A recent Ohio Supreme Court interpretation of a statute that protects an employee who files a workers comp claim from being fired in retaliation is being questioned by some legal experts.

“The case involved an employee fired for his deceptive attempt to collect workers comp benefits,” Jon Hyman, partner of Cleveland, Ohio-based law firm Meyers, Roman, Friedberg & Lewis, said in an email. Mr. Hyman said the employee had injured his knee falling off a gas-station curb away from work, yet falsely tried to claim it was an exacerbation of a prior work injury. The Ohio Supreme Court permitted him to proceed with his retaliation claim, concluding that Ohio's workers comp retaliation statute does not require proof of an actual work-comp-covered workplace injury, he said. “All employers should be troubled by a decision that protects dishonest employees and discourages employers from terminating them,” he added.

The statute that says no employer shall discharge any employee that filed a claim or “pursued” any proceedings for an injury that happened at work, was put to the test by Sierra Lobo Inc. and former employee, Michael P. Onderko, who was working for the Fremont, Ohio-based company when he filed a workers comp claim alleging that he hurt his knee while lifting and pushing equipment at work. Court documents said he was later terminated by his employer for attempting to obtain workers comp benefits for a non-work-related injury.

After hearing the case last week, the state Supreme Court ruled 5-1 that establishing a “prima facie” case of retaliatory discharge does not require that the worker show that the injury occurred at work, court records said.

Dissenting Justice Terrence O'Donnell said the court shouldn't “encourage fraudulent claims for workers compensation benefits” while the Bureau of Workers' Compensation found there was no workplace injury, court records said.

"It is clear the Ohio Supreme Court is taking a position that it is the act of reporting, not the act of an actual injury, which triggers the protection rights under the retaliation statute,” said Cheryl L. Wilke, Ft. Lauderdale, Florida-based partner at Hinshaw & Culbertson L.L.P.

Ms. Wilke also added that some employees who are more concerned with litigation than their rights under the workers compensation statute will use this ruling “as a weapon to require employers maintain their employment” — even if it is clear that the injury did not occur or is not compensable under the law, she added.

However, some legal experts said the court's interpretation of the statute makes sense.

“Many workers compensation claims are a 'close call' on the facts or on the medical evidence. For example, claims for an aggravation of a pre-existing injury. There are winners and losers in all manner of legal proceedings; losers and their witnesses are generally not arrested for perjury even though the trier of fact chose not to believe them,” said William L.S. Ross, Cleveland, Ohio-based Calfee, Halter & Griswold L.L.P. attorney.

“The employer argued that the statute should be interpreted that a claim was 'successfully' pursued. However, the statute just says 'pursued,' ” said Robert “Buz” Minor, Columbus, Ohio-based partner at Vorys, Sater, Seymour and Pease L.L.P., “the majority said the legislature protected folks that were pursuing a claim, it wouldn't make any sense that if you are unsuccessful that you can be fired.”