Ohio Supreme Court Expands Workers' Compensation Retaliation Claims To Include Employees That Have Not Yet Filed or Pursued Workers' Compensation Benefits
*By Scott Coghlan

On June 9, 2011, The Ohio Supreme Court decided Sutton v. Tomco Machining, Inc., 2011-Ohio-2723.  In this case, the Ohio Supreme Court recognized a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers a retaliatory employment action after suffering an injury on the job but before the employee files a workers’ compensation claim or pursues such benefits. 

Ohio Revised Code Section 4123.90 prohibits employers from retaliating against employees that have filed or pursued workers’ compensation claims.  The statute only provides remedies to an injured employee who files a workers’ compensation claim prior to the employer engaging in the alleged retaliatory conduct.  In Sutton, the employer fired the injured employee within one hour of reporting his injury to the president of the company but prior to his filing or pursuing a workers’ compensation claim.  As a result, the injured employee was not protected by O.R.C. Section 4123.90.

Holding that the legislature did not intend to leave a “gap” in protection during which time employers could retaliate against injured employees, the Ohio Supreme Court determined that public policy prohibits employers from retaliating against injured employees that have yet to file for or pursue workers’ compensation benefits.  The Court stated, however, that no presumption or retaliation arises from the fact that an employee is discharged soon after an injury.  Instead, the injured employee must prove by a preponderance of the evidence the retaliatory nature of the discharge and its nexus with workers’ compensation.  The Court also limited the remedies available to those provided in O.R.C. Section 4123.90.  Such remedies are primarily limited to reinstatement with back pay in the event of termination or lost wages in the event of demotion or other retaliatory conduct along with reasonable attorneys’ fees.

Injured workers are permitted to file for workers’ compensation benefits within two years of the date of injury.  As a result, the Sutton decision changes the landscape for employers when terminating an employee who was injured at work but has not pursued workers’ compensation benefits.  Moreover, the court failed to state whether the written notice requirements contained in O.R.C. Section 4123.90 apply to public policy workers’ compensation retaliation claims.      

If you any questions regarding the Sutton decision or its impact on managing your workforce please contact us.

*Scott Coghlan, the chair of the firms’ Workers’ Compensation Group, has extensive experience in all aspects of safety and health matters and workers’ compensation law.  For more information about retaliation claims, please contact Scott at 216.696.4441 or sc@zrlaw.com.

This newsletter is not intended as a substitute for professional legal advice and its receipt does not constitute an attorney-client relationship. If you have any questions concerning any of these articles or any other employment law issues, please contact Stephen S. Zashin at 216.696.4441.
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