[Cite as Phiel v. Ohio Bur. of Workers' Comp., 2009-Ohio-7175.]

                                      Court of Claims of Ohio
                                                                                 The Ohio Judicial Center
                                                                         65 South Front Street, Third Floor
                                                                                    Columbus, OH 43215
                                                                          614.387.9800 or 1.800.824.8263
                                                                                     www.cco.state.oh.us




PERRY PHIEL

       Plaintiff

       v.

OHIO BUREAU OF WORKERS’ COMPENSATION

       Defendant

        Case No. 2008-05541-AD

Deputy Clerk Daniel R. Borchert

MEMORANDUM DECISION



        {¶ 1} On June 29, 2006, plaintiff, Perry Phiel, a Fraud Investigator employed by
defendant, Bureau of Workers’ Compensation (BWC), at the BWC Youngstown Service
Office, was interviewed by BWC Internal Affairs Investigators, identified as John Kenney
and Ryan Beaty. Plaintiff related he was advised the interview was in regard to a
complaint made against another Fraud Investigator at the Youngstown Service Office
who had allegedly falsified time sheets and had been paid for hours not worked.
Plaintiff further related that after a brief discussion with Kenney and Beaty about his
fellow employee, “I was advised that I was also being investigated for padding my time
even though no complaints were made against me.” Plaintiff stated, “I was shown an
excel spreadsheet at the meeting and asked to review and explain the discrepancies
between the start time entered on my time sheet and the time the building card key
access showed I accessed the building (BWC Youngstown Service Office).” Plaintiff
pointed out he could not explain the time discrepancies “without an investigation of my
own” and he was not allowed to obtain a copy of the excel spreadsheet to apparently
check it against his time keeping records.                 After the interview concluded, plaintiff
contacted his supervisor, Jennifer Saunders, and inquired if she had any knowledge of
an investigation being conducted by BWC Internal Affairs into his time keeping.
According to plaintiff, Saunders responded “she had no knowledge of any investigation
into my time keeping.”
       {¶ 2} Plaintiff recalled he was subsequently contacted on July 20, 2006 by his
department manager, Scott Fitzgerald, who informed him the BWC Internal Affairs
department had contacted the Mahoning County Prosecutor’s Office in regard to
prosecuting him for falsifying time sheets. Plaintiff stated “I was advised (by Scott
Fitzgerald) that a case against me will be referred to the Mahoning County Prosector for
criminal prosecution for theft in office.” In response to receiving this information, plaintiff
recalled “I immediately asked Scott Fitzgerald and my immediate supervisor, Jennifer
Saunders, for documentation supporting those charges” and was told they did not have
access to any investigative material produced by BWC Internal Affairs personnel.
Plaintiff explained he then (July 24, 2006) made a public records request to the BWC
legal department for “the report of investigation and the supporting evidence that was
submitted to the prosecutor’s office” by BWC Internal Affairs staff.              Apparently,
defendant failed to produce any investigatory documentation since plaintiff asserted he
did not receive a response to his request.
       {¶ 3} Plaintiff related he was prompted by defendant’s refusal to comply with his
record request to engage a criminal attorney to represent him in any ensuing criminal
prosecution. Plaintiff pointed out he paid a retainer of $2,500.00 (copy of check dated
July 24, 2006 submitted) for legal representation due to the fact he was not given any
documentation produced by the BWC Internal Affairs department in regard to the
allegations of time record falsification. Plaintiff stated “I felt I would be arrested and
would need an attorney on retainer.” Plaintiff reported his attorney was able to obtain
on August 15, 2006 a copy of the BWC Internal Affairs report (copy submitted)
referencing the investigation concerning time padding allegations. After receiving the
report that bore multiple redactions, plaintiff decided to retain the services of the
attorney he had hired.     According to a billing statement (copy submitted), plaintiff’s
attorney performed 14.75 hours of work for plaintiff from July 30, 2006 to August 24,
2006. The bulk of the legal work documented on the billing statement consisted of
reviewing documents along with several hours of research.
        {¶ 4} The BWC Internal Affairs “Report of Investigation” was submitted to
plaintiff’s attorney with a cover letter from BWC Assistant Director, Legal Operations,
Gregory K. Johnson. In his cover letter Johnson explained the report compiled by John
Kenney contained redactions “to exclude information subject to the confidential law
enforcement investigatory records exception under the Public Records Law.” See R.C.
149.43(A)(1)(h) and 149.43(A)(2).1 In regard to the issue of the BWC Internal Affairs
department investigating plaintiff, the following information from the report from plaintiff’s
June 29, 2006 interview is reproduced in its entirety minus redacted information:
        {¶ 5} “At this point of the meeting it was explained to Phiel that IA reviewed
additional records within the effected department including the complainant regarding
falsification issues and this review revealed some discrepancies that need his
clarification.
        {¶ 6} “Explain the policy for working through lunches and if any noted
justification is required on payroll sheet or calendar:
        {¶ 7} “Phiel stated ‘I don’t pay close attention to time when I am working through
lunches.” He said that when in the office, sometimes he would eat lunch while working
on the computer and assumed this was a commonly acceptable practice. He said that
Saunders recently sent an email to the team not to work through lunches when in the
office unless it is justified and to properly document the reason.


