The Workers Compensation system in
our State was developed as a better way to handle work
place injuries. Employees gave up the right to bring
common law damage actions against their employer in
exchange for a system of compensation that was to be
prompt, certain, and reasonable in amount. (Employer’s
intentional tort actions are still actionable.)
The bottom line is before workers
comp, you could sue your employer, wait for the case
action to end in a few years, and pray you win.
We have all heard the nightmares in
workers comp claims. However, a recent Ohio case has, in
this writer’s opinion, turned part of the process on its
head.
In the case of Sammie C. Cordial,
v. Ohio Department of Rehabilitation & Correction,
Southeastern Correctional Institution, the COURT OF
APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN
COUNTY found in favor of the State in a case involving
Ms. Cordial, a prison guard, on Temporary Total
Disability, who lost her job when the State used the
procedures under the Involuntary Disability Separation
(“IDS”) of the Ohio Administrative Code.
Ohio’s Workers Compensation
anti-retaliation statute, R.C. 4123.90 provides in
relevant part:
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. Any such employee
may file an action in the common pleas court of
the county of such employment in which the
relief which may be granted shall be limited to
reinstatement with back pay, if the action is
based upon discharge, or an award for wages lost
if based upon demotion, reassignment, or
punitive action taken, offset by earnings
subsequent to discharge, demotion, reassignment,
or punitive action taken, and payments received
pursuant to section 4123.56 and Chap4141. of the
Revised Code plus reasonable attorney fees. * *
*
Therefore, R.C. 4123.90 expressly
prohibits an employer from discharging, demoting,
reassigning, or taking any punitive action against an
employee because the employee has filed a workers'
compensation claim. The remedy for a violation of R.C.
4123.90 is an action in the common pleas court of the
county where the employee is employed.
However, Ohio law permits the state
or county employers to impose an Involuntary Disability
Separation (IDS) if an employee is incapable of
performing his or her essential job duties due to a
disabling illness, injury, or condition. Ohio Adm. Code
123:1-33-02 (B) provides that:
"[w]hen an appointing
authority has received the results of a medical
or psychological examination and initially
determines that an employee is incapable of
performing the essential job duties of the
employee's assigned position due to a disabling
illness, injury, or condition, the appointing
authority shall institute pre-separation
proceedings. * * *" In addition, "[i]f the
appointing authority determines, after weighing
the testimony presented and the evidence
admitted at the pre-separation hearing, that the
employee is unable to perform his or her
essential job duties, then the appointing
authority shall issue an involuntary disability
separation order." Ohio Adm. Code 123: 1-33-02
(C).
Cordial did appeal to the Franklin
County Court of Common Pleas. The Court held that she
suffered a “significant detriment” described as
including “lost or impaired rights to group insurance,
pension rights, and other rights and benefits enjoyed by
civil service employees”. The Court also found that the
burden on the employee in seeking reinstatement was
burdensome enough that these detriments resulted in
punitive action(s) thus violating the anti-retaliation
statute.
The State appealed the lower Court’s
decision to the Court of Appeals.
The Appeals Court stated:
“We find that an IDS is not a
"discharge" under R.C. 4123.90 because an IDS
employee has the right of reinstatement to his
or her position pursuant to R.C. 124.32 (B) and
Ohio Adm. Code 123: 1-33-04. Here, appellee has
up to three years from the date on which she is
no longer in active work status to notify
appellant that she desires reinstatement. Ohio
Adm. Code 123:1-33-04 (C) mandates appellee's
reinstatement if she timely applies and
demonstrates that she is able to perform the
essential duties of her former position. This
right of reinstatement distinguishes an IDS from
a discharge, which, unlike an IDS, completely
severs the employment relationship.”
I agree with the Common Pleas Court’s
decision. The employee receiving workers comp. placed on
an IDS is no longer covered under the employer’s health
care program. The employee receives no credit for
seniority. If the employee is a cop, his commission is
taken away. This sure sounds like punitive action has
been taken, thus violating the anti-retaliation statute
(R.C. 4123.90).
A reading of the IDS provision would
lead one to believe this action was originally created
to help an employer “get rid of” an employee that can no
longer perform his essential job function. The best
example I can think of would be a police officer that is
severely injured in an off-duty motorcycle accident,
keeping in mind the injuries should heal in time.
The law provides that an employer can
initiate IDS proceedings when the employee’s sick pay,
and other leave time were depleted. There is a
three-year period provided by the legislature to get
your job back, if cleared for duty.
The Code itself refers to disabling
illness, injury, or condition. Clearly the wording
itself is referring to non-job related actions;
otherwise the legislature would have included the words
work related. In fact, work related injury,
illness and conditions are covered under the workers
compensation laws and that law does not provide for
termination of employment until the maximum medical
improvement (MMI) has been determined. If MMI is
reached, then the employee is in most instances eligible
for disability retirement, or SSI/ SSDI through the
Federal government. However, in many cases, an IDS
separation does not mean you are eligible for disability
retirement.
In summary, if you are on temporary
total disability and you use up all your sick, vacation,
comp., injury leave and any other time-off benefit, the
employer can place you on IDS.
The OPBA is not happy with this new
development and will be exploring corrective measures
with the legislature.
