Retaliation and Workers’ Compensation

The Ohio Revised Code states that no employer shall discharge, demote, or take any punitive action against an employee because the employee filed a workers’ compensation claim. R.C. 4123.90. The elements of a retaliatory discharge require an employee to prove that (1) they were injured on the job; (2) the employee filed a claim for workers’ compensation benefits; and (3) that the employee was discharged in contravention of R.C. 4123.90. Once the employee establishes each of these elements, the burden shifts to the employer to articulate a legitimate and nondiscriminatory reason for terminating the employee.

In a recent case, the Court of Appeals of Ohio granted an employer’s Motion for Summary Judgment, because the employee was unable to sufficiently prove that the employer was aware that a workers’ compensation claim had been filed prior to the employee’s termination. In Dragmen v. Swagelok Co., 2014-Ohio-5345 (2014), the employee injured himself while failing to follow the employer’s standard safety procedures. As such, he was placed in a work safety program to stress the importance of following safety procedures, and warned that repeat or additional violations could constitute further discipline, including termination. Id. at ¶8. The employee also filed a workers’ compensation claim, but did not inform his supervisors, and instead filed the claim through the employer’s third party administrator.

Three weeks after being placed in the employee safety program, the employee had a disagreement with a co-worker, which resulted in the employee pulling a chair out from underneath his co-worker. Id. at ¶ 10. The employee was terminated, and he filed a suit alleging that he was fired in retaliation for filing a workers’ compensation claim. The employer filed a Motion for Summary Judgment, which was granted, because there was no evidence that the employee’s supervisors who made the decision to fire him were aware that the employee filed a workers’ compensation claim. Id. at 20.

Thus, “To be liable for retaliating against an employee for taking part in a protected activity, the employer must have knowledge of it.” Meyers v. Goodrich Corp., 8th Dist. Cuyahoga No. 95996, 2011-Ohio-3261 at ¶22. Moreover, even though circumstantial evidence can establish knowledge, it is not enough for an employee to simply assert that their employer’s supervisors generally have knowledge of the charges filed by employees. Id. As such, an employee must prove that their employer knew of their workers’ compensation claim, and fired them as a result of it in order to have a valid retaliation claim.


Traveling Fixed-Situs Employees?

Is an employee who travels to different job sites on a daily basis a fixed-situs employee subject to the “coming and going rule” for the purposes of determining whether he or she is entitled to workers’ compensation? If so, does the “special hazard exception” apply? Recently, in Palette v. Fowler Electric Co., 2014-Ohio-5376 (2014), the 11th Appellate District determined that they would be subject to the “coming and going rule” and the “special hazard exemption would not apply. Id.

A fixed-situs employee is one who commences his or her substantial employment duties only after arriving at a specific and identifiable workplace designated by his employer. Barber v. Buckey Masonry & Constr. Co., 146 Ohio App.3d 262, 269 (11th Dist. 2001). “As a general rule, an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not entitled to participate in the Workers’ Compensation Fund because the requisite casual connection between the injury does not exist.” MTD Prods., Inc. v. Robatin, 61 Ohio St.3d 66 (1991). This is referred to as the “coming and going” rule, and it is used to determine whether an injury suffered in an auto accident occurs in the course of and arising out of the employment relationship. Ruckman v. Cubby Drilling, Inc. 81 Ohio St.3d 117, 120, 689 N.E.2d 917 (1998).

In Palette, the employee worked as an electrician and was injured in an auto accident while driving a company car from his home, to a supply house, before going to the company office for a weekly meeting. Id. at ¶10. Here, the Court determined that because the employee did not commence his substantial employment duties until after arriving at a specific and identifiable work place, he was considered a fixed-situs employee. Palette at ¶30. Moreover, the Court determined that the “special hazard exception” to the “coming and going” rule did not apply, as his travel on the date of the accident did not create a risk that was distinctive or greater in nature than risks to the greater public. Ruckman, 81 Ohio St.3d 117 at paragraph two of the syllabus.

