Injured Workers Dealt a Blow by the Ohio Supreme Court

Saturday, January 13, 2007 | 1

By Carol Cogitating

Ohio Bureau of Workers' Compensation (BWC) has a little pamphlet on its website that tells us that if we are injured on the job, we have a right to workers' compensation benefits. Ohio workers' compensation is an insurance policy that allows workers to receive prompt medical and wage benefits for work-related injuries and at the same time protect employers from financial ruin by preventing the injured employee from suing the employer. Implicit in the system is that no fault may be assessed to either the injured employee or to his or her employer.

However, if an employee is terminated from employment then later claims a job related injury is keeping him from finding other employment, an employer may raise what is known as "job abandonment", and worker's comp will not pay for lost wages. This defense is to protect employers from spurious claims from an employee that was terminated for cause and then later claims a work injury. Until this week, the firing of an injured employee for not following work rules that contributed to the employee's injuries was not grounds for denying wages to the injured employee.

In a seminal holding by the Ohio Supreme Court, and in a classic example for first-year law students that "bad facts make bad law", the court turned classic workers' comp law on its head.

The case involved David M. Gross, an injured 16 year old who worked at a KFC in Dayton. The Ohio Supreme Court ruled that Gross voluntarily abandoned his job when he ignored repeated warnings not to boil water in the restaurant's Henny Penny gas pressure cooker to clean it. Therefore, although employed at the time of his injury, his "voluntary abandonment" of his job by not following workplace rules meant that he no longer had a job when he was injured.

The 16 year old was working at the Dayton-area KFC on Nov. 26, 2003, when boiling water spewed from a pressure cooker and caused third-degree burns around his hip and groin and second-degree burns on his arms, torso and back. Two co-workers were also burned. The company investigated the claim after the injury and found that Gross had ignored warnings in the employee handbook and on the cooker as well as repeated warnings by two co-workers and a supervisor. The company fired him in February 2004 and his wage benefits were canceled.

The Supreme Court, in a 5-2 decision, upheld the termination of wage benefits. The Court considered Gross' argument that he was entitled to temporary disability benefits because the workers' compensation system, as the Ohio Supreme Court has previously held, was designed "to remove negligence and fault -- by either employee or employer -- from the workplace injury equation."

He further argued that his firing stems from a negligent act on his part and that by allowing that act to bar temporary total disability compensation, the court would reinsert negligence into the equation.

The high court majority wrote that although Gross' argument is "thought-provoking," it nevertheless inexplicably concluded that "Gross willfully ignored repeated warnings not to engage in the proscribed conduct, yet still wishes to ascribe his behavior to simple negligence or inadvertence." The court thereafter refused to address this argument finding that to do so would "validate [his] categorization" of negligence.

In the dissent, Justice Evelyn Lundberg Stratton questioned the majority's decision to ascribe Gross' conduct as justification for refusing to pay temporary total disability benefits, judiciously expressing that "our workers' compensation laws do not permit the introduction of fault."

Stratton points to previous Ohio Supreme Court case law that holds that if an employee's departure from the workplace is "causally related to his injury" it is not voluntary and should not preclude the employee's eligibility for wage compensation. Justice Stratton argued that although KFC may have been justified in firing Gross for his misconduct, Gross still should receive temporary total disability benefits.

On the concept of the voluntary abandonment defense, Stratton points out that under previous case law, "an employer may argue that a claimant has voluntarily abandoned his former position of employment only if the worker was medically capable of doing the job at the time the abandonment occurred&but if the claimant leaves the job because he can no longer perform his duties as a result of an industrial injury, the separation is involuntary."

Noting that "Gross was a teenager at the time of the accident and, most likely, he was immature and naive," Stratton wrote, "he suffered serious injuries as a consequence of his actions." The "purpose behind workers' compensation is to protect those who suffer work-related injuries regardless of their own negligence or fault."

With this ruling, the Ohio Supreme Court has upset the balance between injured workers and their employers. Moreover, ascribing fault to a 16 year old who cannot legally drive without parental approval, vote, drink alcohol, or join the military is unconscionable and removes any responsibility from the employer who knew young Mr. Gross had a problem following direction yet, rather then fire him before his injury, put him back on fryer-cleaning duties. Legislative action is needed now to correct this injustice to all Ohio workers that has been committed by this overly business-friendly Supreme Court that has ignored years of legal precedence to reach this result.

This column first appeared as a community blog on the Web site, http://www.progressohio.org/

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