Ohio High Court Says Injury is Not Required to Support Retaliatory Discharge Claim

In a split decision, the Supreme Court of Ohio held that compensability of the alleged underlying injury is not a required element in a retaliatory discharge action under Ohio Rev. Code Ann. § 4123.90. Accordingly, a former employee presented a prima facie case for retaliation where he alleged that he was injured on the job, filed a claim for workers’ compensation, and was discharged by that employer in contravention of the statute [see Onerko v. Sierra Lobo, Inc., 2016-Ohio–5027, 2016 Ohio LEXIS 1892 (July 21, 2016)]. The employer argued that § 4123.90 explicitly required a showing that the plaintiff had suffered a workplace injury, and that such a showing was particularly essential in cases like that presented to the Court, where the employee pursued a retaliation claim after the Industrial Commission had determined that the employee did not suffer a work-related injury. The majority disagreed, finding that such a reading would ignore the intent of the statute.

Background

Plaintiff worked for the defendant as an engineering tech. He alleged that he began to experience pain in his knee on August 9, 2012, while helping two co-workers move some office equipment, that he went home early, that on the way home he stopped for some gasoline, and that his knee gave out at the gas station, when he stepped off a curb. He later testified that he did not tell an ER physician about the workplace event because he knew his employer was very concerned about its safety record and he was afraid of losing his job.

Plaintiff filed a First Report of Injury (“FROI”) with the Ohio Bureau of Workers’ Compensation (“BWC”) alleging that his right knee had been injured while lifting and pushing equipment. Plaintiff testified that he filed the FROI because a company official told him he did not believe that the injury was a work injury, and Plaintiff wanted to be sure the injury was documented as work-related.

An orthopedic surgeon reviewed the medical file at the request of the BWC, reporting that the sprain/strain to the right knee was directly related to the injury that occurred on August 9, 2012 at the gas station, that the injury was separate from an injury Plaintiff had suffered six weeks before, and that there was no evidence that any earlier injury was aggravated by the August 9 incident.

BWC Denied Claim; Then Changed Its Mind

Initially the BWC denied the claim, finding that Plaintiff had failed to meet his burden of proof. One day later, the BWC vacated its order and subsequently granted Plaintiff TTD benefits. The employer appealed to the Industrial Commission. Following a hearing, a district hearing officer vacated the BWC’s order and denied the claim in its entirety, finding that Plaintiff had not sustained an injury in the course of his employment as alleged. Plaintiff did not appeal.

Terminated For Deception

Two months later, the employer terminated Plaintiff for his “deceptive” attempt to obtain workers’ compensation benefits for a non-work-related injury. Plaintiff filed his § 4123.90 retaliatory discharge complaint in the Court of Common Pleas. The defendant employer sought summary judgment, arguing (a) that Plaintiff was required to demonstrate that the underlying claim for benefits involved a work-related injury; (b) that because a district hearing officer of the Ohio Industrial Commission determined that Plaintiff’s injury was not work-related, res judicata prevented him from relitigating whether his injury was work-related; and that (c) Plaintiff’s retaliation claim must, therefore, fail as a matter of law. The trial court agreed and granted the former employer summary judgment.

Sixth District Disagreed

The Sixth District Court of Appeals reversed, holding that the entire workers’ compensation system was designed to provide a no-fault process for the resolution of claims of injury. Were employers permitted to discharge employees for utilizing the system, its very purpose would be defeated. The 6th District, therefore, held that it was not required to prove that the injury occurred at the workplace and arose out of the scope of employment.

Majority of Supreme Court Said Pursuit of Benefits, Not Award of Benefits the Issue

The majority of the Supreme Court agreed with the Sixth District, holding that the elements of a prima facie case of retaliatory discharge under the statute did not require the plaintiff to prove that the injury occurred on the job. The majority of the court also rejected the defendant’s argument that Plaintiff’s failure to appeal the denial of his workers’ compensation claim should foreclose a claim for retaliatory discharge under R.C. 4123.90.

The majority added that the language of the statute hinged on the employer’s response to the plaintiff’s pursuit of benefits, not the award of benefits. Hinging recovery under the statute on proof of an injury or an occupational disease that occurred in the course of and arising out of Plaintiff’s employment would have the effect of reading the phrase “filed a claim or instituted, pursued or testified in a proceeding” completely out of the statute.

Dissent

Justice O’Donnell dissented, indicating the language of the statute supported the view that a retaliation claim could proceed only if a workplace injury in fact had occurred. Moreover, the majority’s reading of the statute could encourage fraudulent claims for workers’ compensation benefits.