State ex rel. Gross v. Indus. Comm.

• Decision Date: 27 December 2006
• Docket Number: No. 2005-1689.,2005-1689.
• Citation: 858 N.E.2d 335,112 Ohio St.3d 65,2006 Ohio 6500
• Parties: The STATE ex rel. GROSS, Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellee; Food, Folks & Fun, Inc., d.b.a. KFC, Appellant.
• Court: Ohio Supreme Court

858 N.E.2d 335

112 Ohio St.3d 65

2006-Ohio-6500

The STATE ex rel. GROSS, Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellee; Food, Folks & Fun, Inc., d.b.a. KFC, Appellant.

No. 2005-1689.

Supreme Court of Ohio.

Submitted July 18, 2006.

Decided December 27, 2006.

Hochman & Plunkett Co., L.P.A., Gary D. Plunkett, Dayton, Brett R. Bissonnette, and Todd T. Miller, for appellee David M. Gross.

Scheuer, Mackin & Breslin, L.L.C., Edna Scheuer, and Salvatore A. Gilene, for appellant.

Jim Petro, Attorney General, and Andrew J. Alatis, Assistant Attorney General, for appellee Industrial Commission.

Philip J. Fulton Law Office, Philip J. Fulton, and David B. Barnhart, Columbus, urging affirmance for amicus curiae, Ohio Academy of Trial Lawyers.

PER CURIAM.

{¶ 1} A single issue is before us: Did the Industrial Commission abuse its discretion in finding that an employee voluntarily abandoned his employment, thus disqualifying himself from compensation for temporary total disability? Upon review, we hold that it did not.

{¶ 2} Appellee David M. Gross began working for appellant, Food, Folks & Fun, Inc. ("F.F.F."), d.b.a. KFC, on September 27, 2003. During his orientation, he was given an employee handbook. One of the safety rules in the handbook stated:

{¶ 3} "F.F.F. wants to have a safe place for you to work—and safety is an important part of your job. To help prevent accidents—follow these safety tips:

{¶ 4} "* * *

{¶ 5} "Follow all warnings and instructions about the safe operation of all equipment. Never boil water in a cooker to clean it." (Emphasis sic.)

{¶ 6} The handbook also discussed "critical violations":

{¶ 7} "A Critical Violation means you could lose your job right away. Here are examples of some, but not all, Critical Violations:

{¶ 8} "* * *

{¶ 9} "Violating F.F.F. health, security, or safety guidelines that cause or could cause illness or injury of anyone."

{¶ 10} Gross acknowledged, in writing, receiving the handbook.

{¶ 11} A warning label affixed to the top of the 690 Henny-Penny gas pressure cooker at Gross's workplace reminded employees that they should "not close the lid with water or cleaning agents in the cook pot." Despite this warning and the one in the employee handbook, supervisor Adrian LeBlanc observed Gross on one occasion putting water into the cooker to clean it. LeBlanc confronted Gross, explaining the proper cleaning procedure and stressing that adding water to the cooker could cause serious injuries.

{¶ 12} On November 26, 2003, co-worker Timothy Hayes saw Gross again putting water into the cooker. Hayes immediately told him to stop and clean it out the proper way. Moments later, a second co-worker warned Gross not to open the cooker's lid, as the now boiling water was under extreme pressure. Gross ignored both men and opened the lid, severely burning himself and two others.

{¶ 13} Gross's workers' compensation claim was allowed, and he began receiving temporary total disability compensation. On February 13, 2004, F.F.F. informed Gross that it had completed its accident investigation and explained to him the following:

{¶ 14} "Eye witnesses to this event have confirmed that you refused to follow expressed instructions. You were to never put water into the 690 Henny-Penny gas pressure fryer for cleaning or performing a `boil out.' You were warned one time previous to the accident by Adrian LeBlanc, Market Coach, not to fill the fryer with water for cleaning as this could result in injuries. Also, on the night of the accident, you were instructed, by your Supervisor, to drain the water from the fryer. Even after these warnings by your supervisors, you chose to leave the water in the fryer, close the lid, and heat the fryer. Additionally, a co-worker then warned you not to open the lid. For reasons only known by you, you choose [sic] to ignore all warnings which resulted in causing injuries to yourself and two fellow employees.

{¶ 15} "Beyond all of the above warnings, you ignored the warning label affixed to the lid of the fryer that clearly states `do not close the lid with water or cleaning agents in the cook pot.'"

{¶ 16} F.F.F. indicated that it "cannot and will not tolerate employees who pose a danger to themselves and others based upon their refusal or failure to follow instructions and recognized safety procedures." His employment was terminated effective that date.

