Supreme Court Reverses Itself and Holds Negligent Worker Entitled to Workers' Compensation Benefits
*By Steven P. Dlott

On Thursday, September 27, 2007, the Ohio Supreme Court reversed and reconsidered its earlier ruling that denied temporary total disability (TTD) benefits to an injured Columbus, Ohio fast food worker. Previously, in December 2006, the Court held that by knowingly violating a workplace safety rule – for which he had previously been warned could result in his immediate termination – the worker “voluntarily abandoned” his employment upon his firing and lost his eligibility to receive workers’ compensation benefits, including TTD. In its latest opinion, the Court affirmed the lower court’s award of TTD and held 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 TTD compensation.”

In State ex rel. Gross v. Industrial Commission, a 16-year-old high school student working at a KFC restaurant, and several of his co-workers, were severely burned when he opened the lid of a pressure cooker containing boiling water. Gross, the employee, filed a workers’ compensation claim, which was allowed, and began receiving TTD benefits. KFC investigated the accident, and three months later, fired Gross for failing to follow safety instructions and procedures regarding the proper use and operation of the pressure cooker. Those safety instructions and procedures consisted of a safety warning in the employee handbook advising employees to never boil water in the pressure cooker to clean it, and notice to the employee in that handbook that violation of any safety guideline causing an injury was a dischargeable offense. In addition to those safety measures, a warning label affixed to the top of the pressure cooker reminded employees not to close the lid with water or cleaning agents in the pot. KFC’s investigation further revealed that other employees had advised Gross that putting water in the pressure cooker could cause serious injuries. Gross nevertheless ignored those warnings and injured himself as a result. Following its investigation, KFC sought to terminate Gross’s TTD, arguing that Gross’s misconduct constituted a “voluntary abandonment” of employment.

Reversing its prior decision, the Court noted that Ohio’s workers’ compensation statute is based on a “no-fault” system of compensation and that “voluntary abandonment” has never been applied to preinjury conduct or conduct contemporaneous with the injury. The Court further reasoned that, “[i]t is the role of the legislature, not the judiciary, to carve out exceptions to a claimant’s eligibility for TTD compensation.” Thus, the court held that, “[a]lthough KFC appears justified in firing Gross for violating workplace rules, the termination letter established that his discharge was related to his industrial injury” and was, therefore, involuntary.

Employers should view this case as an opportunity to examine their own safety procedures in light of those KFC employed here. First, employers should review their employee manuals to ensure that potentially dangerous work procedures are clearly identified and prohibited. Violations of these prohibitions should constitute a dischargeable offense. Second, front line supervisors should enforce strict compliance with the safety rules. Had Gross, a repeated violator of KFC’s safety rules, been discharged prior to the events that lead to his injury, both the injury and KFC’s resulting liability might have been avoided. A thoroughly written employment manual is meaningless without vigilant enforcement of its contents.

*Steven P. Dlott heads the firm’s Workers’ Compensation Department and has extensive experience in defending employers in workers’ compensation matters. For information or assistance in any workers’ compensation-related matter, please contact Steve at (216) 696-4441 or spd@zrlaw.com.

This newsletter is not intended as a substitute for professional legal advice and its receipt does not constitute an attorney-client relationship. If you have any questions concerning any of these articles or any other employment law issues, please contact Stephen S. Zashin at (216) 696-4441.
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