Court: No Workers' Comp for Negligent Worker

The Ohio Supreme Court earlier this week ruled that a 16-year-old former KFC employee who was badly burned after attempting to clean a gas pressure cooker by putting water into it – a violation of the restaurant's safety rules – is not entitled to workers' compensation benefits.

According to a state appeals court, former KFC employee David Gross was terminated because of the injury and, therefore, is entitled to temporary total disability benefits. However, the Ohio Supreme Court majority reversed the appeals court decision, concluding 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."

The high court points out that Gross' employer – Food, Folks & Fun Inc., dba KFC – during his new-hire orientation provided Gross with an employee handbook that warned employees never to boil water in a cooker to clean it. The handbook also noted that employees who violate company "health, security or safety guidelines that cause or could cause illness or injury of anyone" could be fired "right away."

According to the Ohio Supreme Court opinion, "Gross acknowledged, in writing, receiving the handbook."

Gross Also Was Warned Verbally

On Nov. 26, 2003, according to the court opinion, Gross put water into the 690 Henny-Penny gas pressure cooker to clean it. When Gross opened the lid, he and two others were severely burned.

Food, Folks & Fun terminated Gross' employment on Feb. 13, 2004, and asserted in its accident investigation report that "[e]yewitnesses to this event have confirmed that you refused to follow expressed instructions."

"You were never to put water into the 690 Henny-Penny gas pressure fryer for cleaning or performing a 'boil-out,'" the report says. "You were warned one time previous to the accident by [supervisor] Adrian LeBlanc … not to fill the fryer with water for cleaning, as this could result in injuries. Also, on the night of the accident, you were instructed, by your supervisor, to drain the water from the fryer.

"Even after these warnings by your supervisors, you chose to leave water in the fryer, close the lid and heat the fryer. Additionally, a co-worker then warned you not to open the lid. For reasons only known by you, you [chose] to ignore all warnings, which resulted in causing injuries to yourself and two fellow employees.

"Beyond all of the above warnings, you ignored the warning label affixed to the lid of the fryer that clearly states, 'do not close the lid with water or cleaning agents in the cook pot.'"

Food, Folks & Fun then successfully petitioned the Industrial Commission of Ohio to terminate Gross' temporary total disability benefits as of Feb. 13, 2004, asserting, in the words of the high court opinion, "that Gross' firing that day constituted a voluntary abandonment of his employment."

Appeals Court Ruled in Favor of Gross

Gross appealed the commission's decision. The Court of Appeals for Franklin County sided with Gross, concluding that Gross was fired because he had been injured in the workplace. The appeals court, citing previous Ohio Supreme Court case law, called Gross' separation from employment "involuntary," which meant that Gross still was eligible for temporary total disability benefits.

Food, Folks & Fun appealed to the Ohio Supreme Court.

The high court studied Gross' argument, particularly his denial "that he abandoned his employment" voluntarily. Gross argued that he could not have voluntarily abandoned his job because he wasn't physically able to perform the job when he was fired.

The Ohio Supreme Court majority disagreed, reasoning that the misconduct that caused Gross to be fired occurred at the same time as the accident and the onset of disability. Consequently, the high court majority concluded, Gross voluntarily abandoned his job.

"The date of disability onset preceded the date of termination only because [Food, Folks & Fun] conducted an investigation first rather than firing him on the spot, which, given the gravity of the misconduct, may not have been unwarranted," the high court majority wrote.

High Court: Gross "Willfully Ignored Repeated Warnings"

Gross also argued that he should receive temporary disability benefits because the workers' compensation system, as the high court puts it, was designed "to remove negligence and fault – by either employee or employer – from the workplace injury equation."

"[Gross] argues this his firing 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 equation," the high court majority wrote.

While the court majority calls Gross' argument "thought-provoking," it concludes that the argument doesn't hold water.

"Gross willfully ignored repeated warnings not to engage in the proscribed conduct, yet still wishes to ascribe his behavior to simple negligence or inadvertence," the high court wrote. "To address his argument further is to validate that categorization – something we decline to do."

Ruling Puts Workers' Comp on a "Slippery Slope"

In a dissenting opinion, Ohio Supreme Court Justice Evelyn Stratton argues that even though Food, Folks & Fun might have been justified in firing Gross for his misconduct, Gross still should receive temporary total disability benefits.

Stratton points to previous Ohio Supreme Court case law that holds that if an employee's departure from the workplace is 'causally related to his injury,' it is not voluntary and should not preclude the employee's eligibility for [temporary total disability] compensation."

"An employer may argue that a claimant has voluntarily abandoned his former position of employment only if the worker was medically capable of doing the job at the time the abandonment occurred," Stratton wrote, citing case law. "But if the claimant leaves the job because he can no longer perform his duties as a result of an industrial injury, the separation is involuntary."

Stratton also expresses concern that the majority ruling "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." She adds that the ruling "will place us on a slippery slope toward assessing fault in industrial accidents."

"Gross was a teenager at the time of the accident and, most likely, he was immature and naïve," Stratton wrote. "He suffered serious injuries as a consequence of his actions. However, the purpose behind workers' compensation is to protect those who suffer work-related injuries regardless of their own negligence or fault."

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