written on March 01, 2011 by Scott Lawson
A case currently pending before the Ohio Supreme Court could expand the rights of employees to sue their employers for workers’ compensation retaliation.
Currently under Ohio law , an employer may not “discharge, demote, reassign” or punish an employee because the employee filed a workers’ compensation claim or “instituted, pursued or testified in” any workers’ compensation proceedings for an injury or illness which occurred during his or her employment. If the employer violates this law, the employee may collect (subject to certain offsets) reinstatement with back pay, if the employee was terminated, or lost wages, if the employee was demoted, reassigned or punished.
What is important to note about Ohio’s law is the use of the past tense in the phrase “filed a claim or instituted, pursued or testified”. By clear implication the rule is that, in order to have a valid legal claim for retaliation, the employee must have actually filed a workers’ compensation claim, or instituted, pursued or testified in a workers’ compensation proceeding before being terminated, demoted, reassigned or punished. In the case of Sutton v. Tomco currently pending before the Ohio Supreme Court, the plaintiff seeks to change that rule.
In the Sutton case, the employee, Dewayne Sutton, suffered a back injury while working on machinery for his employer. Sutton immediately reported the injury to the company’s president who then terminated Sutton’s employment later that same day. No reasons were provided to Sutton for the termination.
Sutton later filed for workers’ compensation benefits and received them. He then filed a lawsuit against the company alleging that he was terminated to avoid a workers’ compensation rate increase. The trial court dismissed Sutton’s suit, however, finding that, since Sutton had not filed for workers’ compensation benefits before being terminated, the company could not have retaliated against him.
On appeal, the state appellate court reversed the trial court’s ruling. The appellate court held that, because the public policy underlying Ohio’s law is to protect the rights of employees to file workers’ compensation claims, courts should allow employees to recover for retaliation when discharged before having the opportunity to file a claim. The court ruled that Sutton could recover for retaliation, assuming that the company lacked a proper business justification for his termination.
The case has now been appealed to the Ohio Supreme Court and is scheduled for oral argument later this month. If the Court rules in favor of Sutton, employers in Ohio could be liable for damages for adverse actions against, not only those employees who have actually filed a workers’ compensation claim, but also employees who could file a claim. This would place employers in the difficult position of having to determine whether an employee has a compensable injury, even though no claim for workers’ compensation has been filed, before taking any kind of adverse action against him or her.
The final ruling in the Sutton case will be reported in a future Client Alert.
Legal developments such as these underscore the need for employers to develop sound employment practices and procedures and to consult with an attorney before taking actions that could result in costly litigation. Please feel free to contact the Lawson Firm for assistance or to schedule a review of your company’s employment policies and procedures.
Attorney contact: Scott Lawson, Managing Attorney
E:
slawson@lawsonfirm.net
P: (440) 666-9735
The Lawson Firm, LLC (“TLF”) is a law firm providing legal counsel and value-added legal services to employers. We focus on preventative strategies to help employers avoid violations, minimize disputes, and promote positive and productive work environments. Further information about TLF may be found at
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. This article is intended to provide general information only and is not intended to provide solutions to individual problems. Readers are cautioned not to attempt to solve individual problems solely on the basis of information contained in the article. TLF does not claim expertise in the laws of jurisdictions other than those in which our attorneys are licensed.