BE & K. CONST. v. Abbott

• Decision Date: 01 October 2002
• Docket Number: No. 97,039.,97,039.
• Citation: 2002 OK 75,59 P.3d 38
• Parties: B.E. & K. CONSTRUCTION and St. Paul Fire & Marine, Petitioners, v. Dennis ABBOTT and the Workers' Compensation Court, Respondents.
• Court: Oklahoma Supreme Court

59 P.3d 38

2002 OK 75

B.E. & K. CONSTRUCTION and St. Paul Fire & Marine, Petitioners, v. Dennis ABBOTT and the Workers' Compensation Court, Respondents.

No. 97,039.

Supreme Court of Oklahoma.

October 1, 2002.

John B. Vera, Oklahoma City, OK, for Petitioner.

Brandon Burton, Oklahoma City, OK, for Respondent.

KAUGER, J:

¶ 1 A single, first-impression, question of law¹ is presented:² whether an employee, volunteering for inclusion in an employer-planned reduction in force, is entitled to post-termination temporary total disability benefits³ for an on-the-job injury. Under the facts presented, we determine that benefits are payable.

UNDISPUTED FACTS

¶ 2 On March 21, 2001, the petitioner, Dennis Abbott (Abbott/employee), while working for the respondent, B.E. & K. Construction (construction company/employer), was injured on the job. When the accident occurred, the employee was approximately thirty feet above ground on an extension ladder. A thirty-pound bearing cap fell, striking Abbott in the head and knocking him to the ground. The employee lost consciousness, cut his brow and suffered injuries to his neck and back.

¶ 3 Abbott resumed his job the day after the injury on light-duty restrictions. He continued to work from March 22nd to April 26th. By that time, the construction project was beginning to phase out and Abbott learned that reductions in force were imminent. Because the work he had been assigned was interrupted and he had nothing to do, Abbot asked his supervisor to be included in the employer-planned reduction in force. His request was granted and Abbott was terminated on April 26th. When the employee returned to his doctor on May 3rd, the physician advised Abbott that he should not be doing even light duty jobs and took him completely off work.⁴

¶ 4 A hearing on the employee's claim for temporary total disability⁵ was held on July 5, 2001. Although Abbott's supervisor testified that it was the employee's decision to leave the job, he also stated that being included in the reduction in force was not tantamount to an employee quitting.⁶

¶ 5 The trial judge, Honorable Susan Witt Conyers, ordered Abbott's temporary total disability terminated effective April 26, 2001. The three judge panel modified the order, directing that temporary benefits be paid from April 26th through August 7, 2001 — the date the employee was released from treatment by his physician. Finding that the employee left his job without coercion from his employer, the Court of Civil Appeals reversed the panel's order and remanded for an alteration in the beginning date for benefits. We granted certiorari on July 2, 2002.

¶ 6 EVEN THOUGH AN INJURED EMPLOYEE VOLUNTEERS FOR INCLUSION IN AN EMPLOYER PLANNED REDUCTION IN FORCE, IF THE EMPLOYER MAKES THE FINAL DETERMINATION TO DISCHARGE THE EMPLOYEE, WORKERS' COMPENSATION BENEFITS ARE PAYABLE.

¶ 7 Although Abbott asked to be included in the employer's reduction in force, he argues that temporary total disability is payable. He asserts that, ultimately, the employer controlled the decision to conduct a layoff and to include him in the reduction in force. The employer concedes that had it either fired or laid off the injured employee, Abbott would be entitled to temporary total disability benefits.⁷ Nevertheless, it contends that the employee would not have been terminated if he had not volunteered for the program. Essentially, the employer insists that Abbott controlled his own destiny — he would not have been terminated absent his request. Therefore, volunteering for the reduction in force constituted a refusal to accept an offered light-duty assignment and was tantamount to a resignation. We disagree.

¶ 8 The employer finds support in three non-precedential opinions released for publication by the Court of Civil Appeals:⁸ Tubbs v. Oklahoma Tax Comm'n, 2001 OK CIV APP 97, 28 P.3d 624; Akers v. Seaboard Farms, 1998 OK CIV APP 169, 972 P.2d 885; and Hinton v. Labor Source, 1998 OK CIV APP 2, 953 P.2d 358.⁹ All three cases are factually distinguishable.

