BWC Retaliation Case

by | Apr 9, 2021 | General, Labor and Employment, Workers’ Compensation

Creveling v. Lakepark Industries, Inc., 2021-Ohio-764

The Sixth Appellate District Court of Appeals has rendered a decision denying an employee’s claims of workers’ compensation retaliation and disability discrimination, among some other related claims.

The employee at issue was a tool and die maker.  He was injured while using a machine that had rotating parts which caught the glove he was wearing and mangled his right hand, resulting in an amputation of his middle and ring finger. The Employer contacted OSHA to begin an investigation and filed a workers’ compensation claim on the employee’s behalf.  The employee was eventually released to full duty by his doctor and the employer reinstated him as a tool and die maker.  

Employees were trained extensively not to use gloves while using rotating equipment and the employer investigated the employee’s conduct in this regard and imposed a three-day suspension without pay.  The employee admitted that he violated the policy and also executed an employee corrective action warning him that any further violations would result in his dismissal.  The first day back from the suspension, the employee was witnessed wearing gloves while operating a rotating machine.  The employee was reported to management and was terminated for violating the policy and the employee corrective action.  The employee conceded that he had violated the corrective action.

The employee sued the employer for workers’ compensation and disability discrimination as well as wrongful termination, an intentional tort related to maintenance of the equipment, and loss of consortium on behalf of his wife.

Ohio law provides that “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.”

Workers’ compensation retaliation, like other discrimination and retaliation claims are subject to a burden-shifting analysis by the Court. The employee bears the burden to establish a “prima facie” case by showing that (1) the employee filed a workers’ compensation claim, or instituted, pursued, or testified in a workers’ compensation proceeding; (2) the employer discharged, demoted, reassigned, or took punitive action against the employer; and (3) a causal link exists between the employee’s filing or pursuit of a workers’ compensation claim and the adverse action by the employer.  

If the employee can establish a prima facie case, the employer must show a legitimate, non-discriminatory reason for its action.  If the employer meets this burden, it goes back to the employee to establish that the reasons provided by the employer are merely a pretext.  To do so, the employee must be able to shoe that the reasons given by the employer (1) had no basis in fact; (2) did not actually motivate the discharge; or (3) was insufficient to motivate the discharge.

The Court rejected the employee’s argument that because he was fired within 7 days of returning to work, it was sufficient to establish retaliatory motive.  The Court reasoned that the firing and the employer’s knowledge of the claim were not sufficiently close enough in time to establish that proximity alone constituted evidence of retaliatory intent.  Moreover, the Court found that the act of returning to work is not protected activity.  

The Court also rejected evidence that the employer had a hostile attitude towards the employee based on a couple off-color remarks that were made upon his return such as “I guess you are left-handed now.”  Such isolated comments, however, out of context, and in the absence of other evidence, are insufficient to establish a causal link between termination and the filing of a workers’ compensation claim.  

The Court also rejected the employee’s argument that because the employer had failed to discipline other employees prior to his injury for wearing gloves, that its action to do so after the injury is evidence of a retaliatory motive.  The Court found that the employee himself had not been declined for doing so prior to his injury and that he was unequivocally prohibited from doing so after his injury, before he was terminated for once again violating the policy.

The Court denied the employee’s disability discrimination law, which was made on similar factual allegations as the retaliation claim.  However, here, the Court found that the employee was unable to establish a prima facie case of discrimination because he did not have a disability due to his two fingers being amputated.  The Court found that the employee did not establish that the amputation caused him a substantial limitation of a major life activity.  The Court recognized that he had some difficulty in adjusting to writing and other tasks with his right hand after the amputation, but he was still able to perform his work as a tool and die maker and could not establish that he was substantially limited in the performance of any major life tasks as compared to most people in the general population.  

The Court also found that the employee could not have been regarded as having a disability by the employer because the employee lobbied to return to, and succeeded in securing, his former position of employment. Finally, the Court held that even if the employee could establish that he was disabled, there was insufficient evidence to find that he was terminated on account of his disability.

What this means for your District:

It is possible to terminate an employee for acts which lead to a workers’ compensation claim.  A termination does not end the claim itself, just the employment relationship.  Termination should be supported by an articulable violation of policy or directive or you may risk losing the burden shifting analysis.  Here, the employer did not have a perfect set of facts because there was a history of non-enforcement of the policy until after the injury and there were some snide remarks made to the employee about his injuries.  However, because the employer provided training, complied with its legal requirements, and kept the discipline focused on the employee’s violation of the policy and the corrective action, those little factual hiccups were not sufficient to establish a retaliatory or discriminatory motive behind the discipline action.

