*By Scott Coghlan
On July 21, 2016, the Ohio Supreme Court held that an employee can assert a viable workers’ compensation retaliation claim in the absence of proof of an actual workplace injury. Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027. The decision resolved a split among Ohio’s appellate courts and conclusively establishes that Ohio employers may be liable for retaliation under the workers’ compensation law even in cases where the underlying workers’ compensation claim is denied.
The plaintiff in Onderko left work early after experiencing pain in his knee. On the way home, the plaintiff’s knee gave out as he stepped off a curb at a gas station. Upon seeking medical attention, the plaintiff only informed his doctor about the gas station incident and not the pain he felt while at work. Plaintiff alleged he did not mention the pain at work due to concerns he would be fired by his employer. The plaintiff subsequently filed a claim with the Ohio Bureau of Workers’ Compensation (“BWC”), claiming he injured his knee at work. Eventually, a hearing officer denied the claim and the plaintiff did not appeal the denial. Shortly thereafter, the employer fired the plaintiff “for his ‘deceptive’ attempt to obtain workers’ compensation benefits for a non‑work-related injury.” The plaintiff filed suit against the employer, asserting a claim under Ohio Revised Code 4123.90, which prohibits employers from terminating or taking punitive action against employees for filing claims with the BWC “for an injury or occupational disease which occurred in the course of and arising out of [the employee’s] employment with that employer.”
Seeking to have the claim dismissed, the employer in Onderko argued that, to state a viable claim under R.C. 4123.90, the plaintiff must prove that the underlying BWC claim involved an actual work-related injury. The employer also argued the plaintiff could not relitigate the issue of whether he suffered a workplace injury, based upon the un-appealed decision of the hearing officer denying his BWC claim. The trial court agreed with the employer, but the Sixth District Court of Appeals reversed.
On appeal, the Ohio Supreme Court held “the elements of a prima facie case of retaliatory discharge under the statute do not require the plaintiff to prove that the injury occurred on the job.” Furthermore, “[b]ecause proof of a work-related injury is not an element of a prima facie case of retaliatory discharge, failure to appeal the denial of a workers’ compensation claim does not foreclose a claim for retaliatory discharge.” The Court explained that the “language of the statute hinges on the employer’s response to the plaintiff’s pursuit of benefits, not the award of benefits.” Conditioning a retaliation claim upon the successful assertion of a BWC claim would miss “the point of the statute, which is to enable employees to freely exercise their rights without fear of retribution from employers.”
The Court also addressed employer concerns relating to fraudulent BWC claims. The Court noted that filing a false claim or making misleading statements to secure workers’ compensation is a crime and grounds for termination. However, the Court “resist[ed] 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.”
Accordingly, Ohio employers should be aware that they may be subject to a retaliation claim for taking adverse action against an employee who has filed a workers’ compensation claim, even if that claim is disallowed. If an employer believes an employee has filed a fraudulent BWC claim, they should contact counsel and conduct a thorough investigation prior to taking any adverse action that is premised upon the filing of a BWC claim.
*Scott Coghlan chairs the firm’s Workers’ Compensation Group. For more information about this decision, or workers’ compensation law in general, please contact Scott (sc@zrlaw.com) at 216.696.4441.
