In a decision extremely favorable to Ohio employers, the Ohio Supreme Court recently ruled in Bickers vs. Western & Southern Life Ins. Co. that a workers’ compensation claimant who is terminated while receiving temporary total disability workers’ compensation benefits (“TTD”) may not sue for wrongful discharge unless the termination amounts to workers’ compensation retaliation under R.C. §4123.90.  In Bickers, the Court substantially limited its prior decision in Coolidge v. Riverdale Local School Dist., which had created a common law cause of action against employers who terminated their employees while receiving TTD compensation. 

In 1994, Shelly Bickers was injured in the course of her employment with Western & Southern Life Insurance Company.  Bickers was an at-will employee and, as such, she had no contract governing her employment.  Bickers filed a claim for workers’ compensation benefits and received TTD compensation.  In 2002, Western & Southern terminated Bickers while she was still receiving TTD compensation related to her workers’ compensation claim. 

Bickers sued for wrongful discharge alleging that Western & Southern had violated the state’s public policy for terminating her while receiving TTD compensation.  She relied upon the Supreme Court’s prior decision in Coolidge vs. Riverdale Local School Dist. 

In Coolidge, the Court had held that an employer may not discharge an employee solely on the basis of absenteeism or inability to work while receiving TTD compensation directly related to an allowed workers’ compensation condition.  The Court in Bickers revisited its Coolidge decision and determined that it did not create a cause of action for an at-will employee who was terminated for non-retaliatory reasons while receiving TTD compensation.  Rather, the Court concluded that the Coolidge decision was only meant to apply to teachers receiving workers’ compensation benefits who are terminated without good and just cause.  Since Bickers was not a teacher governed by an employment contract, she had no remedy other than what was provided by the workers’ compensation statute. 

In light of the Bickers decision, employers may now reinstate and enforce neutral leave of absence policies in place prior to the Coolidge decision, even for employees that are currently receiving TTD compensation.  Such policies may call for the termination of an employee who is off work for an extended period as a result of a work-related or non-work-related injury or illness.  However, the policy must apply to both work-related and non-work-related injuries or illnesses.  Employers who single out workers’ compensation claimants for discharge under their leave of absence policies may still be sued for retaliatory discharge under R.C. §4123.90.  Employers should also consider other state and federal laws, such as the Americans with Disabilities Act, before terminating an employee receiving TTD compensation.