Ohio Supreme Court: Employers May Not Fire Employees Because Their Workers Compensation Claims Are Denied

This morning, the Ohio Supreme Court held that employee-plaintiffs who bring a workers compensation retaliation claim under Ohio Revised Code §4123.90 are not required to prove that they suffered a work-related injury as part of their prima facie case.   Onderko v. Sierra Lobo, Inc., Slip Opinion No. 2016-Ohio-5027.   In that case, the plaintiff had been fired a month after his workers compensation claim had been denied by the Industrial Commission and he failed to appeal.  The employer argued on summary judgment that he was fired for bringing a deceptive workers compensation claim and that he could not pursue a retaliation claim because res judicata precluded him from attempting to prove he suffered a workplace injury, which it argued was a predicate for bringing a workers compensation retaliation claim.  However, the appellate courts agreed that such a requirement would mean that employers would only be statutorily prohibited from firing employees who pursued successful claims and could always fire employees who lost their workers compensation claims.  The statute protects employees not only for retaliation after suffering a workplace injury, but also for filing a claim.  Therefore, employees – who can be investigated, discharged and criminally charged for knowingly filing a false claims – do not have to prove that the retaliation they suffered followed a workplace injury.

According to the Court’s opinion, the plaintiff employee did not initially report his suspicion that his knee injury was a workplace injury because he knew that his employer was concerned with its safety record and he did not want to lose his job.  He had a clean disciplinary record and had always received positive performance reviews.  However, after his employer refused him light duty and would not permit him to work while taking pain medication, he filed a workers compensation claim, which at one point was approved by the BWC before being denied by the Industrial Commission for not being work related.   By that time, the plaintiff testified that he did not appeal the decision because he had already returned to work and wanted to put it behind him.  Nonetheless, after the appeal period had expired, his employer terminated him for a “deceptive” attempt to obtain workers compensation for a non-work-related injury.  

On summary judgment, the employer argued that res judicata precluded the plaintiff from proving that he suffered a workplace injury in light of the IC’s decision and that suffering a workplace injury was a necessary element of proof before he could prevail on his retaliation claim.   The employer did not attempt to prove, it seems, that the employee lied or that the claim was fraudulent. The trial court granted the employer’s motion, but the appeals court disagreed.  The Supreme Court took jurisdiction in light of a conflict with a different appeals court.

The statute provides in relevant part that:

No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.

The Court concluded that requiring employees to prove that the injury underlying their workers compensation claim was work-related would chill employees from filing claims, knowing that they could be terminated by their employers if their claim was ultimately disallowed.   Therefore, a failure to appeal the denial of a workers compensation claim does not preclude an employee from later pursuing a workers compensation retaliation claim. “The language of the statute hinges on the employer’s response to the plaintiff’s pursuit of benefits, not the award of benefits.“  Further, “it is the filing of a workers’ compensation claim, not the allowance of the claim, that triggers the statutory protection from discharge.”

Interpreting the statute to prohibit retaliation against only those workers whose claims have been allowed misses the point of the statute, which is to enable employees to freely exercise their rights without fear of retribution from their employers.

                . . .

We therefore hold that a prima facie case of retaliatory discharge under R.C. 4123.90 requires a plaintiff to prove only that the employer discharged, demoted, reassigned, or took any other punitive action against the plaintiff in retaliation for the plaintiff’s filing a workers’ compensation claim or instituting, pursuing, or testifying in any proceedings under the Workers’ Compensation Act.

