Employees who work with heavy machinery and other dangerous equipment are at risk for severe injuries, especially if their employer removed equipment safety features such as a safety guard. A worker whose body gets caught in a machine or crushed under a piece of heavy equipment, or who falls from a ladder or scaffolding is likely to suffer loss of a limb or other severe, catastrophic injuries, or even death. And employees who are unknowingly exposed to hazardous chemicals without proper protective equipment can suffer catastrophic and life-changing injuries.

In most cases, Ohio workplace injuries are covered under the Bureau of Workers’ Compensation (BWC) system. However, in certain specific circumstances, an injured worker may be able to successfully pursue a claim for an employer intentional tort.

Other times, a workplace injury may be caused by a third party who is not the employer. In these cases, an employee may be entitled to compensation from the third party in addition to compensation provided by the BWC.

What Is an Employer Intentional Tort?

In all but the rarest cases, an injured worker in Ohio is prohibited from filing a personal injury or wrongful death lawsuit against his employer when the victim’s injuries are covered under the Ohio BWC system. However, Ohio recognizes a narrow exception that allows an injured worker to file a claim outside of the BWC system if the employer intended to cause harm to the employee or acted in a way that made injury substantially certain to occur. These claims are known as employer intentional torts.

Ohio is unusual in this regard as Ohio Revised Code §2745.01 and various Ohio Supreme Court decisions allow an injured worker to file an employer intentional tort claim in addition to a claim for benefits through the Workers’ Compensation system. Legislation and Ohio Supreme Court decisions have limited the ability of injured workers to bring employer intentional tort claims. However, employer intentional tort claims for workplaces injuries still exist and allow catastrophically injured workers and their families to recover compensation that they deserve when an employee suffered catastrophic injuries because of the actions of an employer.

History of Workplace Injury Claims in Ohio

In 1911, the Ohio State Constitution was amended to state that the Ohio Workers’ Compensation system would be an injured worker’s exclusive remedy for workplace injuries. But the constitutional amendment included an exception for “willful acts.” This exception allowed injured workers to bring a civil claim against their employer in addition to seeking recovery through the Worker’s Compensation system.

Over the next 100 years, the Ohio General Assembly and the Ohio Supreme Court went back and forth over whether an injured worker could bring a civil claim against an employer for workplace injuries, and the specific circumstances in which such a claim was permitted.

In 2005, the General Assembly passed R.C. §2745.01, which allowed an injured worker to file a civil claim in addition to worker’s compensation benefits if the employer acted “with the intent to injure another or with the belief that the injury was substantially certain to occur.”

In 2010, the Ohio Supreme Court decided Kaminski v. Metal & Wire Products Co., which recognized that R.C. §2754.01 was constitutionally valid and placed the Ohio Supreme Court in line with the General Assembly.

With the law surrounding employer intentional torts in Ohio settled, these claims are reserved for the most egregious of cases. When a worker has been severely and catastrophically injured or killed because of an employer’s actions, the employer can face significant liability.

Examples of Employer Intentional Tort Claims

Today, the two types of injuries that can lead to an employer intentional tort claim in Ohio are: (1) if the employer lied to the employee about a toxic or hazardous substance; or (2) if the employer deliberately removed an equipment safety guard. Removing an equipment safety guard often exposes a worker to crushing injuries and the risk of amputation, while unknowingly exposing a worker to hazardous chemicals without proper protective equipment can lead to a variety of catastrophic injuries that can last for a lifetime.

The Difference Between Employer Intentional Tort and Workers’ Compensation Claims

Workers’ Compensation benefits are available to workers who were injured during the course of their employment. Workers’ Compensation benefits include payments for medical benefits and lost wages, and death benefits for family members of a worker who was killed on the job. Employers pay into the Workers’ Compensation system, and are covered in the event a worker is injured or killed on the job.

Ohio Workers’ Compensation is a no-fault system, which means that an injured worker does not need to prove that their employer was negligent or otherwise at fault in order to recover benefits.

Ohio Workers’ Compensation is a no-fault system, which means that an injured worker does not need to prove that their employer was negligent or otherwise at fault in order to recover benefits. An injured worker must simply prove that the injury occurred in the course and scope of their employment.

