Industrial Commission Ruling on Job Abandonment and Temporary Total Compensation

In a decision that has received national media attention, the Ohio Supreme Court ruled on December 27, 2006, that an employee who was injured and discharged as the result of violating a written safety rule is not entitled to continued temporary total compensation even though the employee was receiving such compensation at the time of his discharge. State, ex rel. Gross v. Indus. Comm. (2006) 112 Ohio St.3d 65, 2006 - Ohio - 6500.

In Gross, SM&B client Food, Folks & Fun, Inc. employed the claimant at one of its Kentucky Fried Chicken locations. Despite a written company policy prohibiting the use of pressurized water to clean a fryer, together with written warning labels and a supervisor's instructions to the same effect, the claimant was injured because he deliberately disobeyed these instructions. His workers' compensation claim was certified by the employer, and he began receiving temporary total compensation. At the subsequent conclusion of the company's investigation, the employee was terminated for violating the company's safety rule.

SM&B attorneys Edna Scheuer and Sal Gilene represented Food, Folks & Fun, Inc. before both the Industrial Commission and the Supreme Court. They successfully convinced both the agency and the Court that Mr. Gross had deliberately disobeyed repeated written and verbal instructions and that this conduct resulted in a discharge that qualified as a voluntary abandonment of his employment. They were also successful in convincing the Supreme Court that the employer should not be held to have effectively waived its voluntary abandonment defense simply because it chose to first certify Mr. Gross' claim, continue its investigation and then discharge him.

The Gross decision represents an important victory for employers across Ohio. While the defense of temporary total compensation awards on the basis of a discharge will continue to be scrutinized to ensure that they are not motivated by the claimant's injury or resulting disability, employers now know that: (1) they need not always discharge the employee immediately to preserve their voluntary abandonment defense, and; (2) the mere fact that the employee's dischargeable conduct also caused his or her injury will not defeat an otherwise meritorious abandonment defense.

Thank you to the Law Firm of Scheuer, Mackin & Breslin for their permission to use this information.