State ex rel. Louisiana-Pacific Corp. v. Industrial Commission

Louisiana-Pacific informed the commission of claimant’s dismissal at the May 8, 1992 staff hearing. The staff hearing officer order that followed did not, however, mention the termination. In its complaint for a writ of mandamus, L-P claimed that the omission was an abuse of discretion and sought a writ ordering the commission to vacate the May 8, 1992 order. The appellate court declined, essentially ruling that claimant did not voluntarily abandon his employment. For the reasons to follow, its judgment is reversed.

Voluntary departure from employment precludes temporary total disability compensation. State ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 46, 531 N.E.2d 678, 680. Appellees contend that firing — since it is not employee-initiated — is inherently involuntary and, thus, cannot constitute a voluntary abandonment of employment so as to bar temporary total compensation. We disagree.

In State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533, we discussed the temporary total disability compensation eligibility of an incarcerated claimant. We acknowledged that imprisonment would not fit the traditional definition of “voluntary” since individuals, as a general rule, do not actively seek or consent to incarceration. Looking more deeply, however, we found:

“While the prisoner’s incarceration would not normally be considered a ‘voluntary* act, one may be presumed to tacitly accept the consequences of his voluntary acts. When a person chooses to violate the law, he, by his own action, subjects himself to the punishment which the state has prescribed for that act.” Id., 34 Ohio St.3d at 44, 517 N.E.2d at 535.

Recognizing the parallels underlying incarceration and firing, we observed in State ex rel. Watts v. Schottenstein Stores Corp. (1993), 68 Ohio St.3d 118, 121, 623 N.E.2d 1202, 1204:

‘We agree that firing can constitute a voluntary abandonment of the former position of employment. Although not generally consented to, discharge, like incarceration, is often a consequence of behavior that the claimant willingly undertook, and may thus take on a voluntary character. * * *”

Examining the present facts, we find it difficult to characterize as “involuntary” a termination generated by the claimant’s violation of a written work rule or policy that (1) clearly defined the prohibited conduct, (2) had been previously identified by the employer as a dischargeable offense, and (3) was known or should have been known to the employee. Defining such an employment separation as voluntary comports with Ashcraft and Watts — ie., that an employee must be presumed to intend the consequences of his or her voluntary acts.

L-P’s company handbook listed among its dischargeable offenses an “absence [of] more than three (3) consecutive days without notification to your foreman or plant manager.” Claimant was released to return to work on December 17,1990. The record indicates that claimant neither called in nor reported to work on December 17, 18 or 19, 1990.

Claimant contends that Dr. Turocy extended his return to work date beyond December 17 and then, apparently, forgot to tell his employer. However, there is absolutely no documentation from Dr. Turocy indicating that he extended the claimant’s release date, despite claimant’s four-year opportunity to obtain such documentation. To the contrary, the evidence establishes that the claimant was released to return to L-P on December 17, 1990. Claimant, however, did not return and instead waited until after the new year before making any contact with L-P.

Accordingly, the judgment of the court of appeals is reversed, and a writ is issued ordering the commission to vacate the May 8, 1992 order and to issue a new order consistent with this opinion.

Judgment reversed and writ allowed.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer and Cook, JJ., concur.

Wright, J., not participating.