Opinion
No. 84-1119
Decided July 10, 1985.
Workers' compensation — Self-insured employer intentionally and wrongfully terminates payments — Cause of action stated, when.
APPEAL from the Court of Appeals for Cuyahoga County.
James S. Formoso and James P. Cunningham, Jr., appellants, commenced the instant action against the Plain Dealer Publishing Company, appellee, in the court of common pleas. Appellants alleged that they were employed by appellee and that appellee was a self-insured employer under the applicable workers' compensation statutes. Appellants alleged that in separate incidents, they suffered injuries arising out of the course of their employment and began receiving workers' compensation payments directly from appellee.
According to appellants' complaint, appellee unilaterally terminated payments to appellants after having paid benefits for a period of time. In Formoso's case, it was alleged that, after four months of payments, appellee unilaterally terminated payments for a five-month period. In Cunningham's case, it was alleged that, after one month of payments, appellee unilaterally terminated payments for a seven-month period. In both cases, payments were subsequently restored and appellants reimbursed for the period that payments were terminated.
Appellants' action alleges that appellee intentionally, willfully and unlawfully terminated appellants' workers' compensation payments. As a result, appellants purportedly suffered physical and emotional distress and destruction of credit and were required to go on welfare.
The trial court dismissed the action upon appellee's motion. The court of appeals upheld the dismissal and held that R.C. 4123.90 provides the exclusive remedy for instances where an employer takes punitive action against an employee for pursuing a workers' compensation claim. The court of appeals ruled that since appellants had not satisfied the one-hundred-eighty-day statute of limitations requirement of R.C. 4123.90, appellants' claims were barred.
The cause is now before the court pursuant to the allowance of a motion to certify the record.
Sindell, Lowe Guidubaldi Co., L.P.A., Steven A. Sindell and Mark L. Wakefield, for appellants.
Baker Hostetler, Don H. Pace, Kevin G. Robertson and Anne L. Meyers, for appellee.
Today, in Balyint v. Arkansas Best Freight System, Inc. (1958), 18 Ohio St.3d 126, we held at page 130:
"[A]n employee of a self-insured employer may maintain a cause of action against the employer for the intentional and wrongful termination of workers' compensation payments."
We also stated in Balyint, supra, at 130, that:
"* * * [T]o the extent that appellees' present common-law action overlaps a claim under R.C. 4123.90, appellees are free to select the remedy best calculated to afford the greatest recovery. The expiration of the statute of limitations set forth in R.C. 4123.90 is, therefore, inconsequential." (Footnote omitted.)
Having rejected the same argument advanced by appellee herein as that advanced in Balyint, supra, this court hereby reverses the judgment of the court of appeals and remands the cause to the trial court for further proceedings.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., SWEENEY, C. BROWN and DOUGLAS, JJ., concur.
C. BROWN and DOUGLAS, JJ., separately concur.
LOCHER, HOLMES and WRIGHT, JJ., separately dissent.
I concur in the judgment in this case based upon the reasoning contained in my concurring opinion as expressed in Balyint v. Arkansas Best Freight System, Inc. (1985), 18 Ohio St.3d 126, 131-133.
I concur in the judgment of the majority but only based on the same reasoning and upon the same condition as expressed in my concurring opinion in Balyint v. Arkansas Best Freight System, Inc. (1985), 18 Ohio St.3d 126, 133-134.
I dissent for the reasons stated in my dissenting opinion in Balyint v. Arkansas Best Freight System, Inc. (1985), 18 Ohio St.3d 126, 134-135.
I dissent herein based on the commentary set forth in my dissenting opinions in Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St.2d 608, 621 [23 O.O.3d 504]; Jones v. VIP Development Co. (1984), 15 Ohio St.3d 90, 103; Bradfield v. Stop-N-Go Foods, Inc. (1985), 17 Ohio St.3d 58; and Balyint v. Arkansas Best Freight System, Inc. (1985), 18 Ohio St.3d 126, 135-136.
I dissent based upon the same reasoning as articulated in my dissenting opinion in Balyint v. Arkansas Best Freight System, Inc. (1985), 18 Ohio St.3d 126, 136-137.