On July 21, 2016, the Supreme Court of Ohio issued a 6-1 decision that an employee is not required to prove that he/she sustained a work-related injury in order to establish a case of workers’ compensation retaliation. Onderko v. Sierra Lobo, Inc., Slip Opinion No. 2016-Ohio-5027 (July 21, 2016).
Ohio Revised Code 4123.90 provides in relevant part:
“[N]o employer shall discharge, demote, reassign, or take any punitive action against any employee because the employee filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act for an injury or occupational disease which occurred in the course of and arising out of his employment with that employer.”
The statute protects workers injured on the job from unlawful retaliation after filing a workers’ compensation claim. The mere act of filing, not the actual occurrence of an injury, triggers the protection of R.C. 4123.90. Simply put, an employer cannot retaliate against an employee that reports a workplace injury, but did not sustain a workplace injury.
Mr. Onderko had been employed for almost two years as a full-time Engineering Tech with Sierra Lobo, Inc. One day he left work early when he began experiencing right knee pain while moving office equipment / furniture with his coworkers. On the way home, the employee stepped off a gas station curb, causing his right knee to give out and a subsequent emergency room visit.
Mr. Onderko proceeded to file a claim for benefits with the Bureau of Workers’ Compensation (BWC), alleging that his right knee was injured while moving office equipment / furniture at work. Over the next couple of months, his BWC claim was denied, allowed, and then finally denied, which Mr. Onderko opted not to appeal.
Less than two (2) months after the conclusion of his BWC claim, his employment with Sierra Lobo was terminated for his alleged deceptive attempt to obtain workers’ compensation benefits for a non-work-related injury. Mr. Onderko filed a lawsuit against his former employer, alleging that he was terminated in violation of R.C. 4123.90 (“Workers’ Compensation Retaliation”). The Erie County Court of Common Pleas granted summary judgment for Sierra Lobo, holding that the employee must demonstrate that his underlying claim for benefits involved a work-related injury and must have actually prevailed in his BWC claim, which he did not.
The Sixth District Court of Appeals, however, reversed the trial court’s decision, holding that the Plaintiff was not required to prove that the injury occurred at the workplace and arose out of his employment. The appellate court determined that the purpose of R.C. 4123.90 is “to enable employees to freely exercise their rights without fear of retribution from their employers,” and as such, the trial court’s ruling would have a “chilling effect” on those rights because “the employee would be forced to choose between a continuation of employment and the submission of a workers’ compensation claim.” Sierra Lobo appealed this decision to the Ohio Supreme Court.
The Ohio Supreme Court upheld the Sixth District’s decision holding. Siding with Mr. Onderko, the Court held that it is the filing of a workers’ compensation claim, not the allowance of the claim, which triggers protection by R.C. 4123.90. The only relevant question for the trial court is whether a claim was pursued and whether the employee was fired or otherwise punished for doing so.” Finally, in determining that Mr. Onderko was undisputedly terminated for pursuing his BWC claim, the Ohio Supreme Court noted there was no indication that Mr. Onderko was investigated or charged with deceptive claims or workers’ compensation fraud.
In light of Onderko, employers must take care to ensure that discipline imposed upon an employee who pursues a Workers’ Compensation claim (successful or unsuccessful) is based non-retaliatory legitimate business reasons. Employers are wise to thoroughly investigate an employee’s conduct, document findings, and only impose discipline if supported by objective evidence. An employee may be disciplined for pursuing a false or fraudulent workers’ compensation claim so long as the objective evidence establishes improper conduct on the part of the employee.