in 2001 that kept him off work for several months.  After surgery the injured worker returned to full duty for another couple years.  Thereafter, the injured worker chose to retire from his employment as a truck driver.  He never mentioned in the documents he signed regarding his retirement that he was leaving his employment with Penske because of his workplace injury.  The claimant later added an additional condition to the claim. He then had surgery for the new condition and requested a new period of temporary total disability compensation.  The Industrial Commission denied those benefits and the claimant filed a mandamus action in the Court of Appeals seeking to overturn the Commission’s decision.  However, upon final review by The Ohio Supreme Court, his request was denied.

The Court pointed out that the claimant failed to present any evidence from his treating physician establishing that the main reason for his decision to retire was his injury.  More importantly, the Court pointed out there was no evidence that the claimant had ever made any effort to return to gainful employment after his retirement.  As a result, the Court concluded that the Industrial Commission had not abused its discretion in relying upon the voluntary retirement defense in denying temporary total disability benefits.