Ohio has a specific statute against workers' compensation
4123.90. It prohibits an employer from retaliating against an employee who
files a claim, or institutes, pursues, or testifies in any proceeding under the
workers' compensation act.
v. W. & S. Life Ins. Co. (2007), the Ohio Supreme Court concluded
that an employee who is fired while receiving workers' compensation benefits is
limited to brining a retaliation claim under the statute, and cannot pursue a
common law wrongful discharge cause of action. This distinction is significant,
because the workers' compensation retaliation statute has limited
remedies-reinstatement, back pay, and reasonable attorneys fees. The remedies
is a common law wrongful discharge claim, however, are unregulated, and include
compensatory and punitive damages.
v. Tomco Machining, Inc. (6/9/11) [pdf], the Ohio Supreme Court
considered whether R.C. 4123.90 also precludes an injured employee who suffers
retaliation before filing a workers' compensation claim from filing a
common law wrongful discharge claim.
The facts of the case are pretty remarkable. Within an
hour of DeWayne Sutton's report of a workplace back injury to Tomco's
president, and before he could file a workers' compensation claim for the
injury, the company fired him. The employer argued that Sutton did not have a
remedy. It correctly argued that R.C. 4123.90 did not provide a remedy because
he had not filed a workers' compensation claim. It also argued that Bickers
precluded the common law wrongful discharge claim.
The Court concluded that because Sutton did not have a
remedy available under the statute, he could pursue his common law wrongful
We find that the General Assembly did not intend to leave
a gap in protection during which time employers are permitted to retaliate
against employees who might pursue workers' compensation benefits.... The General
Assembly certainly did not intend to create the footrace ..., which would effectively
authorize retaliatory employment action and render any purported protection
under the antiretaliation provision wholly illusory. Therefore, it is not the
public policy of Ohio to permit retaliatory employment action against injured
employees in the time between injury and filing, instituting, or pursuing
workers' compensation claims.
The Court, however, did not permit Sutton to seek the
full panoply of tort remedies. Instead, it balanced the limited remedies of the
Workers' Compensation Act against right of employees to be free from
The compromise established by the General Assembly must
govern the relief available to employees, like Sutton, who suffer retaliatory
employment action after an injury and before they have filed, instituted, or
pursued a workers' compensation claim, just as it governs the relief for
employees who suffer retaliatory employment action after they have filed,
instituted, or pursued a workers' compensation claim. Accordingly, we hold that
Ohio's public policy as established by the legislature is to limit remedies for
retaliatory employment actions against injured employees to those listed in
This case strikes the right balance. Even the most ardent
employer-side advocate would have a hard time arguing for a loophole that would
preclude any remedy for an employee retaliated against. By limiting the
remedies to those set forth in the statute, the Court is protecting the balance
created by the workers' compensation system into which employers are required to
Visit the Ohio Employer's Law Blog for more
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