Pursuing fraudulent claims remains illegal in Ohio, can be criminally prosecuted and may be grounds for discharge.   However, there was no evidence in this case that the plaintiff had ever been investigated or charged with fraud. “We resist interpreting the antiretaliation statute in such a way that would vest employers with the discretion to label any unsuccessful claim as deceptive and then terminate the employee.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court Recognizes Retaliatory Discharge Claim Before Employee Files Worker’s Compensation Claim

This morning, a majority of the Ohio Supreme Court agreed that an employee who reports a workplace accident to management is protected from retaliatory discharge by Ohio Revised Code § 4123.90 as soon as the report is made even though he has not yet formally initiated a worker's compensation claim or testified in a worker's compensation proceeding. Sutton v. Tomco Machining, Inc., Slip Opinion No. 2011-Ohio-2723. "Ohio recognizes a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after injury on the job but before the employee files a workers' compensation claim or institutes or pursues a workers' compensation proceeding." In Sutton, the employee was injured while disassembling a chop saw as part of his job and immediately reported the accident and injury to the employer's president. Within an hour, he was discharged without any explanation (although he was assured that it was not because of his performance, compliance with rules or work ethic).

A few months after being terminated, the employee filed suit alleging both a statutory violation of O.R.C. §4123.90 and a tort for wrongful discharge in violation of public policy. He alleged that he was terminated immediately after the accident in order to prevent him from claiming employment status when he initiated a formal worker's compensation claim. The employer moved dismiss/judgment on the pleadings, which was granted by the trial court. The Court of Appeals affirmed in part and reversed in part. It concluded that there was no valid statutory claim because the employee had been fired before he initiated a worker's compensation claim. However, it also concluded that his termination was in violation of the public policy reflected in the same statute. In confronting this issue, the Supreme Court noted:

R.C. 4123.90 provides: "No employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers' compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer."

{¶ 14} R.C. 4123.90 does not expressly prohibit retaliation against injured employees who have not yet filed, instituted, or pursued a workers' compensation claim. But it does expressly prohibit retaliation against injured workers who have filed, instituted, or pursued a workers' compensation claim. Essentially, a gap exists in the language of the statute for conduct that occurs between the time immediately following injury and the time in which a claim is filed, instituted, or pursued. Sutton's firing occurred in that gap. The parties disagree as to whether the public policy underlying R.C. 4123.90 justifies the creation of an exception to the
employment-at-will doctrine to protect such employees.

Interestingly, the Court had previously rejected a similar claim before it recognized the wrongful discharge in violation of public policy exception to the employment at will doctrine:

Although we have never before directly addressed whether the public policy underlying R.C. 4123.90 protects such employees, we have addressed whether the statute itself protected a similarly situated employee. In Bryant v. Dayton Casket Co. (1982), 69 Ohio St.2d 367, 23 O.O.3d 341, 433 N.E.2d 142, we addressed whether an employee's expression of an intent to pursue a workers' compensation claim was sufficient to satisfy R.C. 4123.90's requirement that an employee "institute" or "pursue" a proceeding and whether the employee was therefore protected by the statute against retaliation. Id. at 370. The relevant facts are that the employee, Bryant, cut his finger with a saw during his second day of employment with Dayton Casket Company, informed someone within the company of the injury, and was thereafter fired. Id. at 368. At the time of his dismissal, no workers' compensation proceedings had actually been pursued or instituted. Id. at 369. The employee sued and alleged that his firing was in retaliation for his pursuit of a workers' compensation claim. Id. at 368. He argued that his informing someone within the company of the injury was sufficient to satisfy the R.C. 4123.90 requirement that he pursue a claim. Id. at 370. We held that a mere expression of an intention to pursue a claim is not "pursuit" of a claim and, therefore, Bryant was not protected from retaliatory firing under the statute. (emphasis added).

However, since the 1982 decision, the Court now recognizes exceptions to the employment at will doctrine, and also found room to fix gaps in legislation when it determined that the gap was not intended to create an absurd result:

We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers' compensation benefits. The alternative interpretation—that the legislature intentionally left the gap—is at odds with the basic purpose of the antiretaliation provision, which is "to enable employees to freely exercise their rights without fear of retribution from their employers." Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357, 797 N.E.2d 61, ¶ 43. The General Assembly certainly did not intend to create the foot race cautioned against in Roseborough, 10 Ohio St.3d at 143, 462 N.E.2d 384, which would effectively authorize retaliatory employment action and render any purported protection under the antiretaliation provision wholly illusory. Therefore, it is not the public policy of Ohio to permit retaliatory employment action against injured employees in the time between injury and filing, instituting, or pursuing workers' compensation claims. Rather, R.C. 4123.90 expresses a clear public policy prohibiting retaliatory employment action against injured employees, including injured employees who have not filed, instituted, or pursued a workers' compensation claim. (emphasis added).

