October 2, 2007

Bobbing for Drumsticks? Ohio Supremes Reverse Themselves

Back in January we blogged an unusual case from Ohio. David Gross was a 16 year old working at a Kentucky Fried Chicken. Despite safety training and warnings to the contrary, he insisted on cleaning the fryer his own way, filling it with water boiled under pressure. When he opened the fryer, he burned himself and two co-workers who came over to help. Because he wilfully disregarded safety directions, his claim for temporary total disability was denied. When the Ohio Supreme Court reviewed the case, they upheld the denial, equating Gross's wilful disregard with job abandonment.

After giving themselves the summer to think it over, the court has reversed itself and found in Gross's favor. Lawyers pointed out at the time of the initial ruling that the court seemed to be taking the "no fault" out of comp: by holding Gross accountable for his actions, they appeared to open the door to routine denials, based upon failure to follow safety instructions.

The court writes:"Although KFC appears justified in firing Gross for violating workplace rules, the termination letter established that his discharge was related to his industrial injury. Therefore, upon reconsideration, we hold that Gross's termination was involuntary."

I found the logic in the original decision a little hard to follow. The justices claimed that wilful disregard of safety instructions was the equivalent of "voluntary resignation." But he was still working - that's hardly a resignation. And while his own negligence was the sole cause of the injury, he was injured at work. Workers comp is no fault. Gross was at fault, but it doesn't matter. The injury is compensable, pure and simple. KFC should have fired Gross before he got hurt!

Bobbing for Drumsticks?
Two justices dissented from the revised opinion, including a long-winded justice named O'Connor. Follow her convoluted reasoning trying to uphold the original opinion, if you wish. Lest you think judicial discourse is always dry and musty, I quote at length from the concurring opinion of Justice Pfiefer, who slams the dissenting O'Connor with literate panache:

The chicken Littles in dissent predict a workplace apocalypse, where employees bob for drumsticks in hot oil, ultimately resulting in an increase in the price of a bucket of "extra crispy." Back in the real world, nothing has changed, due to this court's wise rethinking of its prevous decision in this case. Gross was injured on the job. That he should receive workers compensation benefits for his injury is completely consistent with the philosophical underpinnings of the workers compensation system. The lead dissent is full of citations and fury signifying nothing - of the many cases cited in the dissent, not one comes anywhere close to even tangentially involving a worker being fired and denied workers compensation benefits for a violation of workplace rules that caused his own injury.
The lead dissent invites a system in which workers who make poor decisions (removing a guard, working on a roof without scaffolding, overriding a control on a punch press) can end up being denied benefits. That dissent's Dickensian dreamworld - where presumably the Union workhouse, the Treadmill, and the Poor Law remain in full vigour - does not exist. We enjoy instead a constitutionally established system that renders fault irrelevant in compensating employees for their workplace injuries.

Nothing personal, Justice O'connor! Can I buy you a cup of coffee?



Hurt on the job is still hurt on the job...all the more reason to make sure your people are trained and retrained on safe behaviors. While some would like to shift all the responsibility onto the employee for lack of adherence to policy or training - work comp should remain no-fault and instead employers should continue to look for ways to integrate enhanced training, motivation and supervision into the daily routine. It is not a perfect world and until then employers must remain vigilant to the changing needs of their workforce. The court should be commended for their astute realization about the consequences of their earlier decision.

Although KFC appears justified in firing Gross for violating workplace rules, the termination letter established that his discharge was related to his industrial injury.

Wow - paying for the claim may be the least of this employer's problems. I'm not familiar with the specific Ohio statutes, but in most states, retaliatory firing is a very big no-no when it comes to workers comp. Written in the termination notice as it is (yikes), that's sure what it sounds like. I would love to hear some Ohio attys. weigh in on this.

Suppose KFC were a Drug Free Workplace and 16 yo David was under the influence of marijuana at the time of his injury. In a zero-tolerance workplace, would he be ineligible for WC and UIB due solely to his violation of the DFW/Zero Tolerance policy - if not the willful violation of every safety rule, regulation and policy? Or would he get a pass because - he's a minor?

Unquestionably compensable. Termination for violating a safety rule and causing injury to other co-meployees absolutely OK to me personally.
Termination for filing a WC claim - illegal and I don't think any employee should be fired for that action.
Termination and WC are separate issues otherwise. Claimant should be paid benefits as in the WC act but remain terminated in this case.

In response to Tom's question, if he had been under the influence at the time, it probably would not have been compensable, but not because of the zero tolerance policy, but because merely because of the fact that he had been under the influence (but this, of course, depends on the state's specific laws). In Oregon, for example, drug and alcohol abuse is usually an exception to "no fault," and being under the influence at the time of the injury is enough justification for the insurer to deny the claim.


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This page contains a single entry by Jon Coppelman published on October 2, 2007 2:52 PM.

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