Ohio Supreme Court Discusses Post-Accident Drug Testing as Related to the Doctrine of Voluntary Abandonment

The Ohio Supreme Court was again asked to clarify when the doctrine of voluntary abandonment bars the receipt of temporary total disability compensation in a workers’ compensation claim in the case State ex rel. Cordell v. Pallet Cos., Inc., 149 Ohio St.3d 483.

In Cordell, the claimant was injured while working and was given a post-accident drug test.  Six days later, the test result became available and was positive for marijuana.  The claimant’s employment was terminated pursuant to the employer’s drug-free workplace policy.  The Industrial Commission found that the claimant was not entitled to temporary total disability compensation based on the doctrine of voluntary abandonment since the claimant used marijuana prior to his work injury.

The claimant filed a complaint in the Tenth District Court of Appeals seeking a writ of mandamus compelling the Commission to vacate its order. The Court of Appeals granted the writ and the employer appealed to the Supreme Court of Ohio.

The Ohio Supreme Court affirmed the appellate court’s decision and specifically held that an employee who is medically incapable of returning to work as a result of a workplace injury and who is terminated after the injury for preinjury conduct that was discovered as a result of the injury has not voluntarily abandoned employment. Since it was undisputed that the claimant’s drug use was not the proximate cause of his work injury, the Court found that there was not a broken causal connection between the injury and the loss of wages.

The Cordell case essentially closes the door on employers’ voluntary abandonment defense where a claimant is terminated because of a positive post-accident drug test.  Of course, an employer can still use a positive drug test to argue that a claim should be denied. However, this has been an uphill battle in most claims due to the Ohio Revised Code’s strict requirements for applying the rebuttable presumption test.  Unless a rebuttable presumption is applicable, the employer bears the burden of proof in showing that the presence of alcohol or controlled substances in a claimant’s system was the proximate cause of the work-related injury.