For more information on Palette and other cases, please see:

Workers’ Compensation and the Dual Purpose Doctrine

Some states recognize a dual-intent, or dual-purpose doctrine when an employee is injured while traveling for both business and personal purposes. However, in a recent case, the Ohio Supreme Court clarified that the doctrine of dual intent does not apply in Ohio when determining whether an employee who is injured while traveling for both work and personal reasons is entitled to benefits through workers’ compensation. Instead, workers’ compensation benefits are only available for an injury that occurs in the course of and arising out of the person’s employment.

In Friebel v. Visiting Nurse Assn. of Mid-Ohio, Slip Opinion 2014-Ohio-4531, the claimant was employed as a nurse by the Visiting Nurse Association of Mid-Ohio (VNA) to provide home health care services to clients. The claimant frequently traveled to the homes of her patients, and sometimes stopped at the VNA office for job-related activities. On weekdays she was paid for travel time and mileage, minus the distance it took to go to and from VNA’s office. On weekends, the claimant was compensated for all travel time and mileage.

In January of 2011, on the way to her first patient’s home, the claimant drove her two children and two family friends to the mall. Before she was able to reach the mall, her car was rear-ended. The claimant sought workers’ compensation benefits for a neck sprain.

After several administrative and judicial decisions, the state appeals court found that the claimant would not have been at the accident site if she had not been engaged in work duties as she was on her way to her patient’s home and that, therefore, she was entitled to benefits. However, the Ohio Supreme Court reversed this decision.

As stated, when an employee is injured while traveling for both business and personal purposes, some jurisdictions recognize the dual-intent or dual-purpose doctrines. There, if an employee’s work creates the need for travel, then the employee is acting in the course of employment while traveling, even if he or she does a personal errand. However, Ohio courts have rejected this doctrine. See Cardwell v. Indus. Comm., 155 Ohio St. 466, 99 N.E.2d 306 (1951).

Therefore, if you are injured while traveling to or from work, you should immediately contact an attorney to get a better understanding of what your rights and remedies are. For a longer analysis of Friebel and a copy of the Ohio Supreme Court’s slip opinion, please visit:

Jurisdiction and Workers’ Compensation

What happens when a workplace injury occurs in Ohio, but the employer is located in another state? Which state law applies? For example, what happens if you are a resident of Florida, employed by a Texas company, but injured while in the course of employment in Ohio?

Recently in Linardos v. Joe Tex, Inc. 12th Dist. No. CA2013-08-067, 2014-Ohio-4522, the Court of Appeals decided just that when it held that an injured worker who lived in Florida, was employed by a Texas company, and was injured while on the job in Ohio could participate in Ohio’s workers’ compensation system pursuant to R.C. 4123.54(H). The employer argued that because the employee was covered by a third-party insurance policy in Texas, the injured worker could not participate in Ohio workers’ compensation. However, the Court disagreed. Linardos at ¶ 5.

In its opinion, the Court stated that Ohio courts have interpreted R.C.4123.54 to preclude Ohio workers’ compensation for an employee when (1) the employee is a resident of a state other than Ohio; (2) the employee is insured in a state other than Ohio; and (3) the employee is only temporarily in Ohio. Wartman v. Anchor Motor Freight Co., 75 Ohio App.3d 177, 181 (6th Dist. 1991). All three of these conditions must exist to preclude an employee from receiving benefits in Ohio. Wartman at 181.  Because the employer in Linardos was covered by a private third-party insurance policy (legal in Texas) instead of Texas’ workers’ compensation system, the Court determined that the employee was not covered by a similar workers’ compensation law in Texas.

As a result, the employee in Linardos was allowed to participate in the Ohio workers’ compensation system, even though he was a resident of Florida and employed by a company in Texas. Thus, when an employee is injured in Ohio, but employed by an out-of-state employer, they can participate in the Ohio workers’ compensation system if they meet the criteria set forth cases like Wartman. Be sure to inquire about your employer’s policy, so you are aware of your rights as an employee.

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Fired or Abandoned?

Being injured on the job not only makes life more difficult in the physical sense but the following dealings with worker’s compensation claims can be a  mental nightmare if you don’t know how to approach the situation. Here at Barkan Meizlish DeRose Cox, LLP our Columbus worker’s compensation attorneys help you make sense of your worker’s comp claim so you can get the compensation you deserve. Keep reading as we take an in-depth look at Temporary Total Disability and a specific case we had where the results relied on whether or not the employee was fired from or abandoned their job. 

