The Ohio Supreme Court has ruled that employees who fail to follow safety instructions abandon their jobs in doing so and are not covered by workers’ compensation. While this may save employers some workers’ comp dollars in the short-term, it complicates the future of workers’ comp as the exclusive remedy for injured workers.
Sixteen-year-old David Gross started working at a Kentucky Fried Chicken franchise in September of 2003. Gross received an employee handbook that contained a section on . Among other things, the safety section stated:
- “Follow all warnings and instructions about the safe operation of all equipment. Never boil water in a cooker to clean it.”
- “A Critical Violation means you could lose your job right away. Here are examples of some, but not all, Critical Violations: Violating [KFC] health, security, or safety guidelines that cause or could cause illness or injury of anyone.”
The cooker in question is a pressure cooker used to prepare the chicken. A warning label on the cooker also warns of the danger of closing the lid with water inside, or opening the lid when the contents are under pressure.
On November 26, 2003, Gross put water in the cooker to clean it. Co-worker Timothy Hayes told him to stop. Gross ignored him and closed the lid. Another co-worker then warned Gross not to open the lid because the contents were under pressure. Gross opened the lid anyway. The escaping steam and water burned Gross and two co-workers.
Gross applied for and received temporary total disability from the workers’ comp system. KFC investigated the incident. In February of 2004, it concluded Gross violated numerous workplace rules and terminated him. KFC also appealed to the Industrial Commission of Ohio to end Gross’ temporary total disability compensation because his actions were tantamount to voluntary job abandonment. Employees who voluntarily abandon their jobs are not eligible for workers’ comp benefits.
The Appeals Court ruled that Ohio law prohibits employers from terminating employees because of workplace injuries. According to the court, Gross currently was not working because he was temporarily disabled. Therefore, he was entitled to benefits.
KFC appealed to the Ohio Supreme Court. The court ruled that Gross’ willful disobedience of supervisor and co-worker instructions, as well as those displayed on the pressure cooker, amounted to job abandonment. Therefore, he was not entitled to benefits.
Dissenting judges steamed
Two of the seven justices dissented from this opinion. In their dissent, they noted that the decision opens the door for employers to ascribe blame to employees as a way of avoiding workers’ comp losses. The justices noted that workers’ comp was designed as a no-fault system so employers and employees could avoid extensive and protracted litigation.
Other critics have gone further. Phillip J. Fulton, former president of the Ohio Academy of Trial Lawyers and a workers’ compensation specialist, called the decision “an example of judicial activism” that “negates the premise” of the no-fault workers’ compensation system.
So could this decision actually lead to more litigation? If employee fault becomes an issue in workers’ compensation claims, then someone must determine whether the employee is at fault and to what degree. (The State ex rel Gross v. Industrial Commission of Ohio, No. 2005-1689, Supreme Court of Ohio)
Note: The Ohio Bureau of Workers’ Compensation offers free consulting services to Ohio employers in the following areas:
- Safety program advice.
- Hazard assessment and control assistance.
- Safety culture/behavior change processes.
- Safety team/committee evaluation and design.
Employers can request assistance online at http://www.ohiobwc.com/ employer/programs/safety/SandHOnSite.asp.
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