Ohio Employer May Fire Employee Who Sought Workers’ Compensation Benefits from Prior Employer

No provision of Ohio law sanctions an employer for terminating an employee who sought workers’ compensation benefits while working for a prior employer, held a state appellate court in McGree v. Gateway Healthcare Ctr., 2019-Ohio-988 , 2019 Ohio App. LEXIS 1030 (Mar. 21, 2019). Citing a decision by the state’s Supreme Court and siding with precedents in other Ohio appellate districts, the Eighth Appellate District Court of Appeals said the plain wording of Ohio Rev. Code § 4123.90 provided a cause of action for retaliatory discharge only against the employer who employed the employee at the time of the injury or occupational disease.

Background

Plaintiff began working for Gateway on February 3, 2016, and was terminated on April 21, 2016. There was no dispute that she was not injured on the job during her employment with Gateway. Indeed, Plaintiff testified that she never thought of filing a workers’ compensation claim against Gateway. She claimed that she was terminated because, previous to her employment with Gateway, she had filed a workers’ compensation claim against a prior employer with regard to a back injury she sustained in 2014 during that prior employment.

Defendants maintained that they terminated Plaintiff because she had not obtained pre-employment medical clearance to return to work from her workers’ compensation physician.

Plaintiff filed a retaliatory discharge action against Defendants. The case proceeded to a jury trial. At the close of Plaintiff’s case-in-chief and at the close of Defendants’ case-in-chief, Defendants moved for a directed verdict. The trial court denied the motion each time. The jury awarded Plaintiff $71,300 in compensatory damages and $142,600 in punitive damages. Defendants filed a motion for JNOV or, in the alternative, a motion for remittitur. That motion also was denied by the trial court. The trial court awarded Plaintiff attorney fees in the amount of $144,273.50 and costs.

Appellate Court’s Decision

Initially, the appellate court observed that plaintiff’s retaliatory discharge and public policy claims. Defendants claim that R.C. 4123.90 provided in relevant part:

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 [emphasis added].

Citing Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027, 148 Ohio St.3d 156, 69 N.E.3d 679, the Court said that pursuant to the plain language of R.C. 4123.90, the workers’ compensation claim being pursued must relate to “an injury or occupational disease which occurred in the course of and arising out of his employment with that employer” [Onderko, at ¶ 37].

Here, Plaintiff provided no evidence that her discharge was in any way connected to the pursuit of a workers’ compensation claim against Gateway. In fact, she conceded that the only workers’ compensation claim she had was against a previous employer arising from an injury that occurred in 2014 while employed by the other employer. Since the plain language of R.C. 4123.90 was limited to an employer who retaliates against an employee for pursuing a workers’ compensation claim against “that employer,” the issues should never have been submitted to the jury.

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2 Responses to Ohio Employer May Fire Employee Who Sought Workers’ Compensation Benefits from Prior Employer

  1. Jon Rehm says:

    This case seems to be clear based on the statute. I think the case would be closer with different statutory language or in cases where workers’ compensation retaliation is based on common law. In her dissent in Nassar v. SW Medical Center, RBG wrote about how the distinction between so-called protected status and protected activity were somewhat arbitrary. I think that’s the case when it comes to workers’ compensation discrimination. If you view a workers’ compensation claimant as having a protected status rather than engaging a in a protected activity, the prohibition against discrimination would attach before any formal filing and should follow the worker to a new employer.

    • Hi Jon,

      Nice comment. Indeed, the specific wording of the Ohio statute was the key to the Court’s holding. I think in quite a few states, the result could/would have been different. In Illinois, by judicial decision, the protections extend to employees who haven’t filed nor contemplate filing a claim, but who might be witnesses in a co-worker’s proceeding (see Pietruszynski v. McClier Corp., 272 Ill. Dec. 778, 788 N.E.2d 82 (Ct. App. 2003)). It would be interesting to do a comparison utilizing the “at will” employment variable. I suspect that the state’s in the so-called “right-to-work” category would tend toward agreeing with this Ohio decision (Ohio, of course, is not necessarily known as such a state). I’m trying to locate any other decisions where the employee was fired for filing a comp claim at a prior employer.

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