Workers’ Compensation Myth: “Suing” the Employer

Injured workers sometimes mention they do not want to bring a workers’ compensation claim because they don’t want to sue their employer. While this often is because the worker is concerned about harassment or termination, sometimes the worker likes his/her boss and feels bringing the claim is suing the employer for doing something wrong.

The truth is that you are not suing the employer in a workers’ compensation claim. Workers compensation in Ohio is an area of administrative law. This means that the majority of the process is done in an administrative system and does not ever see the light of a courthouse. So there is no “lawsuit” filed against the employer when a workers’ compensation claim is brought.

I would compare workers’ compensation claims to auto insurance claims. You pay (hopefully) for car insurance. When your child backs into your car in your driveway, you call the insurance company. They set up a claim and send someone out to look at the car. You are not suing your child for hitting your car – just processing a claim for the benefits you are entitled to. In the workers’ compensation system, the employer pays for workers’ compensation insurance and the claim is processed under that insurance. No lawsuit is filed and no one is (normally) blaming the employer for any wrong-doing.

The big difference from an auto insurance claim is that we do not need to prove fault in workers’ compensation. In Ohio, we have a no fault workers’ compensation system – meaning that we do not have to prove that anyone (whether the employer or someone else) was at fault. This is another reason why no one is “suing” or “blaming” the employer.

Now, there are times when cases go to court. If the avenues in the workers’ compensation system have been exhausted then the case can be filed outside of the administrative system and into the court system. The employer will be named in this, but again no one is blaming the employer for anything, they are being named as defendants because the claim is being brought under their workers’ compensation policy.

The other time that a case would go to court and the employer would be named is if there is an intentional tort claim. This is separate from a workers’ compensation claim but could be brought if there was significant evidence to prove that the employer had “intent” to cause injury. The reason I say significant evidence is because the law for intentional torts is very particular and it therefore can be very difficult to prove one of these claim. If there were an intentional tort brought, the employer would be sued directly and be being “blamed” – but most of the workers’ compensation claims out there do not have this component to them.

Although the system is not set up to blame the employer or sue the employer, it does not mean that the employer will always be happy with a workers’ compensation claim being brought against them. Partly because even employers don’t realize they aren’t being sued. But the workers’ comp system is there for a reason – because people get hurt at work and the law entitles those people to certain benefits (treatment, payment of medical bills, payment of lost income, plus other awards).

By Kristin Cool

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