You may have heard that Ohio workers’ compensation is an exclusive remedy, and an employee who is injured on the job can never file a direct lawsuit against the employer. While that is the general rule, Ohio law creates one important exception.
O.R.C. 2745.01 allows an injured worker to sue an employee for intentional torts. For purposes of this cause of action, “intentional tort” means that the employer “committed the tortious act with the intent to injure another or with the belief that that injury was substantially certain to occur.”
That’s already a high bar, but the statute goes on to define “substantially certain” to mean that the employer acted with “deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.”
In other words, this particular exception to the ban on suing an employer after a work injury is quite narrow.
Generally, the burden is on the injured worker to prove that the employer’s actions were intentional under the terms of the statute. But there is an exception.
Presumption of the Intent to Injure
In two circumstances, Ohio law creates a rebuttable presumption that the act was committed with the intent to injure another:
- Deliberate removal by an employer of an equipment safety guard, or
- Deliberate misrepresentation of a toxic or hazardous substance.
What is a Rebuttable Presumption?
If the employer has taken one of the actions listed above and the employee has been injured or contracted an occupational illness or other condition as a result, proof of that action creates a presumption that the employer acted with intent to injure.
That means the judge or jury may conclude that the employer acted with intent to injure. The injured worker won’t have to prove actual intent.
However, the presumption isn’t conclusive. The employer may “rebut” the presumption, or present evidence to show that there was no intent to injure.
The effect of the rebuttable presumption is to shift the burden: Instead of the employee having to prove that the employer had the intent to injure, the employer must prove that it did not.
However, proving deliberate removal or misrepresentation under the statute can be more complicated than you might think. Ohio courts have generally interpreted the statute very narrowly.
For example, courts have ruled that safety cones, lights, and personal protective gear aren’t “equipment safety guards.” In fact, “guard” has been interpreted strictly, to mean only an actual barrier and not other safety features such as an emergency stop button. So most work injuries, even when the employer has acted recklessly or disregarded a risk, won’t give rise to an intentional tort claim.
Many work injury attorneys have never filed an Ohio intentional tort claim on behalf of an injured worker. At Plevin & Gallucci, we have decades of experience with all aspects of work injury claims, including workers’ compensation, enhanced benefits for safety violations, intentional tort claims against the employer, and personal injury or product liability claims against third parties.
Additionally, as one of the few firms that has successfully pursued intentional tort claims, many law firms across Ohio and the country refer their intentional tort cases to Plevin & Gallucci. We can help you understand how the specific facts of your case apply to Ohio law.
What’s the Difference Between an Intentional Tort Claim and a Workers’ Compensation Claim?
Since workers’ compensation benefits are generally available to any worker who is injured in the course of employment, you may be wondering why you might want to pursue an intentional tort claim against your employer. Workers’ compensation and civil liability claims are very different.
There are three core types of workers’ compensation benefits:
- Total or partial disability benefits, which replace a portion of your income while you are unable to work due to your injury,
- Medical benefits, which pay for medical care and other services such as rehabilitation related to your injury, and
- Death benefits for certain surviving family members if you are killed on the job.
Under limited circumstances, Ohio workers’ compensation may pay one-time, lump-sum compensation for certain types of disfigurement.
In short, workers’ compensation benefits are designed to ensure that you can support yourself and your family and receive the medical care you need in the wake of an on-the-job injury. This is an important protection for people who get hurt at work and their families. But it doesn’t address all of the damages a person suffers when seriously injured.
Additional Damages May Be Available in a Tort Case
Workers’ compensation benefits can leave some gaps. Some of those gaps are practical. For example:
- Workers’ compensation benefits replace a percentage of your income, while compensation in a civil suit may provide full compensation for lost wages.
- Workers’ compensation benefits cover medical and certain medical-related expenses but won’t help pick up the slack if you need to hire someone to help with your children or attend to other matters you can’t due to your injury.
- Workers’ compensation benefits don’t cover intangible losses, such as pain and suffering and loss of quality of life–categories that can make up a significant portion of a civil settlement or verdict.
How Do I Know Which Work Injury Claim to File?
Intentional tort lawsuits and workers’ compensation claims are two completely different processes. Filing for workers’ compensation benefits will not prevent you from pursuing an intentional tort claim.
However, you won’t be able to recover the same damages twice–for example, you can’t get ⅔ of your regular weekly income as replacement income from workers’ compensation and also recover 100% of your regular weekly income through a civil suit.
It’s to your advantage to work with a firm that can coordinate your cases and ensure that you aren’t missing out on an opportunity to pursue compensation. You can schedule a free consultation with an experienced work injury attorney at Plevin & Gallucci right now by calling 855-4PLEVIN, filling out the contact form on this site, or clicking in the lower right-hand corner of the page to chat.
Your time to file is limited. The sooner you schedule your free consultation, the better.