That being said, the Court declined to permit employees who are unlawfully discharged in violation of the public policy reflected in O.R.C. §4123.90 to recover the same unlimited damages available to other wrongful discharge plaintiffs. Instead, the Court decided that because the General Assembly intended to limit the monetary recovery of successful plaintiffs under O.R.C. §4123.90, that public policy tort plaintiffs should similarly be restricted: "Accordingly, we hold that Ohio's public policy as established by the legislature is to limit remedies for retaliatory employment actions against injured employees to those listed in R.C. 4123.90." Otherwise, plaintiffs who were fired before they brought worker's compensation claims would recover more than plaintiffs who were fired after they initiated worker's compensation claims even though, ultimately, both plaintiffs were relying on O.R.C. §4123.90 as the basis for their recoveries.

It would be nonsensical to acknowledge a tort in violation of public policy but fail to tailor the remedies in conformance with that public policy. We therefore hold that the remedies available for wrongful discharge in violation of the public policy against retaliatory employment actions as expressed in R.C. 4123.90 are limited to those listed in R.C. 4123.90.

For these reasons, we recognize a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after an injury but before he or she files, institutes, or pursues a workers' compensation claim. To establish causation, a plaintiff who alleges wrongful discharge in violation of public policy as expressed in R.C. 4123.90 must prove that the adverse employment action was retaliatory, which requires proof of a nexus between the adverse employment action and the potential workers' compensation claim. We further hold that the remedies available for the tort are limited to those provided by R.C. 4123.90.

Three justices dissented.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court: Although Employers Still Cannot Retaliate, They Can Terminate Employees Receiving Workers’ Compensation for Other Reasons

On December 20, 2007, the Ohio Supreme Court “clarified” (although some may say partially reversed) its 2003 decision in Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357. The Court now holds that that “an employee who is terminated from employment while receiving workers’ compensation has no common-law cause of action for wrongful discharge in violation of the public policy underlying R.C. 4123.90, which provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act” and limits the Coolidge decision to teachers who are both receiving workers compensation and are covered by O.R.C. § 3319.16. Bickers v. W. & S. Life Ins. Co., Slip Opinion No. 2007-Ohio-6751.

In Bickers, the at-will plaintiff had not been provided with a light duty assignment and, instead, had been terminated while receiving temporary total disability payments as a result of a workers’ compensation injury. She did not file a claim for workers’ compensation retaliation under O.R.C. § 4123.90 (which has a short limitations period), but instead, filed a public policy wrongful discharge claim. In essence, she argued that even if she wasn’t fired in retaliation for seeking workers’ compensation, it violated the public policy of the state of Ohio to fire an employee while receiving workers’ compensation benefits. The trial court dismissed her claim, but the appellate court reversed. After all, the Ohio Supreme Court had previously held in the Coolidge syllabus that “[a]n employee who is receiving temporary total disability compensation pursuant to R.C. 4123.56 may not be discharged solely on the basis of absenteeism or inability to work, when the absence or inability to work is directly related to an allowed condition.”

After acknowledging the receipt of much criticism for Coolidge, the Ohio Supreme Court now holds that the Coolidge decision involved only the narrow issue of just cause for terminating teachers (receiving workers compensation) under O.R.C. § 3319.16. Moreover, the workers’ compensation retaliation statute precludes the need for a common law remedy involving the termination of employees while receiving workers compensation. Therefore,”R.C. 4123.90 . . . provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act.” Because O.R.C. § 4123.90 prohibits only retaliatory discharges, it is no longer unlawful for an employer to terminate a non-teaching employee for non-retaliatory reasons (such as inability to work or indefinite absence) even if the employee is receiving workers’ compensation benefits.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-ohio-6751.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.