Monday, July 25, 2016

Ohio Supreme Court sides with workers’ comp fraud

Ohio has a specific statute that protects injured workers from retaliation after filing a workers’ compensation claim. O.R.C. 4123.90 states:
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 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. 
It would seem that for this statute to protect an employee, the employee’s alleged injury must be an actual workplace injury.

Not so fast.

In Onderko v. Sierra Lobo, Inc. [pdf], the Ohio Supreme Court recently held:
The necessary elements of a prima facie case of retaliatory discharge under R.C. 4123.90 do not include proof that the plaintiff suffered a workplace injury.
Lest you think I’m relying on scare tactics, the case actually involved an employee fired after filing a false workers’ comp claim against his employer. The court tried to reason otherwise (“Filing a false claim or making misleading statements in order to secure workers’ compensation is a crime in Ohio. … We resist interpreting the antiretaliation statute in such a way that would vest employers with the discretion to label any unsuccessful claim as deceptive and then terminate the employee.”).

Nevertheless, the facts of Onderko are what they are. The employer fired Onderko for his “deceptive” attempt to obtain workers’ compensation benefits for a non-work-related injury. He injured his knee while pumping gas on his way home from work, and falsely tried to claim that the gas-pump injury was an exacerbation of an earlier work injury.

We should all be troubled by a judicial decision that discourages employers from terminating dishonest employees. Sadly, only one of Court’s justices was similarly troubled, writing the following in dissent:
A court should not construe the statute in a manner to encourage fraudulent claims for workers’ compensation benefits, and here, the Bureau of Workers’ Compensation determined that there was no workplace injury. The evidence therefore supports the trial court finding that Sierra Lobo, Inc., fired Onderko for filing a fraudulent claim. 
Nevertheless, we are left with Onderko as the law in Ohio. It no longer matters whether the workers’ compensation injury underlying a retaliation claim is legitimate or illegitimate, or the employee filing such a claim is truthful or a perpetrator of a fraud. And, sadly, that’s no lie.

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