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No Workers' Comp in Ohio for Violator of Safety Rules:

The Ohio Supreme Court issued a particularly interesting, and potentially significant, workers' compensation decision yesterday in 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 here. Howard Bashman rounds up additional news coverage here.

Anderson (mail) (www):
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.

Uh, *yeah*. Wow. That certainly was the impression I'd been laboring (heh) under.
12.29.2006 8:32pm
Dave Hardy (mail) (www):
Must say, it sounds like a stretch to me to say that guy who violates rules (no matter how firm they are and how knowingly he acted) somehow implicitly quits the job or goes on the proverbial "lark."

It's not like the comp system is generous to begin with. The worker loses any right to sue the employer, and in turn receives pretty modest benefits (if a scheduled injury, so many months of pay, or a fraction of it, for a lost arm or leg, etc.) and then has nothing.
12.29.2006 8:46pm
JosephSlater (mail):
I agree with the dissent. I could see a point at which benefits should be denied when a worker *intentionally* harms himself, just as there's a point at which employers are no longer shielded from tort liability when the employer intentionally harms the employee. But in workers' comp, the standard for employers "intentionally" harming employees is pretty hard to meet, and a similar standard should apply here, IMHO.

Generally, as long as a worker is at least in some sense trying to further the employer's interest, it's generally considered within the scope of employment (for workers' comp, respondeat superior, etc.), even if it's against some rule (example: pizza driver speeds while delivering pizza, even if there's a rule against that). Bear in mind that workers are often tacitly encouraged to break, bend, or ignore safety rules in the name of "getting the job done."
12.29.2006 9:30pm
Anderson (mail) (www):
The kind of decision that makes you want to look up the campaign contributions to the majority justices ... can you hear the corks popping at the U.S. Chamber of Commerce?
12.29.2006 9:50pm
Bruce Hayden (mail) (www):
I agree somewhat with the previous posters - I think he should have probably had medical benefits. But I also think that his firing should be allowed for this. It was a gross breach of company policy, he had been repeatedly warned, and it caused injury to him and others.

The place where I fault the court is in making the firing essentially retroactive. Yes, it was a firing offense. But that doesn't mean that it should be retroactive. Indeed, the company had repeatedly warned him about this, and had not fired him for it. The potential slippery slope is that this might give a green light to companies not firing employees who pose a danger to themselves and other employees, on the grounds that they can do it after the fact, if the empolyee does cause injury to himself or others.
12.29.2006 10:37pm
Steve:
But I also think that his firing should be allowed for this.

No question about that. But I mean, surely they COULD have fired him, right? If for whatever reason they couldn't have, then I'd have quite a bit of sympathy for the employer, forced to tolerate a known violator of safety rules and then to pay his worker's comp.

But given that they didn't choose to fire him, it seems absurd to treat his violations as an "abandonment" of employment. That's like saying, if they found he had been violating the safety rules for some time, they could have withheld his wages for that entire period. There's lots of rules in the employee manual that sometimes get followed and sometimes don't; the remedy is to fire a violator or suck it up.
12.29.2006 11:13pm
Jiffy:

The kind of decision that makes you want to look up the campaign contributions to the majority justices


See this
12.29.2006 11:21pm
Kristian (mail):
Let's say one of the other worker's who was hurt was instead killed. Wouldn't he have been guilty of criminal negligent homicide by willfully violating safety rules? Thankfully, the other person was "only" burned, and so we are discussing whether the insurance policy all employers must contibute to is responsible for gross negligence...amazing...

Now, if the co-worker had been denied workman's comp, I'd be concerned... And I'm surprised the coworkers have not sued KFC for employing such a dangerous person...
12.30.2006 12:03am
Lev:
I don't see how this:


Bear in mind that workers are often tacitly encouraged to break, bend, or ignore safety rules in the name of "getting the job done."


Can be reconciled in any way with this:


{¶32} ...Gross willfully ignored repeated warnings not to engage in the proscribed conduct, yet still wishes to ascribe his behavior to simple negligence or
inadvertence. ....


And this:


The potential slippery slope is that this might give a green light to companies not firing employees who pose a danger to themselves and other employees, on the grounds that they can do it after the fact, if the empolyee does cause injury to himself or others.


yeah, if they want to have their posteriors handed to them in a lawsuit by the injured others.
12.30.2006 12:08am
Ted Frank (www):
But given that they didn't choose to fire him, it seems absurd to treat his violations as an "abandonment" of employment.

That's hardly a fair characterization: KFC investigated the incident, and fired him after they determined he was at fault. You're proposing a rule that requires the employer to fire someone before the investigation takes place.

I see a lot of misunderstanding in the comments. Gross still got workers' comp for two months. He just didn't get additional "temporary total disability" comp paid for by KFC: he was only entitled to that if he could show that he couldn't return to work because of his injuries, when in fact, he couldn't return to work because he was fired for cause. If Gross had been unable to return to work at all, he still gets disability.

That said, the dissent has the better of it. This is a no-fault rule, and it's better in the long run to have a bright-line rule that occasionally results in injustices like Gross receiving two months of additional payments than to have a fuzzy rule that adds substantially to the transactions costs of administering the system.
12.30.2006 12:21am
JosephSlater (mail):
Kristian:

Compare workplace accident cases where the gross negligence of *employers* led to serious injury or death of their employees. The typical result is that civil tort suits by workers or their survivors are precluded by workers' comp. Criminal charges against employers are very rare (and successful prosecutions even rarer).

You may find it "amazing" that workers' comp covers injuries caused by gross negligence, but that's the rule in the overwhelming majority of jurisdictions, whether the gross negligence was that of the employee, the employer, or a co-worker. Usually, only intentional acts are excluded from workers' comp pre-emption of tort suits.

The reason for that is, as other posters and the dissent in this case noted, the slippery slope. Workers' comp is designed to provide a basic tradeoff: we don't get into who did what to whom and who was negligent by what degree, and injured workers get a significantly lower recovery than they would in tort.

Again, I think the court should have used the standard for intentional injuries: if it was "substantially certain" that the employee's act would have caused harm, then no workers comp for those harms; but if it's only gross negligence, it should still be covered.

And sure, a company can and should be able to fire someone for violating work important work rules and endangering themselves or other workers. But that's a different issue.
12.30.2006 12:23am
JosephSlater (mail):
Lev writes: I don't see how this:
Bear in mind that workers are often tacitly encouraged to break, bend, or ignore safety rules in the name of "getting the job done."

