[lbo-talk] Attack on Worker's Comp

Steven L. Robinson srobin21 at comcast.net
Fri Dec 29 22:15:52 PST 2006


(For years, Worker's Compensation has been a prime target of capital in the US class war. In state after state, benefits have been cut and more layers of red tape added. This Ohio Court decision, however, marks the opening of a new front. For generations, worker's compensation marked a compromise between labor and management. On the one hand, labor gave up the right to full compensation arising from work place injuries- no punitive damages and limits on compensatory damages- in return for a "no fault" system whereby benefits were paid quickly, regardless of the employee's negligence or misconduct. In California, it is called "the compensation bargain." Once upon a time, an employee could start a fist fight with a co-worker and if he or she were injured, compensation could be paid for the bloody nose. While that loophole was plugged decades ago, the no-fault principle has remained intact. The Court case discussed below appears to mark the beginning of efforts to eliminate no-fault from worker's compensation. SR)

Ohio Ruling Denying Pay in Job Injury Draws Debate

By Bob Driehaus New York Times

Published: December 29, 2006

COLUMBUS, Ohio,- The Ohio Supreme Court has upheld a KFC franchise's petition to deny workers' compensation payments to a teenage boy who was severely burned while cleaning a pressure cooker, raising questions from lawyers and the dissenting judges about the basic no-fault tenet of the state's workers' compensation.

The majority in the 5-to-2 decision on Wednesday accepted the argument by the restaurant owner that the boy, David M. Gross, then 16, had voluntarily abandoned his job when he ignored repeated warnings not to boil water in the cooker to clean it. That meant he was not entitled to workers' compensation payments because he no longer had a job when he was injured, the ruling said.

"This is the worst decision I've seen since I've been practicing law," said Philip J. Fulton, a workers' compensation lawyer and past president of the Ohio Academy of Trial Lawyers. "It changes the whole substance of what workers' compensation is supposed to be."

Mr. Gross was working at a Dayton-area KFC on Nov. 26, 2003, when boiling water spewed from a pressure cooker and caused third-degree burns around his hip and groin and second-degree burns on his arms, torso and back. Two co-workers were also burned.

A company investigation found that Mr. Gross had ignored warnings in the employee handbook and on the cooker as well as repeated warnings by two co-workers and a supervisor.

Mr. Gross's disability payments were canceled after the restaurant fired him in February 2004 and successfully argued before the Industrial Commission of Ohio that Mr. Gross had abandoned his job by flouting the safety rules.

He is now able to work at a construction job, said his mother, Angelia Dussia.

The Supreme Court majority said Mr. Gross had violated his employment agreement and forfeited his job by ignoring safety instructions: "Gross willfully ignored repeated warnings not to engage in the proscribed conduct, yet still wishes to ascribe his behavior to simple negligence or inadvertence," the court wrote.

Edna Scheuer, the lawyer for the restaurant's owner, Food, Folks and Fun, said Thursday that the ruling applied to a very narrow set of circumstances and sought to deny only Mr. Gross's disability claim, which would have paid him 72 percent of his wages for the first three months and then two-thirds of his wages until he recovered.

"I don't think the ruling rested solely on Mr. Gross's fault," she said. She said she thought the court would have ruled differently if the employer had not provided a written warning on that specific safety violation.

But Mr. Fulton predicted that the decision would embolden employers to try to challenge claims by making any unsafe practice punishable by instant termination.

In a dissent, Justice Evelyn Lundberg Stratton 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," she wrote.

James J. Brudney, an Ohio State University law professor and labor expert, said the decision could upset a balance struck by workers' compensation laws, which offer workers payments without assessing blame and generally preclude an injured worker from suing his employer.

Gary Plunkett, a lawyer representing Mr. Gross, envisions a situation in which a truck driver injured in an accident is denied benefits because he was driving nominally faster than the speed limit in violation of company safety rules.

Ty Pine, who heads the Ohio chapter of the National Federation of Independent Business, disagreed with the notion that the ruling was a major shift. "We think it is an appropriate decision that keeps intact the integrity of the system," Mr. Pine said. "The court sent a clear message that safety is very important in the workplace."

He added, "It will be in those limited areas where an employee knowingly, flagrantly disobeys orders that claims will be challenged."

http://www.nytimes.com/2006/12/29/us/29ohio.html

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