Proof of a Workplace Injury Is Not a Requirement for a Workers’ Compensation Retaliation Claim Under Ohio Law

Defense Digest, Vol. 22, No. 4, December 2016

By Keith Hansbrough, Esq.*

Scores of private employers in Ohio have had the unpleasant experience of having to defend an employment retaliation claim under Ohio Revised Code § 4112.02. These claims have been increasing over the years, and many are based upon an employee’s claim that he was discriminated against in the form of retaliation because he asserted some type of employment right. These claims have typically been based upon an employee having levied an earlier complaint regarding race, gender or age. Over the past few years, there has been an interesting intersection between such retaliation claims and workers’ compensation law in Ohio.

For example, in Onderko v. Sierra Lobo, Inc., 2016 Ohio LEXIS 1892 (Ohio 2016), the Ohio Supreme Court finally 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. Specifically, Section 4123.90 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, it was unclear whether or not an employee could bring a claim for retaliation under Section 4123.90 if he or she was unable to prove that an actual injury had occurred. Amazingly, the appellate courts throughout Ohio were split on this issue. This, in turn, put employers in the difficult situation of not knowing how to properly comply with the law. The Ohio Supreme Court, in Onderko, clarified that a prima facie case for retaliatory discharge under Ohio Revised Code § 4123.90 does not include proof that the employee suffered a workplace injury.

Michael Onderko worked for Sierra Lobo, Inc. and had asserted that he had suffered a workplace injury and was retaliated against for filing a claim. Prior to filing his lawsuit, he had filed for workers’ compensation and was denied. Hence, there was no proof of a workplace injury, and Onderko sought no appeal of this denial. Shortly after his workers’ compensation claim was denied, he was terminated from Sierra Lobo for his “deceptive” attempt to obtain workers’ compensation benefits for a non-work-related injury. In other words, Onderko’s claim for workers’ compensation was denied, and his employer fired him for that very reason.

The Ohio Supreme Court held that proof of a workplace injury was not necessary to support a Section 4123.90 retaliation claim. In reaching its 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 should occur 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? In Onderko, the Ohio Supreme 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 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 Justice O’Donnell’s dissent, “[a] court should not construe the statute in a manner to encourage fraudulent claims for workers’ compensation benefits and here the Bureau of Workers’ Compensation determined there was no workplace injury. The evidence therefore supports the trial court finding that Sierra Lobo, Inc. fired Plaintiff Onderko for filing a fraudulent claim.” In short, Justice O’Donnell argued that the majority’s ruling in this case did not provide a fraud defense to an employer for a Section 4123.90 retaliation claim.

In conclusion, the law in Ohio is now 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 under Ohio Revised Code § 4123.90. This is true even if the employee both loses his attempt to receive workers’ compensation and never appeals the denial. Further, although the Ohio Supreme Court hinted in dicta that an employer may be insulated from liability for a retaliation claim if the initial workers’ compensation claim was “fraudulent,” an explicit statement by the court in Onderko is missing.

*Keith is a shareholder in our Cleveland, Ohio office who can be reached at 216.912.3809 or kkhansbrough@mdwcg.com.

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_{Defense Digest, Vol. 22, No. 4, December 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}