On Sept. 27, 2007, the Ohio Supreme Court handed down its decision in the case of State ex rel. Gross v. Indus. Comm., 2007-Ohio-4916. On reconsideration, the Court vacated its decision in State ex rel. Gross v. Indus. Comm., 2006-Ohio- 6500, and affirmed the judgment of the Court of Appeals, which granted a writ of mandamus ordering the Industrial Commission to reinstate Mr. Gross’s temporary total disability benefits.
Mr. Gross, a 16-year-old at the time, was injured while working for a Kentucky Fried Chicken franchise where he was severely burned while cleaning a deep fryer. The franchisee’s employee handbook warned against violating safety rules and the deep fryer itself warned against using water when cleaning the deep fryer. In addition, Mr. Gross was warned by two fellow employees not to use water while cleaning the deep fryer. Mr. Gross disregarded all warnings and was injured when the scalding water erupted from the fryer. Also injured were two fellow employees. The employer initially certified the claim and Mr. Gross received temporary total disability benefits. Subsequently, after completing an investigation, the employer terminated Mr. Gross’s employment for violation of the work rule. The Industrial Commission found that because of Mr. Gross’s violation of the work rule, he had voluntarily abandoned his employment and therefore was not entitled to temporary total disability benefits. On mandamus to the Franklin County Court of Common Pleas, it was held that Mr. Gross had not voluntarily abandoned his employment and the Court granted a writ of mandamus ordering the Industrial Commission to reinstate his temporary total disability benefits.
In its original decision, now known as Gross I, the Supreme Court disagreed with the Court of Appeals and found that Mr. Gross, by virtue of his violating a mandatory work rule of which he was aware and which he realized could be a basis for termination, had voluntarily abandoned his employment and therefore was not entitled to temporary total disability benefits.
This decision resulted in a significant protest from the claimant’s bar which argued that the Supreme Court with its holding had inserted fault in a no-fault system. The majority disagreed with that characterization but did vacate its decision in Gross I. The Court stated that, “a voluntary departure from the former position can preclude eligibility for temporary total disability benefits compensation only so long as it operates to sever the causal connection between the claimant’s industrial injury and the claimant’s wage loss. It went on to state that the doctrine of voluntary abandonment has never been applied to pre-injury conduct or conduct contemporaneous with the injury. Here, we have a situation where a violation of a work rule resulted in the injury to Mr. Gross, which the Court seems to indicate is no cause for termination of temporary total disability benefits.
The Court also referred to a statutory law regarding termination of temporary total disability benefits and stated that the statute provides no exception for willful or deliberate violation of work rules.
There is a lengthy and very precise dissent in the case filed by Justice O’Connor. Nonetheless, the decision rendered in December 2006 has been vacated. The employer should be aware that its effect will modify current thinking on the “voluntary abandonment” doctrine. Hopefully, this decision will be limited and that the doctrine will still be available to employers under the right circumstances, i.e., when an employee is terminated when the prohibited conduct is in writing; when policy states the prohibited conduct may result in termination; and when the employee knew or should have known of the prohibited conduct.