Ohio Claimant Disqualified from TTD Because She Gave Two-Week Notice Four Days Before Injury

An Ohio appellate court recently reversed a state Commission’s decision that had awarded TTD benefits to an employee who gave his employer a two-week notice that she intended to leave its employment and who sustained a work-related injury four days later, approximately a week and one-half before his proposed last day of work [State ex rel. Ohio State Univ. v. Pratt, 2021-Ohio-3420, 2021 Ohio App. LEXIS 3336 (Sept. 28, 2021). Relying upon the Supreme Court of Ohio’s earlier Klein decision—cited below—the court stressed that the totality of the employee’s statements and actions demonstrated that even before his injury, he intended to leave his position of employment permanently and that it was his own actions, and not his workplace injury, that prevented his return to his former position of employment.

Background

According to the court, the evidence was largely undisputed that the claimant submitted his two-week notice from his position as the Food and Beverage Director at the Ohio State University’s Blackwell Inn on June 20, 2017, four days prior to the date of injury. She did not return to work for Ohio State after June 24, 2017, the date of injury. The claimant received TTD compensation without opposition from OSU. On November 21, 2017, however, OSU filed a motion to terminate TTD and for a finding of overpayment.

District Hearing Officer’s Decision

A commission district hearing officer (“DHO”) granted Ohio State’s motion to terminate and found that all TTD amounts paid for the period after claimant’s resignation letter date of June 20, 2017 were improperly paid and subject to non-fraud recoupment. The DHO’s order in effect considered that the claimant’s resignation was effective for TTD purposes on the date she gave his two-week notice, June 20, 2017, rather than claimant’s proposed final workday of July 5, 2017. Claimant appealed.

Commission’s Decision

The appeal was heard before a staff hearing officer (“SHO”), who found that an employment offer dated June 28, 2017 from another employer favoring claimant corroborated claimant’s persuasive testimony that she did not voluntarily abandon the workforce when he announced his resignation with Ohio State on June 20, 2017. Ohio State appealed. Ultimately, the commission heard the matter and by a two-to-one vote, denied continuing jurisdiction and upheld the SHO order granting TTD.

Further Appeal

Ohio State then filed its complaint in mandamus with the appellate court, which referred the case to a magistrate. The magistrate recommended that the appellate court vacate the order awarding TTD compensation after July 5, 2017 and enter an order awarding such compensation only to that date. The claimant objected and the matter was taken up by the appellate court.

Citing State ex rel. Klein v. Precision Excavating & Grading Co., 155 Ohio St.3d 78, 2018-Ohio-3890, 119 N.E.3d 386, the appellate court held the claimant was foreclosed from receiving TTD compensation after she had voluntarily abandoned his position with Ohio State on July 5, 2017. While the Commission argued that based on claimant’s employment offer with the subsequent employer, the claimant had not voluntarily abandoned the workforce, that was not the test for determining the issue. The appellate court stressed that, under Klein, it was required look at whether the claimant voluntarily removed himself from his former position of employment, even if the claimant remained disabled at the time of his separation from employment.

The court added that under R.C. 4123.56(F), where 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 [emphasis added]. Finding the magistrate had properly determined the facts and applied the appropriate law, the court adopted the magistrate’s decision as its own and granted Ohio State’s request for a writ of mandamus.