Ohio law provides for the payment of lost wages, or “temporary total disability” where an injury prevents the worker from returning to his/her former position of employment. Unscrupulous employers attempt to avoid the payment of temporary total by terminating the injured worker’s employment with the company. Unfortunately, the Ohio Supreme Court, in State ex rel. Louisiana Pacific, determined that in certain circumstances, termination can block the payment of temporary total. The Court determined that termination is a proper defense to the payment of temporary total where the termination was in violation of clearly defined written work rule, that had been previously identified as a dischargeable offense, and the employee knew or should have known the conduct would result in termination.
Since the Louisiana Pacific case, employers have sought to defend against the payment of temporary total disability by seeking to discharge the injured worker. Over the years, the Supreme Court has narrowed the circumstances in which the defense applies. Moreover, the Court determined that the defense does not apply where an injured workers is physically unable to return to the job they were doing at the time of injury. Consequently, injured workers were able to receive temporary total disability even if terminated so long as their physical restrictions prevented them from returning to their original job.
However, two recent court cases give cause for concern. In both State ex rel. Apostolic and State ex rel. Adkins, the injured workers were unable to return to their original job, but were provided light duty work assignments by their employer. However, both employees were terminated while on a light duty assignment. The Court determined that so long has the requirements of Lousiana Pacific were met, a termination could stand in the way of the payment of temporary total disabilty, even though neither worker could physicially perform their regular job.
The holdings in Apostolic and Adkins are cause for concern as employers have now been given incentive to provide light duty work assignments to their injured workers, then seek to find a way to terminate their employment thereby preventing these injured workers from receiving lost wage compensation.
So many of our clients already feel threatened and intimidated by their employers for filing legitimate workers’ compensation claims. In many circumstances, injured workers forego reporting and filing a claims so as to avoid ultimately getting terminated from their job. These recent court holdings serve to further create a climate hostile to injured workers within plants, hospitals, schools and all other places of employment all across Ohio. Given the attack on workers’ rights by the attempted passage of Senate Bill 5, it is safe to assume that the current administration in Columbus will do nothing to prevent this hostility towards injured workers.