Workers compensation benefits are available to workers who were injured during the course of their work. In exchange for receiving those benefits, workers are unable to sue their employers for their injuries. However, there is one exception to that rule — workers can sue if their injuries were caused by their employers intentional act.

The workers compensation statutes address this exception. O.R.C. 2745.01, which was passed in 2005, says that an employer can be found liable for its intentional act only when it is shown that it acted “with the intent to injure another or with the belief that the injury was substantially certain to occur.” The statute creates a presumption of intent to injure if the employer deliberate removes an “equipment safety guard.”

The case of Hewitt v. L.E. Myers Co. clarified this presumption. The plaintiff utility worker in that case was injured when he made contact with an energized line. There were protective gloves and sleeves available to the plaintiff, and the employer asserted they were required. However, the plaintiff asserted that a fellow worker had told him that he did not have to wear the gloves and sleeves because the line was de-energized.

The Ohio Supreme Court concluded that there is a difference between an equipment safety guard, such as guard on a saw or other machine, and personal protective items that the employee controls. The court concluded that removal of an equipment safety guard could not be extended to cover an employers failure to make sure that its employee was using required personal protective items.