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Published: 12/28/2006

Court rules against injured worker

BY JIM PROVANCE
BLADE COLUMBUS BUREAU

COLUMBUS - In a case that critics argued turns the principle of Ohio's workers' compensation system on its head, the state Supreme Court yesterday held that an injured worker could be denied benefits when fired for causing his own injury.

A KFC restaurant in Dayton fired a 16-year-old employee who suffered severe burns from a gas pressure cooker after an investigation showed he was at fault in the accident that injured him and two fellow workers.

The restaurant then convinced the Ohio Industrial Commission to cut off the teen's total temporary disability benefits on the grounds he'd voluntarily abandoned his employment.

Attorneys for David M. Gross argued the injury on Sept. 27, 2003, was a result of simple negligence in a system that's not supposed to assess blame.

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

But Justice Evelyn Lundberg Stratton dissented, writing the majority may have started down a "slippery slope."

"Our workers' compensation system laws are intended to compensate a worker who suffers an industrial injury without a determination of fault or wrongdoing," she wrote. "Yet KFC assessed fault for the accident and acted according to its conclusion. This is contrary to workers' compensation principles, and we should not condone such actions."

Justice Stratton was joined in her dissent by Justice Paul Pfeifer. Justices Alice Robie Resnick, Maureen O'Connor, Terrence O'Donnell, and Judith Lanzinger sided with Chief Justice Moyer.

Phil Fulton, a workers' compensation attorney and former president of the Ohio Academy of Trial Lawyers, characterized the decision as "one of the most serious anti-worker decisions of the last 30 years."

"Fault has never been an issue," he said. "This is a way for an employer to get benefits shut off. The employer gets two bites at the apple. First it can argue against the injury, and if it loses that, then it can fire the employee because he violated work policy."

KFC's own investigation determined Mr. Gross repeatedly ignored company policy, written safety guidelines, and a warning label on the pressure cooker, leading to the accident that burned himself and two others.

KFC fired Mr. Gross upon completion of the investigation three months after the injury. It contended the termination for willful misconduct amounted to voluntary abandonment of employment, grounds for cancellation of his total disability benefits.

Jeremy Jackson, spokesman for the Ohio Bureau of Workers' Compensation, said he believes the decision affects only total temporary disability and no other benefits. He noted that Mr. Gross received more than $33,000 in total and partial disability benefits that lasted until August, 2004.

"We sympathize with both sides," he said. "On one hand, you don't want to penalize the employer. On the other hand, we don't want to see a system in which fault is attributed to each claim.

"The challenge is in the way the law is written and the interpretation of that law," he said. "It may be something the General Assembly should look at, to make sure the system continues to be a no-fault system."

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.



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