Can be reconciled in any way with this:

{¶32} ...Gross willfully ignored repeated warnings not to engage in the proscribed conduct, yet still wishes to ascribe his behavior to simple negligence or
inadvertence. ....


The point is that the court has created a legal rule that will be applied to other cases. The rule that disobeying a rule or warning means you've abandoned your job for workers' comp cases has exactly the slippery slope problem the dissent described. So it's very relevant to point out that companies have safety rules which, depending on the company, rule, and circumstances, are somewhere on the scale from completely ignoring to giving some lip service, to taking seriously unless there's a crunch, to taking seriously pretty much all the time.

For example, getting into whether the pizza company really told the pizza driver not to speed when delivering the pizza gets us back into the comparative fault system that workers' comp was designed to avoid. Or maybe not even that, because again, I don't see any movement from the Ohio Supreme Court, say, in holding that gross negligence of the *employer* would permit employees to sue the employer in tort.
12.30.2006 12:33am
Lev:
That's all very nice I am sure, but there is no evidence whatsoever of any sort that there was any lip service, ignored, taken seriously unless there is a crunch etc. etc. etc.

Instead:


{¶32} ...Gross willfully ignored repeated warnings not to engage in the proscribed conduct, ..


One might think that if there had been lip service etc., Gross would have brought up.

Similarly, one might think that judges are bright enough to recognize, in the context of Workers Comp, the difference between lip service and


{¶32} ...Gross willfully ignored repeated warnings not to engage in the proscribed conduct, ..


On that one, maybe you are right - judges might not be bright enough, they always swallow what lawyers feed them.


if it was "substantially certain" that the employee's act would have caused harm,


Hmmm...not that it makes any difference, but weren't the warnings explicit to avoid exactly the type of injury to Gross and to his coworkers that took place here?
12.30.2006 12:49am
karrde (mail) (www):
The question is, does this create a rule which allows the employer to fire any employee after such a problem, or only to fire an employee after an internal investigation finds fault with the employee for not following well-posted safety rules?

Another way to phrase this--will other courts restrict their use of this ruling to cases where an employee has knowingly violated clearly-promulgated safety rules, or will it be broadened to cover any termination of employment after any workplace accident?
12.30.2006 12:50am
JosephSlater (mail):
Lev:

You're ignoring the point the dissent raises, the slippery slope problem. Once a case has decided that "violating safety rules" = "abandoning employment," what do you do with the pizza driver who speeds after being told not to? Workers violate safety rules all the time. So, unless this case is strictly limited to its facts, the questions will be: to be considered "abandoment of employment," how many warnings must the employee get? How serious was the rule (did the employer really enforce it, what harms could it cause)? And etc.

Of course, judges make fact-based decisions about degrees of fault all the time in *tort* cases, but the whole point of workers' comp is that it's a no-fault system. So it not that I think judges are dumb, it's that the entire rationale for workers' comp says they shouldn't be deciding this stuff at all, for reasons of efficiency.
12.30.2006 1:11am
JosephSlater (mail):
Lev:

P.S. No, "substantially certain" and "risking this type of harm" are not the same thing. If I look down to adjust my IPod settings while speeding down a dark, slippery road and skid and hit a pedestrian that I didn't see until too late, I'm negligent, but I didn't commit an intentional act for the purposes of tort/workers' comp law.
12.30.2006 1:17am
Lev:

You're ignoring the point the dissent raises, the slippery slope problem.


Nope. It only arises if judges are too stupid to avoid it. Maybe they are too stupid and always swallow what lawyers feed them.


whole point of workers' comp is that it's a no-fault system


Without exception? I don't think so. The purpose of the system is to cause employers to pay benefits, and employees to get benefits, quickly, when workers are injured on the job, and without requiring workers to go to court to prove employer negligence in the face of contributory/comparative negligence defenses. It is a system of tradeoffs. But... unless I am mistaken, employers are not protected by workers comp from suit for all employee on the job injuries, nor are all employees injured on the job entitled to WC for their injuries. Which is to say, only within its limits it is no fault - and there are limits.

-------------------------


P.S. No, "substantially certain" and "risking this type of harm" are not the same thing. If I look down to adjust my IPod settings while speeding down a dark, slippery road and skid and hit a pedestrian that I didn't see until too late, I'm negligent, but I didn't commit an intentional act for the purposes of tort/workers' comp law.


PS. So you agree with me, after all, that "substantially certain" and what Gross did are not the same thing.
12.30.2006 2:04am
Nathan_M (mail):
The purpose of the system is to cause employers to pay benefits, and employees to get benefits, quickly, when workers are injured on the job [...] It is a system of tradeoffs. But... unless I am mistaken, employers are not protected by workers comp from suit for all employee on the job injuries, nor are all employees injured on the job entitled to WC for their injuries.

I think you might be mistaken, or at least underestimate the protection workers' compensation gives to employers. The purpose isn't just to get benefits to employees quickly, it's also to limit the amount employers must pay.

The specific rules of the Worker's Comp system differ from state to state, but in general, employers are protected from suits for all or almost all workplace injuries. I don't think there's any doubt that if Mr. Gross's injuries had been caused by an equivalent degree of negligence on the part of his employer Mr. Gross would only be entitled to worker's comp payments, and not the substantial higher damages he would receive from a lawsuit.
12.30.2006 2:49am
Beerslurpy (mail) (www):
This seems like putting the load on the employee twice. At least under an ordinary fault based system the employee can recover a fat settlement if he isnt at fault. Here he gets a reduced amount under workman's comp unless he was at fault, in which case he gets nothing.

I thought the purpose of worker's comp was to gain a lot of efficiency by restricting the question to one of injury. It's sort of like tort-lite- injured workers are made whole again and employers dont have to spend tons of effort investigating every injury and then fighting in court to avoid a multimillion dollar jury award when the worker isnt to blame.
12.30.2006 3:01am
Hans Gruber (www):
While the decision isn't necessarily bad policy-wise, it's terrible law. He fired himself for not obeying their rules? That's just stupid. Maybe the worker compensation should be structured so that willful negligence is excluded, but the dissent is correct, the court is injecting fault into a no-fault sytem. Thanks for sharing though, it's a very interesting decision.
12.30.2006 6:26am
PersonFromPorlock:
Worker's Comp aside, this raises the interesting question of when 'autofiring' takes place; if a logger cuts down a tree in the forest against instructions and no one notices, is he still fired? If a judge commits a violation of ethics that would get him removed if known, but nobody knows, are all his subsequent decisions invalid because he is no longer a judge?
12.30.2006 7:19am
Eli Rabett (www):
Working in a situation where Darwin rules and everyone is at everyone elses mercy I am only conflicted about this because the US needs a functioning health care system to handle medical needs. A lot of the cost of workers comp and the suits that the other injured employees can bring goes away with universal health care.

