ONDERKO, APPELLEE, v. SIERRA LOBO, INC., APPELLANT.
Nos. 2014-1881 and 2014-1962
Supreme Court of Ohio
July 21, 2016
2016-Ohio-5027
{¶ 67} We are talking about a person‘s financial ruin and a former spouse using the court system to say, “We don‘t care.” In short, I think it is wrong to base our ability to do justice on whether the phrase “the court shall retain jurisdiction” happens to have been included in the original judgment. The domestic-relations court should always be responsive enough within the support context to adjust an order as justice requires. Otherwise, why not have formulaic computer robots review the facts of every case? The job of a judge is to ensure that justice prevails. That did not happen here, and as a matter of law, I would hold that all judges in Ohio have the authority to utilize
{¶ 68} Based on the foregoing analysis, I respectfully dissent.
Flanagan, Lieberman, Hoffman & Swaim and Richard Hempfling, for appellant.
ONDERKO, APPELLEE, v. SIERRA LOBO, INC., APPELLANT.
[Cite as Onderko v. Sierra Lobo, Inc., 2016-Ohio-5027.]
O‘NEILL, J.
{¶ 1} In this discretionary appeal and certified-conflict case, we will determine whether establishing a prima facie case of retaliatory discharge under
Facts and Procedural History
{¶ 2} Appellee, Michael P. Onderko, was hired as a full-time engineering tech with appellant, Sierra Lobo, Inc., in November 15, 2010. On August 9, 2012, Onderko was moving office furniture with two other employees when his right knee started to hurt. As a result of this pain, Onderko left work early. On his way home, Onderko stopped at a gas station, and his knee gave out as he stepped off a curb. Onderko drove home, and his wife took him to the emergency room. Onderko did not tell the emergency-room doctor that his knee had started hurting at work. He told the doctor only about the curb incident at the gas station. He did not mention the pain at work because he knew that Sierra Lobo was very concerned about its safety record and he was afraid of losing his job.
{¶ 3} The emergency-room doctor referred Onderko to an orthopedic specialist. As a result, Onderko visited Dr. Jeffrey A. Biro on August 10, 2012. The history section of Dr. Biro‘s Clinic Note indicates that Onderko had injured his knee six weeks before and that he had self-treated, resolving the injury over several weeks’ time with ice, rest, and the use of crutches. Dr. Biro‘s note then states that Onderko went on with the activities of daily living until his knee “completely let go” as he was climbing a curb.
{¶ 5} On Friday, August 10, 2012, the same day as his visit with Dr. Biro, Onderko called Sierra Lobo to request light-duty work due to his knee injury. A human-resources generalist for Sierra Lobo avers that when she asked Onderko whether his injury had occurred at work, Onderko told her it had not, that he had been having problems with it for a while. Onderko disputes this statement. He asserts that he never told her that his injury did not occur at work.
{¶ 6} On Monday, August 13, 2012, Onderko again inquired whether he could return to work on light-duty status, mentioning that he had taken some prescription pain medication. David Hamrick, the Corporate Director of Human Resources, told Onderko that he could not return to work because of the medication. On that same day, Onderko filed a First Report of Injury (“FROI“) with the Ohio Bureau of Workers’ Compensation (“BWC“) alleging that his right knee had been injured while lifting and pushing equipment. Onderko avers that he filed the FROI because Dave Hamrick told him he did not believe that the injury was a work injury, and Onderko wanted to be sure the injury was documented as work-related. The record includes “Incident/Close Call Witness Statements” from three Sierra Lobo employees that, taken together, corroborate that Onderko tried to secure light-duty work following the August 9, 2012 injury, that he had mentioned a prior knee injury, and that Dave Hamrick did not believe that Onderko‘s injury was work-related.
{¶ 7} On September 6, 2012, at the request of the BWC, Dr. Nicholas Ahn, an orthopedic surgeon, reviewed Onderko‘s medical file. Dr. Ahn‘s clinical summary states that the sprain/strain to the right knee was directly related to the injury that occurred on August 9, 2012. The doctor further opined that the August 9 injury was separate from the injury Onderko had suffered six weeks before, and there was no evidence that any earlier injury was aggravated by the August 9 incident.
{¶ 8} On September 10, 2012, the BWC denied Onderko‘s claim for benefits. The order states that Onderko failed to meet his burden of proof based on the notes from Dr. Biro and the notes from the emergency-room visit. The BWC order notes that Dr. Biro was to send a corrected statement that was never received, and the physician review, apparently Dr. Ahn‘s, had also not been received.
{¶ 10} Following a hearing on October 31, 2012, a district hearing officer vacated the September 21 order and denied Onderko‘s claim in its entirety, finding that Onderko did not sustain an injury in the course of his employment as alleged. According to the order dated November 6, 2012, the denial was based on the records from Dr. Biro as well as the records from the emergency room, Onderko‘s testimony at the hearing denying any right-knee problems prior to the August 9 injury, which the hearing officer found to be implausible, and various witness statements. Onderko did not appeal this decision. Onderko states that he did not appeal because by the time he received the order he was already back at work, he wanted the ordeal to be over, and he needed his job.