What is Temporary Total disability? 

Temporary total disability compensation or TTD is a worker’s compensation benefit resulting from an injury that renders the employee in question unable to perform any job duties for a temporary period of time. When a worker receives this type of compensation they are entitled to a percentage of their weekly pay until returning to full-time work. This exact number varies but workers who are awarded temporary total disability compensation typically receive two-thirds of their regular income. This amount is paid until the worker recovers from his or her injuries and is reduced when the employee returns for part-time labor or restricted duty. TTD compensation ceases once the employee is cleared to return for full-time work.

Filing Workers’ Comp Claims

Workplace injuries can be a major setback to any household and can make it difficult to sustain the lifestyle that you are accustomed to. Workers’ comp insurance is there to make sure that you receive the assistance you need after an injury or illness is sustained through meeting your employer’s demands. I am going to cover some things you need to know before filing your claim so that you can ensure you get the compensation you deserve and then I am going to go over a past case where the employee essentially forfeits their workers’ compensation pay.


The first thing you want to do with any injury is to start a paper trail documenting the injury. To do this you need to make sure that you immediately report the injury to your employer or workplace supervisor. What this does is ensure that your injury has been documented and recognized by your place of employment. After reporting an injury to an employer they will likely require you to undergo a drug screening to ensure that your injury was not sustained due to being under the influence.


After you have reported your injury to your employer the next thing you are going to want to do is seek medical treatment as quickly as possible. This is an important step because if you neglect seeking treatment then a likely argument against you in regards to your workers’ comp case is going to be that your injury was not severe enough to seek medical treatment, therefore it is not severe enough to receive disability compensation.


Once the above steps have been completed you need to make sure that you file a workers’ compensation claim with whatever state you reside in – Ohio claims can be made through the Ohio Bureau of Workers’ Compensation. Never rely on your employer to file your claim as it can easily fall to the wayside and be forgotten for a period of time long enough to essentially render your claim invalid.


If at any point in time you have any questions regarding your workers’ compensation claim we here at Barkan Meizlish, LLP are eager to help. We have helped Columbus, Ohio, and the surrounding areas with these types of claims since 1957 and have become some of the most trusted attorneys in the area. Contact our team of workers’ compensation attorneys today to ensure you get the compensation that you deserve.


Now that you have a good understanding of the steps you need to take in filing your claim I am going to go over a case where an employee inadvertently surrendered their rightful claim to workers’ compensation so you know what to avoid.


Temporary Total Disability Case Results

On June 3, 2009 an employee injured himself while working as a mechanic. He was later diagnosed with a sacroiliac joint sprain/strain. He was released to work six days later with the ability to work in a light-duty capacity.

Upon returning, the employer confirmed that the employee could return to light-duty work and asked that the employee return a Jeep that the employee had borrowed from the employer. This upset the employee, and a disagreement followed, prompting the police to be called. The employee cooperated with the police and left the premises, ending his employment.

Upon filing for Workers’ Compensation, the employer objected to the claim, but the claim for a left sacroiliac sprain/strain was allowed. However, the employee’s request for temporary total disability compensation (TTD) was denied on the basis that the employee voluntarily abandoned his job. The Court held that the employee was barred from receiving TTD, as he voluntarily quit his job for reasons unrelated to his industrial injury.

“This disagreement happened to occur shortly after (the employee) reported working with a note from his doctor restricting him to modified duty.” Moreover, “His departure was not causally related to the industrial injury. … Temporary-total-disability compensation is intended to compensate an injured worker who is temporarily unable to return to the duties of his or her former position of employment as a result of a workplace injury.” Thus, it is important that when an employee leaves their job, it must be due to an industrial accident, if they wish to recover TTD benefits.

Now you have a better understanding of what constitutes TTD and what you need to do as an employee to ensure you get the compensation you deserve in the event of a workplace injury. If you have any questions concerning your claim our professional team of workers’ comp attorneys is here to help. Contact Barkan Meizlish, LLP today for all of your workers’ comp needs.