In exchange for these benefits, injured workers are not permitted to sue their employers. The only exception is if the injured worker can prove that the employer acted with intent to injure the worker or acted in a way that made injury substantially certain to occur.

Employer intentional tort claims are completely separate from claims filed under Ohio Workers’ Compensation. In all but a few circumstances, the Workers’ Compensation system is an injured worker’s exclusive remedy. However, an employer intentional tort claim and a Workers’ Compensation claim share many similarities and often arise out of the same set of circumstances.

Workers’ Compensation claims and employer intentional tort claims often require similar medical evidence to prove the nature and extent of an injured worker’s injuries, including witness statements and testimony from doctors and other medical providers.

Employer Liability in Workplace Injury Claims

Workers’ compensation coverage applies in the majority of cases where a worker was injured or killed in the course and scope of their employment. The worker’s injuries could be the result of an accident, or due to repetitive strain, illness caused by exposure to chemicals or other toxins, or other workplace conditions.

However, under R.C. §2745.01, an employer can be held liable for an employer intentional tort if:

• The employer committed an act with the intent to injure the worker or with the belief that the injury was substantially certain to occur (e., the employer acted with deliberate intent to cause an employee to suffer an injury, disease, or death), or
• The employer deliberately removed a safety guard or deliberately misrepresented a toxic or hazardous substance, the employer is presumed to have acted with intent to injure the worker if an injury or occupational disease or condition occurs as a result

Only employees are eligible to make a claim for an employer intentional tort. If a person suffers a workplace injury but is working as an independent contractor, there can be no claim for Worker’s Compensation or for an employer intentional tort.

The most common claim under R.C.2475.01 is for deliberate removal of a safety guard. This phrase has been interpreted to mean a device that is designed to shield the operator from exposure to injury by a dangerous aspect of equipment. To be liable, the employer must have made a deliberate decision to lift, push aside, or otherwise eliminate the guard. In fact, even an employer’s failure to require the use of personal protective equipment was not enough to hold an employer liable for an intentional tort. In this case, deliberate removal means nothing short of deliberate removal.

Can an Injured Worker File a Workers’ Compensation and an Employer Intentional Tort Claim?

Ohio recognizes an exception that allows an injured worker to file Workers’ Compensation claim and a claim for an employer intentional tort. However, the law surrounding employer intentional tort claims and claims under the Workers’ Compensation system are complex and should not be attempted without the assistance of an experienced personal injury attorney.

Workers’ Compensation claims and employer intentional tort claims often arise out of the same set of facts and circumstances, and an injured worker can file a claim for compensation under Workers’ Compensation while also pursuing a claim for an employer intentional tort; however, the path for recovery is very different. An experienced Ohio personal injury attorney can help you and your family navigate the complex laws that apply to employer intentional tort claims and claims for recovery under Ohio Workers’ Compensation.

Third Party Workplace Injury Claims

Some workplace injuries are caused by the negligence of third parties, such as a contractor who is injured at an employer’s work site, or when an employee is injured in a motor vehicle accident that was caused by a third party. In these cases, the injured worker can make a third party claim for compensation over and above what the BWC provides.

Another example of a third party workplace injury claim is when a police officer is injured in a motor vehicle accident. The injured officer may have a negligence claim against the driver, and an uninsured/underinsured motorist claim against an auto insurance carrier.

The Importance of Hiring an Ohio Workplace Injury Attorney

Knowing whether a claim for injuries can be filed under Ohio’s employer intentional tort statute or against a third party is complex, and working with an experienced personal injury attorney is essential.

If you or someone you love was the victim of a workplace injury, the personal injury lawyers at Robenalt Law are here to help. We have the experience, resources, and expertise to investigate and evaluate your case, identify the bad actors, and hold them responsible for the harm they caused.

We handle employer intentional tort and third party cases on a contingency fee, which means we don’t get paid unless we recover money for you.

Learn more about our workplace injury practice and why clients choose us, then contact us today to schedule a free, confidential consultation to discuss your case.

Tom Robenalt started his litigation career representing insurance companies and corporate defendants at a large firm in Cleveland. For the past 25 years, he has used that experience to help the families of people who have been injured or killed by the negligence of others.