{¶ 11} Onderko was terminated from Sierra Lobo on December 12, 2012, for his “deceptive” attempt to obtain workers’ compensation benefits for a non-work-related injury. Onderko avers that he had no idea that Sierra Lobo was considering firing him, that during his time as an employee for Sierra Lobo he received performance bonuses and had no discipline or unexcused absences, and that he was never investigated for or charged with workers’ compensation fraud.
{¶ 12} On March 8, 2013, Onderko filed a complaint in the Erie County Court of Common Pleas asserting that Sierra Lobo violated
{¶ 13} In its motion for summary judgment Sierra Lobo argued that to establish a prima facie case of retaliation under
{¶ 15} The trial court granted summary judgment in favor of Sierra Lobo.
{¶ 16} Onderko appealed, and the Sixth District Court of Appeals reversed. The appellate court cited this court‘s determination that the basic purpose of the retaliation statute is “““to enable employees to freely exercise their rights without fear of retribution from their employers.““” 2014-Ohio-4115, 20 N.E.3d 322, ¶ 27, quoting Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 22, quoting Coolidge v. Riverdale Local School Dist., 100 Ohio St.3d 141, 2003-Ohio-5357, 797 N.E.2d 61, ¶ 43.
{¶ 17} In sustaining Onderko‘s assignments of error, the court reasoned:
Requiring an employee to successfully prove that the injury occurred at work for purposes of a retaliatory-discharge claim would have a chilling effect on the exercise of his or her rights because the employee would be forced to choose between a continuation of employment and the submission of a workers’ compensation claim. This choice must be made by the employee knowing that if he or she fails to prove that the cause of the injury was work related, not only will his or her claim be denied, but the employer would then be free to terminate the employment simply because the claim was filed.
Id. at ¶ 28. That holding implicitly recognizes that the entire workers’ compensation system is designed to provide a no-fault process for the resolution of claims of injury. Were employers permitted to discharge employees for utilizing the system, its very purpose would be defeated.
{¶ 18} Thus, the appellate court held that under
Proposition of Law No. 1: As an element of establishing a prima facie claim for retaliatory discharge under R.C. 4123.90, a plaintiff must prove that he or she suffered a workplace injury.
Proposition of Law No. 2: As a matter of law, an employee who fails to appeal a decision of the Industrial Commission that his or her injury was not work-related cannot bring [an] R.C. 4123.90 retaliation claim based upon that claimed injury.
{¶ 20} In case No. 2014-1962, this court recognized that a conflict exists between the Sixth District‘s decision in Onderko‘s case and the Fifth District‘s decision in Kilbarger v. Anchor Hocking Glass Co., 120 Ohio App.3d 332, 697 N.E.2d 1080 (5th Dist.1997).
{¶ 21} We certified the following question for review: “Whether, as an element of establishing a prima facie claim for retaliatory discharge under R.C. 4123.90, plaintiff must prove that he or she suffered a workplace injury.” 141 Ohio St.3d 1451, 2015-Ohio-239, 23 N.E.3d 1194. The two cases were consolidated for decision. Id.
{¶ 22} The Kilbarger case involved an injured worker‘s appeal from a bench trial that resulted in a finding in favor of the employer on a claim for retaliatory discharge under
{¶ 23} Although the appellate court found that Kilbarger had sufficiently alleged the three elements of a prima facie case of retaliation in his complaint filed under
{¶ 24} We disagree. Accordingly, we answer the certified-conflict question and proposition of law No. 1 in the negative and hold that pursuant to the plain language of
Analysis
{¶ 25} Ohio‘s statutory workers’ compensation system is the result of a constitutional provision authorized by Ohioans, namely,
{¶ 26} When applying a statute, the court must give effect to all of the statute‘s words. Stolz v. J & B Steel Erectors, Inc., 146 Ohio St.3d 281, 2016-Ohio-1567, 55 N.E.3d 1082, ¶ 9. Likewise, “a court must give effect to the natural and most obvious import of a statute‘s language, avoiding any subtle or forced constructions.” Id., citing Ohio Neighborhood Fin., Inc. v. Scott, 139 Ohio St.3d 536, 2014-Ohio-2440, 13 N.E.3d 1115, ¶ 22.
{¶ 27}
The Statute at Issue
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.
(Emphasis added.) Sierra Lobo points to the italicized phrase and argues that the plain language of
{¶ 28} Onderko argues that requiring an employee to prove that the injury occurred at work for purposes of a retaliatory-discharge claim would have a chilling effect on the exercise of the employee‘s rights, because the employee would be forced to choose between a continuation of employment and the submission of a workers’ compensation claim. Onderko also asserts that it is the filing of a workers’ compensation claim, not the allowance of the claim, that triggers the statutory protection from discharge. We agree with Onderko.