        1
            R.C. 149.43(A)(1)(h) provides:
          “(A) As used in this section:
          “(1) ‘Public record’ means records kept by any public office, including, but not limited to, state,
county, city, village, township, and school district units, and records pertaining to the delivery of
educational services by an alternative school in this state kept by the nonprofit or for-profit entity
operating the alternative school pursuant to section 3313.533 of the Revised Code. ‘Public record’ does
not mean any of the following:
          “(h) Confidential law enforcement investigatory records.”
          R.C. 149.43(A)(2) states:
          “(2) ‘Confidential law enforcement investigatory record’ means any record that pertains to a law
enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that
the release of the record would create a high probability of disclosure of any of the following:
          “(a) The identity of a suspect who has not been charged with the offense to which the record
pertains, or of an information source or witness to whom confidentiality has been reasonably promised;
          “(b) Information provided by an information source or witness to whom confidentiality has been
reasonably promised, which information would reasonably tend to disclose the source’s or witness’s
identity;
          “(c) Specific confidential investigatory techniques or procedures or specific investigatory work
product;
          “(d) Information that would endanger the life or physical safety of law enforcement personnel, a
crime victim, a witness, or a confidential information source.”
       {¶ 8} “Review of 2005 payroll and calendar revealed that there were no
comments indicating reason for working thru lunches averaging 4 to 5 times per month
until July. Explain:
       {¶ 9} “Phiel stated that he was not aware that documentation was needed but in
July 05, Saunders informed the team to document justification on payroll and calendar.
       {¶ 10} “Research using computer log on data, building access, payroll sheets
and calendar entries revealed 73 separate dates in 2005 in which the building access
times were inaccurate/false when compared to payroll sheets during apparent office
days. (Spreadsheet was provided to Phiel for reference)........Explain why a total of 34
hours for the period appears to be falsified:
       {¶ 11} (redacted comments)
       {¶ 12} “He stated, ‘It could be a number of reasons’ and mentioned that he may
carry equipment or complete paperwork in the parking lot. He also mentioned that he
may speak with a CSS about a case once inside the building.
       {¶ 13} “He explained that he enters his payroll times by memory once a week
and the times may not be accurate.
       {¶ 14} “Research revealed several dates in 2005 that may be potential time
discrepancies as no field work was noted on calendar or payroll sheets. Explain:
       {¶ 15} “Phiel stated that previously he did not enter specific detailed information
on calendar or payroll but after Saunders requested more details, he began inserting
more specifics regarding appointments and field work.
       {¶ 16} “ Review of 2006 records revealed 15 separate dates with discrepancies
on apparent office days. Explain:
       {¶ 17} “Phiel again related to resorting to weekly recall for payroll times which
may not be accurate and that he now realizes the importance of accurate
calendar/payroll entries.
       {¶ 18} “Review of 2006 records revealed 42 separate dates with discrepancies
as no field work was noted on the calendar or payroll sheets. Explain:
       {¶ 19} “Phiel did not provide an answer other than inaccurate memory recall.
       {¶ 20} “No office dates were identified for 2006 in which building access times
matched payroll sheets. Explain:
       {¶ 21} “Phiel stated that several times in 2005, he picked up Tina Hemminger
(Fraud Analyst) at her residence and he recorded his start time upon arrival at her
residence.....sometimes he would go to office and sometimes they would travel together
for field work.
       {¶ 22} “He said that he did not recall picking her up anytime during 2006.
       {¶ 23} “Do you have any other concerns/issues to discuss that have not been
mentioned during this meeting?
       {¶ 24} “Phiel revealed that in retrospect, he should not have depended on his
recall to insert his arrival/departure times and should be entering his times daily. He
also revealed that he understands the importance of how calendar entries related to
accurate payroll time entries.”
       {¶ 25} Plaintiff recalled that on August 31, 2006 he was informed by his
