Is Ohio Workers’ Comp Still a “No Fault System”?
Kegler Brown Labor + Employee Relations Newsletter March 1, 2007
The Ohio Supreme Court recently decided a case that may call into question whether the notion of "fault" impacts an employee's entitlement to workers' compensation benefits.
Sixteen year old David Gross began working for a Kentucky Fried Chicken franchisee in September 2003. He was given an Employee Handbook during orientation. One of the safety rules in the Handbook advised that employees "never boil water in a cooker to clean it." The Handbook deemed this a "critical" violation that could result in immediate termination. A warning label on a pressure cooker further reminded employees that they should "not close the lid with water or cleaning agents in the cook pot." Despite these warnings, Gross was confronted by his supervisor when, a short time later, he was observed putting water into the cooker to clean it.
On November 26, 2003, a co-worker saw Gross again putting water into the cooker. The co-worker immediately told him to stop and clean it the proper way. Moments later another co-worker warned Gross not to open the cooker's lid. Gross ignored both men and opened the lid, severely burning himself and two co-workers. His workers' compensation claim was allowed and he began collecting temporary total disability compensation (TTD) benefits. About three months later, the employer terminated Gross' employment after completing its investigation.
The employer then filed a motion with the Industrial Commission requesting termination of TTD. The Commission agreed with the employer, finding that Gross had "voluntarily abandoned his employment" when he was terminated for violating written work policies (pursuant to the Louisiana-Pacific case). Gross eventually appealed the matter to the Ohio Supreme Court.
The Court upheld the denial of TTD. It rejected Gross' arguments that he was actually discharged because he had been injured in the workplace. The Court further rejected his argument, pursuant to the Coolidge decision, that he could not be terminated since he was already receiving TTD. It also reversed the determination made by the Court of Appeals that "a claimant can abandon a former position or remove himself or herself from the work force only if he or she has the physical capacity for that employment at the time of the abandonment or removal." Here, Gross' disability and the misconduct that precipitated his termination occurred simultaneously. The date of disability onset preceded the date of termination only because the employer conducted an investigation first rather than firing him on the spot which, arguably, it could have done. The Supreme Court held denial of TTD is appropriate because Gross willfully ignored repeated warnings not to engage in the prohibited behavior.
It remains to be seen whether this decision will have broad implications and enable employers to avoid payment of some benefits when wrongdoing contributes to the injury. It is important to note several facts in that regard. First, the Gross decision did not deny the claimant all workers' compensation benefits – his medical bills were still covered under the claim. Also, the decision denied him TTD only until he returns to work and then has to go back off work because of a flare-up of the injury (pursuant to the McCoy v. Dedicated Transport case). Second, Industrial Commission hearing officers and the courts may act to limit the holding in the Gross case to its particular facts and refrain from finding voluntary abandonment unless the misconduct is deemed to be willful and in the face of repeated warnings about that misconduct. One hopes that the Court's rejection of Gross' invocation of the Coolidge decision signals a limitation of that case to its facts.
Finally, despite howls of protest from the claimants' bar and their attempts to mischaracterize the Gross case, we believe the Supreme Court has not improperly introduced "fault" into the workers' comp system. Rather, it has extended "voluntary abandonment" principles to the particular set of facts at issue in the case.