{¶ 17} F.F.F. asked the Industrial Commission of Ohio to terminate temporary total disability compensation as of February 13, 2004, contending that Gross's firing that day constituted a voluntary abandonment of his employment. The commission agreed, finding that the termination satisfied State ex rel. Louisiana-Pacific Corp. v. Indus. Comm. (1995), 72 Ohio St.3d 401, 650 N.E.2d 469. According to the commission, Gross's termination for workplace misconduct constituted a voluntary abandonment of his employment that barred further temporary total disability compensation.

{¶ 18} Gross filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission had acted unlawfully in stopping his temporary total disability compensation. The court of appeals issued the writ, citing State ex rel. Pretty Prods., Inc. v. Indus. Comm. (1996), 77 Ohio St.3d 5, 670 N.E.2d 466, and Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357, 797 N.E.2d 61.

{¶ 19} According to the court of appeals, Gross was actually discharged because he had been injured in the workplace. The court therefore classified the separation from employment as an involuntary one that did not disqualify Gross from temporary total disability compensation.

{¶ 20} This cause is now before this court on an appeal as of right filed by Gross's employer.

{¶ 21} At issue is the effect of Gross's firing on his eligibility for temporary total disability compensation. Under State ex rel. Baker v. Indus. Comm. (2000), 89 Ohio St.3d 376, 732 N.E.2d 355, and State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5305, 776 N.E.2d 51, his dismissal would be irrelevant if Gross had become unable to work at a subsequent job because of the same industrial injury. That, however, did not occur here.

{¶ 22} Cases of abandonment of employment are particularly challenging because they require the decision-maker to determine which of two causes prevents the claimant's return to the former position of employment: the industrial injury or the simple fact that the position is no longer available to the claimant. This inquiry, of course, derives from our most fundamental workers' compensation tenet: disability must be causally related to an industrial injury's allowed conditions. State ex rel. Ashcraft v. Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533.

{¶ 23} Gross denies that he abandoned his employment. If an employee is already disabled when the separation from employment occurs, he contends, there can be no abandonment, because "a claimant can abandon a former position or remove himself or herself from the work force only if he or she has the physical capacity for that employment at the time of the abandonment or removal." State ex rel. Brown v. Indus. Comm. (1993), 68 Ohio St.3d 45, 48, 623 N.E.2d 55. See, also, State ex rel. Pretty Prods., Inc., 77 Ohio St.3d 5, 7, 670 N.E.2d 466.

{¶ 24} Gross relies heavily on these cases, stressing that his doctor certified temporary total disability beginning November 26, 2003, and he was fired on February 13, 2004. We decline, however to apply Brown and Pretty Prods. to these unique facts. In this case, Gross's disability and the misconduct that precipitated a finding of voluntary abandonment occurred simultaneously, not sequentially. The date of disability onset preceded the date of termination only because F.F.F. conducted an investigation first rather than firing him on the spot, which, given the gravity of the misconduct, may not have been unwarranted.

{¶ 25} Gross alternatively proposes that his separation from employment was involuntary. As Gross argues, involuntary separation does not prevent a claimant from receiving temporary total disability compensation, and a job loss caused by industrial injury is involuntary. State ex rel. Rockwell Internatl. v. Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678. In the case before us, the court of appeals classified Gross's departure as involuntary, citing our decisions in Pretty Prods. and Coolidge, supra.

{¶ 26} In Pretty Prods., claimant's doctor had certified her as medically unable to return to her job until March 1. Claimant did not return on that date or the next two work days. Lacking a medical slip that extended her disability, claimant was terminated under a provision in the union/management agreement pertaining to consecutive unexcused absences.

{¶ 27} After her dismissal, claimant applied for temporary total disability compensation. Her employer unsuccessfully asserted voluntary abandonment before both the commission and the court of appeals. We ultimately issued a writ ordering the commission to clarify the basis for its decision but suggested that if the discharge had been precipitated by injury-related absences, a finding of involuntary departure might be sustainable.

{¶ 28} Coolidge involved an employment-contract dispute under R.C. 3319.16. At issue was the employer's claim that a "good and just cause" supported the termination of an employee. Coolidge, the employee, had been assaulted by a pupil and had missed nearly two years of work as a result. When she failed to return after exhausting her contractual leave options, the school board that employed her terminated her teaching contract.

{¶ 29} "Good and just cause" was not statutorily defined. We held that "good and just cause" did not exist when the contract was canceled for reasons "repugnant to public policy." Coolidge, 100 Ohio St.3d 141, 2003-Ohio-5337, 797 N.E.2d 61, ¶ 20. In holding for Coolidge, we...