"Worst Workers Comp Decision I've Ever Seen"

Tuesday, January 02, 2007

PERMALINK - posted on Confined Space

Workers comp receives a lot of complaints. It doesn't adequately compensate workers for loss of wages and ability to work, premiums are too high for some employers, it's often difficult to prove that illnesses are work-related and it precludes workers from suing their employers except in the most extreme cases of employer negligence.

Nevertheless, one of the main advantages of workers comp is that it's supposed to be "no fault." That is, the only thing that matters is if a worker gets hurt on the job, not whether the worker may have been at fault.

That is, until this decision in 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.
As usual, the problem isn't so much in the specific case, where the worker was clearly violating safety procedures, even though it violates the basis of Workers Comp law over the past century. The bigger problem is almost every other case where employers instinctively and automatically blame workers for accidents, claiming that they weren't following procedures. We see this in almost every article about a workplace accident, where employers "can't understand" how the accident happened because the company has a "great safety program" and the worker "wasn't following proper procedures."

We see it in small incidents and we see it in large catastrophes. We even saw BP blaming workers for the 2005 BP Texas City explosion that killed 15 workers. Several workers were fired following the incident, accused of not following proper procedures. Of course, what soon emerged was the fact that valves, gauges and other equipment weren't functioning properly, that management and workers knew about the equipment problems, that some faulty equipment had been identified years before by OSHA which had recommended its removal, that company officials all the way to the top of the giant company were aware of safety problems at the refinery and on and on.

The no-fault nature of workers comp is one of the few benefits of the system that still remain. If that goes, if employers can get out of paying workers comp by simply claiming that the employee wasn't following proper procedures, then what's the point?
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