Having gotten that far, if this guy is not covered by the workers comp system because of his autofiring, can he now sue? (said nothing about winning). How does this effect cases where supervisors turn a blind eye or encourage safety violations. Are they autofired? If not does this clown have a case?
12.30.2006 9:41am
WJ (mail):
There was an interesting case in Florida where a worker brought a gun on company property in clear violation of company rules. He was in the company parking lot where unfortunately for him he accidently shot himself in the leg while handling the gun. He first claimed that he was the victim of a drive-by shooting, but later admitted the truth and sought worker's compensation. The appellate court upheld the denial of his claim. Their reasoning was that doing an activity in clear violation of company rules is such a deviation from employment that a person can no longer be considered to be within the course and scopte of their employment.
12.30.2006 9:58am
Anderson (mail) (www):
N.b. that the company had a great opportunity not to pay w/c benefits: after he broke the rules once or twice, they could have *fired* him.

Keeping someone on despite his repeated unsafe behavior, secure in the knowledge that the Ohio courts will hold that he self-terminated his employment when he screws up something, is a very, very, very bad idea, &it's encouraged by the court's holding.
12.30.2006 10:38am
John T. (mail):
A lot of the cost of workers comp and the suits that the other injured employees can bring goes away with universal health care.

Well, the cost is shifted around, really. If the company and the individuals don't pay any of the health care costs, then that creates even more incentives for the company to encourage people to break the rules-- knowing that if they're injured then the country as a whole pays for it, not the company. They'll also be more likely to have more lax rules, again knowing that they won't pick up the tab. (Employees will also know that their injuries will almost always be paid for, but that's true in a no-fault system as advocated by the dissent and many commentators.) So I'd say that, rather than eliminating the cost, the cost to society would actually increase by removing safeguards that prevent the company from abusing the rules.

The only way to remove that issue is either long and arduous investigations into fault and/or proper workplace rules (as opposed by many of the commentors), or a system where companies pay extra into universal health care for each person injured at their workplace-- which brings us back to exactly the original situation.
12.30.2006 10:40am
JosephSlater (mail):
Lev:

You continue to avoid the point I'm making about the slippery slope issue and why that's especially troubling with workers' comp, since it only works if there are simple, bright line rules to avoid litigation. Again, what would be your answer to the pizza driver hypo I gave you?

Of course workers' comp doesn't cover EVERY injury that takes place at work. If I stop grading my employment law exams, start juggling knives, and hurt myself that way, I've abandoned employment and workers' comp doesn't cover that. If I stick a fork in what I know to be a live electrical outlet because I want to see how it feels, I've intentionally injured myself and workers comp doesn't cover that either.

But again, if I'm a pizza delivery guy, and the employer has told me several times not to speed, and I speed anyway and hurt myself, that traditionally (and rightly) HAS been covered by workers' comp, because I'm attempting to do serve the employer, albeit negligently. Cases consistently hold that even breaking employer rules doesn't take the employee out of "scope of employment," assuming the employee is in some way trying to do his/her job.

IF the court had found that would Gross did risked injury to a substantial certainty, then it would have been intentional and not covered and that would be fine. But your point was simply that he risked the type of injury that happened to him, which should not be enough for workers comp coverage because that doesn't make the harm "intentional."

And IF the court had held that what he was doing was entirely unrelated to his job (like me juggling knives), that would abandoning employment and that would have been fine too.

But saying that ignoring employer rules = abandoning employment opens up a huge can of worms.
12.30.2006 10:51am
John T. (mail):
Keeping someone on despite his repeated unsafe behavior, secure in the knowledge that the Ohio courts will hold that he self-terminated his employment when he screws up something, is a very, very, very bad idea.

Being forced to fire someone for their first infraction is hardly a very good idea either, though.

I think that another likely effect would be a reluctance to hire people in the first place. Give that person down on their luck and without education a chance to prove themselves on the job? No way; if they disobey rules they'll cost you so much in workman's comp that it's not worth the risk. And of course it'll hurt people with bad records (employment or criminal or anything) the worst, or people who are unlike the hiring manager in some way (racial, ethnic, cultural) and thus can't be trusted as much.

Of course, that may be a cost that in aggregate people are willing to pay in exchange for avoiding fault determination.

Or maybe not even that, because again, I don't see any movement from the Ohio Supreme Court, say, in holding that gross negligence of the *employer* would permit employees to sue the employer in tort.

The situations are not completely parallel, though, which makes it tricky (not necessarily enough to overturn your point, though). First off, the company buys workers' comp insurance through a private insurer. If the company's rules encourage too many injuries, then the company's premiums will rise astronomically. Though yes, most (all?) states do have assigned-risk insurers of last resort for companies with high risk-- though the premiums are higher.

Secondly, information is assymetrical. It is much easier for workers to determine whether the rules at a job (including a prospective job) are reasonable (through governmental statistics, newspaper articles, insurance premiums, and word of mouth) than it is for a company to determine if an individual employee (especially one about to be hired) is going to obey the rules and behave in a safe manner. (Various comments can be inserted about the relative ability of demanding risk premiums or of firing employees, particularly as union contracts affect them.)

Thirdly, I think that employees ultimately have more control over whether they violate the workplace rules. This ruling may make employers more likely push people to violate rules, but it makes employees more likely to refuse to violate the rules. In any case, if the employer would be willing to push people to violate rules, why not simply change the rules instead, if we're going to be in a no fault situation, as the other commenters advocate? It seems to me that as long as the employer can change the rules freely, then that's equivalent to pushing people to ignore them. Thus, the proper restraint is making the rules a "bright line" and encouraging workers to know their rights and safety and not go past them. I share admiration for bright line rules, but it seems to me that the bright line of "always pay, no fault" eliminates the bright line of "these are the safety rules."
12.30.2006 11:05am
Bpbatista (mail):
I would say this merely levels the playing field. Under Ohio law, an employer can be held liable in tort -- outside of and in addition to the workers comp system -- if it knew that an injury to an employee was "substantially certain" and require the employee to perform the task or work in the those conditions. Any Ohio litigator knows that any serious injury is virtually certain to result in an "employer intentional tort" lawsuit in addition to a comp claim. Now the same basic principle applies to employees -- they are not covered by the workers comp system if they engage in behavior that they know is substantially certain to cause them harm and if their employer specifically tells them not to engage in such behavior. Sauce for the goose, sauce for the gander.
12.30.2006 11:13am
John T. (mail):
Again, what would be your answer to the pizza driver hypo I gave you?

