Voluntary abandonment is a legal issue raised by employers or the Bureau of Workers’ Compensation (BWC) against a claim for workers’ compensation benefits. It arises in cases involving temporary total disability (TTD) and permanent total disability (PTD.)
Until recently, voluntary abandonment was a defense established in case law–not statute. However, that changed in June, 2021 when Governor DeWine signed a statute recognizing voluntary abandonment as a defense. This action works heavily in an employer’s favor and can adversely impact your workers’ compensation claim.
When can the voluntary abandonment defense apply?
Voluntary abandonment applies when workers leave their jobs for a reason other than their injury. Case law recognized these decisions as forfeiting a right to workers’ compensation benefits:
- Termination for cause, e.g., violating work policy
- Abandoning the workforce
Unfortunately, seemingly reasonable decisions by workers fall under this defense. For example, imagine an injured worker was offered a different shift that better met her light-duty requirements. She however, refused the shift because of a childcare issue. While her refusal was in good faith, it was unrelated to the workplace injury and thus her benefits were denied. The court ruled the worker’s refusal amounted to voluntary abandonment.
How does voluntary abandonment affect my workers’ compensation claim?
The statute does not change the adversarial nature of workers’ compensation claims. Employers and the BWC will continue being creative when they wish to deny your benefits. The only real difference now, is they will cite the statute rather than case law to justify the denial.
There are slight differences in whether you pursue TTD or PTD. In TTD cases, you must re-enter the workforce to remain eligible for compensation. You must also show your allowed condition renders you disabled while working. In PTD cases, any finding of intent to abandon precludes benefits.
You can also lose benefits if you do not return to work after a long recovery. Even if you need surgery and therapy before working, you must show that you intended to return to work once you recovered. Otherwise, benefits will cover your medical bills but not your paid time off.
What should I do if my employer raises this as a defense?
Voluntary abandonment raises the stakes on your workers’ compensation claim. This defense is not going anywhere, and you will likely face contentious proceedings to secure your benefits.
If you believe your employer or the BWC will raise a voluntary abandonment defense, reach out to Dworken & Bernstein workers’ compensation attorneys for help. Our attorneys offer extensive experience dealing with the voluntary abandonment defense.
Call Dworken & Bernstein today for help with your workers’ compensation claims.