Win your claim or lose your job? UPDATE

In May of 2015 I wrote an amicus brief on behalf of the Ohio Association for Justice in the matter of Onderko v. Sierra Lobo, Inc. The issue: Can an employee sue for retaliation if terminated following the denial of a workers’ compensation claim? The Ohio Supreme Court’s answer is yes from a decision released last week.

In this case the plaintiff filed a claim for workers’ compensation benefits. At various levels of appeal his claim was denied, then allowed, then ultimately denied. Then, he got fired. There was no question that he was fired for pursuing workers’ compensation benefits. Yet, the employer asserted that his retaliation claim should fail because his workers’ compensation claim got denied.

Writing for the majority, Justice O’Neill stated, “…Interpreting the statute to prohibit retaliation against only those workers whose claims have been allowed misses the point of the statute, which is to enable employees to freely exercise their rights without fear of retribution from their employers…”

One can only imagine the consequences of a “win your claim or lose your job” type of setup. Some claims are not clear cut. A decision to deny a claim is merely a finding that the claimant failed to meet his or her burden of proof. A claim denial is not tantamount to fraud.

Injured workers can abandon the pursuit of their claims for a variety of reasons. They can grow anxious over the prospect of participating in unfamiliar legal proceedings where their veracity is repeatedly called into question. They can grow frustrated over the loss of more and more time from work to attend hearings and deposition. They can also, perhaps, grow fearful that their continued pursuit of their claim will cause their employer to manufacture a pre-textual basis for discipline and/or termination. The decision to abandon even a meritorious claim is even more likely in cases like this one where the time lost from work was very minimal.

An employee’s right to file a workers’ compensation claim is not protected if an employer can directly or indirectly intimidate the worker not to file a claim. I am grateful for the opportunity given to me by the Ohio Association for Justice to defend this right.

The Ohio Supreme Court announces decision in Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027.

The Ohio Supreme Court announces decision in Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027.