The Volokh Conspiracy - 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.

	[Jonathan Adler, December 29, 2006 at 7:17pm] Trackbacks 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.