Cleveland: 216-447-1551  |  Columbus: 614-654-4477
Client tools at your fingertips

The Supreme Court of Ohio Further Defines Section 4123.90 of the Ohio Revised Code

3/28/2017 | Category: Workers Compensation-Retaliatory Discharge
Section 4123.90 of the Ohio Revised Code makes it illegal for an employer to “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.”

Michael P. Onderko was hired as an engineering technician by Sierra Lobo, Inc. on November 15, 2010.  On August 9, 2012, he was moving office furniture with the aid of two employees.  He left work early that day, complaining that his right knee had started to hurt.  On his way home, he stopped at a gas station and his knee gave out as he stepped off a curb.  When his wife later took him to the emergency room, he failed to tell the emergency room physician anything about a work-related incident, but only shared with him information about the incident at the gas station.  Mr. Onderko later testified that he did not mention the pain at work because he knew Sierra Lobo was very concerned about its safety record and he “was afraid of losing his job.” 

Mr. Onderko was seen by an orthopedic specialist the very next day.  The clinic note from this visit indicated that Mr. Onderko had injured his knee six weeks before and had self-treated over that time with ice, rest, and crutches.  The orthopedic specialist’s note also indicated that Mr. Onderko had gone on with his activities of daily living until his knee “completely let go” as he stumbled over a curb.  Once again, there was no mention of a work-related incident.  Mr. Onderko later asserted that the orthopedic specialist’s note was incorrect as it was referencing the wrong knee.  Mr. Onderko attempted to get the physician to change the note, but the physician refused to speak with Mr. Onderko once he discovered that Mr. Onderko was pursuing a workers’ compensation claim.

On the same day he saw the orthopedic specialist, Mr. Onderko called Sierra Lobo to request light duty work.  During this telephone conversation, the human resources specialist at Sierra Lobo questioned Mr. Onderko about whether or not his problem was work-related.  Mr. Onderko maintained that he had told her it was; however, her testimony was that he had told her he “had been having problems with it for a while.”  There were further communications between Mr. Onderko and Sierra Lobo, but Mr. Onderko failed to convince anyone at Sierra Lobo that he had sustained a work-related injury.

Mr. Onderko filed a workers’ compensation claim which was then reviewed by an orthopedic surgeon on behalf of the Bureau of Workers’ Compensation (BWC).  The Bureau physician opined that Mr. Onderko sustained a new injury at work, which he diagnosed as a sprain/strain of the right knee.  The Bureau physician acknowledged that Mr. Onderko had a separate injury some six weeks before, but maintained that the events at work on August 9, 2012 constituted a new sprain/strain injury, unrelated to his previous injury.

The BWC had initially denied Mr. Onderko’s claim; however, after receiving their physician’s opinion, the BWC vacated its original order and issued a new order allowing the claim and granting temporary total disability compensation.

When the matter went to hearing before a District Hearing Officer (DHO) of the Ohio Industrial Commission (IC), the BWC’s order allowing the claim was vacated and Mr. Onderko’s claim was denied in its entirety.  The DHO relied upon the emergency room records, the records of the treating orthopedic specialist, and Mr. Onderko’s testimony at the hearing.  Mr. Onderko specifically denied any right knee problems prior to his alleged work-related injury on August 9, 2012.  The DHO found this testimony to be implausible and contradicted by the available witness statements.  Mr. Onderko did not appeal the DHO’s decision because he was already back to work and he “wanted the ordeal to be over and he needed his job.” 

Sierra Lobo subsequently terminated Mr. Onderko on December 12, 2012 for his “deceptive” attempt to obtain workers’ compensation benefits for a non-work-related injury.  Mr. Onderko maintained that he had no idea Sierra Lobo was even considering firing him.  During his period of employment with Sierra Lobo, Mr. Onderko received performance bonuses and had no discipline or unexcused absences.  Mr. Onderko further maintained that he had never been investigated for, or charged with, workers’ compensation fraud.  Mr. Onderko filed his lawsuit in March 2013 alleging that Sierra Lobo violated section 4123.90 of the Ohio Revised Code when it terminated his employment for pursuing a workers’ compensation claim.

Given the facts of this claim, any employer would most likely agree that the DHO’s decision to deny Mr. Onderko’s claim was the correct one.  An injured worker has the burden of going forward and the burden of proof.  He must prove by the greater weight of the evidence that:  (1) he has the medical condition which he alleges; and (2) the condition arose out of and was caused by his employment.  Given the “checkered” history provided by Mr. Onderko in his claim, the DHO could certainly find a failure of proof by the greater weight of the evidence.

After the lawsuit was filed, Sierra Lobo maintained, as a matter of law, that Mr. Onderko did not have the right to pursue a “Section 90” violation because Mr. Onderko failed to demonstrate that his underlying workers’ compensation claim for benefits truly involved a work-related injury.  Sierra Lobo further argued that because a DHO for the IC decided the claim against Mr. Onderko, Mr. Onderko was prohibited from re-litigating within his Section 90 action whether or not his injury was work-related.  According to Sierra Lobo’s position, Mr. Onderko’s retaliation claim should fail as a matter of law.  The trial court agreed with Sierra Lobo and granted summary judgment in its favor, meaning the court, based upon the facts and law presented, decided the case as a matter of law in favor of Sierra Lobo. 

Mr. Onderko appealed to the Sixth District Court of Appeals, which reversed the trial court’s judgment, reasoning that an employee does not have to “successfully prove that the injury occurred at work for purposes of a retaliatory discharge claim.”  The Court held that to do so “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 Court held that under section 4123.90, a plaintiff is not required to prove the injury occurred at the workplace and arose out of the scope of his employment.  The Court also held “[Mr.] Onderko was not barred, during his 4123.90 cause of action, from establishing the workplace injury element of his claim.”

Because there was a conflict between the Sixth District’s decision and a similar case out of the Fifth District Court of Appeals, the Supreme Court of Ohio took the matter in. 

The Supreme Court sided with Mr. Onderko, and adopted the decision of the Sixth District, holding that “pursuant to the plain language of Revised Code 4123.90, the elements of a prima facie case of retaliatory discharge under the statute do not require the plaintiff to prove that the injury occurred on the job.” 

In another part of its decision, the Supreme Court explained that their decision “by no means suggests that a fraudulent or false claim for workers’ compensation may be pursued without penalty or could not be grounds for termination.”  That being said, the Supreme Court pointed out that Mr. Onderko was not investigated for fraud, and the Supreme Court went on to say that it did not want to interpret section 4123.90 in such a way that the statute would “vest employers with the discretion to label any unsuccessful claim as deceptive and then terminate the employee.”  The Supreme Court therefore held that in order to set forth a prima facie case of retaliatory discharge under section 4123.90, it requires the employee prove only he was discharged, demoted, reassigned, or the subject of other punitive action in retaliation for the filing of his claim.  According to the Supreme Court, the statute does not require that an employee’s underlying workers’ compensation claim be found to be valid or legitimate by the IC in order to pursue a retaliation claim under section 4123.90.
Questions regarding retaliatory discharge under section 4123.90?  Please contact Mike Reidy or any of the experienced workers’ compensation attorneys at RBS to discuss the same.

Ross, Brittain & Schonberg Co., L.P.A.

6480 Rockside Woods Blvd.
South Suite 350
Cleveland, OH 44131
216-447-1551 | (FAX) 216-447-1554

511 S. High Street
Suite 200
Columbus, OH 43215
(FAX) 216-447-1554

Copyright © 2015. All Rights Reserved. Disclaimer