Spokesmen for Ohio AFL-CIO and the Ohio Academy of Trial Lawyers told OccupationalHazards.com that they also plan to file briefs with the high court in support of David Gross, a former KFC employee who was badly burned in 2003 when he tried to clean a fryer with water. The Ohio Supreme Court on Dec. 27 ruled that Gross disqualified himself from receiving temporary total disability benefits – which compensate injured workers for lost wages while they are recuperating – because his injury was caused by his wanton disregard for workplace safety policies.
The high court agreed with the Ohio Industrial Commission that Gross voluntarily abandoned his employment by ignoring explicit written and verbal warnings not to clean the 690 Henny Penny gas pressure cooker with water. More than 2 months after the 2003 incident, the operator of the KFC franchise – Food, Folks & Fun Inc. – fired Gross for violating those safety warnings.
Reversing an appeals court decision, the Ohio Supreme Court majority concluded that 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."
"When I got the court's decision, I just thought to myself, 'This is a sad day for injured workers,'" said Gross' attorney, Gary Plunkett of Hochman & Plunkett Co. LPA in Dayton, Ohio.
Rare for High Court to Reconsider
Plunkett admitted that it is rare for the high court to grant reconsideration of its own opinion. However, Plunkett noted that this case could be an exception, as it has gained national attention and "has caused outrage" among groups such as the Ohio Academy of Trial Lawyers and several unions.
Philip Fulton, past president of the Ohio Academy of Trial Lawyers, told OccupationalHazards.com that the high court's opinion puts workers' compensation on a slippery slope.
"What I see happening is that employers will put in their handbooks that if it's your negligence that causes the injury, then you can be terminated," Fulton said. "And then, of course, if that happens it appears that this can also be used to defeat or interrupt workers' comp benefits."
Motion: Court Opinion Injects Fault into a No-Fault System
Plunkett's motion for reconsideration argues that the high court's decision "wrongfully injects fault into the workers' compensation system" and "gives employers added incentive to terminate employees, who have limited ability develop evidence in rebuttal."
The Ohio Supreme Court majority in its Dec. 27 opinion acknowledged that Plunkett offered "a thought-provoking argument" when he contended that Gross' termination "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 workers' compensation system. However, the high court concluded that Gross' behavior was more than just "simple negligence or inadvertence," as "Gross willfully ignored repeated warnings not to engage in the proscribed conduct."
Fulton said such thinking "negates the entire premise of the no-fault workers' compensation system."
"It makes no difference whether it is the employer's negligence or the employee's negligence that caused the injury," Fulton said. "If the injury occurs at work, then it should be covered. We feel this is an assault on that very basic understanding of the workers' comp system."
Gary DiCeglio, director of compensation and safety for Ohio AFL-CIO, told OccupationalHazards.com that his organization plans to file a brief in support of Gross for those very reasons.
"Almost every injury is going to be a violation of something," DiCeglio said. "Even if somebody says, 'Don't lift more than 100 pounds,' and you lift 105 pounds and you hurt your back, are [employers] going to terminate you for lifting 5 pounds over?"
Plunkett's motion asserts that the answer is "yes."
"For those workers whose injuries are greatest, employers have a great incentive to discover – or in some cases, manufacture – the evidence to characterize an injured worker's behavior as falling within the 'willful' category," the motion says. "After the decision in this case, 'willful' behavior may be found where the employee has never engaged in this behavior before."
Motion: Voluntary Abandonment Could Become Employers' "Favorite Weapon"
As a result of the high court's Dec. 27 opinion, Plunkett asserts the accusation that negligent workers voluntarily abandoned their employment "is likely to become the employer's favorite weapon."
Plunkett's motion contends there "may be absolutely no remedy" now for injured workers seeking temporary total disability compensation.
In order to receive any benefits, Plunkett argues, those workers now might have to "successfully discredit" testimony from their employers and co-workers, "who inevitably will claim that, 'I warned him not do that, or he would get hurt!'"
"Unfortunately, no real discovery process exists through the industrial commission," Plunkett wrote. "Subpoenas must be requested and are rarely granted, no depositions before hearings are allowed and the rules of evidence do not apply at hearings. ... This court should be reluctant to allow fault to be entered into the workers' compensation system, when few procedural devices exist to protect the injured worker from these possible abuses."
For more on this case, read "Court: No Workers' Comp for Negligent Worker."