On June 9, 2011, the Ohio Supreme Court issued its long awaited decision in Sutton v. Tomco Machining, Inc., in which the Court expanded the scope of workers' compensation retaliation protection to include employees who are injured on the job but have not yet filed an actual workers' compensation claim.

On April 14, 2008, DeWayne Sutton injured his back while working at Tomco Machining, Inc. ("Tomco”). He allegedly reported the injury to Tomco’s president and within one hour of reporting the injury, Sutton was fired. According to Sutton's complaint, the president did not give him a reason for the firing, but did state that it was not because of Sutton’s work ethic or job performance, or because Sutton had broken any work rule or company policy.

Sutton sent a letter to Tomco that informed it of his intention to file a claim under Ohio's workers' compensation retaliation statute, O.R.C. §4123.90 and filed suit within the statutory time periods for doing so. Sutton's complaint also included a tort claim for wrongful discharge in violation of public policy.

As noted in the Supreme Court's decision:

R.C. 4123.90 does not expressly prohibit retaliation against injured employees who have not yet filed, instituted, or pursued a workers’ compensation claim. But it does expressly prohibit retaliation against injured workers who have filed, instituted, or pursued a workers’ compensation claim. Essentially, a gap exists in the language of the statute for conduct that occurs between the time immediately following injury and the time in which a claim is filed, instituted, or pursued. Sutton’s firing occurred in that gap. The parties disagree as to whether the public policy underlying R.C. 4123.90 justifies the creation of an exception to the employment-at-will doctrine to protect such employees.

In concluding that R.C. 4123.90 does express a clear public policy prohibiting retaliatory employment action against injured employees before they file a workers’ compensation claim or institute or pursue a workers’ compensation proceeding, the Court found that "the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers’ compensation benefits. The alternative interpretation—that the legislature intentionally left the gap—is at odds with the basic purpose of the anti-retaliation provision, which is “to enable employees to freely exercise their rights without fear of retribution from their employers.”

Furthermore, the Court noted its belief that the General Assembly did not intend to create “a footrace, the winner being determined by what event occurs first—the firing of the employee or the filing of the claim with the bureau.” Therefore, the Court recognized a common-law tort claim for wrongful discharge in violation of public policy when an injured employee suffers retaliatory employment action after injury on the job but before the employee files a workers’ compensation claim or institutes or pursues a workers’ compensation proceeding.

The Court rejected Tomco's assertion that its 2007 decision in Bickers v. W. & S. Life Ins. Co., required rejection of Sutton's claim. The Court's syllabus in Bickers expressly stated that R.C. 4123.90 … provides the exclusive remedy for employees claiming termination in violation of rights conferred by the Workers’ Compensation Act." Instead of embracing its syllabus in Bickers, the Court limited Bickers to its factual context, which involved an employee who was terminated pursuant to an evenhanded no-fault attendance policy.

Because the Sutton case reached the Ohio Supreme Court based on the granting of a motion for judgment on the pleadings, the factual record has not yet been developed. Therefore, the Court cautioned that in order to prevail, Sutton would need to establish on remand that his discharge was retaliatory. As the Court noted:

Because a discharge could be for reasons other than those related to workers compensation, such as a reasonable suspicion that the injury was not job related, or a disregard by the employee for the employer’s safety rules, or an immediate need for a replacement employee, no presumption of retaliation arises from the fact that an employee is discharged soon after an injury. Rather, the retaliatory nature of the discharge and its nexus with workers compensation must be established by a preponderance of the evidence. To establish the overriding justification element, Sutton must prove that Tomco lacked an overriding business justification for firing him.

This language in the Court's opinion is interesting because it suggests, contrary to what we often see in retaliation cases, that the timing of a termination in proximity to the protected activity – in this case, the industrial injury – does not create any presumption of retaliation.

The Sutton decision does contain one favorable aspect for employers. Plaintiffs' lawyers historically have used the public policy wrongful discharge tort cause of action endorsed by Sutton to seek compensatory and punitive damages to piggy back on causes of action that ordinarily would not provide such damages. The remedies available under §4123.90 are limited to the traditional equitable remedies of reinstatement and backpay. The Sutton Court held that any action alleging a public policy wrongful discharge based on the workers' compensation statute would be limited to those remedies. Therefore, the limited remedies takes some of the sting out of this decision for employers.