Posted by Jonathan Adler:
No Workers' Comp in Ohio for Violator of Safety Rules:
http://volokh.com/archives/archive_2006_12_24-2006_12_30.shtml#1167441478
The Ohio Supreme Court issued a particularly interesting, and
potentially significant, workers� compensation decision yesterday in
[1]State ex rel. Gross v. Industrial Commission of Ohio. By a vote of
5-2, the Court upheld the decision of the Industrial Commission of
Ohio (ICO) to deny workers� compensation benefits to an injured worker
because he voluntarily terminated his employment. Specifically, the
ICO concluded that because the worker�s injury resulted from actions
in direct contravention of written company policy and repeated
warnings, the worker was not eligible for benefits when the company
fired him.
The employee, David Gross, worked for Food, Folks and Fun, the
operator of a local KFC franchise. Among the written safety guidelines
in the employee handbook was a warning never to clean a pressure
cooker by boiling water in it. The employee handbook further declared
that violations of safety policies were �critical violations� that
could result in immediate termination of employment. There was also a
written warning on the pressure cooker itself, and Gross had been
repeatedly told not to boil water in the pressure cooker.
In November 2003, Gross nonetheless sought to clean the pressure
cooker by boiling water in it. A co-worker warned Gross not to open
the lid, because the water was under pressure. Gross did so anyway
injuring himself and two other workers.
Gross and the others suffered severe burns. Initially he received
workers� compensation benefits. In February 2004, however, the company
informed Gross that after investigating the accident, it concluded
that Gross caused his own injury by violating company safety policies,
despite repeated warnings from co-workers. The company informed him in
writing that it �cannot and will not tolerate employees who pose a
danger to themselves and others based upon their refusal or failure to
follow instructions and recognized safety procedures,� and fired him.
At this point, the company requested that ICO terminate Gross�s
workers� compensation benefits, which the ICO did.
The Ohio Supreme Court�s majority concurred with the ICO that gross
had effectively abandoned his employment when he repeatedly violated
the company�s safety policies, and was therefore not eligible for
benefits; Gross �was fired because he directly and deliberately
disobeyed repeated written and verbal instructions not to boil water
in the pressurized deep fryer and injuries followed.� This was so even
though he had received them for a few months.
In this case, Gross�s disability and the misconduct that
precipitated a finding of voluntary abandonment occurred
simultaneously, not sequentially. The date of disability onset
preceded the date of termination only because F.F.F. conducted an
investigation first rather than firing him on the spot, which,
given the gravity of the misconduct, may not have been unwarranted.
Justice Lundberg Stratton, joined by Justice Pfeiffer, dissented,
writing that she was
concerned that the majority is tacitly injecting fault into a
no-fault system of compensation and reintroducing contributory
negligence as a basis for defeating the right to recover
compensation. Our workers� compensation laws are intended to
compensate a worker who suffers an industrial injury without a
determination of fault or wrongdoing. Yet KFC assessed fault for
the accident and acted according to its conclusion. This is
contrary to worker�s compensation principles, and we should not
condone such actions.
If we conclude that this was a voluntary departure that precludes
payment of [benefits], I believe that this will place us on a
slippery slope toward assessing fault in industrial accidents. The
employer will examine the employee�s conduct following an
industrial accident and use any infraction discovered to terminate
the employee. When this occurs, where do we draw the line? What
about the employee who fails to properly shut down a machine, tries
to stop it manually, and, as a result, causes a machine malfunction
that results in injury? The employer may decide to terminate the
employee for improperly operating the machine in violation of a
work rule. Should the employee�s fault preclude his receiving
[workers� compensation] benefits? The answer to this question is
no. Our workers� compensation laws do not permit the introduction
of fault � regardless of whether the employee�s act that caused
injury was intentional or negligent. Therefore, if the employee is
terminated and the termination was related to the employee�s
conduct that resulted in injury, I believe it should be deemed an
involuntary termination.
The local Cleveland coverage is [2]here. Howard Bashman rounds up
additional news coverage [3]here.
References
1. http://www.sconet.state.oh.us/rod/newpdf/0/2006/2006-Ohio-6500.pdf
2.
http://www.cleveland.com/news/plaindealer/index.ssf?/base/news/1167298946204960.xml&coll=2
3. http://howappealing.law.com/122906.html#020759
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