{¶ 29} In Wilson v. Riverside Hosp., 18 Ohio St.3d 8, 479 N.E.2d 275, this court established the requirements for the sufficiency of a complaint for retaliatory discharge under
{¶ 30} Sonya Wilson was injured in a fall while she was on the job. Her workers’ compensation claim was allowed, and she was unable to work for 11 months, during which time she received compensation for temporary total disability. When Wilson‘s doctor released her for work, Wilson notified her employer of her intention to return to work. Wilson‘s employer sent her a letter stating that she had been terminated because its leave-of-absence policy guaranteed a position for only ten weeks, and since Wilson was on leave for over 11 months, her position had been filled. The letter further stated that her termination was pursuant to the leave-of-absence policy and that the termination did not violate any law. Wilson filed a complaint for an alleged violation of
{¶ 31} Wilson‘s employer filed a motion to dismiss for failure to state a claim because Wilson‘s complaint did not specifically allege that the discharge was in retaliation for her workers’ compensation claim. The employer argued that the termination letter demonstrated that there was no retaliatory motive in its refusal to rehire Wilson. The trial court granted the employer‘s motion to dismiss. The court of appeals affirmed the judgment. This court reversed.
{¶ 32} There was no dispute in Wilson‘s case regarding whether her injury was work-related. Rather, the dispute in Wilson was whether her complaint sufficiently alleged that her employer had retaliated against her. This court conclud-
{¶ 33} Accordingly, this court held that “[a] complaint filed by an employee against an employer states a claim for relief for retaliatory discharge when it alleges that the employee was injured on the job, filed a claim for workers’ compensation, and was discharged by that employer in contravention of R.C. 4123.90.” 18 Ohio St.3d 8, 479 N.E.2d 275, syllabus. Our holding in Wilson addressed whether a reference in the complaint to the retaliatory-discharge statute was sufficient to satisfy the notice-pleading requirements of
{¶ 34} This court has also considered and ruled on the basic purpose and import of
{¶ 35} We observed:
The basic purpose of any antiretaliation statute is to enable employees to freely exercise their rights without fear of retribution from their employers. The recognition of a public-policy exception for wrongful discharge in retaliation for filing a workers’ compensation claim, whether derived from statutory or common law, is built on the premise that “[i]nability to challenge retaliatory discharges would undermine the purpose of the workers’ compensation statute by forcing the employee to choose between applying for the benefits to which he is entitled and losing his job.” 82 American Jurisprudence 2d (2003) 682-683, Wrongful Discharge, Section 93.
Id. at ¶ 43. Accord Sutton, 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 22 (recognizing a common-law action for wrongful discharge in violation of public policy based on R.C. 4123.90‘s expression of “a clear public policy prohibiting retaliatory employment action against injured employees“).
{¶ 37} Sierra Lobo‘s proposition that in order to have a successful retaliation claim under the statute, the workers’ compensation claim must be successful ignores the language of the statute as well as its import. The plain language of the statute prohibits “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.”
{¶ 38} Interpreting the statute to prohibit retaliation against only those workers whose claims have been allowed misses the point of the statute, which is to enable employees to freely exercise their rights without fear of retribution from their employers. Sutton, 129 Ohio St.3d 153, 2011-Ohio-2723, 950 N.E.2d 938, ¶ 22.
{¶ 39} Our holding in this case by no means suggests that a fraudulent or false claim for workers’ compensation may be pursued without penalty and is not grounds for termination. Filing a false claim or making misleading statements in order to secure workers’ compensation is a crime in Ohio.
{¶ 40} We therefore hold that a prima facie case of retaliatory discharge under
CONCLUSION
{¶ 41} For the foregoing reasons, we answer the certified question and Proposition of Law No. 1 in the negative and hold that pursuant to the plain language of
Judgment affirmed.
O‘CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, and FRENCH, JJ., concur.
O‘DONNELL, J., dissents in an opinion.
O‘DONNELL, J., dissenting.
{¶ 42} I respectfully dissent.
***
{¶ 43}
{¶ 44} The syllabus prepared by today‘s majority contradicts the statute and is another example of the court failing to adhere to the rule of law and to recognize that the General Assembly is the policy-making body in our government and substituting its own judgment for that of the legislature.
{¶ 45} Accordingly, I would reverse the judgment of the Sixth District Court of Appeals.
Walter Haverfield, L.L.P., and Margaret A. O‘Bryon, for appellee.
Taft, Stettinius & Hollister, L.L.P., Mark J. Valponi, Brian E. Ambrosia, and Jennifer B. Orr, for appellant.
The Gittes Law Group, Frederick M. Gittes, and Jeffrey P. Vardaro, urging affirmance for amicus curiae Ohio Employment Lawyers Association.
Law Office of Thomas Tootle Co., L.P.A., and Thomas Tootle, urging affirmance for amicus curiae Ohio Association for Justice.
Portman & Foley, L.L.P., and Frederic A. Portman, urging affirmance for amicus curiae Fraternal Order of Police Capital City Lodge No. 9.
Paul L. Cox, urging affirmance for amicus curiae Fraternal Order of Police of Ohio, Inc.
THE STATE OF OHIO, APPELLANT, v. JONES, APPELLEE.
2016-Ohio-5105.]