Plea for attorney fees reversed over worker who faked pain

A worker who was proven to have lied about the extent of his injury recovery, a discovery made when his employer video surveilled him performing various activities, may have to cover attorneys fees paid by his employer in fighting his claim, an appeals court in Ohio ruled Tuesday.

While working for Columbus, Ohio-based ODW Logistics Inc. in 2015, a man injured his left hand, resulting in a compensable injury that provided such benefits as temporary total disability, as he claimed he could not use his hand whatsoever. Several ailments, including pain syndrome and an aggravation of a mental disorder, were added to his claim in 2017, according to documents in 2019-Ohio-3866, filed in the Court of Appeals of Ohio, 10th District in Franklin County, Ohio.

His employer, in addition to appealing the inclusion of a mental injury in his claim in 2017, in 2018 also filed forms with the Industrial Commission of Ohio to terminate temporary total disability on the assertion he had met maximum medical improvement, according to documents.

ODW provided as evidence video surveillance of the man between 2016 and 2018 showing him “using his left hand and arm to perform a myriad of activities, including "holding keys; shutting a car door; carrying a box and putting it into the trunk of a car; carrying a plastic grocery bag; using an air hose to put air in four tires of a car; using the left arm to support his body while leaning into a car; pulling a car door shut; pulling himself up into a truck holding onto a strap; and stacking and carrying multiple boxes, using both upper extremities,” documents state.

The man subsequently withdrew his claim for the mental injury, according to documents.

ODW in 2019 applied for sanctions in the form of “attorneys fees and costs” as punishment for the man’s claims that he suffered additional injuries. A trial court, without holding an evidentiary hearing, denied the claim for sanctions finding that “although Plaintiff's actions may be considered unprofessional or discourteous, Plaintiff's conduct is not sanctionable,” documents state.

The trial court also found that “it is not obvious from the facts of this case, that Plaintiff's conduct served merely to injure Defendant ODW. Nor does the Court find that this action was unwarranted under existing law, or completely unsupported by the facts. Perhaps greater diligence could have been taken to ensure that Plaintiff could afford to take this action through judgment, or at the very least Plaintiff could have notified this Court and opposing counsel of his intent to dismiss in a timelier fashion. However, the Court does not find this lack of apparent professionalism to be sanctionable.”

The appeals court reversed and remanded this decision, writing that “we find that because ODW's motion for sanctions demonstrated arguable merit, the trial court should have held an evidentiary hearing pursuant to (state law) to determine whether the motion for sanctions had merit.”

Attorneys involved and the officials with ODW could not immediately be reached for comment.