Injured Worker Does Not Forfeit TT Eligibility when Fired for Actions Leading to Injury

State, ex rel. Gross v.  Indus. Comm. (9/27/07), 115 Ohio St.3d 249, 2007-Ohio-4916:

Note: This case involves a reconsideration by the Supreme Court of a previous decision. The Supreme Court initially ruled in this case that an injured worker who was discharged after ignoring repeated warnings not to engage in the prohibited conduct which led to his injury had voluntarily abandoned his employment and was not entitled to temporary total. On reconsideration, the Supreme Court determined that the injured worker had not voluntarily abandoned his employment and remained eligible for temporary total.

Background: Gross suffered  severe burns when he was injured after placing water in a  pressurized deep fryer, heating the water and raising the lid.  His employer later fired him for these actions.

Gross was receiving temporary total. The Industrial Commission terminated temporary total as of the date the employer fired Gross, based on the finding that he had "voluntarily abandoned" his employment. 

The Supreme Court initially upheld this finding.  Gross filed for reconsideration. 

Decision:  Supreme Court grants reconsideration, reverses its decision and vacates the Commission's order.

The Court finds that its initial decision created confusion and misunderstanding, and potentially injected issues of fault into the workers' compensation system (which is a no-fault system). 

After reviewing previous cases on the "voluntary abandonment" doctrine, the Court finds that all previous cases have involved conduct after the injury.  In those cases the injured worker has engaged in some conduct which led to the termination of the connection between the injury and the loss of earnings which justified payment of temporary total.

The Court finds that the "voluntary abandonment" doctrine "has never been applied to preinjury conduct or conduct contemporaneous
with the injury."  The Court also notes that although the legislature has created a number of exceptions to an injured worker's eligibility for benefits, it has not indicated that an injured worker is barred from compensation based on the willful violation of a work rule.

As a result, the Court finds that Gross did not "voluntarily" abandon his employment.  It finds that the employer's decision to fire Gross for the conduct which led to the injury resulted in an "involuntary" abandonment of employment and, as a result, Gross remains entitled to temporary total compensation.

Editor’s Comment: The Court emphasizes that it did not intend to inject fault into the issue of whether an injured worker is entitled to workers' compensation benefits, stating:

it was not our intention in Gross I to inject fault into the analysis of voluntary abandonment or to otherwise undermine the no-fault nature of our workers’ compensation system. To the extent that our opinion in Gross I has been interpreted as injecting fault into the system, we expressly reject that interpretation.

The Court's decision to reverse its opinion and avoid the injection of fault into determinations of whether an injured worker is entitled to receive workers' compensation benefits is further explained by the concurring opinion of Justice Pfeifer, who states: