Allowed Condition Not Required for Retaliatory Discharge
Onderko v. Sierra Lobo, Inc.,
___ Ohio St.3d ___, 2016-Ohio-5027.
Background: Onderko’s knee started to hurt while moving furniture at work. As he was going home after work, he injured his knee stepping off a curb. He went to the emergency room for treatment, but did not tell the doctor that his knee had started to hurt at work due to concerns about retaliation from his employer.
Onderko eventually filed a workers’ compensation claim. There was disputed evidence regarding whether Onderko had had prior knee problems. His claim was denied by a DHO and he did not appeal.
The employer then fired Onderko, claiming he was “deceptive” in attempting to receive workers’ compensation for a non-work related injury. Onderko filed an R.C. §4123.90 retaliatory discharge claim against the employer, claiming it violated the statute when it fired him for filing a workers’ compensation claim. The employer filed a motion for summary judgment, arguing that since Onderko’s claim had been disallowed, it could not have violated R.C. §4123.90 because Onderko did not have a work-related injury.
The trial court granted summary judgment for the employer and Onderko appealed.
The Court of Appeals reversed and found in favor of Onderko. According to the Court of Appeals, requiring an employee to have a successful workers’ compensation claim to receive protection against retaliation from their employer for filing the claim would be contrary to the purpose of the statute since
the employee would be forced to choose between a continuation of employment and the submission of a workers’ compensation claim.
The Supreme Court accepted the employer’s appeal from the Court of Appeals’ decision. It also accepted the case as a certified conflict, because the Court of Appeals’ decision in the present case conflicted with another Court of Appeals’ decision in Kilbarger v. Anchor Hocking Glass Co., 120 Ohio App.3d 332 (5th Dist.1997), which found that to establish a claim for retaliation under R.C. §4123.90, an employee must demonstrate that they suffered an injury at work.
Decision: Supreme Court affirms.
Under R.C. §4123.90, an employer is prohibited from taking any action against an employee because that employee “filed a [workers’ compensation] claim or instituted, pursued or testified in any proceedings” for an injury “which occurred in the course of and arising out of his [sic] employment.”
According to the Court, “[i]t is undisputed that Onderko was fired for pursuing workers’ compensation benefits.” However, the employer claims that the use of the course/arising language in the statute indicates that R.C. §4123.90 only applies if there is an allowed claim and the legislature meant to exclude situations where an employee is found not to have a valid claim from the statute’s protection.
The Supreme Court rejects this argument because the plain language of R.C. §4123.90 “hinges on the employer’s response to the plaintiff’s pursuit of benefits, not the award of benefits.” Accepting the employer’s argument would make the language prohibiting retaliation for filing a claim or instituting proceedings meaningless. Therefore,
The compensability of the injury is not a required element in a retaliatory-discharge case. R.C. 4123.90 does not authorize courts to review the compensability of a workers’ compensation claim. The only relevant question for the trial court is whether a claim was pursued and whether the employee was fired or otherwise punished for doing so.
Because an injured worker does not need an allowed workers’ compensation claim to pursue relief under R.C. §4123.90, Onderko’s failure to appeal the denial of his workers’ compensation claim does not bar him from pursuing a claim against the employer under R.C. §4123.90.