NO COMMON LAW ACTION FOR WRONGFUL DISCHARGE

BASED ON WORKER’S COMPENSATION

By Bradford C. Weber, Esq.

Benjamin, Yocum & Heather, LLC

            I previously wrote an article regarding wrongful discharge based on public policy.  Specifically, that article addressed the “public policy” exception to the employment at will doctrine.  This is a common law, and not a statutory doctrine.

            Subsequent to that article, the Ohio Supreme Court decided Bickers v. Western & Southern Life Ins. Co. (2007), 116 Ohio St.3d 351.  In that decision, the Supreme Court held that there was no common law action for wrongful discharge in violation of public policy for an employee who is terminated while receiving worker’s compensation benefits.

            The claimant in Bickers was injured in the course and scope of employment.  The employer, Western & Southern, did make an accommodation, providing a position for the employee within the restrictions set by her physician.  However, the company ultimately terminated the employee while she was still receiving temporary total disability benefits related to her worker’s compensation claim.  Claimant Bickers then filed a complaint for wrongful discharge, and alleged this was a wrongful termination in violation of the state’s public policy. 

            The Supreme Court of Ohio disagreed, and held that there was no common law public policy tort with respect to a wrongful termination for a claimant receiving worker’s compensation.  The Court held that the exclusive remedy for an employee making such claims is under the worker’s compensation statute: specifically, ORC 4123.90. 

            In reaching this holding, the Court clarified its earlier opinion in Coolidge v. Riverdale Local School District (2003), 100 Ohio St.3d 141.  Coolidge involved a teacher, who had been discharged for excessive absences while receiving worker’s compensation benefits.  The Court limited its decision in Coolidge to considerations of “good and just cause” for termination under R.C. 3319.16 only.  Specifically, they noted that Coolidge does not create a claim for wrongful discharge in violation of public policy, for an at will employee who is discharged for receiving worker’s compensation.

            The Court’s decision in Bickers is significant for employers, as it limits an employee’s ability to sue for wrongful discharge, if worker’s compensation is involved.  The Court noted the difficult policy choice between permitting and prohibiting the discharge of an employee who has been injured at work, because it inevitably creates a burden of some degree upon either the employer or the employee.  The Court believes that the policy choice to deny employers the exercise of their employment at will prerogative and require them to hold open the jobs of injured employees for indefinite periods of time would burden employers with employees unable to perform the work for which they were hired, and create an inability to obtain permanent replacements.  They noted this would be particularly onerous on small employers.