One view: In general, the employer doesn't know if the pizza driver speeds or not. The driver is performing out of sight of the employer. Therefore, a rule that deprives the pizza driver of compensation if he speeds will cause the pizza driver to speed less often, thus preventing injury. It does shift around the incentives and give the owner more incentive to have the driver speed, but since the balance of information is on the driver's side, the rule of not violating the safety rules prevents more injury.

Counterpoint: The injuries prevented may not be worth the additional investigation costs involved to see if a rule was broken since, again, the employer finds it difficult to tell if a rule was broken. The employer will be much more likely to investigate if it can possibly save the costs of compensation.

Rebuttal: Limiting it to cases of gross negligence may be enough. The hypotheticals presented so far don't cover cases where, e.g., the driver has been warned not to speed many times and has in general sped only slightly (say, 5 mph over the limit), but then suddenly speeds tremendously fast (say, 40 mph over the limit). How is one to differentiate from a pattern of small infractions that will be resolved by warnings and time on the job, and a pattern of small infractions that indicate a willingness to ignore warnings and do a major infraction? Forcing an employer to fire a driver for barely speeding over the limit a couple of times could be highly unfair to many employees.
12.30.2006 11:18am
jvarisco (www):
"But again, if I'm a pizza delivery guy, and the employer has told me several times not to speed, and I speed anyway and hurt myself, that traditionally (and rightly) HAS been covered by workers' comp, because I'm attempting to do serve the employer, albeit negligently"

I'm not sure this example works. Not only is speeding against company policy here, it's also illegal. If a pizza delivery guy decided to have a couple beers on the job and then crashed, would he get workers' comp? What if he ran a red light? I'd hope not, and I don't see much of a legal difference between the two.
12.30.2006 11:23am
whit:
speeding may be "illegal", but it's a CIVIL INFRACTION, not a crime. the term "illegal" may cover both infractions and crimes, but there is clearly a difference between DUI (a crime) and mere speeding.

the couple of beers and crashed would (probably) be DUI. so, i don't think we should be making analogies between crimes and infractions, without noting the distinction
12.30.2006 11:49am
Daedalus (mail):
Can the decision also be called..."taking responsibility for your actions"......In other words, if you screw up, you pay the fiddler, instead of the people paying you for your stupidity!!!
12.30.2006 11:53am
jvarisco (www):
whit) What about the red light then? Or something like reckless driving, which is a crime? My point was that it's not all right to break the rules even when the intention is to help your employer. In fact, we can presume that such rule-breaking never helps the employer - if it did, they would not have banned the behavior in the first place.
12.30.2006 11:59am
Bob s (mail):

"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".

This seems to be the key information here. I'm no legal expert but wouldn't this make Gross' behavior a deliberate act and therefore "abandonment" of his employment?
12.30.2006 12:03pm
WJ (mail):
Worker's compensation law does not deny benefits for deliberate acts. It denies benefits where an employee intentionally injures himself. Opening the lid, speeding or running a red light are all deliberate acts. Unless the employee was intending to injure himself in these acts he would receive worker's compensation under the case law in most jurisdictions.
12.30.2006 12:30pm
JosephSlater (mail):
BPBatista:

I agree that the workers' comp rules should exclude intentional acts by both employers and employees. As I said before, if the court in this case had held that the employee's act was substantially certain to cause harm and was therefore excluded, that would be fine with me. But "intentionally violating work rules" is not the same thing as "substantially certain to cause harm."

John T.:

Thanks for responding to my hypo. All I can say is that traditionally, for the purposes both of workers comp and respondeat superior liability for the employer, employees are considered to be acting "in the scope of employment" if they are trying to further their employer's interests, even if they are breaking some of the employer's rules.

Of course you're free to disagree with the traditional rule, but we should note this case is potentially a big departure from it. Rationales for the tradional rule include: (i) we know employers often at least tacitly encourage employees to break rules to "get the job done" (and in the case of workers' comp, litigation determining levels of comparative fault defeats the no-fault purpose); (ii) we know that employees will act negligently in trying to do the employer's business, so this is a cost the employer imposes on society; (iii) the employer is the most efficient risk-spreader. Or in other words, the pizza driver is only speeding because he's trying to deliver pizzas for the employer, it's not unjust that the employer should bear the cost of that.

Jvarsico:

Yes, if the pizza delivery guy ran a red light, it's covered under workers' comp (and if he hits somebody else, the employer is liable in respondeat superior). The test isn't whether it's a crime, the test (traditionally) is whether the employee is trying to serve the employer's interests. See above rationales.

The law isn't saying this behavior is "all right." The employee could be fired. The injured third party could sue the employee as well as the pizza place employer. The employee could be subject to criminal penalties, given the right facts.

Of course, at some point, an employee really does abandon his employment. If my pizza delivery guy got to his delivery address and took out a gun and killed the family there, he's not in the scope of employment. The question is, was the act an attempt to further the employer's interest? Speeding and running red lights, yes; murder, no.

