Ohio Workers Dealt Blow by Ohio Supreme Court

Ohio Bureau of Workers' Compensation (BWC) has a little pamphlet on its website that tells us that if we are injured on the job, we have a right to workers' compensation benefits. Ohio workers' compensation is an insurance policy that allows workers to receive prompt medical and wage benefits for work-related injuries and at the same time protect employers from financial ruin by preventing the injured employee from suing the employer. Implicit in the system is that no fault may be assessed to either the injured employee or to his or her employer.

However, if an employee is terminated from employment then later claims a job related injury is keeping him from finding other employment, an employer may raise what is known as "job abandonment", and worker's comp will not pay for lost wages. This defense is to protect employers from spurious claims from an employee that was terminated for cause and then later claims a work injury. Until this week, the firing of an injured employee for not following work rules that contributed to the employee's injuries was not grounds for denying wages to the injured employee.

In a seminal holding by the Ohio Supreme Court, and in a classic example for first-year law students that "bad facts make bad law", the court turned classic workers' comp law on its head. The case involved David M. Gross, an injured 16 year old who worked at a KFC in Dayton. The Ohio Supreme Court ruled that Gross voluntarily abandoned his job when he ignored repeated warnings not to boil water in the restaurant's Henny Penny gas pressure cooker to clean it. Therefore, although employed at the time of his injury, his "voluntary abandonment" of his job by not following workplace rules meant that he no longer had a job when he was injured.

The 16 year old was working at the 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. The company investigated the claim after the injury and found that Gross had ignored warnings in the employee handbook and on the cooker as well as repeated warnings by two co-workers and a supervisor. The company fired him in February 2004 and his wage benefits were canceled.

The Supreme Court, in a 5-2 decision, upheld the termination of wage benefits. The Court considered Gross' argument that he was entitled to temporary disability benefits because the workers' compensation system, as the Ohio Supreme Court has previously held, was designed "to remove negligence and fault - by either employee or employer - from the workplace injury equation." He further argued that his firing stems from a negligent act on his part and that by allowing that act to bar temporary total disability compensation, the court would reinsert negligence into the equation. The high court majority wrote that although Gross' argument is "thought-provoking," it nevertheless inexplicably concluded that "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 thereafter refused to address this argument finding that to do so would "validate [his] categorization" of negligence.

In the dissent, Justice Evelyn Lundberg Stratton questioned the majority's decision to ascribe Gross' conduct as justification for refusing to pay temporary total disability benefits, judiciously expressing that "our workers' compensation laws do not permit the introduction of fault." Stratton points to previous Ohio Supreme Court case law that holds that if an employee's departure from the workplace is "causally related to his injury" it is not voluntary and should not preclude the employee's eligibility for wage compensation. Justice Stratton argued that although KFC may have been justified in firing Gross for his misconduct, Gross still should receive temporary total disability benefits.

On the concept of the voluntary abandonment defense, Stratton points out that under previous case law, "an employer may argue that a claimant has voluntarily abandoned his former position of employment only if the worker was medically capable of doing the job at the time the abandonment occurred…but if the claimant leaves the job because he can no longer perform his duties as a result of an industrial injury, the separation is involuntary." Noting that "Gross was a teenager at the time of the accident and, most likely, he was immature and naïve," Stratton wrote, "he suffered serious injuries as a consequence of his actions." The "purpose behind workers' compensation is to protect those who suffer work-related injuries regardless of their own negligence or fault."

With this ruling, the Ohio Supreme Court has upset the balance between injured workers and their employers. Moreover, ascribing fault to a 16 year old who cannot legally drive without parental approval, vote, drink alcohol, or join the military is unconscionable and removes any responsibility from the employer who knew young Mr. Gross had a problem following direction yet, rather then fire him before his injury, put him back on fryer-cleaning duties. Legislative action is needed now to correct this injustice to all Ohio workers that has been committed by this overly business-friendly Supreme Court that has ignored years of legal precedence to reach this result.

No More Camera Cops?

Don’t look at it as an assault on “home-rule”. Look at it as an assault on “Big Brother”. HB 56 is speeding its way to Governor Taft’s desk. By prohibiting cities from identifying the drivers of speeding and red-light running cars via photograph, the bill effectively ends programs in cities that establish unmanned cameras to catch traffic “felons”. This is about the only issue that I have agreed with Republicans on in recent memory. And it hurts. But hey, these camera cops have gotta go. They have not been shown to reduce traffic accidents; and actually may increase accidents as foolish drivers slam on the brakes to avoid a ticket. And if you get ticket in the mail- just sign the affidavit saying that you were not driving (O.K. perjury IS a problem for some of us) and presto-chango, no fine. So Governor Taft, send us a parting gift and don’t veto this legislation. I really hate these lazy cop cash machines. Oh, and to the City of Columbus, why don’t you fix that traffic hazard of an intersection at Nationwide and Fourth Street rather than installing a camera cop right by the Convention Center. I am no travel and tourism expert, but that does not seem like a friendly “goodbye” out of town.

