Cincinnati Workers' Compensation Attorney Explains Current Ohio Workers' Compensation Statute and Pending Revisions

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Workers' compensation lawyer Andrew Tobergte of McKenzie & Snyder LLP explains the Ohio intentional tort statute under the current code. Two pending Ohio Supreme Court cases are also discussed which may provide employees with good precedent in intentional tort actions.

workers' compensation ohio

Workers' Compensation Ohio

...the Houdek decision will provide Ohio courts with the specific formula for demonstrating that an employer committed an intentional tort. The Hewitt case...should provide the definition of an "equipment safety guard.

A question often asked by Cincinnati workers' compensation clients of McKenzie & Snyder LLP is whether or not their employer may be "sued" in the normal sense for pain and suffering and other damages. A short answer is "generally not." In Ohio, the workers' compensation system, in a sense, removes an employee's ability to collect directly from an employer for negligence. This is a bargain, as the flip side is that an employee may collect workers' compensation for injuries sustained through his or her own carelessness on the job. Compensation under the Ohio workers' compensation system is generally limited to payment of medical bills, compensation for missed wages and awards for permanent impairment.

One exception is found in Ohio's intentional tort statute, Revised Code §2745.01. Under this law, an employee must demonstrate that the employer either acted with an "intent to injure" or with the belief that injury was "substantially certain" to occur. Curiously, the statute goes on to state that being "substantially certain" is defined as acting with "deliberate intent." The law further establishes an intentional tort where there is a deliberate removal of an "equipment safety guard" or "deliberate misrepresentation of a hazardous or toxic substance." Where an employee is able to establish an intentional tort has occurred, he or she is eligible for general, special and/or punitive damages. Such recovery potential makes intentional tort claims similar to typical injury lawsuits, e.g., personal injury, car accidents, etc.

Prior to the enactment of this law, an intentional tort action was defined by common law. The Supreme Court of Ohio in Kaminski v. Metal and Wire Co., 125 Ohio St.3d 250, 2010-Ohio-1027, and Stetter v. R.G. Corman Derailment Services, L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029 found that the restrictive statutory definitions are constitutional. However, there are a number of recent cases now before the Supreme Court that may provide employees with good precedent in an intentional tort action (See, e.g., Houdek v. Thyssenkrupp Materials N.A., Inc., 8th Dist. No. 95399, 2011-Ohio-1694 and Hewitt v. L.E. Myers Co., 8th Dist. No. 96138, 2011-Ohio-5413.)

It is anticipated that the Houdek decision will provide Ohio courts with the specific formula for demonstrating that an employer committed an intentional tort. The Hewitt case, on the other hand, should provide the definition of an "equipment safety guard." Both cases were decided in favor of the employee at the appellate level.

McKenzie & Snyder LLP has tackled several intentional tort cases involving safety equipment. How the Supreme Court decides the Hewitt case is especially interesting considering the intentional tort climate after Kaminski. It is hopeful that the Court will uphold the 8th District and provide injured workers more solid footing in these actions.

Written by Cincinnati workers' compensation attorney Andrew Tobergte

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Ryan Meo

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