*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.
