Wilful Intent: The End of “no fault” in workers compensation?

January 9th, 2007 by

David Gross, 16, had a job at Kentucky Fried Chicken. One of his responsibilities was cleaning a 690 Henny-Penny gas pressure cooker. His preferred approach to the task was to put water in the cooker, seal it and boil away the grease. This was against the manufacturer’s recommendations (written right on the equipment) and against store policy. The boiling water, under pressure, put anyone near the equipment at risk. Gross was warned several times, the last time in writing. Nonetheless, he persisted in cleaning the cooker with water.
On November 26, 2003, he was injured when boiling water spewed from the cooker, causing third-degree burns around his hip and groin and second-degree burns on his arms and back. Two co-workers, who tried to stop him from opening the cooker, were also burned. Gross’s application for workers comp benefits was denied by the Ohio Industrial Commission, based on his willful disregard of safety instructions.
The case went to the Ohio Supreme Court, which upheld the denial of benefits. The court wrote that Gross “willfully ignored repeated warnings not to engage in the proscribed conduct…” Gross “voluntarily abandoned his employment” by ignoring explicit written and verbal warnings not to clean the pressure cooker with water. More than 2 months after the 2003 incident, the operator of the KFC franchise fired Gross for violating those safety warnings.
“When I got the court’s decision, I just thought to myself, ‘This is a sad day for injured workers,'” said Gross’s attorney, Gary Plunkett of Hochman & Plunkett Co. in Dayton, Ohio. (It certainly was a sad day for Mr. Plunkett.) Many people appear to agree with the dissenting opinion of Justice Evelyn Lundberg Stratton, who expressed concern that the ruling represented a slippery slope. “Should the employee’s fault preclude his receiving temporary total disability? The answer to this question is no. Our workers’ compensation laws do not permit the introduction of fault.”
Attorney Plunkett envisions a situation in which a truck driver injured in an accident is denied benefits because he was driving nomially faster than the speed limit in violation of company rules.
Slope or Plateau?
The issue here is one of accountability. In determining that Gross’s repeated ignoring of safety instructions was “willful intent,” the court has not really changed the nature of workers comp. This is less slippery slope than unique plateau. The standard set in this case for transcending the traditional “no fault” of comp is very high indeed: repeated verbal warnings; written warnings on the equipment itself; a written warning to the employee; verbal alarms from co-workers just prior to the event. There is a significant difference between holding employees accountable for their actions and routinely denying them comp benefits when they are injured due to carelessness or simple human error.
The part of this case that puzzles me the most is why KFC allowed Gross to continue on the job after he first violated the safety rules for cleaning the cooker. They should have fired him well before the unfortunate event took place. I question KFC’s wisdom in relying on the judgment of a 16 year old in this type of work situation. The adolescent brain can be very resistant to logic and set procedure. (Some 16 year olds can handle the details; some cannot.) This is surely a lesson that Gross will remember for a long time. Perhaps, now that he has been denied the “exclusive remedy” of comp, Gross can sue KFC for negligent management in allowing him to continue on the job. That would certainly be the American way.