Meaningful Review of the Evidence

Recently, the Ohio Supreme Court held that a commissioner of the Industrial Commission of Ohio is not required to attend a hearing in order to vote on a matter being heard. In State ex rel. Every v. Indus. Comm., Slip Opinion No. 2015-Ohio-120 (2015), an injured workers surviving spouse filed for death benefits under R.C. 4123.59. The claim for death benefits was allowed, but because the motion for death benefits was not filed within one year of the date of death, a staff hearing officer denied the motion.

The surviving spouse appealed through the administrative process until the commission was asked to reconsider the decision to deny benefits. At this hearing only two of the three commissioners were present, and by a vote of two-to-one, denied the surviving spouses’ request to exercised continuing jurisdiction over the case. The missing Commissioner stated that she discussed the case at length with a Staff Hearing Officer who was present at the hearing, and also reviewed the evidence within the claim file.

The surviving spouse filed a complaint in mandamus in the Court of Appeals, also stating that she was denied due process of law when the Commissioner voted on the motion for reconsideration despite not attending the hearing. The Court of Appeals issued a limited writ of mandamus compelling the commission to conduct a new hearing before all commission members. However, the Supreme Court of Ohio reversed this decision, as it stated in State ex rel. Sigler v. Lubrizol Corp., 136 Ohio St.3d 298, 2013-Ohio-3686, 995 N.E.2d 2014, “the due process requirement of a full and fair hearing means that the decision maker must, in some meaningful manner, consider and appraise all the evidence to justify the decision.”

Thus, because the missing commissioner reviewed the evidence on file and discussed the proceedings and testimony of the hearing with a Staff Hearing Officer who was present, the commissioner was said to have considered all evidence in a meaningful manner. As such, it is appropriate for a commission hearing to only have two of the three commissioners present, so long as the missing commissioner completes a meaningful review of the evidence.

Employee v. Independent Contractor

Employee v. Independent Contractor – What You Need To Know

What is the difference between an employee and an independent contractor? This is an important question and one that business owners and workers must reckon with. Oftentimes, employers will attempt to classify a new hire as an “independent contractor.” This is done to limit exposure under a given state’s worker’s compensation act. Also, if a hire is considered an employee, employees are mandated to withhold income taxes and pay Social Security, Medicare taxes, and unemployment tax on wages. Employers are under no such obligation to independent contractors.

This is an issue that raises a number of questions and attempting to answer them is not exactly straightforward. In fact, there are many factors that go into determining how to most effectively address this situation. When courts have weighed in on the “employee versus independent contractor” dynamic, some common factors have become apparent. 


Control and Relationships – What They Mean And How They Affect You

It’s important to note that each jurisdiction has its own statutes and regulations and if you have specific, detailed questions you should refer to a state’s statutes and rules that focus on employment. Regardless, the most common element that all courts look for in these relationships is the right of “control” as to the means and manner of the job. 

The IRS offers two key points to clarify how to understand the dynamics that define an employee compared to an independent contractor. 

As we said, the first is control. If the business controls what a person does and then directs how it is done, that is considered a type of behavioral control. Financial control is also a consideration if the business dictates particular aspects of the tasks. That includes


  • Level of instruction
  • Amount of training
  • Degree of business integration
  • Method of payment
  • The furnishing of work tools and other materials
  • Ultimate control over the work environment and where work is completed
  • The right of discharge

While this list is by no means exhaustive, it should provide all parties with a firm understanding of the factors which go into an independent contractor/employee relationship determination.

A second factor is the relationship between the two parties and any contractual obligation or benefits associated with the employment.  The factors, for the type of relationship between two parties, generally fall into the categories of:

  • Written contracts
  • Employee benefits
  • Permanence
  • Services provided  


Again, this is not a definitive list, but it should offer some clarity in terms of an established relationship between an employee or independent contractor and their employer. 

If you have any questions about your status as an employee or independent contractor, please contact our team today

The law firm of Barkan Meizlish DeRose Cox, LLP is over sixty years old, with a national practice, focused on wage and hour/overtime litigation, Ohio workers’ compensation, Social Security Disability, and personal injury/medical malpractice. Our law firm and individual law firm members appear on lists of the best law firms and attorneys in the nation.

