When an Injured Worker Can Go Beyond Remedies Provided by Workers' Compensation
David P. Miraldi
If an injured worker can prove that an employer intended to cause injury to an employee, an employee can file a separate claim against the employer in the courts. This is in addition to the employee’s right to bring a worker’s compensation claim.
For years, a battle has loomed between the Ohio Supreme Court and the Ohio legislature in allowing this additional claim. The Ohio Supreme Court fashioned a remedy that allowed a recovery for medical bills, lost wages, pain and suffering, loss of enjoyment of life, and other intangible losses under certain situations. A person could proceed against the employer if he or she proved three things:
1.) The employer knew of a dangerous process, procedure, or condition within its business operation.
2.) The employer knew that if the employee was subjected to these dangerous things, then harm to the employee was a substantial certainty, and
3.) The employer with this knowledge required the employee to continue to do the dangerous task.
The courts initially determined that if the employer knew of the condition, then the employer’s callous disregard or recklessness in forcing the employee to work under those conditions constituted an intent to injure with substantial certainty.
Over the next thirty years, the legislature attempted to restrict the claim for an intentional tort. Several bills were passed that attempted to limit these claims to situations where the employer had the intent to deliberately injure the employee. This is a very difficult standard to prove. The Ohio Supreme Court struck down the legislature’s first two attempts to rein in the law, finding the laws to be unconstitutional. However, a law passed in 2005 was found to be constitutional and it appeared that the legislature had finally won. The new law required the employee to prove that the employer acted with deliberate intent to injure the employee. However, the law left open one way for employees to establish deliberate intent.
The new law allowed an action to proceed if the injured employee could prove that an employer deliberately removed an equipment safety guard or deliberately lied about a hazardous substance. Under these scenarios, the court would instruct the jury that there was a rebuttable presumption that the employer acted with an intent to injure the employee.
It is with this background that one can understand the significance of a recent case decided by the Sixth District Court of Appeals involving a situation that occurred in Toledo. In that case, the court of appeals agreed with the employee that a safety guard involved more than just a guard on a machine. In Beyer v. Rieter Automotive North American, Inc., the employee alleged that he had to breathe in silica dust at his work place because the employer occasionally had breathing masks locked up and unavailable to workers. The worker's attorneys argued that the failure to provide the mask was the same as deliberately removing a safety guard. The court of appeals agreed.
In another case, a Cleveland appeals court ruled that the failure to provide protective rubber gloves and sleeves to electrical workers was the same as deliberately removing a safety guard. The court in that case reasoned that gloves and sleeves were equipment designed to be a physical barrier, shielding the operator from the risk of electrocution.
Although still difficult to prove, employees can bring an intentional tort claim if the worker can show that the employer did something that was tantamount to removing a safety guard or if the employer lied about the danger of a particular toxic substance used in the workplace.
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