Bob S.:

Deliberate acts do not necessarily take people out of the scope of employment. It depends what they are deliberately doing. Again, if they are doing something deliberately, but it's in order to further their employer's interest, and it's not substantially certain to cause injury (so as to make it intentional), then it's traditionally considered to be within the scope of employment. So, again, me deliberately sticking a fork in a socket at work to see how electricity feels is not covered, and me deliberately choosing to juggle knives instead of grading exams isn't covered. But my pizza delivery guy deliberately speeding is.
12.30.2006 12:44pm
whit:
running a red light (in and of itself) is also a civil infraction.

reckless is a crime

but you didn't mention reckless, you mentioned speeding.

speeding in and of itself is rarely (alone) enough for the crime of reckless

my point stands. there is a distinction between a dui and speeding

fwiw, as a cop, this could not be more clear.

if i get arrested for DUI, there will be an IIU investigation and discipline. guaranteed.

if i get a complaint for speeding, at worse, i will most likely get a reprimand

crimes and infractions are different

that was my point
12.30.2006 12:45pm
Peter Wimsey:
I'm with the dissent as well - this seems like a substantial and unwarranted departure from the "no-fault" principles of worker's comp laws. And the slippery slope seems pretty near to me - what if the worker doesn't wear his safety goggles or hardhat? What if he doesn't comply with some safety rule contained in 50 pages of other safety rules?
12.30.2006 12:46pm
JosephSlater (mail):
Whit:

In general, there certainly can be different consequences for people based on whether what they did was (i) a violation of an employer's rule, but not a law; (ii) a violation of a civil law; or (iii) a violation of a criminal law. There can also be different consquences, in many aspects of criminal and civil law, depending on whether the behavior was reckless/grossly negligent or merely negligent.

But traditionally, you don't look at those things for the purpose of workers comp law. A small handful of states exclude grossly negligent behavior (by employers or employees) from workers comp, but the vast majority say: intentional not covered, gross negligence, negligence, etc. covered, if it was in the scope of employment.

And in determining whether the act was in the scope of employment, it doesn't matter whether the employee's act violated a civil or criminal law. The "scope of employment test" is, oversimplifying a bit, basically whether the employee is in some sense trying to further the interests of the employer.
12.30.2006 12:56pm
Proud to be a liberal :
I find it very interesting that it seems that the majority of commentators on a conservative weblog side with the dissenters in this case. I wonder whether there is an opportunity for reconsideration in light of the concerns raised by many here.

I would also note that one purpose of workers' compensation laws is to enable employers to stay in business. In many jobs (usually not those of law professors and lawyers), employees commonly risk injuries. Thus, if employers could be sued in tort for gross negligence, then surely a significant number would ultimately be bankrupted by torts claims. Thus, employees who would otherwise have very valuable torts claims are limited to the nominal payments by the workers' compensation insurance. But at least they get something, at least if their employers have paid workers' compensation insurance.
12.30.2006 1:23pm
JosephSlater (mail):
Proud to be a liberal raises explicitly the point I was trying to hint at earlier. Employers benefit from a workers' comp scheme that still covers accidents caused by rule violations. What if the *employer* was violating some safety rule and because of that violation, an employee was seriously injured. The employer is going to want to argue that the employee's claim should still be covered by the limited benefits of workers' comp, not the much more generous damages available in tort.
12.30.2006 1:32pm
Jeremy T:
As someone who is very much a formalist in terms of contract law, I think this case was wrongly decided, but a similar one could certainly turn out this way.

Suppose the contract of employment had a term that a worker who violated a workplace rule was automatically terminated. If the employer stuck to the rule and actually did treat such workers as automatically terminated, then the rule of this case could sensibly apply to that hypothetical situation.

I suspect this decision will motivate a lot of employee manual rewrites in Ohio as labor lawyers try to use it to insulate companies from comp claims.
12.30.2006 2:03pm
WJ (mail):
Jeremy T:

An employment manual is not a contract and employers definitely do not want a manual interpreted as an employment contract. Employers do not terminate for every rules violation. There would be too much turnover and the cost to bring in and train new workers too expensive. Employers do not want to be stuck in a situation where there manuals are interpreted strictly and where they have no flexibility.
12.30.2006 2:50pm
NickM (mail) (www):
I too think the dissent had the better of the argument, but considering the facts as stated in the post,

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.

I would have agreed with a majority opinion that this act was so substantially certain to cause injury as to be in law an intentional act.
Boiling water under pressure will spew on anyone nearby if you suddenly release the pressure by removing a lid. Most of us learned this before we were 9. Boiling water causes injuries when it hits skin. Most of us learned this at about the same time, if not earlier.
Gross was specifically warned, so he cannot reasonably be thought unaware that he was opening a pressure cooker of boiling water.

People speed all the time without adverse incident. This would be comparable to a pizza delivery driver deciding to drive with his eyes closed.

Nick
12.30.2006 3:32pm
JosephSlater (mail):
NickM:

I agree with your analysis and would have no problems with a majority decision as you described.
12.30.2006 3:37pm
whit:
joseph, what you say is true and nothing new.

my point, which seems to be missed is that whether or not one parses it as a quantitative (severity) or qualitative (criminal vs. civil infraction) distinction, the fact that both speeding and DUI are "illegal" oversimplifies.

murder is illegal too. but if you murdered somebody who was in your way, so you could deliver a pizza faster, i don't think that would be a reasonable analogy to speeding to get your pizza delivered faster, even though both served the same WORK RELATED purpose.
12.30.2006 7:30pm
JosephSlater (mail):
Whit:

What I said indeed was nothing new in terms of explaining what the law is. It appeared, however, that a couple of people in this thread weren't exactly clear on that.

Again, the test is whether the employee is trying to serve the master's (employer's) purpose. Murder is an extreme example -- courts would probably and properly balk at that in most instances.

But even that is not so simple. There are respondeat superior tort cases in which very brutal assaults by employees on customers have been held to be "arising out of employment" if they were "triggered off" by trying to serve the employer's purpose. For example, one case found a brutal assault on a customer by a guy trying to collect a bill for his employer to be within the scope of employment.
12.30.2006 7:44pm
Cornellian (mail):
What should count is whether he was an employee at the time of the accident, and he clearly was. Employees lose their right to bring a lawsuit against their employer for injuries incurred on the job in return for benefits on a no-fault basis. Now the employee isn't getting no-fault benefits anymore and he still can't sue his employer. Should employer immunity be kept or lost on a case by case basis depending on the employer's fault in a particular accident? That would defeat the whole point of the workers' compensation system.

This seems like a bad decision to me. I'm not saying that they shouldn't have been able to fire him, or that his actions should have no impact at all on his benefits, but the decision simply doesn't seem willing to accept that workers' comp is a no-fault system.
12.30.2006 7:55pm
Melvin (mail):
It seems to me that the OH Supreme Court got workers' compensation law completely wrong. I mean, the entire purpose behind workers' comp was to remedy work-related injuries, regardless of fault, and the employees would give up their ability to bring a tort (b/c workers' comp preempts torts), and the employers would give up their defenses.

