Can an employee still bring an intentional tort against my company?
The short answer is yes. Effective April 7, 2005, Ohio adopted a new Intentional Tort Reform Statute, R.C. 2745.01. In order to be successful, the plaintiff must prove that an employer acted with specific intent or deliberate intent to cause injury and that injury was substantially certain to occur. The “or” in the current statute replaced it’s predecessors “and.”
On March 24, 2010 the Supreme Court issued a decision in Kaminski v. Metal and Wire Prods. Co. 125 Oh St. 3d. 250, upholding the constitutionality of the statute. While the Supreme Court did not eliminate the common law cause of action, it did limit it. It was thought in the wake of the decision in Kaminski, that intentional tort law would only apply to the following scenarios and if satisfied would create a rebuttable presumption:
- Deliberate Removal of an equipment safety guard. R.C. 2745.01(C)
- Deliberate Misrepresentation of a toxic or hazardous substance. R.C. 2745.01(C)
However, on June 20, 2012 the Supreme Court of Ohio has heard yet another challenge to the intentional tort statute. Claimant Houdek was injured when he was using a scissor lift to tag inventory. Houdek was crushed by a forklift operator traveling at the maximum speed as required by the employer. Houdek suffered the loss of his leg as a result of the injury. The Trial Court granted a Motion for Summary Judgment against Houdek.
The 8th District Court of Appeals reversed the decision abandoning the Supreme Court’s reasoning and holdings in both Kaminski and Stettler. In an interesting and tortured analysis, the 8th District Court found that “substantially certain” and “deliberate intent to injure” could not mean the same thing and therefore, were “scrivener’s errors.” The Court then extrapolated that intent to injure can be proven by what a “reasonable, prudent employer would believe.”
This attempt to undermine the legislative process will ultimately be determined by the Ohio Supreme Court. Should the Ohio Supreme Court adopt the findings of the 8th District Court of Appeals, the landscape of intentional torts as we have come to understand it will be forever changed.
Stay tuned for updates!
Compliance before Defense
State ex rel. Glunt Industries v. Indus.Comm., Slip Opinion No. 2012-Ohio-215
Claimant, Hamrick was injured when a main breaker cabinet housing two separate breakers exploded. He was ordered by his supervisor to investigate the main breaker. He filed a VSSR alleging that the employer had violated Ohio Adm. Code 4123:1-5-23 which requires that “unless the electrical conductors or equipment to be worked on are isolated from all possible sources of voltage or are effectively grounded, the employer shall provide protective equipment approved for the voltage involved, such as rubber gloves with protectors, rubber sleeves, hot line tools, line house, line guards, insulator hoods, blankets and access boards.”
Glunt, the employer admitted that with the possible exception of safety gloves it had not provided Hamrick the safety equipment required. It claimed that the company policy prohibited an employee from working on the “equipment,” the main breaker cabinet.
The defense of unilateral negligence only applies when first the employer has satisfied the applicable safety requirement. VSSR defenses require significant investigation and preparation and while only a small percentage only make it to the hearing stage, it is imperative that you retain counsel to prepare your defense as early as possible.
Yes, But what have you done lately?
The Supreme Court takes another look at Voluntary Abandonment
State ex rel. Corman v. Allied Holdings Inc., Slip Opinion No. 2012-Ohio-2579
Claimant, Corman retired from Allied Holdings, Inc. one year after his 2002 injury and never worked again. The record contains no evidence that he was medically incapable of other work. The court deemed his failure to seek other work in the years after he retired demonstrated his permanent abandonment of the labor market.
In defending against a new period of temporary total compensation, employers must look at the claimant’s actions following a separation. In State ex rel. Pierron v. Indus. Comm. 120 Ohio St.3d 40 the Court found the separation event was an elimination of his position; however because he sought no work after the separation he cannot credibly alleged that loss of wages was as a result of the injury. The plus side to this analysis, is that it changes the focus from the employer’s separating event to what has the claimant done to become re-employed.
State Fund Employers Now Get What The Governor Ordered
On January 10, 2011 Governor John R. Kasich issued Executive Order 2011-01K. The purpose of the order was to establish a Common Sense Initiative to independently evaluate the economic impact of agency rules on small businesses. It specifically addressed that “wherever possible, penalties should be waived for first-time violators, especially for administrative matters such as filing and reporting deadlines.”
Under this Common Sense Initiative an employer with a lapse in coverage could apply for a one time reinstatement, no matter what the reason for the lapse. Historically, the Ohio BWC had refused to apply the plain text of the Executive Order and instead ruled upon whether the employer can demonstrate “good cause” shown for the lapse.
For those of you that remember, Butler County, Ohio was one of the first high profile employers to suffer a lapse due to failure to remit their premium payment on time. This late payment resulted in a lapse of coverage. Interestingly enough, this lapse however, was forgiven by the BWC under Kasich’s Executive Order.
Finally, after much dispute and discussion the BWC is now applying the plain meaning of the Executive Order and will forgive a one time lapse for any reason. Since it can only be used a single time, it will be important to evaluate if you want to use this for any specific lapse. Factors to consider would be the cost of the claim, the potential liability imposed by the failure to have coverage on the date of the injury and the likelihood of a repeat lapse.
Ohio BWC Extends Private Employer Rate Cut on Administrative Rates
On May 24, 2012, the IC announced proposed lower administrative rates for three of four Ohio employer groups. Ohio employers pay assessments that are used to fund the administrative operations of the Industrial Commission of Ohio.
The current and proposed rates are listed below:
Employer Group: 2012 2013
Private: 2.10% 2.03%
Public State: 3.31% 3.26%
Public Taxing Districts: 1.81% 1.81%
Self-Insuring: 7.50% 7.25%