Zach Space Sighting

I saw Zach Space today in Columbus at an attorney seminar. Zach is the current City of Dover Law Director and must be reporting those continuing legal education credits to the Supreme Court this year like every other registered attorney with last names L through Z. Zach is "the man". Very open and gracious. And tall. I wanted to run up to him and tell him to kick some Republican butt down in D.C. as Ohio's 18th U.S. Rep, but I contained my enthusiasm.

Strickland on "Clean Coal", but can I eat the fish?

One of Governor-elect Stricklands Turn Around Ohio initiatives is to create "good jobs" through "clean energy" in Ohio. Citing statistics such as Ohio being 6th in the US in total energy consumption and 4th in both the use of electricity and largest industrial energy users, clearly some kind of strategy for our energy intensive economy is necessary for sustainable growth. Oil costs continue to rise in this global economy with the emergence of industry in China, Russia and India and some estimate that the local supply of natural gas only has an economic life expectancy of about 60 more years (do I have time to dump my Columbia Gas stock?)

Governor-elect Strickland has pledged to implement an energy strategy to create jobs and spur one billion (with a "b") in public and private investment in "Next Generation" energy production and consumption by 2010, a surely aggressive and exciting timetable. One of the steps in this strategy is to support "Clean Coal Technologies" by working to ensure that Ohio's regulatory climate provides incentives for investment in a wide range of clean coal technologies, including the development of advanced coal gasification technologies, such as Integrated Gasification Combined Cycle (IGCC) technology.

So what is IGCC and will I, the electric user end up being one of these "private investors" every month when I pay my electric bill? If so, will I finally be able to eat the mercury-laced fish that comes out of Alum Creek Reservoir? Well, from what I can tell, the answer to the former is "yes", electric users will pay for it. As for Alum Creek fish, they will remain on my theoretical list of "never eats" along with e-coli inducing spinach, lettuce, and green onions and (for purely psychological reasons) Wendys Chili.

The IGCC process converts Ohios high sulfur content coal into a synthesis gas minimizing sulfur dioxide (SO2), nitrogen oxides (NOx), mercury (Hg) and other emissions before the gas fuels a combustion turbine generator. The exhaust gas from the turbine produces steam to power another turbine to generate more electricity. The system is touted as having improved thermal efficiency and reduced emissions which may out-weigh the higher capital costs of generating electricity over the economic life of the plant (provided energy prices remain high).

American Electric Power (AEP, formerly locally known as Columbus Southern Power) received approval in 2006 from the Ohio PUCO to recover costs through customer rate hikes of a design study and preconstruction work on the soon to be largest IGCC plant in the nation. After completing the design study, AEP intends to seek approval from the PUCO to recover the costs from consumers to build and operate the plant.

If PUCO approves the plan, AEP will begin construction of an Ohio plant in Meigs County. AEP projects that 1900 construction jobs will be generated and at least 125 permanent and much needed Meigs Co. jobs will be created. AEP has given a target for getting the plant online by 2010, coinciding (coincidentally?) with Governor-elect Strickland's Turn Around Ohio target date.

Yes, I and other AEP customers will be paying for this. Notwithstanding my higher self’s greater good agreement with the proposal, after growing up in NE Ohio listening to my parents complain about the highest electrical costs in the state (Davis-Bessie nuclear energy anyone?), I am a wee-bit concerned about my personal cost-benefit of this venture into the unknown. According to the Ohio Consumers Counsel’s (OCC) calculations, after politically-correctly lauding the potential economic benefits to Meigs County, Phase I preconstruction costs are already costing the average AEP customer an additional $7.82/mo (850 kwh/mo). By my own calculation, I am paying twice that due to my own April to October environmentally unfriendly and non-judicious use of the A/C.

The Phase II construction recovery costs paint a not-so-rosy picture for my electric bill. The estimate weighs in as an additional $39.48/mo for the average bill through 2010. Phase III costs are listed ominously by the OCC as "impact unknown" and will continue from 2010 through the useful life of the plant. The OCC further notes that these costs are in addition to the automatic rate increases of $6/mo that began this year and are scheduled to total out at $9/mo by 2008. So remind me again, why am I against nuclear energy?

Alas, along with higher electric bills, Alum Creek fish are still off the menu (along with every other Ohio fish). According to the Sierra Club, who starts with the gloomy pronouncement that "there is no such thing as clean coal", IGCC may be more environmentally friendly than conventional coal plants, but new coal plants should be linked to the permanent shutdown of older, dirtier plants. They have a point. If I have to pay for this new technology, I should at least be able to eat the fish.

More Allegations of Mismanagement at BWC

The Toledo Blade has a three part series on the BWC that is well worth a read. It points out the history of the "transformation" of the independent Commission and Bureau into a state agency that became an ATM for private industry under the guise of allowing then Governor George Voinovich to "fix" the "silent killer of jobs" known as the BWC. Millions of dollars later, managed care has deprived Ohio workers of adequate care and benefits and created private companies that cost the agency more to administer claims and served as a boon to companies investing bureau money. These very companies became campaign contributors of the highest order. Add to this the complete lack of BWC internal controls and refusal of the agency to fully investigate allegations of kickbacks and unbid contracts, and we have the mess today that I pray results in a cleaning of the proverbial house. Check out the Blade series here.

Demographics

Living the Blues-life in Redville.