By

Henry A. Arnett

Livorno and Arnett Co., LPA

1335 Dublin Road, Suite 108-B

Columbus, Ohio 43215

Telephone: 614-224-7771

The Supreme Court of Ohio on June 9, 2011, issued a ruling protecting injured workers who are fired after reporting a workplace injury to the employer but before they have had a chance to initiate a workers’ compensation claim. Ohio Revised Code §4123.90 is a state law that prohibits the firing of workers in retaliation for filing workers’ compensation claims. That statute provides in part as follows: “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.” On its face, the statute protects only workers who have filed a claim, etc. What about an injured worker who is fired before he/she even has a chance to file a BWC claim?

That was exactly the situation in Sutton v. Tomco Machining, Inc., Slip Opinion No. 2011-Ohio-2723. The Supreme Court summarized the facts of that case in the following manner:

“In this appeal, an employee, DeWayne Sutton, alleged that in April 2008, he was injured on the job with Tomco Machining Co. Sutton asserted that within one hour after he reported to company president Jim Tomasiak that he had been injured in a workplace accident, he was terminated from his job but was not given a reason for the termination. Sutton later filed for and was granted state workers’ compensation benefits for the injuries he suffered in the accident, however he had taken no action to initiate that claim in the brief period between his injury and his firing.”

Sutton filed a lawsuit against his employer, alleging (1) a statutory claim for unlawful retaliation and wrongful discharge in violation of R.C. §4123.90; and (2) a common law claim for wrongful discharge in violation of Ohio public policy. Sutton’s claims were dismissed by the trial court.

Sutton fared better in the Supreme Court. In a 4 to 3 decision, the Court held that, although Sutton could not bring a R.C. §4123.90 action because he had not yet filed a claim when he was terminated, he could, nonetheless, bring a common law (non-statutory) tort claim for wrongful discharge in violation of public policy. The majority indicated that it is against Ohio’s public policy for an employer to fire an employee after the employee reports a workplace injury to his employer but before he/she has initiated a workers’ compensation claim.

Although Sutton could bring a wrongful discharge action against his employer, that does not automatically mean that he will win his case. Instead, the Court remanded the case back to the trial court to determine if Sutton could prove his case. In this regard, the Court noted the following:

“Rather, in order to prevail on his claim, Sutton must prove them on remand. To establish the causation element, Sutton must prove that his discharge was retaliatory. Because a discharge could be for reasons other than those related to workers compensation, such as a reasonable suspicion that the injury was not job related, or a disregard by the employee for the employer’s safety rules, or an immediate need for a replacement employee, no presumption of retaliation arises from the fact that an employee is discharged soon after an injury. Rather, the retaliatory nature of the discharge and its nexus with workers compensation must be established by a preponderance of the evidence. To establish the overriding justification element, Sutton must prove that Tomco lacked an overriding business justification for firing him.”

The bottom line is that Ohio now recognizes a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after injury on the job but before the employee files a workers’ compensation claim or institutes or pursues a workers’ compensation proceeding. However, the employee must still prove that the discharge was “retaliatory” and that the employer lacked an overriding business justification for firing the employee.