Anyway, I smell an overruling in the near future.
12.30.2006 8:23pm
Hans Bader (mail):
The dissent is right on the law, although the majority's perspective is better public policy as applied to cases like this.
12.30.2006 8:52pm
Cornellian (mail):
Can the decision also be called..."taking responsibility for your actions"......In other words, if you screw up, you pay the fiddler, instead of the people paying you for your stupidity!!!

Also known as the tort system that would exist in the absence of workers' comp, in which employees would also be free to sue their employers where employer negligence contributed to an accident. Not many employers want to go back to that system. If the employer cannot lose its tort immunity by screwing up, then employee should not lose his no-fault benefits for screwing up.
12.30.2006 9:54pm
markm (mail):
Here's a real case from another state: A factory mechanic doing maintenance on a machine, did not lock out power according to safety rules. The machine activated unexpectedly and mangled his arm; he eventually regained partial use of it, but not enough to return to work as a mechanic. He's now working as a prison guard, and working in a new house built with workman's compensation money.

He claims the employer winked at safety violations and in fact set timetables such that working by the rules was impossible. It could be true. I do know of other employers that did the same, until OSHA inspectors or their insurance company caught them.

It would be a real mess to try to judge such a case by fault-dependent rules. It's better to keep workman's comp a no-fault system. (Short of actions by employee or employer reaching the "substantially certain" rule. It's poor policy to allow an employee to get paid time off by deliberately injuring himself, or an employer to knowingly get employees injured with the assurance that compensation will be limited.)

Maybe Gross should lose workman's comp because his actions were substantially certain to cause injury. But that isn't the court's reasoning, and unless Ohio law is quite a lot different, their reasoning seems very wrong to me.

The playing with a gun in the parking lot case is easy to distinguish. That had no relation to the person's employment, aside from it happening to be on the employer's property. Gross was attempting to do his job, even though he was doing it wrong.
12.30.2006 10:10pm
Lev:
JosephSlater


You continue to avoid the point I'm making about the slippery slope issue and why that's especially troubling with workers' comp, since it only works if there are simple, bright line rules to avoid litigation. Again, what would be your answer to the pizza driver hypo I gave you?


I am looking at the Gross case, and you are ignoring what happened there and wandering off into hypoland.

Gross was specifically and categorically warned, several times, including in the employee manual, including a specific warning on the equipment itself, not to do what he did, and not to do it for the specific reason that the near certain end result would be what it was - injury to himself and others.

What, exactly, in the pizza driver case is similar to that? Does speeding end up, with near certainty, to injury?

]Of course workers' comp doesn't cover EVERY injury that takes place at work. If I stop grading my employment law exams, start juggling knives, and hurt myself that way, I've abandoned employment and workers' comp doesn't cover that. If I stick a fork in what I know to be a live electrical outlet because I want to see how it feels, I've intentionally injured myself and workers comp doesn't cover that either.

Right, and the same applies to what Gross did.


But again, if I'm a pizza delivery guy, and the employer has told me several times not to speed, and I speed anyway and hurt myself, that traditionally (and rightly) HAS been covered by workers' comp, because I'm attempting to do serve the employer, albeit negligently. Cases consistently hold that even breaking employer rules doesn't take the employee out of "scope of employment," assuming the employee is in some way trying to do his/her job.


Sure. But this was quite a bit beyond negligently trying to serve the employer. The employer specifically and emphatically told Gross in no uncertain terms not to do what Gross did, because of the danger of injury.


IF the court had found that would Gross did risked injury to a substantial certainty, then it would have been intentional and not covered and that would be fine.


Maybe we read different decisions. That was the conclusion of the decision I read.


But your point was simply that he risked the type of injury that happened to him, which should not be enough for workers comp coverage because that doesn't make the harm "intentional."


Perhaps you should have paid attention to my point instead of what you want my point to be.

How many time must I include this in a post to you before it registers:


{¶32} ...Gross willfully ignored repeated warnings not to engage in the proscribed conduct,



But saying that ignoring employer rules = abandoning employment opens up a huge can of worms.


You are the one raising that strawman.
12.30.2006 11:54pm
JosephSlater (mail):
Lev:

We seem to be talking past each other, and your increasing rudeness isn't helping. Here's my last shot.

I read the case, and from the captions to the text, it relies on the doctrine of "abandonment of employment," not the doctrine of "intentional injury," which is what you are now suggesting the case held.

"Abandoning employment" is not the same thing as "intentional injury." And "intentionally ignoring employer rules and warnings" is not the same thing as "intentional injury."

As I and others have already said, if Gross's act would lead to a substantial certainty of harm, then it should have been decided as an intentional harm case. But it was decided as an "abandoment of employment" case. Thus it's fair to read it as a "violating rules" = abandoning employment case." That's not a "strawman."

Your response is to keep repeating "but Gross *willfuly* violated the rules." But again, "intentionally violating the rules" does not = "intentional harm." And again, if there was a substantial certainty of harm, it should have been decided on that basis, not as an "abandoment of employment" case.

But it wasn't, so it's therefore not "hypoland" to consider what impact this ruling could have on similar but not identical set of facts. To the extent the Gross case held that violating rules (even intentionally) was equivalent to abandoning employment, the pizza driver hypo is somewhere on that slippery slope.

So instead of you re-typing the ""willfully ignoring repeated warnings" language, you should consider what future cases will be like. How many warnings will an employer have to give before an employee's violation of a rule will be considered "abandonment of employment"? What type of policies must an employer have in place? What if an employer proscribes speeding and repeatedly warns drivers not to do it?

