First, a disclaimer. The first case I’m about to discuss is from California. Fortunately (from a defense attorney’s perspective at least) I don’t practice in California. I get the impression that a California employee can have a cause of action (and apparently even a workers’ compensation claim) for their boss looking at them the wrong way.
However, when I came across this case, it reminded me of the Ohio case discussed below, and validates why I insist on using my own separate, Ohio specific, settlement agreement and release in addition to the BWC’s SI-42 form when I settle a workers’ compensation claim.
The California case is Camacho v. Target Corp., Calif. Ct. App., No. D073280 (June 8, 2018). In that case, the court found that an employee who settled his workers’ compensation case, and signed the preprinted compromise and release form Target used in all workers’ compensation cases, along with an addendum that included additional terms, could still sue the employer for harassment and discrimination based on the same workplace conduct that led to the workers’ compensation award. In the Court’s words: “California courts will carefully review workers’ compensation settlement agreements to determine whether the parties also intended to settle claims that fall outside of the workers’ compensation system. Only when the parties have referred to such claims in clear and nontechnical language will a court find that the parties intended to settle such lawsuits as well”.
An Ohio Example
Ok, so that’s California, you’re thinking. Surely an Ohio court would look at things differently. Well …. not necessarily.
A similar situation has occurred in Ohio as well. In Richard Geottle, Inc. v. Lamp, 2007-Ohio-4466, the First Appellate District Court held that despite the fact that a settlement released the employer from “any and all…claims”, it did not cover a pending, but undisclosed, application for a Violation of a Specific Safety Requirement (“VSSR”).
Lamp was injured in the course of his employment with Goettle, and filed an intentional-tort claim. In December of 2001 Lamp signed a settlement agreement with Goettle, which provided that Lamp “completely release[d] and forever discharge[d] Defendants and insurers from any and all past, present or future claims, demands, obligations, actions, causes of action, wrongful death claims, rights, damages, costs, losses of services, expenses and compensation of any nature whatsoever, whether based on a tort, contract or other theory of recovery, which [Lamp had], or which may [have] accrued or otherwise [have been] acquired, on account of, or may [have] in any way grow[n] out of the incident[.]”
Two years later, Goettle learned that Lamp had filed a VSSR application with the Industrial Commission in July of 2001. Goettle sought to have the Industrial Commission dismiss Lamp’s VSSR claim, arguing the Lamp had released all his claims, including the VSSR claim, in the settlement agreement. The Industrial Commission denied Goettle’s request to dismiss the claim.
Geottle took the matter to court, and the First District Court of Appeals denied the request to dismiss the VSSR application. The Court held that that VSSR claims are considered differently than workers’ compensation claims, because the Ohio Administrative Code provides for a separate settlement process for VSSR claims. The court found that the settlement approval process set forth in R.C. §4123.65 did not diminish the exclusive jurisdiction over VSSR claims vested in the Industrial Commission by the Ohio Constitution. The Ohio Supreme Court refused review.
Unless you’ve decided to specifically exclude certain causes of action, make sure that you accompany your SI-42 with a separate agreement that settles not only all workers’ compensation claims, but also any and all employment related claims, and also lists everything in the alphabet soup of employment law (ADA, FMLA, ADEA, FLSA, ERISA, GINA, etc., etc., etc.) and especially VSSR’S.
I have had injured workers’ attorneys complain that I’m asking their client to “sign away every right they might ever have in the future”. In actuality, my client is paying their client money for just one thing, a promise that my client will not have to deal with future litigation involving the injured worker. I don’t think it is unreasonable to make sure that every possible base is covered.
So, Target, if you’re listening, I’ve got a Settlement Agreement and Full and Final Release of Claims that you might want to take a look at.