Tenth Appellate District: Workers’ Compensation

by | Jun 16, 2020 | General, Labor and Employment, Workers’ Compensation

Workers’ Compensation practitioners and school benefits employees alike know that temporary total disability, and particularly the concept of voluntary abandonment of employment, are difficult areas of Workers’ Compensation law in Ohio. The Tenth Appellate District could not have framed the difficulty more succinctly than it did in a recent decision wherein the Court stated the issue of the case as follows:

“Can you be accused of assaulting your boss, get fired, be convicted (by plea, no less) of the assault, be at least preliminarily barred by court order from even setting foot in that workplace, and then still gain subsequent temporary disability status under Workers’ Compensation in connection with your (former) job?

The Court’s answer: Maybe.

Temporary total disability (TTD) is a benefit provided by the Bureau of Workers’ Compensation (BWC) to compensate for wage loss due to an injury. Voluntary abandonment is a defense an employer may assert against a claim for TTD. An employee who is terminated for violation of a written work rule may be considered to have abandoned his or her employment. If the employer is successful in raising the defense, the TTD will be denied because the disability due to the workplace injury is not the sole reason the employee is unable to return to the former position of employment. The concept was first used in a case wherein an employee had voluntarily retired. The court held that “If the employee has taken action that would preclude him from returning to his former position of employment, even if medically able to do so, the employee is not entitled to continue to receive temporary total disability compensation, because it was the employee’s own action rather than the industrial injury which prevented him from returning to his former position of employment.” The concept has been applied to employees who are incarcerated as well as those that voluntarily retire.

However, not all separations from employment will constitute voluntary abandonment. Involuntary retirement due to the workplace injury will not preclude payment of TTD nor, to the surprise of many employers, getting a new job. The Ohio Supreme Court has held that the abandonment of employment defense applies only to claimants who voluntarily leave the labor market, not to claimants who quit their former position of employment. Employee discipline situations can fall both ways, which brings us to the importance of this case.

Termination from employment can be considered voluntary abandonment if the employee willingly engaged in acts that lead to the termination. The Supreme Court allowed the defense in a case involving the violation of a policy that prohibited the accumulation of three consecutive unexcused absences. If those absences had been due to the industrial injury that was the basis of the claim, the defense would not have been accepted.

Turning back to the case at hand, here, the employee got into a heated exchange with the employer which lead to a physical altercation. The employee reportedly lunged at the employer, pushing him and causing him to fall back. The employee was terminated and arrested for assault. The employer had a policy against fighting and a policy against criminal convictions other than minor traffic offenses. The employer asserted those policies as the basis for his termination and in turn, attempted to use the termination as grounds to cut off TTD benefits due to voluntary abandonment. At the first hearing, the District Hearing Officer granted TTD for the employee finding that the employer had not set forth sufficient evidence as to when or why the employee was terminated. On appeal, the staff hearing officer agreed and again, found in favor of the employee.

The employee testified that he did not assault the employer. Rather, he acted in self-defense when the employer came towards him. When the employer approached, he put his arms up to stop him and the employer said, “you just assaulted me.” The employee testified that he plead guilty to avoid excessive legal fees and jail time. The staff hearing officer rejected the employer’s position that the employee had willingly engaged in fighting. It appears the employer did not bring any additional witnesses to testify and the hearing officer found the employee to be more credible than the employer. The staff hearing officer also rejected the termination was based on a criminal conviction because it came long after the termination.

The employer appealed the matter to court but by then, it was too late to improve its case. Once on appeal, the court must accept the findings of the hearing officer unless the decision is an abuse of discretion because the hearing officer did not have “some evidence” to reach its conclusion. It is a high bar to overcome. The court noted that the hearing officer is charged with assessing the weight of evidence and the credibility of witnesses and is entitled to deference by the court. The employer lost the appeal.

The moral of the story is to never underestimate the importance of the BWC hearing. These hearings are brief and informal and it can lull an unwary employer into essentially “winging it” when they think they have a strong case. Any and all documentary evidence should be prepared and submitted, and any and all witnesses should be brought to testify. The employer has only one, perhaps two, chances to influence what goes into the record of proceedings (the hearing officer’s decision) and that record sets the basis for a court’s review in the future. Make sure that “maybe” becomes a “yes.” If you have any BWC related questions, please reach out to one of our Workers’ Compensation team members. 

State ex rel. Welsh Ents., Inc. v. Indus. Comm., 2020-Ohio-2801