Fact-Checked: Why Trust Rittgers Rittgers & Nakajima If you are injured at work in Ohio, your first thought may be that you should be able to sue the person or company responsible for your injuries. After all, if someone’s negligence caused you to suffer a serious injury, shouldn’t you be able to bring a personal injury lawsuit?
Ohio law provides an important, and perhaps surprising, answer: when an employee is injured in the course of and arising out of employment, workers’ compensation generally provides the exclusive remedy against the employee’s employer.
That does not necessarily mean, however, that a workplace injury is limited to a workers’ compensation claim. In many cases, an injured worker may have a viable personal-injury claim against someone other than the employer. Identifying those potential defendants can make an enormous difference in the amount of compensation available to an injured worker.
This is one reason why work-injury cases require careful investigation at the outset. A careful attorney will ask: Who else may be legally responsible for causing this injury?
The Workers’ Compensation System and the “Exclusive Remedy” Rule
Ohio’s workers’ compensation system is based on a statutory compromise between employers and employees. In general terms, employees receive a system of benefits without having to prove that their employer was negligent. In exchange, employers receive protection from most negligence lawsuits arising from workplace injuries.
Consequently, an employee generally cannot sue the employer merely by alleging that the employer:
- Failed to provide a safe workplace;
- Failed to properly train or supervise the employee;
- Failed to follow an applicable safety rule;
- Failed to maintain equipment properly;
- Provided defective or unsafe equipment;
- Failed to correct a hazardous condition; or
- Otherwise acted negligently.
Those allegations ordinarily belong in the workers’ compensation system rather than a negligence lawsuit against the employer. In a typical negligence case, the injured person must establish the elements of negligence and prove that another party’s conduct caused the injury.
Workers’ compensation generally does not work that way. The system is designed to provide benefits for qualifying work injuries without requiring the employee to establish that the employer was negligent. The Ohio Bureau of Workers’ Compensation administers the workers’ compensation system and determines compensability and the allowed conditions of a claim.
What About an Employer That Did Something Really Bad?
This is where the law becomes more complicated.
Ohio recognizes a narrow exception for an employer intentional tort. But it is important not to confuse “intentional tort” with ordinary negligence, recklessness, or even extremely bad safety practices.
An employer generally cannot be held liable for an intentional tort unless the employee proves that the employer committed the tortious act with the intent to injure, or with the belief that injury was substantially certain to occur. That is an exceptionally high burden of proof the injured worker must meet to successfully sue the employer.
In practical terms, the fact that an employer knew a condition was dangerous; violated OSHA requirements; ignored safety complaints; had previously experienced accidents; failed to correct a known hazard; or acted with serious negligence does not, in general, establish an employer intentional tort.
The safety-guard presumption
There is a particularly important Ohio statute regarding safety guards on work equipment. Under R.C. 2745.01(C), an employer’s deliberate removal of an equipment safety guard can create a rebuttable presumption that the employer intended to injure another person if the employee’s injury occurs as a direct result of the removal. The statute also contains a similar provision concerning deliberate misrepresentation of a toxic or hazardous substance. These exceptions are narrowly construed and rarely keep workers comp rules from applying to a given case.
The Ohio Supreme Court has explained that “deliberate removal” requires a deliberate decision to lift, push aside, take off, or otherwise eliminate the guard. The mere failure to require protective clothing, for example, does not constitute removal of an equipment safety guard. Accordingly, an injured employee should not assume that a particularly egregious safety violation automatically creates an intentional-tort claim against the employer.
The Most Important Question May Be: Who Else Caused the Injury?
The exclusive-remedy rule protects the employer. It does not automatically protect every other person or company that may have contributed to a workplace accident.
This is where the investigation of a work injury can become substantially more important than the initial workers’ compensation claim.
Consider a construction worker who is injured when a piece of equipment malfunctions. His employer may be immune from a negligence lawsuit because of workers’ compensation exclusivity. But that does not necessarily answer whether the equipment manufacturer, maintenance company, subcontractor, property owner, or another responsible entity may be liable.
Likewise, consider an employee injured at a construction site because of an unsafe condition created by another contractor. The injured worker may have a workers’ compensation claim through his employer while also potentially having a tort claim against an unrelated third party whose negligence caused the accident.
Potential third-party defendants can include:
General contractors
A general contractor may have responsibilities relating to site safety, construction operations, coordination of contractors, or dangerous conditions. However, certain self-insured construction projects operate under a workers’ compensation plan that extends coverage and immunity throughout the project. An attorney must determine the structure of the project and the applicable workers’ compensation arrangements before assuming a tort claim exists.
Subcontractors
A subcontractor may be responsible for creating or failing to correct a dangerous condition, improperly performing its work, negligently operating equipment, or otherwise causing an accident. But, again, the workers’ compensation status of the particular project and the relationship among the parties must be investigated.
Manufacturers and distributors of defective products
A workplace injury can also result from a defective machine, tool, component, vehicle, safety device, or other product, although, in Ohio, an injured person cannot sue a manufacturer if the product is more than 10 years old.
Property owners and other entities
Depending upon the circumstances, an injured worker may also have a claim against a property owner, premises operator, equipment owner, maintenance company, engineering firm, inspection company, or other entity. The key is not to assume that the employer is the only potentially responsible party.
Workers’ Compensation and a Third-Party Lawsuit Can Exist at the Same Time
Ohio law specifically recognizes claims against “third parties,” persons or entities that may be liable to an injured worker, independently of the workers’ compensation system. This means that workers’ compensation and a third-party personal-injury claim can operate together.
Why a Thorough Investigation Matters
The difference between a workers’ compensation-only case and a case involving a viable personal injury or defective product claim can be substantial.
Workers’ compensation provides important benefits to injured workers, but it is not the same thing as a traditional tort recovery. A successful personal injury claim against a responsible third party can potentially provide damages that are not available through workers’ compensation in the same manner.
At our firm, we look beyond the workers’ compensation claim to determine how the accident happened and who was responsible for creating the conditions that caused it.
Depending on the circumstances, that investigation may involve:
- Obtaining and preserving photographs and video from the accident scene;
- Identifying every company and individual working at the location;
- Determining the contractual relationships among the parties;
- Investigating the general contractor and subcontractors;
- Determining who owned, leased, maintained, inspected, or operated equipment;
- Identifying the manufacturer and distributors of potentially defective products;
- Examining equipment, machinery, tools, and safety devices;
- Reviewing maintenance and inspection records;
- Obtaining safety policies, training records, and incident reports;
- Identifying witnesses and obtaining witness statements;
- Reviewing OSHA records and investigative materials when applicable;
- Examining contracts and indemnification provisions;
- Determining the workers’ compensation status of the various entities;
- Investigating whether a construction project was subject to a special workers’ compensation arrangement; and
- Identifying applicable insurance coverage.
The Bottom Line
Ohio’s workers’ compensation system is designed to provide injured employees with a remedy for workplace injuries while generally protecting employers from tort liability. That exclusive-remedy rule is broad, and the exception for employer intentional torts is narrow and difficult to establish.
But a workplace accident may involve negligent or otherwise wrongful conduct by a general contractor, subcontractor, product manufacturer, property owner, equipment company, motorist, or another third party. If you or a family member has suffered a serious injury at work, or if you are an attorney who has encountered a work-injury case involving potentially responsible third parties, our firm can evaluate the circumstances, investigate the accident, and analyze the potential claims and workers’ compensation implications.