Several years ago I was asked to research the viability of a lawsuit on behalf of a woman who worked in a restaurant. Her main allegation was that her employer had caused her physical injuries by (1) requiring her to work in a role where she had to do lots of overhead lifting and (2) refusing to move her to a different role when she asked to be moved. Her injuries were serious – she needed surgery. The employer had treated her very badly. I figured she must have a strong case. Then I learned about RC 2745.01, which provides:
(A) In an action brought against an employer by an employee, or by the dependent survivors of a deceased employee, for damages resulting from an intentional tort committed by the employer during the course of employment, the employer shall not be liable unless the plaintiff proves that the employer
committed the tortious act with the intent to injure another or with the belief that the injury was substantially certain to occur.
(B) As used in this section, “substantially certain” means that an employer acts with deliberate intent to cause an employee
to suffer an injury, a disease, a condition, or death.
This is yet another way that Ohio law is very favorable to businesses/employers, in addition to caps on punitive and noneconomic damages, limitations in Ohio consumer protection laws, and a higher standard for respondeat superior liability. Because of RC 2745.01, the woman discussed above would essentially be limited to filing a worker’s compensation claim. (She could possibly satisfy the standard provided in RC 2745.01, depending on more facts, but it is a challenge to prove that an employer deliberately intended to injure an employee, as opposed to simply being “negligent.”) Almost all on-the-job physical injuries Ohio employees suffer must be redressed through the worker’s compensation system. As such, in most cases an employee cannot ask a jury to consider the employer’s egregious conduct and decide a damages award with respect to their physical injuries. It should be clarified that the woman discussed above could still file a lawsuit for racial discrimination, gender discrimination, age discrimination or disability discrimination, but the damages recoverable at trial would not include the physical injuries or medical expenses associated therewith. (This may depend on a case by case basis. Because of the complicated nature of this area of law, consultation with an Ohio employment lawyer is crucial.)
when he got injured while moving a computer. [Ascena is a publicly-traded American retailer of women’s clothing. Ascena also owns the Maurices, Justice, Lane Bryant, and Catherines clothing store brands, and is the parent company of Ann Inc., operator of Ann Taylor and Loft stores.] His medical treatment was initially
covered by his employer’s medical insurance with Aetna. At some point in time, Aetna,
perhaps as a result of communication with Ascena, came to view the injury as being part
of a potential workers’ compensation claim and began refusing to pay the accruing
curtailed Tchankpa’s medical treatment, which resulted in Tchankpa’s medical picture
paying Tchankpa’s medical bills, but later discontinued payment. Ascena now appears to
contest the issue of whether Tchankpa’s injury arose out of his employment.
found that Tchankpa had the right to participate in the workers’ compensation system,
but Ascena pursued that ruling to the staff hearing officer in an appeal who found that
Tchankpa did not have the right to participate in the workers’ compensation system.
Tchankpa filed a lawsuit alleging that Ascena was guilty of an intentional tort for refusing
to pay his medical bills and withholding workers’ compensation benefits. That lawsuit was
dismissed by a trial court judge who felt that the lawsuit failed to state a claim upon which
relief could be granted. Tchankpa, now represented by counsel, has appealed that
dismissal, assigning a single error for our review: The Common Pleas Court committed reversible error when it
dismissed Mr. Tchankpa’s lawsuit for failing to state a claim
upon which relief can be granted.
injured while employed. The company’s medical insurance paid his medical bills for a
while. Then someone informed the medical group insurance company that the injury
might be part of a claim for workers’ compensation, so the payments stopped.” The majority further noted that “while the obligation to pay the medical bills stays in limbo,
Ascena benefits; its premium for workers’ compensation coverage is not raised because of
a worsening claims history. The insurance company premiums with Aetna also do not
increase for a claim it is not paying.”
the group of employees covered by Aetna to an employee who was pursuing a workers’ compensation claim, thereby terminating his health insurance coverage while contesting
his eligibility for workers’ compensation.
Ascena acted in bad faith in terminating the medical coverage of the injured employee,
knowing it would cause physical and psychological harm to the employee. As a result, the
complaint stated a viable claim for relief and should not have been dismissed. At this
stage of the proceedings, we do not know all the details and much of what is in the briefs
has not been proved. However, the complaint filed by Tchankpa clearly alleges that
Ascena terminated Tchankpa’s medical coverage under conditions which indicate bad
faith and which indicate knowledge that the termination of the coverage would do
physical harm to Tchankpa.
coverage of the injured employee, knowing it would cause physical and psychological
harm to the employee” is unclear and it may not be a tort under Ohio law even if Ascensa really did do this. Judge Sadler must be praised for voting based on the law and not on the emotional appeal the case presented. Still, I have to respectfully side with the majority, because of the policy implications and because Ascensa (if the allegations are proven) really did cause physical harm by acting in bad faith. That simply should not be tolerated in Ohio.It will be interesting to see if this case resurfaces in a year or two, after either a jury verdict, grant of summary judgment, or even a trip to the Supreme Court of Ohio. Because of the somewhat unclear legal issue involved, there is probably a decent chance further appellate review would be granted. Until then, Ohio employment attorneys should be aware of this potential claim.