Restoring Fault to Workers Comp Decisions

Sixteen-year-old high schooler David Gross had a job at a Dayton area KFC. Part of his job was to clean out the pressure cookers. When he was hired, Gross received an employee handbook that contain

Sixteen-year-old high schooler David Gross had a job at a Dayton area KFC. Part of his job was to clean out the pressure cookers.

When he was hired, Gross received an employee handbook that contained, among other things, safety rules. One of these rules cautioned workers never to boil water in the cookers to clean them. The pressure cooker itself carried a label with the same warning.

Gross' supervisor once saw him putting water in the cooker to clean it. Gross was warned about the danger in doing this. On Nov. 26, 2003, about two months into the job, one of his co-workers saw Gross doing the same thing again. Another co-worker warned Gross not to open the lid of the cooker because of the danger from the pressure of the boiling water. But he did and was severely burned.

Two co-workers were also injured.

Under Ohio's system of workers compensation, an employee injured on the job can receive compensation for lost earnings while recovering. Gross, who had to leave work because of the injury, filed for and received these temporary total disability (TTD) benefits from the date of his injury until April 6, 2004.

KFC investigated the entire incident and fired Gross Feb. 13, 2004. KFC then asked the Ohio Industrial Commission to stop paying Gross his TTD benefits as of that date. If, at this point you are shaking your head, saying, "So what? He deserved it," a fundamental lesson about workers' compensation is in order.

Back in 1913 the Ohio Constitution was amended to add Section 35, Article II. This provision created a no-fault system of compensating injured workers. Workers injured on the job and workers who contracted occupational diseases would receive compensation without having to prove it was anyone's fault. Employers couldn't be sued for accidental workplace injuries and thus would not face unlimited liability.

This was a tradeoff. Each side gave up something. Employees gave up the right to sue in exchange for certain but lesser benefits than what they might receive in a suit. Employers gave up any defenses to such suits, including defenses such as "It was all the employee's own fault." The whole point of the compromise was to take fault — by either the employer or the employee — out of the equation.

Let's come back to young David Gross. While he undeniably deserved to be fired, did that mean he must also lose his TTD benefits? That's the question that reached the Ohio Supreme Court after the Industrial Commission — the last step in the administrative process before the employer or employee can go to court — stopped his benefits. But the Columbus Court of Appeals, which is the next step for the losing party, ordered the benefits reinstated.

Obviously, an employer can't just fire an injured employee to get out of paying TTD benefits. But an employer doesn't automatically have to keep paying TTD benefits to injured workers who leave their jobs, either. Over the years the high court has distinguished between voluntary and involuntary separation from the job.

Involuntary separation from employment does not disqualify an employee from TTD benefits, but voluntary separation can. In the past, having to leave a job because of injury has been deemed involuntary, while leaving a job for reasons unrelated to the injury, such as choosing to retire from the work force, has been deemed voluntary.

So which kind of separation applied to Gross? He argued that the point of workers compensation is to compensate workers for workplace injuries regardless of fault and that denying him TTD benefits would be reinserting fault into the system. But a 5-2 majority of the court, while calling his arguments "thought-provoking," found Gross had voluntarily abandoned his job because he "willfully ignored repeated warnings not to engage in the proscribed conduct." Thus his benefits should have been cut off. This 5-2 decision was "per curiam," which means "by the court," with no individual justice claiming authorship.

Justice Evelyn Stratton, joined by Justice Paul Pfeifer, wrote a dissent that I wholeheartedly applaud. While she agreed that KFC was completely justified in eventually firing Gross, she would find that, because Gross initially had to leave the job because of his injury, his separation from the job was involuntary. He was thus entitled to TTD benefits after he was fired.

She strongly expressed her concern that "the majority is tacitly injecting fault into a no-fault system of compensation. ... Should the employee's fault preclude his receiving TTD 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."

But I see a darker side to this case. Back in 1982, in a very controversial case, eight workers at the Cincinnati Milacron chemical manufacturing plant in Reading claimed they were sickened by exposure to toxic fumes at the plant. They also alleged Milacron knew about this problem and intentionally did nothing about it, so they went to court and sued their employer. Initially, this suit went nowhere, because of the constitutional compromise wherein employees give up the right to sue.

But the Ohio Supreme Court held that employees could sue their employers for intentional torts, meaning those that occurred on purpose rather than accidentally. The court held that employer-intentional torts weren't covered by the constitutional compromise.

This decision caused years of discord as lower courts struggled to define intentional conduct. Many courts expressed outright hostility to this decision. Is it possible that in David Gross' case, a more employer-friendly court is giving us a little sauce for the gander? If an employer can be sued for an intentional tort, then why can't an employee be denied workers compensation for his intentional violation of workplace rules?

Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.