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State ex rel Baker v. Industrial Commission of Ohio8/9/2000
ntly removed himself from the work force, there are a number of other examples of situations wherein a claimant has been denied continued TTD based on his voluntary abandonment of his former position of employment: State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533 (incarcerated claimant was precluded from TTD, as claimant was presumed to have tacitly accepted the consequences of his voluntary acts leading to his incarceration and was therefore deemed to have voluntarily abandoned his former position of employment); State ex rel. McGraw v. Indus. Comm. (1990), 56 Ohio St.3d 137, 564 N.E.2d 695 (claimant who voluntarily abandoned his former position of employment by quitting his job for reasons unrelated to his injury was precluded from TTD); State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d 469 (claimant voluntarily abandoned his former position of employment when he was terminated for failing to report to work for three consecutive days, thereby precluding his eligibility for TTD); State ex rel. Cobb v. Indus. Comm. (2000), 88 Ohio St.3d 54, 723 N.E.2d 573 (claimant voluntarily abandoned his employment when he was terminated for testing positive for drugs in violation of a written company policy, thereby precluding his eligibility for TTD).
Relying on two of the foregoing voluntary-abandonment cases, McGraw and Jones & Laughlin, this court held in Baker I that Baker voluntarily abandoned his former position of employment by accepting a new position of employment and, therefore, Baker was not eligible for TTD. Upon reconsideration, we now find that both McGraw and Jones & Laughlin are factually distinguishable from the facts of the case now before us. Specifically, we now find that changing jobs is clearly distinguishable from some other situations of voluntary abandonment of employment and that a job change does not preclude a claimant from TTD.
In Jones & Laughlin, the employer contended that because its employee was receiving a regular pension, the employee had voluntarily retired from the work force and was therefore precluded from receiving TTD. While denying the employer's request for a writ for other reasons, the court of appeals did agree with the employer that "voluntary retirement may preclude a claimant from receiving temporary total disability benefits to which he otherwise might be entitled, if by such retirement the claimant has voluntarily removed himself permanently from the work force." (Emphasis added.) 29 Ohio App.3d at 147, 29 OBR at 164, 504 N.E.2d at 454. We agree with this statement of the law, but the case that is now before us does not present facts that are the same as or similar to the facts in Jones & Laughlin.
In the case at bar, Baker did not permanently abandon the work force. Baker secured other employment and continued to work until the injuries received in his original industrial accident again rendered him temporarily and totally disabled.
McGraw is also distinguishable from the facts of the case now before us. Unlike Baker, the appellant in McGraw abandoned the work force for reasons unrelated to his original industrial injury, and he was not working at the time of his subsequent injury, which he claimed was related to his original industrial injury and again rendered him temporarily and totally disabled. McGraw, 56 Ohio St.3d 137, 564 N.E.2d 695. McGraw was originally injured in 1976 during his employment with Kenworth Trucking Company, and he was subsequently awarded workers' compensation benefits for his injury. Thereafter, he quit Kenworth for reasons unrelated to his work injury, and he moved to Pennsylvania. After working in several different po
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