¶ 9 Tubbs provides that an employee, released for light duty, is entitled to temporary total disability benefits if the employer offers no light-duty assignment. The precise issue presented in Tubbs is the effect that an employee's resignation will have on the right to receive benefits. The Court of Civil Appeals determined that employer's are not required to offer light-duty work to former employees not incapacitated and that the employee's resignation severed the employment relationship and the responsibility to pay benefits. Unlike the employee in Tubbs, Abbott did not resign his position nor did he refuse a light-duty assignment.

¶ 10 The employee in Akers was discharged for cause — failing a drug test. Essentially, the Court of Civil Appeals determined that the employee's own actions were an effective refusal to continue accepting the light-duty work provided by the employer. Although Abbott offered to be included in his employer's reduction in force, he did not leave his employment because of a violation of job related policies. Further, until ordered by his physician to discontinue work, he would have continued his light-duty assignments.¹⁰

¶ 11 Hinton involved a single issue: whether an employer must offer light-duty work to an employee to avoid the payment of temporary total disability benefits.¹¹ The Court of Civil Appeals held that the burden rested on the employer to show that it had offered light-duty work to defend against the payment of benefits. Under Hinton, absent an offer of light duty, the employer is responsible for paying temporary total disability. Here, there is no question that light duty was offered. Unlike Hinton, this cause turns on whether the employer may avoid payment of temporary benefits after having chosen to include Abbott in its reduction-in-force program.

¶ 12 Several views exist in extant jurisprudence on the issue of the payment of workers' compensation benefits to employees who subsequently leave their jobs. Some courts find that where an employee's separation from employment is voluntary, workers' compensation benefits are not payable.¹² Others recognize that even a voluntary separation from employment will not preclude the award of benefits.¹³ Another acknowledges that employer's may not avoid their responsibilities under workers' compensation laws by allowing employees to voluntarily retire without advising them of their rights to compensation benefits.¹⁴ Benefits have been denied where the employee resigned rather than face the possibility of disciplinary action,¹⁵ to avoid unfriendly environmental factors,¹⁶ or to accept a higher paying job which the employee subsequently was unable to perform.¹⁷

¶ 13 Authority is split over whether an employee volunteering to be included in an employer-planned reduction in force, as Abbott did here, should be considered as having effectively resigned from employment. The majority of these cases provide that although an employee may opt for inclusion in an employer-mandated layoff, the layoff itself is still instituted at the employer's prerogative. The fact that the employees may decide among themselves who will bear the burden of termination does not make the employee's departure voluntary.¹⁸ These courts reason that when the first and last steps of the termination process are taken by the employer, i.e. planning the reduction and then selecting certain employees for inclusion, even one who has agreed to participate in the process has not voluntarily terminated employment.¹⁹

¶ 14 The majority recognizes that the ultimate choice and responsibility for unemployment lies only with the employer's decision to reduce available jobs.²⁰ It is immaterial which of several employees are terminated or that an employee may participate in the selection process²¹ or whether, absent an offer of inclusion in the lay off, the employee's position would have been at risk.²² Employers are not compelled to accept an employee's offer²³ and their benefits are the same — a reduction in the work force.²⁴ The employees have no voice in promulgating the lay-off policy and exercise only limited options.²⁵

¶ 15 We consider the analysis proffered by the majority of jurisdictions addressing whether an employee's offer to be included in an employer-announced lay off should be considered a voluntary termination persuasive and logical. The majority's conclusions are based in the realities of the workplace — an employee electing to volunteer for an employer-planned reduction in force does not exercise the ultimate power or final decision as to which employees will be targeted for termination. It is the employer who decides to eliminate a job and to lay off a given individual, based on the employer's needs. It is irrelevant that the employee may have made the employer's determination easier by first volunteering to be laid off.

¶ 16 We hold that where, as here, an injured employee volunteers for an employer-instigated reduction in force, and the employer makes the ultimate decision to terminate, rights to workers' compensation benefits are not affected. In reaching this result, we align ourselves with the majority of jurisdictions addressing the nature of an employee's actions when deciding to volunteer for an employer-instigated reduction in force.

¶ 17 Were we not convinced by the majority position, we would still be compelled to hold in favor of the employee. Unquestionably, as the employer recognizes,²⁶ had the construction company fired or laid off Abbott — without his volunteering for inclusion in the reduction in force, he would be entitled to temporary total disability benefits.²⁷ Absent very limited circumstances, none of which apply here, the Workers' Compensation Act, 85 O.S.2001 § 11,²⁸ mandates that employers subject to the act "shall pay"²⁹ compensation to an employee for an accidental on-the-job injury. The statute does not provide that the requirement to...