Suing Over a Work Injury in Ohio

Generally no. An employer that complies with the workers' comp coverage requirement (pays into the state fund or is self-insured) is not liable in damages for workplace injuries, occupational diseases or deaths, whether or not they are compensable. The statutory exception is an employer intentional tort: the worker must prove the employer acted with intent to injure or believed injury was substantially certain, meaning deliberate intent; deliberate removal of an equipment safety guard or deliberate misrepresentation of a toxic substance creates a rebuttable presumption of intent. An employer that has not complied with the coverage requirement loses the protection.

Yes. A worker may sue a third party (such as a negligent driver or product maker). Paying workers' comp benefits makes the bureau, self-insured employer or other payer a 'statutory subrogee' with a right to recover from the third party. On settlement or verdict, the net recovery is split between the worker and the subrogee by a formula based on the worker's uncompensated damages and the subrogation interest, unless they agree to a fairer split. The worker must notify the subrogee (and, unless the payer is a self-insured employer, the Attorney General) of all third parties, and no settlement is final without prior notice to them; otherwise the worker and third party are jointly liable for the full subrogation interest.

A worker whose employer did not comply with the workers' comp coverage requirement may apply to the Industrial Commission or Bureau of Workers' Compensation, and the claim is decided like other claims and paid promptly from the statutory surplus fund; the state then seeks repayment from the employer. The worker may also sue the noncomplying private employer for damages, and the employer cannot use the fellow-servant, assumption-of-risk or contributory-negligence defenses; any workers' comp payments must be repaid from a recovery in that suit. If the employer does not pay an award or post bond within ten days, the Attorney General sues the employer to collect.