*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.
