January 9, 2007

Wilful Intent: The End of "no fault" in workers compensation?

David Gross, 16, had a job at Kentucky Fried Chicken. One of his responsibilities was cleaning a 690 Henny-Penny gas pressure cooker. His preferred approach to the task was to put water in the cooker, seal it and boil away the grease. This was against the manufacturer's recommendations (written right on the equipment) and against store policy. The boiling water, under pressure, put anyone near the equipment at risk. Gross was warned several times, the last time in writing. Nonetheless, he persisted in cleaning the cooker with water.

On November 26, 2003, he was injured when boiling water spewed from the cooker, causing third-degree burns around his hip and groin and second-degree burns on his arms and back. Two co-workers, who tried to stop him from opening the cooker, were also burned. Gross's application for workers comp benefits was denied by the Ohio Industrial Commission, based on his willful disregard of safety instructions.

The case went to the Ohio Supreme Court, which upheld the denial of benefits. The court wrote that Gross "willfully ignored repeated warnings not to engage in the proscribed conduct..." Gross "voluntarily abandoned his employment" by ignoring explicit written and verbal warnings not to clean the pressure cooker with water. More than 2 months after the 2003 incident, the operator of the KFC franchise fired Gross for violating those safety warnings.

"When I got the court's decision, I just thought to myself, 'This is a sad day for injured workers,'" said Gross's attorney, Gary Plunkett of Hochman & Plunkett Co. in Dayton, Ohio. (It certainly was a sad day for Mr. Plunkett.) Many people appear to agree with the dissenting opinion of Justice Evelyn Lundberg Stratton, who expressed concern that the ruling represented a slippery slope. "Should the employee's fault preclude his receiving temporary total disability? The answer to this question is no. Our workers' compensation laws do not permit the introduction of fault."

Attorney Plunkett envisions a situation in which a truck driver injured in an accident is denied benefits because he was driving nomially faster than the speed limit in violation of company rules.

Slope or Plateau?
The issue here is one of accountability. In determining that Gross's repeated ignoring of safety instructions was "willful intent," the court has not really changed the nature of workers comp. This is less slippery slope than unique plateau. The standard set in this case for transcending the traditional "no fault" of comp is very high indeed: repeated verbal warnings; written warnings on the equipment itself; a written warning to the employee; verbal alarms from co-workers just prior to the event. There is a significant difference between holding employees accountable for their actions and routinely denying them comp benefits when they are injured due to carelessness or simple human error.

The part of this case that puzzles me the most is why KFC allowed Gross to continue on the job after he first violated the safety rules for cleaning the cooker. They should have fired him well before the unfortunate event took place. I question KFC's wisdom in relying on the judgment of a 16 year old in this type of work situation. The adolescent brain can be very resistant to logic and set procedure. (Some 16 year olds can handle the details; some cannot.) This is surely a lesson that Gross will remember for a long time. Perhaps, now that he has been denied the "exclusive remedy" of comp, Gross can sue KFC for negligent management in allowing him to continue on the job. That would certainly be the American way.



You make a valid point though "tongue-in-cheek." Management was at fault. In some states and under certain interpertations of FLSA he may have been prohibited from operating a "Boiler" or a pressure vessel because of its inherent danger. He obviously was unable to learn the dangers involved and should have been fired for reckless, negligent, prohibited and dangerous behavior. Management was not doing the job they get paid for as the young man was not correctly doing his job. Everyone is at fault.

David Gross may have been an extremely slow learner, but, not as slow as his direct shift supervisor(s) or the franchisee's general manager. The fact that David was admonished, written up and verbally cautioned numerous times leading up to and including the actual event where he burned himself and two co-workers raises more red flags than Tiananmen Square. Where was the store manager while this situation was simmering up to it's boiling conclusion? The management should be held accountable for contributory negligence as they failed to provide a safe environment for their employees by continually turning a blind eye to an employee with a history of violations to safety protocols.

My first job was at a KFC when I was 15 years old. Although I was shown 'how' to clean the deep-fat fryer by a co-worker, that's not the same as being trained by the supervisor. Around the fourth or fifth time I had to clean the unit, I took a short cut I witnessed someone else do resulting in second-degree burns to my forearms. The manager didn't seem to have a clue what was going on and now, with thirty plus years hindsight - it was clear the manager was actually a poster boy for the Peter Principle.
If anything, this episode points out that management is wholly responsible for the behavior of its employees - especially when one repeatedly demonstrates wilful violations of safety procedures resulting in gross errors.

I'm not from Ohio, but after looking at the Ohio case itself, it appears that the decision was related to only entitlement to TTD.

It does not seem to be the denial of the entire claim, just what benefits derive from it. The court decision states, "At issue is the effect of Gross’s firing on his eligibility for temporary total disability compensation."
It would appear that the empoloyer remains responsible for compensation in the form of medical treatment costs, and possibly permanent disability. It's not quite as far down the slippery slope when viewed in that context.


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This page contains a single entry by Jon Coppelman published on January 9, 2007 11:38 AM.

News Roundup: Cavalcade of Risk, safety, traffic losses, fraud, and more was the previous entry in this blog.

News Roundup: Health Wonk Review, unions sue OSHA, medical tourism, NY work violence law, and more is the next entry in this blog.

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