Public Policy Permits Firing Injured Worker on Temporary Total

Public Policy Permits Firing Injured Worker on Temporary Total

Posted: January, 2008

Bickers v. W. & S. Life Ins. Co. (12/20/07), 116 Ohio St.3d 351, 2007-Ohio-6751.

Issue: Did the Coolidge decision create a public policy exception to at-will employment which permits injured workers to sue for wrongful discharge when the employer fires them for absenteeism while they are receiving temporary total disability compensation?

Background: The employer fired Bickers while she was receiving temporary total disability compensation. Bickers sued the employer for wrongful discharge, claiming that the employer had violated the state’s public policy by firing her while she was receiving temporary total. She based her claim on the Supreme Court’s decision in Coolidge v. Riverdale Local School Dist. (2003), 100 Ohio St.3d 141, 2003-Ohio-5357. The trial court granted judgment for the employer. Upon appeal, the Court of Appeals reversed. The employer appealed to the Supreme Court.

Decision: Supreme Court reverses.

The Court states that Coolidge involved a teacher under an employment contract, not an at-will employee. As a result, the Court limits Coolidge to situations involving teachers who are terminated for absences due to work-related injuries while they are receiving temporary total. The Court states that Coolidge does not create a cause of action for an at-will employee such as Bickers.

The Court also determines that the workers’ compensation system precludes a wrongful discharge action because the legislature determined the cause of action which applies in such a situation when it created R.C. §4123.90 (which prohibits discrimination based on filing a workers’ compensation claim).

Editor’s Comment: This decision deserves criticism for a variety of reasons. The Court has held that there is no public policy protection for injured workers forced to miss work because of the effects of an industrial injury. If an individual is temporarily and totally disabled, they are suffering from an injury resulting from their employment and their condition is expected to improve. The Court, in effect, is condoning employers firing injured workers while they are disabled due to the injury.

The dissent, by Chief Justice Moyer, makes the problems with this decision clear. The dissent points out that the “text and underlying logic of Coolidge”, as well as the “nature of the tort of wrongful discharge” demonstrate that the majority’s decision incorrectly limits the rights of injured workers.

Coolidge initially determined whether it was against public policy to fire an individual who was receiving temporary total. Only after deciding that it did violate public policy to terminate an employee receiving temporary total did the Court apply the public policy to the employment contract. As the dissent points out, Coolidge:

clearly held that the underlying purposes of the Workers’ Compensation Act would be defeated if an employer could terminate an employee for missing work as a direct result of a temporary total disability recognized through a workers’ compensation claim. This policy is important regardless of whether one is an at-will employee, a party to an employment contract, or protected by a statute that permits termination only for “good and just cause.”

The dissent also examines the idea that R.C. §4123.90 provides an alternate remedy which should bar a public policy claim for wrongful discharge. The dissent examines the language of R.C. §4123.90 which only applies to retaliation for an employee who has “filed a claim or instituted, pursued or testified in any proceedings under the workers’ compensation act.” The statute does not provide any protection or remedy to an employee such as Bickers, who was fired for absenteeism resulting from a period of disability related to the industrial injury.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.