Claimant scores TTD award despite allegations she violated rules

An employer that claims an employee voluntarily left her employment by violating work rules has the burden of establishing that the claimant actually committed the offense.

Case name: Pounds v. The Whetstone Gardens & Care Center and Industrial Commission of Ohio, No. 08AP-212 (Ohio Ct. App. 01/08/09).

Ruling: The Ohio Court of Appeals vacated an order denying the claimant's application for temporary total disability benefits related to a back sprain.

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What it means: In Ohio, a voluntary departure from employment blocks an employee from receiving temporary total disability compensation. An employer that claims an employee voluntarily left her employment by violating work rules has the burden of establishing that the claimant actually committed the offense.

Summary: While employed as a resident assistant, the claimant injured her back when she rolled a patient to change the patient's clothes. The employer contested the claim for a lumbosacral sprain, arguing that the claimant voluntarily abandoned her employment. The claimant was terminated after repeated violations of work rules, including an incident in which the claimant allegedly verbally abused a resident on the date she injured her back.

The Court of Appeals ordered the commission to vacate its order denying the claimant TTD compensation and to award her such benefits.

According to the employer, the claimant used an inappropriate tone of voice toward a resident on the date of her accident and had received several written warnings in the months before the accident. However, the unit manager who allegedly overheard the claimant talking to the resident did not testify during the proceedings, and the claimant's actual words were not disclosed. Further, the manager never prepared a written statement explaining why he found the claimant's tone of voice inappropriate.

The magistrate noted, "It is certainly conceivable that a tone of voice could be construed as verbal abuse under certain circumstances. Nevertheless, the employer here failed to produce evidence upon which the commission could rely to support a finding of verbal abuse." The court agreed with the magistrate, reasoning that "substantial doubt" existed as to whether the commission actually determined that the claimant used an inappropriate tone of voice. "At best, such a finding is only implied or inferred from the order," the court said.

February 23, 2009

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