Workers’ Compensation Retaliation: Proof of Injury is not Required

Mark A. Shaw and Melissa A. Ebel

    Until now, some employers and courts have questioned whether an employee can prevail in a claim of workers’ compensation retaliation if the underlying workers’ compensation claim is ultimately denied.  The Ohio Supreme Court recently clarified this issue and confirmed an employee does not have to prove he or she sustained a workplace injury to prevail on a claim of workers’ compensation retaliation under Ohio Revised Code 4123.90.

    In Onderko v. Sierra Lobo, Inc., the employee filed an application to participate in the Ohio Workers’ Compensation Fund for an alleged injury to his right knee.  After the Industrial Commission denied his application, the employer terminated the employee for filing a deceptive workers’ compensation claim.  The employee sued alleging retaliatory discharge in violation of ORC 4123.90. 

    The trial court granted summary judgment in favor of the employer holding that to establish a prima facie case of retaliation under ORC 4123.90, a plaintiff must actually prevail in the underlying workers’ compensation claim.  The Sixth District Court of Appeals reversed asserting “[r]equiring an employee to successfully prove that the injury occurred at work for the purposes of a retaliatory-discharge claim would have a chilling effect on the exercise of his or her rights because the employee would be forced to choose between a continuation of employment and the submission of a workers’ compensation claim.”

    The Sixth District Court of Appeal’s decision was in conflict with the decision of the Fifth District Court of Appeals in Kilbarger v. Anchor Hocking Glass Co. in which the Fifth District held an employee cannot prevail under ORC 4123.90 unless he or she proved he or she actually sustained a workplace injury. 

    The issue certified to the Ohio Supreme Court was: whether, as an element of establishing a prima facie claim for retaliatory discharge under ORC 4123.90, plaintiff must prove he or she suffered a workplace injury.  Specifically, ORC 4123.90 provides:

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 proceeding 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

The employer argued the italicized phrase of the statute explicitly requires an employee to establish he or she suffered a workplace injury.  The employer asserted a plain reading of this language evidences the Ohio General Assembly intended to differentiate between false and valid workers’ compensation claims. 

    Conversely, the employee argued requiring poof of injury would have a chilling effect on the exercise of an employee’s right to file a claim for workers’ compensation because it would force the employee to choose between continued employment and filing a claim.  Moreover, the employee asserted the plain language of the statute evidences it is the filing of the claim, not the allowance thereof, which triggers the statutory protection from discharge. 

    The Ohio Supreme Court agreed with the employee and noted the language of the statute hinges upon the employer’s response to the employee’s pursuit of benefits not the award of benefits.  Accordingly, the Court held a compensable injury is not a required element of an ORC 4123.90 retaliatory-discharge claim.  Rather, the only relevant inquiry is whether the employee pursued a claim and was terminated or otherwise punished for doing so.  The Court reasoned any other interpretation would miss the purpose of the statute which was to ensure employees can exercise their rights under the Workers’ Compensation Act without fear of retaliation. 

    Onderko confirms what many employers may have long understood: it is unlawful to terminate an employee solely for filing a workers’ compensation claim even if that claim is ultimately denied.  To avoid a possible ORC 4123.90 claim, employers should speak with legal counsel before taking disciplinary action against any employee who has also filed a claim for workers’ compensation, even if the claim is denied. 

    Should you have any questions regarding these decisions, please contact either Mark A. Shaw or Melissa A. Ebel.

    The Occupational Health and Safety Administration has created new regulations regarding recordkeeping and reporting.  You can learn more about these new regulations on our web site.


Disclaimer:  The article in this publication has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.