Attorney: No Slippery Slope in Ohio Court Ruling

The attorney for the KFC franchisee that fired an injured worker for his wanton violations of job safety rules – and then convinced the Ohio Supreme Court to deny the worker lost-wage benefits – asserted that critics who believe the high court ruling will be a slippery slope for the workers' compensation system are "over-reading the decision."

Edna Scheuer, whose law firm represented KFC franchisee Food, Folks & Fun Inc., told OccupationalHazards.com that the high court's Dec. 27 decision builds on prior case law that held that when employers terminate a worker for violating company policy, the worker voluntarily abandons his job. In this case, the Ohio Supreme Court concluded that former KFC worker David Gross voluntarily abandoned his employment by ignoring explicit written and verbal instructions warning him not to clean a gas pressure cooker with water. The company's employment manual cautioned that a violation of company safety guidelines could result in immediate termination.

Scheuer argued that the case does not represent a slippery slope for the no-fault workers' compensation system because "the case is relegated to a very narrow set of facts."

"Not only did [Gross] have a written safety warning through his training and his employment manual, he had oral warnings, because he had been seen violating the rule before," Scheuer said. "And there was also a big, fat warning on the piece of equipment. So it was a pretty egregious set of circumstances."

If Food, Folks & Fun had not been so explicit in its safety policies and the consequences of violating those policies, Scheuer asserted, "this case wouldn't have been decided the way it was."

"The standard is explicit," she said. "It's in writing, it was communicated to [Gross] appropriately and it was communicated that he could be discharged for violation of that conduct. So it was all of those elements that had to be in place before the court found the way it did."

Food, Folks & Fun Only Challenged Temporary Total Disability

Food, Folks & Fun initially did not challenge Gross' workers' compensation claim, which was approved by the Ohio Bureau of Workers' Compensation. After the accident, Food, Folks & Fun launched an investigation, and in February 2004 – more than 2 months after the accident – the company fired Gross because, it said, he deliberately disobeyed its safety policies and warnings.

After Gross was terminated, Food, Folks & Fun petitioned the Industrial Commission of Ohio to terminate Gross' temporary total disability benefits, which provide injured workers with compensation for lost wages. The commission granted the company's request, ruling that Gross' flagrant violations of workplace safety policies constituted voluntary abandonment of his employment. In reaching its decision, the commission cited prior Ohio Supreme Court case law in State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995).

Gross then appealed, and a state appeals court ruled that Gross' termination was not voluntary – he was fired, the court said, because he had been injured in the workplace. The appeals court concluded that Gross, therefore, should be eligible for temporary total disability compensation.

The Ohio Supreme Court on Dec. 27 reversed the appeals court's ruling.

Scheuer noted that the high court's Dec. 27 ruling only negates one aspect of Gross' workers' compensation claim – his temporary total disability benefits. She said that Gross' workers' compensation claim paid for his medical bills, and Food, Folks & Fun never challenged that.

"The only issue was temporary total [disability] from the date of discharge forward," Scheuer said. " … And we never requested a retroactive termination of his benefits."

"An Important Victory" for Ohio Employers

The law firm of Scheuer, Mackin & Breslin LLC – of which Scheuer is a managing partner – on its Web site hails the Dec. 27 Ohio Supreme Court verdict as "an important victory" for Ohio employers.

According to an announcement on the site, "the defense of temporary total compensation awards on the basis of a discharge will continue to be scrutinized to ensure that they are not motivated by the claimant's injury or resulting disability."

The Web site adds that employers should know that, as a result of the Dec. 27 ruling, "1) They need not always discharge the employee immediately to preserve their voluntary abandonment defense; and 2) The mere fact that the employee's dischargeable conduct also caused his or her injury will not defeat an otherwise meritorious abandonment defense."

For more reaction to the Ohio Supreme Court ruling, read "Critics: Ohio Ruling an Assault on Work Comp."

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