If this decision is only used as precedent in cases where an employee's act was substantially certain to cause harm, that would be great. But if that's what the court meant, it should have said "intentional injury," not "abandoment of employment."
12.31.2006 1:49am
whit:
the thing about the speeding example is it is also something you can slip into, so to speak, without making a deliberate and clear decision to break policy.

how many of us drive on autopilot etc. (im pleading the 5th here) and look down and see we are exceeding the speed limit without KNOWINGLY doing so?

this is an entirely different type of action, even if you have been warned about speeding vs. the cleaning the fryolator (or whatever it was ) with water etc. when that is a very specific act that you make a very conscious and deliberate decision to do, even after repeated warnings, written policy, etc.

again, i am not opining on the case itself - just the minutiae (sp?). actually, i initially agreed with the case on pure kneejerk personal responsibility emotion, but upon reading the commentary here, in an area of law i am admittedly ignorant as hell on, the case that the decision was wrong (on a legal basis) seems stronger, even if POLICYWISE, it would seem to make sense. judges shouldn't rule based on superior outcome, they should rule based on the law.
12.31.2006 11:14am
Eli Rabett (www):
Investigations of accidents and changes to the procedures/rules that result are the KEY parts of safety programs. Lessons learned are the formative part of safety regulations in any context especially work. It is no argument to say that it will be expensive, unless you think OSHA is a small town in Wisconsin. Moreover, just having rules is insufficient, you must have training and maintain records that you have trained everyone subject to the environmental, safety and health rules. If I were this guys lawyer, I would look to see if there are any training records. Just posting the rule is not enough. Just telling the guy to knock it off is not enough. You need to talk with the ESH guys
12.31.2006 12:13pm
glangston (mail):
I think the more enlightened approach would be to suspend the employee for some time (a day or two or a week) for violating rules. The more dangerous or egregious the violation would determine this. This in turn would be part of the sequence for firing. Imagine this employee as part of a live fire drill in the military and I don't think you can have a purely no-fault attitude towards either the employer or the employee.
12.31.2006 12:23pm
ReaderY:
It might perhaps be good policy to have a fault-based system where violation of company rules results in denial of benefits. But it is not the policy the legislature enacted. And in a Rupublican Form of Government the place to decide whether it is good policy is the legislature, not the courts.

This result seems to be simple judicial activism.
12.31.2006 12:52pm
ReaderY:
''The point is that the court has created a legal rule that will be applied to other cases.''

The proper business of statutory interpretation is to interpret legal rules created by others, not to make them up oneself.
12.31.2006 12:57pm
Been There:
So if Gross somehow terminated himself (without knowing it) by violating company rules, and is therefore outside the comp system, does that mean he's also now eligible to sue in tort (which would have been precluded as long as he was an employee)?
12.31.2006 1:32pm
JosephSlater (mail):
ReaderY:

You quote me and respond thusly:

''The point is that the court has created a legal rule that will be applied to other cases.''

The proper business of statutory interpretation is to interpret legal rules created by others, not to make them up oneself.


Yes, I agree. I've been arguing through this thread that the dissent has the better argument. I agree with your previous post that the court should have given more weight to the legislative decision that workers' comp is basically a no-fault system.

My line about future cases was in response to Lev claiming I was in "hypoland" because I was speculating about how other courts might use the Gross decision, to underscore why I thought the decision is bad. Let me make it explicit that I think those sorts of extensions of Gross would be bad/wrong.

In short, I think we agree.
12.31.2006 2:20pm
Jeremy T:

Anyway, I smell an overruling in the near future.


By who? This was the Ohio Supreme Court. Maybe the Ohio legislature will supersede this by statute, but I doubt there will be any overruling. This certainly isn't something that a federal court would or even could touch.
12.31.2006 3:14pm
Jeremy T:

Jeremy T:

An employment manual is not a contract and employers definitely do not want a manual interpreted as an employment contract. Employers do not terminate for every rules violation. There would be too much turnover and the cost to bring in and train new workers too expensive. Employers do not want to be stuck in a situation where there manuals are interpreted strictly and where they have no flexibility.


Since when is an employment manual automatically not a contract? Some employment manuals are contracts, others are not. It depends on the state and the manual itself. Compare Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354 (Ky. 2005) (holding that an employment manual was a contract) with U.S. ex rel. Harris v. EPS, Inc., 2006 WL 1348173 (D.Vt. 2006) (holding that an employment manual was not a contract). Even some terms in an employment manual can be construed as contractual terms while others are not. E.g. Conner v. City of Forest Acres, 611 S.E.2d 905 (S.C. 2005) ("In the exception to the at-will employment doctrine, an employee handbook containing mandatory statements regarding disciplinary and grievance policies may be enforced against an employer as contractual obligations in a wrongful discharge action, despite the presence of a disclaimer in the handbook which asserts it is not intended to create a contract of employment.").

So despite your claims to the contrary, a company could probably take advantage of this Ohio Supreme Court decision by making some changes to its manuals. Your broad suggestion that employers don't want terms in employment manuals to be contractual is wrong too in that it is overbroad. Employers do often want arbitration clauses enforced. E.g. Harris, supra.

So don't make such broad statements about employment manuals or labor law in general. They just aren't accurate.
12.31.2006 3:28pm
Lev:
JosephSlater


We seem to be talking past each other, and your increasing rudeness isn't helping.



Indeed we do, and I chose not to comment on yours.


I read the case, and from the captions to the text, it relies on the doctrine of "abandonment of employment," not the doctrine of "intentional injury," which is what you are now suggesting the case held.



It does rely on the "doctrine" of "abandonment of employment". That I am "now suggesting" otherwise is your own straw man.

I read the case, and from the text, the court determined that when


{¶32} ...Gross willfully ignored repeated warnings not to engage in the proscribed conduct,


which was a specific, identified, dangerous, violation of a specific and identified safety rule, leading to almost certain injury, and the type of injury that in fact occurred...by that action he abandoned his employment and became, constructively if not actually, a member of the general public interloping into the business.


As I and others have already said, if Gross's act would lead to a substantial certainty of harm, then it should have been decided as an intentional harm case. But it was decided as an "abandoment of employment" case. Thus it's fair to read it as a "violating rules" = abandoning employment case." That's not a "strawman."



Perhap it's not a strawman that you are claiming, incorrectly, is my argument, but it seems to me that if it isn't it is your misunderstanding of the rationale. See above.


Your response is to keep repeating "but Gross *willfuly* violated the rules." But again, "intentionally violating the rules" does not = "intentional harm." And again, if there was a substantial certainty of harm, it should have been decided on that basis, not as an "abandoment of employment" case.


Already discussed in this post. See above.


But it wasn't, so it's therefore not "hypoland" to consider what impact this ruling could have on similar but not identical set of facts. To the extent the Gross case held that violating rules (even intentionally) was equivalent to abandoning employment, the pizza driver hypo is somewhere on that slippery slope.


As discussed above, it is. It is hypoland as you are trying to analogize what happened in this case, the severity of the employee's action in the fact of specific warnings such as to constructively if not actually abandon his job, to much less severe and nonanalogous types of employee actions.


