Temporary Total Not Barred by Termination for Actions Leading to Injury

Temporary Total Not Barred by Termination for Actions Leading to Injury

Posted: October, 2007

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 that an injured worker discharged after ignoring repeated warnings not to engage in the prohibited conduct which led to his injury had voluntarily abandoned his employment and could not receive temporary total. On reconsideration, the Supreme Court determined that the injured worker had not voluntarily abandoned his employment and remained eligible for temporary total.

Issue: Does an injured worker lose eligibility for temporary total compensation when the employer fires them due to the activity which caused their injury?

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

Gross received temporary total. The Industrial Commission terminated temporary total as of the date the employer fired Gross, 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 no-fault workers’ compensation system.

After reviewing previous cases on the “voluntary abandonment” doctrine, the Court finds that all previous cases involved conduct after the injury. In those cases the injured worker 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 barred an injured worker 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 can receive 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.

Justice Pfeifer further explains the Court’s decision to reverse its opinion and avoid the injection of fault into determinations of whether an injured worker can receive workers’ compensation benefits, in his concurring opinion, which states:

The lead dissent invites a system in which workers who make poor decisions (removing a guard, working on a roof without scaffolding, overriding a control on a punch press) can end up being denied benefits. That dissent’s Dickensian dreamworld – where presumably the Union workhouse, the Treadmill, and the Poor Law remain in full vigour – does not exist. We enjoy instead a constitutionally established system that renders fault irrelevant in compensating employees for their workplace injuries.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.