Changed Circumstances = New Period of TTD?

The underlying principle of temporary total disability compensation is that the employee’s departure from the workplace must be causally related to the industrial injury for the employee to be eligible to receive that type of compensation. State ex rel. Rockewell Internatl. v. Indus. Comm., 40 Ohio St. 3d 44, 531 N.E.2d 678 (1998). As such, if a claimant is no longer employed for reasons unrelated to the industrial injury and has not reentered the workforce, he is not eligible for temporary total disability compensation. State ex rel. McCoy v. Dedicated Transport, Inc., 97 Ohio St.3d 25, 2002-Ohio-5303, 776 N.E.2d 51. However, just because a claimant has stopped working, does not mean that he or she has voluntarily abandoned his position.

Recently in State ex rel. Viking Forge Corp. v. Perry, Slip Opinion No. 2015-Ohio-968, a claimant was injured in September of 2008, placed on light duty in December of 2008, returned to full duty in February 2009, and fired in March of 2009, and allowed to recover temporary total compensation in April 2009. The claimant’s initial doctor returned him to full duty work in February 2009, but in April 2009, the claimant got a new doctor who placed him on restricted duty, and the claimant applied for a period of temporary total disability compensation. Id.

This request was awarded, but the employer challenged it. The Tenth District Court of Appeals concluded that the claimant had not voluntarily abandoned his employment and that the new doctor’s findings warranted a temporary total disability compensation award. This decision was affirmed by the Supreme Court of Ohio who ruled that the Industrial Commission passed the scrutiny required by law and properly evaluated the weight and credibility of the evidence presented.

The claimant testified that it was another employee who committed the infraction and that his doctor had recently noted changes in his condition. As such, even though the employee was terminated by his employer for allegedly violating rules and his previous doctor had returned him to full capacity, the Court awarded temporary total disability compensation.


Voluntary Abandonment

An employee is precluded from recovering temporary total compensation when they voluntarily abandon their position of employment. An employee voluntarily abandons their position when they violate (1) clearly defined, prohibited workplace conduct, (2) that was previously identified by the employer as a dischargeable offense, and (3) was known or should have been known by the employee. State Ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St. 3d 401, 650 N.E.2d 469 (1995). An example of voluntary abandonment is when an employee fails to show up for work without informing their employer for a certain number of consecutive days. AJL Denied Social Security Benefits

In a recent case, the Supreme Court of Ohio held that an employee, who was discharged by their employer, voluntarily abandoned their employment by violating a written workplace policy, which required termination upon exceeding the limit of allowed instances of tardiness or absences. State Ex rel. Parraz v. Diamond Crystal Brands, Inc., Slip Opinion No. 2014-Ohio-4260 (2014). The employee argued that her absences from work were due to external reasons, and thus not voluntary. Id. at ¶ 6. However, because the employee was aware of the attendance policy and still failed to show up for work or provide documentation of the absence, the Court held that the violation did not need to be voluntary. Id. at ¶ 16.

Thus, the Court held that an employee’s termination can constitute voluntary abandonment of a former position. Discharge “is often a consequence of behavior that the claimant willingly undertook, and may thus take on a voluntary character.” Louisiana-Pacific, 72 Ohio St.3d at 403, 650 N.E.2d 469, quoting State ex rel. Watts v. Schottenstein Stores Corp., 68 Ohio St.3d 118, 121, 623 N.E.2d 1202 (1993). Therefore, an employee’s violation of a work rule or policy need not be willful or deliberate, but merely a voluntary act that the employee knew may lead to termination of employment. State ex rel. Brown v. Hoover Universal, Inc., 132 Ohio St. 3d 520, 2012-Ohio-3895, 974 N.E.2d 1198, ¶ 11.

If you have been denied workers’ compensation benefits because of voluntary abandonment, contact our Workers compensation lawyer at (614) 221-4221 to discuss your case with an attorney.

State Ex rel. Louisiana-Pacific Corp. v. Indus. Comm., 72 Ohio St. 3d 401, 650 N.E.2d 469 (1995)

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