Ohio Supreme Court to Decide Immediate Discharge of Employee for Workers Comp Injury

by michael on March 5, 2011

In 2008, Dewayne Sutton suffered a work injury in Ohio and reported the injury to his employer who  fired him  within one hour  without any given reasons and before the terminated employee could file a workers compensation claim. Mr Sutton’s Ohio workers comp claim was eventually allowed. He thereafter filed a lawsuit against his former employer asserting a statutory claim for unlawful retaliation(wrongful discharge) in violation of R.C. 4123.90 and a common law claim for wrongful discharge in violation of Ohio public policy. The trial court dismissed both claims as the injured worker had not taken any action to initiate a workers compensation claim prior to his firing. The 2nd District Court of Appeals affirmed the dismissal of the statutory retaliation claim but sent the case back to the trial level on the public policy claim. The employer filed an appeal to the Ohio Supreme Court and oral arguments were heard in February.

R.C. 4123.90, a section of the Ohio workers compensation law provides that: ” 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 and arising out of employment with that employer.” In 2007, the Ohio Supreme Court in Bickers v.Western & Southern Life Ins.Co. held that an employee who could not assert an actionable claim under 4123.90 was also barred from asserting a common law claim based on the public policy underlying that statute.

The employer in the Sutton case argued that it is the role of the state legislature rather than the courts to strike a balance between the interests of employees and employers.The injured worker argued that the employer’s  firing within an hour after reporting his work accident made it impossible to seek the retaliatory protection provided by R.C. 4123.90 by initiating(filing) a workers compensation claim. Public policy interests would also be frustrated by, on one hand, encouraging injured workers to promptly report on-the-job injuries to the employer to confirm the accident and seek medical treatments while, on the other hand, allowing the employer to use the prompt accident reporting to fire the employee thereby evading his/her right to statutory protection from illegal retaliation.Sutton also pointed out that in the Bickers case the injured worker was already receiving workers comp benefits and was allegedly fired for reasons unrelated to his work accident injury preventing his bringing a public policy complaint based upon R.C. 4123.90.

Dewayne Sutton v.Tomco Machining, Inc., Case No. 2010-0670 2nd District Court of Appeals (Montgomery County)

 

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