dissenting. The basic theme of the majority here is an all too familiar one in its continued misinterpretation of the Constitution and statutory laws relating to workers’ compensation in Ohio. Again, the majority incorrectly recognizes in the now-existing law the right of an employee to bring a common-law tort action against his employer, and permits such action even though his employer is complying with the Ohio workers’ compensation laws, and even though the employee has filed an injury claim and is participating in the fund.
In further derogation of the philosophy of the workers’ compensation system, the majority allows no setoff for the compensation received by the employee for any recovery obtained in the common-law tort action. This, in its entirety, is contrary to the expressed public policy of Ohio, both constitutionally and statutorily. I have spoken out generally in dissent in this regard in Blankenship v. Cincinnati Milacron Chemicals (1982), 69 Ohio St. 2d 608 [23 O.O.3d 504]; Jones v. VIP Development Co. (1984), 15 Ohio St. 3d 90; and in Bradford v. Stop-N-Go Foods (1985), 17 Ohio St. 3d 58.
As to the preclusion of an employee who has participated in the Workers’ Compensation Fund, or his representative, from pursuing a common-law action for damages against his employer for an intentional tort as provided in the syllabus law of Jones, supra, I need only point to the very cogent dissenting remarks of former Justice William B. Brown, the author of Blankenship. He stated: “The majority’s holding that the receipt of workers’ compensation benefits does not preclude an employee from also pursuing a common-law action for damages against his employer for an intentional tort is not only inconsistent with the legal analysis employed in Blankenship * * *, it is more importantly in direct contravention of the Ohio Constitution. * * *” Jones, supra, at 102.
Thus, even the author of Blankenship was disturbed that dual paths of recovery were provided by this court, and stated that an employer should be immune from two separate litigations for a single injury. His conclusion *193was based upon the theory that he, as author of the majority in Blankenship, had reasoned that: “One act of an employer cannot logically be within the scope of employment while at the same time not within the scope of employment. Nor can one act simultaneously be both a hazard of employment and not a hazard of employment. One act of an employer, under Blankenship, simply cannot be both negligent and intentional. Hence, an injury may either be compensable under the workers’ compensation system or be compensable at common law for an intentional tort. It cannot logically be compensable under both, as the majority so finds.” Jones, supra, at 102. Even though I firmly disagreed with Justice Brown relative to the syllabus law of intentional tort pronounced in Blankenship, as purportedly defined in Jones, based upon Ohio legislative and constitutional history, I could not but agree with his comments relative to the preclusion of later common-law actions where one had participated in the Workers’ Compensation Fund.
Further reasoning supportive of not permitting multiple recovery is that a fundamental principle in awarding compensatory damages to an injured plaintiff is that he is entitled to be compensated in an amount that will make him whole. The primary objective is to make the complainant whole for the alleged wrong inflicted upon him. There have been many cases here and elsewhere that have recognized that damages should not exceed the loss sustained by the plaintiff. In Pryor v. Webber (1970), 23 Ohio St. 2d 104, 107 [52 O.O.2d 395], this court stated:
“In Ohio, as elsewhere, it is a rule of universal application in a tort action, that the measure of damages is that which will compensate and make the plaintiff whole.”
An injured employee who receives workers’ compensation benefits should be estopped from later maintaining an action for damages for an alleged intentional tort of his employer, in that such later claim is entirely inconsistent with those litigated in the earlier proceeding. This reasonable proposition of law was so expressed by former Justice William B. Brown in his dissent in Jones, supra.
Constitutionally, there is no specific authorization in Ohio to bring the civil action sounding in tort against an employer. However, even though this court by judicial fiat has authorized such an action, if there be a selection of such a civil remedy by the employee, any recovery received by the employee in such an action should be subject to a setoff of the payments made either through the Workers’ Compensation Fund or directly by a complying self-insured employer as in the instant case.
The prior public policy pronouncements of the Ohio Constitution and the laws enacted by the General Assembly were vividly clear to most observers as to the exclusivity of the workers’ compensation law in matters relating to claims brought by employees for their industrial injuries. However, these pronouncements were completely rejected by the majority of this court. The majority again pronounces what it wishes the law to be in *194derogation of further and even more legislatively expressed public policy concerning the workers’ compensation law of Ohio. By way of Am. Sub. S.B. No. 307, enacted into law and signed by the Governor, the General Assembly has specifically pronounced the public policy of Ohio in R.C. 4121.80(B): “* * * That the immunity established in Section 35, Article II of the Ohio Constitution and sections 4123.74 and 4123.741 of the Revised Code is an essential aspect of Ohio’s workers’ compensation system; that the intent of the legislature in providing immunity from common law suit is to protect those so immunized from litigation outside the workers’ compensation system except as herein expressly provided * *
The new Act grants a common-law tort action for an intentional tort, but only to be determined according to the specific mandates of the Act. Accordingly, the Act provides in Section 4121.80(A) that any such cause of action may be maintained against a complying employer “for an excess of damages over the amount received or receivable under Chapter 4123 of the Revised Code and Section 35, Article II of the Ohio Constitution, or any benefit or amount, the cost of which has been provided or wholly paid for by the employer.”
Although the new Act would permit the dual routes of action, the cbmmon-law claim may be only for such amounts that are in excess to any payments made to an employee through the fund, or amounts paid out directly by the employer.
Therefore, I dissent to the majority opinion herein.