Ohio Worker May Receive TTD Benefits In Spite of Positive Drug Test After Injury

Reiterating the Ohio rule that that a pre-injury infraction undetected until after the injury is not grounds for concluding that a claimant voluntarily abandoned his employment so as to preclude temporary total disability benefits, a state appellate court granted an injured worker’s mandamus request and vacated a decision by the state’s Industrial Commission that had found the worker was disqualified from temporary total disability benefits on the basis that he failed a post-injury drug test [see Cordell v. Pallet Cos., Inc., 2014-Ohio–5561, 2014 Ohio App. LEXIS 5374 (Dec. 18, 2014)].

The court observed that while the infraction might be grounds for terminating the worker’s employment, but that under the doctrine established in State ex rel. Gross v. Industrial Comm’n, 115 Ohio St.3d 249, 2007-Ohio–4916, 874 N.E.2d 1162 (“Gross II”) and State ex rel. Ohio Welded Blank v. Industrial Comm’n, 2009-Ohio–4646, 2009 Ohio App. LEXIS 3950 (Sept. 8, 2009), it was not grounds for concluding the worker had abandoned his employment so as to preclude temporary total benefits. The court added that the result was especially compelling where, as here, the employer presented no evidence to suggest the injury resulted from the relator’s being under the influence of drugs or alcohol.

Here the worker sustained a work-related injury when a third-party truck driver pulled away from the loading dock on which he was positioned on a tow motor resulting in a fall from the dock plate to the ground. While at the emergency room, a post-accident drug screen was ordered, and the worker tested positive for marijuana metabolites and opiates, specifically morphine.

The employer terminated his employment because of the failure of the post-accident drug screen. The Bureau awarded TTD benefits, but when the matter was later heard before a district hearing officer, that officer concluded that Relator was not eligible to receive TTD compensation on the basis that the worker had violated the employer’s drug-free work place policy when he tested positive for marijuana and morphine.

Ultimately, the Industrial Commission applied the appellate court’s decision in State ex rel. PaySource USA, Inc. v. Industrial Comm’n, 2009 Ohio App. LEXIS 5938 (June 30, 2009) (memorandum decision) and terminated the worker’s TTD benefits upon finding that his conduct constituted a voluntary abandonment of his employment. In PaySource, the court held that it was the ingestion or “use” of cocaine that was the offense—not the failure of the drug test. The court there held the drug test was the only means employed to detect the use of the illegal substance and that since the employee’s use of the prohibited substance occurred prior to the industrial injury and it was appropriate to deny TTD benefits because the employee had abandoned his employment prior to the injury.

The appellate court indicated it was “unpersuaded” by the court’s own decision in PaySource, that while PaySource did support the employer’s argument, it was a memorandum decision that adopted a magistrate’s decision to which there was no objection. The court indicated it did not even appear that the applicability of Gross II was even raised in PaySource.