So instead of you re-typing the ""willfully ignoring repeated warnings" language, you should consider what future cases will be like. How many warnings will an employer have to give before an employee's violation of a rule will be considered "abandonment of employment"? What type of policies must an employer have in place? What if an employer proscribes speeding and repeatedly warns drivers not to do it?


Instead of ignoring the severity of the employee's actions in this case, and, instead, focusing on nonanalogous and much less severe acts, you should have tried to understand where a line could be reasonably and clearly drawn. For example, a good place to start would be:


{¶32} ...Gross willfully ignored repeated warnings not to engage in the proscribed conduct,


With the prosecribed conduct being violation of a mandatory safety rule instituted to protect against severe injury of the specific sort that occurred in this case.

Pizza drivers speeding do not meet that standard in my opinion, perhaps they do in yours. A number of examples were provided by other posters of potential actions by pizza delivery drivers, such as driving drunk, that might.

I might add at this point with respect to your comment:


and your increasing rudeness isn't helping


that I found comments about tossing knives in the workplace in response to my stating that not all acts were covered by WC to be not only rude but insulting.


If this decision is only used as precedent in cases where an employee's act was substantially certain to cause harm, that would be great. But if that's what the court meant, it should have said "intentional injury," not "abandoment of employment."


I have discussed this above already, and will only add, on what basis do you feel this case will not be used only where an employee's act was substantially certain to cause harm, which was the exact basis for the ruling in this case, and the source of any precedential value it has?

I think you do feel judges are stupid and believe whatever lawyers feed them.
1.1.2007 12:45am
Lev:

An employment manual is not a contract and employers definitely do not want a manual interpreted as an employment contract. Employers do not terminate for every rules violation.


I didn't notice who wrote that, but Jeremy T addressed it pretty well.

I will add, that employment manuals do not generally say that employees will be terminated for any violation of X, such as safety rules.

They say the employee who violates X, such as safety rules, will be subject to discipline up to and including termination. Of course, the discipline applied must be consistently applied for acts of similar severity. A typical scheme, again, depending on the nature of the act, might be: first offense - warning, second offense - suspension, third offense - fired.
1.1.2007 12:52am
Lev:
Without having gone into the intricacies of Ohio WC law, and over the years there have been some "idiosyncratic" interactions among the Ohio state Constitution, statutes, and State SCt decisions...

From this decision:


¶31} Finally, Gross emphasizes that the purpose of the workers’ compensation system is to compensate employees for the effects of workplace injury. Workers’ compensation, he argues, was intended to remove negligence and fault – by either employee or employer – from the workplace-injury equation. He argues that his firing stems from a negligent act on his part and that by allowing that act to bar temporary total disability compensation, the court would
reinsert negligence into the equation.

{¶32} Gross offers a thought-provoking argument, but we do not find that these particular facts are conducive to further discussion of that proposition. Gross willfully ignored repeated warnings not to engage in the proscribed
conduct, yet still wishes to ascribe his behavior to simple negligence or inadvertence. To address his argument further is to validate that categorization – something we decline to do.



which, to me, sounds a lot like the court thought this applied:

Ohio Revised Code
TITLE XLI LABOR AND INDUSTRY
CHAPTER 4123 WORKERS' COMPENSATION
Anderson's Online, from Findlaw


§ 4123.54. Compensation in case of injury or death; chemical tests; agreement if work performed in another state.

(A) Every employee, who is injured or who contracts an occupational disease, and the dependents of each employee who is killed, or dies as the result of an occupational disease contracted in the course of employment, wherever such injury has occurred or occupational disease has been contracted, provided the same were not:

(1) Purposely self-inflicted;


-------------------

In poking around, this case

12/27/2006 State ex rel. Gross v. Indus. Comm. 2006-Ohio-6500
Ohio SCT decisions from findlaw

Is the Ohio Supreme Court decision in the matter.

In that context, I point out that unless there have been changes in the past few years to overturn Ohio law over the past nearly 200 years, when the case is actually published there will be a syllabus that leads it off. The syllabus is the holding of the Court in the case. It is not the reporter, or Westlaw, or Anderson summarizing things, it is the Ohio Supreme Court speaking as to what it specifically held. The opinion is "merely" explanatory dictum.
1.1.2007 2:56am
Lev:
Of course, Industrial Commission opinions might be treated differently and omit syllabuses.

In Gross' case:


{¶17} F.F.F. asked the Industrial Commission of Ohio to terminate temporary total disability compensation as of February 13, 2004,contending that Gross’s firing that day constituted a voluntary abandonment of his employment.
The commission agreed, finding that the termination satisfied State ex rel. Louisiana-Pacific Corp. v. Indus. Comm.



The Industrial Commission relied on:

State ex rel.
Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d



Examining the present facts, we find it difficult to
characterize as "involuntary" a termination generated by the
claimant's violation of a written work rule or policy that (1) clearly defined the prohibited conduct, (2) had been previously identified by the employer as a dischargeable offense, and (3) was known or should have been known to the employee. Defining such an employment separation as voluntary comports with Ashcraft and Watts -- i.e., that an employee must be presumed to intend the consequences of his or her voluntary acts.


In Gross' case:


And Pretty Prods. does not advance Gross’s cause. Gross was not fired because of absenteeism or any work rule or policy related thereto. He 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. We decline, therefore, to place
these facts within the ambit of Pretty Prods.


State ex rel. Pretty Prods., Inc. v. Indus. Comm. (1996), 77 Ohio St.3d 5,
670 N.E.2d 466,



...As this court has recently held, the underlying facts and circumstances of each case determine whether a
departure by firing may be voluntary or involuntary....


The concepts in Gross' case appear not to be particularly new in Ohio, and the world has not yet ended, having slid down a slippery slope into the ashcan of history.
1.1.2007 3:32am
Jay (mail):
Lev:

1) The court syllabus is no longer law in Ohio, and hasn't been for five years or so.

2) Your reading of Ohio worker's comp law is cramped at best. This case is a BIG deal to those of us in Ohio, because it actually does what most everyone else on this thread has recognized--it scales back the no-fault regime of WC. There are local reasons for this; as one poster pointed out, many serious on-the-job injuries also give rise to an "employment intentional tort" in Ohio, and the body of law that's grown up around such claims is not particularly coherent. But to claim that this is no big deal, or try to argue that the majority's argument is sensible simply because Gross was intentionally violating a workplace rule is arguing in bad faith, and missing the point.
1.3.2007 2:00pm