Never Mind: The Supreme Court Changes its Mind on Job Abandonment

For years, the Courts and Ohio's Industrial Commission have held that a person is no longer entitled to workers' compensation temporary total benefits if they "abandon" their job.  Typically this would apply in a situation where an injured worker returned back to work, either modified or full duty, and then violated a written work rule which resulted in the termination of his or her employment.  The abandonment of employment can occur where an employee violates a written work rule if the written work rule states: (1) the consequence of the violation is the termination of their employment; and (2) the violation of the written work rule is not related to the employee's injury.

In 2007, it appeared there would be a significant expansion of the voluntary abandonment doctrine.  The Supreme Court held that temporary total disability benefits could be cut-off if the employee violated written work rules at the time of injury.  In that case, a teenaged employee of Kentucky Fried Chicken had been warned on several occasions not to put water in a pressurized deep fryer.  Despite the warnings, the employee put water in the fryer causing an explosion and injuries to himself and two other employees.  KFC terminated the employee for violation of KFC's safety rules.  In the Supreme Court's original decision it held that  the employee voluntarily abandoned his employment by violating the safety rule and, therefore, was no longer entitled to temporary total disability payments.

This decision, known as Gross I, met with a considerable amount of outcry from various forces in the workers' compensation community.  As a result, the Supreme Court reconsidered and reversed its decision.  The Court in Gross II held that if the employee's departure from the workplace was related to his injury, then it is not voluntary and should not stop him from receiving temporary total compensation.  The Court noted that KFC was justified in its firing of Mr. Gross but that it could not the firing could not then be the basis for denying his temporary total compensation.

The moral of this roller coaster story from the Supreme Court is that to be able to effectively cut-off temporary total disability benefits due to job misconduct, you must be sure that:

1.        The conduct violates a written work rule.

2.         The employee received the written work rule.  Requiring the employee to sign off on the receipt of the handbook or the work rules is very important.

3.         The work rule is clear that the violation will result in the employee's termination.

4.         The employer can rebut any argument that this rule is only being applied in this particular situation because it involves a workers' compensation claim.