State ex rel. Cobb v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Cobb v. Indus. Comm., 88 Ohio St.3d 54, 2000-Ohio-273.]

THE STATE EX REL. COBB, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO,
APPELLEE.
[Cite as State ex rel. Cobb v. Indus. Comm. (2000), 88 Ohio St.3d 54.]
Workers' compensation -- Application for further temporary total disability
compensation denied by Industrial Commission -- Claimant's illegal drug
use in violation of employer's written company policy constitutes a
voluntary termination of employment rendering claimant ineligible to
receive temporary total disability compensation -- Court of appeals'
judgment denying writ of mandamus affirmed.
(No. 98-1897 -- Submitted January 26, 2000 -- Decided February 23, 2000.)
APPEAL from the Court of Appeals for Franklin County, No. 97APD08-995.

Appellant-claimant Walter L. Cobb, Jr.'s workers' compensation claim was
allowed as a result of an injury he sustained while in the course of and arising from
his employment with Organic Waste Technologies ("OWT"). Shortly after the
injury, claimant began receiving temporary total disability compensation ("TTD").

In 1996, claimant took a company physical and tested positive for illegal
drug use. The written company drug policy in effect at that time read:

"Drug Free Work Place

"The Company is committed to maintaining a drug free work place. Drug
and alcohol substance abuse poses a serious threat to the safety and welfare of all
employees of OWT, not just the user, and to the efficiency and productivity of
which all our jobs depend. The purpose of this policy is to ensure a safe work
environment, as well as to ensure compliance with federal[,] state, and local laws.
"Definitions

"Drug--any drug or drug substance:

"the use, possession, manufacture or sale of which is illegal * * *.

" * * *

"Under the Influence of Drugs--having consumed any drug or drug
substance as evidence[d] by * * * or the presence of any drug residue in a bodily
fluid.

" * * *

"It is a strict violation of Company policy and procedure for any employee
to:

"Report to work or attempt to work under the influence of alcohol, drugs or
drug substances.

" * * *

2

"Use, possess, trade, manufacture, attempt to sell, or sell or purchase drugs
or drug substances on Company premises or job sites * * *.

"Engage in any illegal on or off-the-job drug or alcohol-related activities
which adversely affect job performance or which adversely affect the Company's
reputation.

"VIOLATION OF ANY OF THE ABOVE RULES MAY RESULT IN
DISCIPLINE, WHICH MAY INCLUDE DISCHARGE."

On September 27, 1996, claimant was fired for violating OWT's drug
policy. Claimant's later attempt at reinstating TTD was denied by appellee
Industrial Commission of Ohio:

"The case of [State ex rel.] Rockwell Internatl. v. Indus. Comm. (1988), 40
Ohio St.3d 44 [531 N.E.2d 678], establishes that an employee's voluntary
departure from employment precludes temporary total disability compensation. In
[State ex rel.] Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401
[650 N.E.2d 469], the Supreme Court held that a termination of an employee is
deemed to be voluntary if it [was] generated by an employee'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.'

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"At hearing, the employer filed a copy of its policy entitled `Drug Free
Work Place.' The relevant portions are set forth as follows:

" * * *

"The claimant's awareness of the employer's drug policy is confirmed by his
statement that he believed that he could be suspended if he tested positive for
illegal drugs. It was his impression that thirty days after his suspension, he would
be given another drug test, the outcome of which would determine his ultimate
employment status. Although neither the employer's current nor preceding policy
statements refer to a re-testing after thirty days, it is clear from the claimant's own
admission that he was aware that his use of drugs could lead to termination. In this
respect, the three prongs of the test set forth in the Louisiana-Pacific Corp. case
were fulfilled.

"Based upon the foregoing, it is found that the claimant's action of testing
positive for drugs was a violation of a written company policy, and that his
employment was terminated as a result of such testing, and that he was aware of
the ramifications of his actions. It, therefore, is found that the claimant's actions
constitute a voluntary termination of his employment, thereby rendering him
ineligible to receive temporary total compensation as of 9-27-96, the date of his
termination."

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Claimant filed a complaint in mandamus in the Court of Appeals for
Franklin County, alleging that the commission abused its discretion in denying him
further TTD. The court of appeals disagreed and denied the writ.

This cause is now before this court upon an appeal as of right.
__________________

Law Office of Thomas Tootle and Thomas Tootle, for appellant.

Betty D. Montgomery, Attorney General, and William J. McDonald,
Assistant Attorney General, for appellee.
__________________

Per Curiam. Voluntary abandonment of the former position of employment
can preclude temporary total disability compensation. State ex rel. Rockwell
Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678. "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." State ex rel. Watts v. Schottenstein Stores Corp. (1993),
68 Ohio St.3d 118, 121, 623 N.E.2d 1202, 1204.

We elaborated on Watts in State ex rel. Louisiana-Pacific Corp. v. Indus.
Comm. (1995), 72 Ohio St.3d 401, 403, 650 N.E.2d 469, 471-472, where we
characterized as "voluntary" a firing "generated by the claimant's violation of a

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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."

In this case, OWT's drug-use policy clearly defined the prohibited conduct.
It also identified violation of that conduct as a potentially dischargeable offense of
which claimant was admittedly aware. Claimant attempts to distinguish his
situation from that in Louisiana-Pacific by asserting that here termination was
optional rather than mandatory. This is a distinction without consequence.
Claimant's inability to predict with certainty which sanction would be imposed is
immaterial so long as he knew that termination was an option. Equally important,
the employer's choice of sanctions does not eliminate the element of voluntariness
that claimant exercised when he chose to use illegal drugs.

Claimant last argues that to uphold the commission is to encourage
employers to fire employees as a means of avoiding the employers' compensation
obligations. Louisiana-Pacific, however, responds to this concern by setting forth
criteria that guard against firings without cause for the purpose of evading
compensation responsibilities. Claimant's firing in this case was not without cause
and could have been avoided by a decision to refrain from drug use.

The judgment of the court of appeals is affirmed.
Judgment affirmed.

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