Presented by the Employment Law Practice Group

Legal Updates for Employment Law

January 19, 2017

Ohio Supreme Court Clarifies Retaliation Statute Regarding Workers' Compensation Claims

By Keith Hansbrough, Esquire

In the case of Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027, the Ohio Supreme Court has clarified that an employee can bring a retaliation claim against an employer based upon a previous workers' compensation filing without evidence that there was, in fact, a workplace injury. Ohio Revised Code § 4123.90 addresses the issue of retaliation against employees who bring workers' compensation claims and states:

No 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.

In years past, the question of whether or not an employee could bring a claim for retaliation under § 4123.90 if he or she was unable to prove an actual injury occurred was left open in Ohio. Amazingly, the appellate courts throughout the state of Ohio were split on this issue, which, in turn, put employers in the difficult situation of not knowing how to properly comply with the law. The Ohio Supreme Court entered an opinion in the Onderko case just this year in which it stated that a prima facie case for retaliatory discharge under § 4123.90 does not include proof that the employee suffered a workplace injury.

In reaching this holding, the court succinctly stated that "[i]nterpreting the statute to prohibit retaliation against only those workers whose claims have been allowed misses the point of the statute, which is to enable employees to freely exercise their rights without fear of retribution from their employers." Interestingly, the opinion raises the issue of what if an employee maliciously and in bad faith brings a workers' compensation claim that is denied. Does such an employee still have potential grounds for a retaliation action later? In Onderko, the Court stated that "[o]ur holding in this case by no means suggests that a fraudulent or false claim for workers' compensation may be pursued without penalty and is not grounds for termination. Filing a false claim or making misleading statements in order to secure workers' compensation is a crime in Ohio." It, therefore, appears that the Ohio Supreme Court has left employers with the possible defense of fraud by an employee, but the opinion stopped short of including this language in its holding, as pointed out by the dissent in the case.

As it now stands, the law in Ohio is such that an employee may bring a claim against an employer for retaliation regarding a workers' compensation claim even if no proof can be shown of a workplace injury. Further, the Ohio Supreme Court hinted in dicta that an employer may be insulated from liability for such a retaliation claim if the initial workers' compensation claim was "fraudulent."

_{The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. To be removed from our list of subscribers who receive these complimentary Legal Updates for Employment Law, please contact rkodonnell@mdwcg.com. If however you continue to receive the alerts in error, please send a note to rkodonnell@mdwcg.com.}