department supervisor, Scott Fitzgerald, “that Internal Affairs met with the Mahoning
County Prosecutor’s Office and as a result of that meeting, the Mahoning County
Prosecutor’s Office was not going to file charges” against him. Plaintiff was given this
information a week after his attorney had performed any legal work in regard to the time
discrepancy matter investigated by the BWC Internal Affairs department and referred to
the Mahoning County Prosector. According to plaintiff, the time discrepancy matter
remained at issue with his supervisors and on October 17, 2006 he was asked to
explain the time discrepancies reported to his departmental supervisors incident to the
investigation conducted by Internal Affairs. Plaintiff stated he responded to defendant’s
request by reviewing the Internal Affairs report of investigation and discovering
“numerous discrepancies in the computerized card key access logs and that the time of
those logs were not accurate and were not synchronized.” After plaintiff provided his
explanation, defendant conducted its own investigation concerning the accuracy of the
key card system in the two buildings that comprise the BWC Youngstown Service
Office. This investigation revealed the building management company had never tested
the time panels in the buildings for time accuracy until after November 2006. Upon
testing, it was reported that at least one of the panels was several minutes off, none of
the panels bore a time display, and none of the panels automatically updated the time at
the changeover to daylight savings time. As a result of these findings, time cards for
BWC employees, such as plaintiff, were considered “inconclusive” in regard to
allegations of “time padding.”
       {¶ 26} Plaintiff contended “[t]he BWC Internal Affairs department carelessly
conducted an investigation into my time reporting [w]ithout taking steps to insure their
investigation into my time keeping was accurate.” Plaintiff further contended that the
BWC Internal Affairs department acted “recklessly” in referring the alleged falsified time
sheets issue to the Mahoning County Prosecutor’s Office for potential prosecution.
Plaintiff asserted defendant’s acts in referring investigative material to the Mahoning
County Prosecutor and “their refusal to allow me to cooperate in the investigation forced
me to hire an attorney” to represent him in a possible defense of criminal charges.
Plaintiff essentially argued that but for the acts of defendant he would not have been
prompted to seek legal representation.          Consequently, plaintiff filed this complaint
seeking to recover damages in the amount of $2,500.00 for attorney fees he incurred as
a result of defendant’s investigative findings and subsequent acts.
       {¶ 27} Defendant acknowledged plaintiff was the subject of a BWC Internal
Affairs investigation of “time padding” allegations. Defendant related “Internal Affairs
suspected (plaintiff) of padding his time in 2005 and 2006, for a total of 35 ‘padded’
hours and $735.00 in compensation.” Defendant further related “[t]he investigation into
this allegation involved checking records of the keycard entry system in the two
buildings that comprise the Youngstown Service Office.” Defendant admitted the data
gathered from the keycard system was subsequently suggested to be unreliable and it
was learned the system had not been tested during the time frame covering the
purported discrepancies in plaintiff’s work time record. Defendant stated “[a]s a result of
these findings, investigators could not exclude the possibility that the time entry records
may have been significantly inaccurate due to the synchronizing and testing of the
system.” Defendant explained “data collected from the time card entry records was
determined to be inconclusive on the allegation of false time entries.”                This
determination was apparently made several months after BWC Internal Affairs
department, in reliance on information supplied from the time card entry records,
referred investigatory material regarding plaintiff’s time record to the Mahoning County
Prosecutor’s Office for potential prosecution. Defendant recalled “in August 2006, a
meeting was held between BWC Internal Affairs and the Mahoning County Prosecutor’s
Office, in which it was determined that criminal charges would not be filed against
[plaintiff] regarding the allegations” of falsifying time records.
       {¶ 28} Defendant argued that under the circumstances presented plaintiff is not
entitled to recover attorney fees. See Camp-Out v. Adkins, No. WD-06-057, 2007 WL
2217056 at 5, 2007-Ohio-3946.        Defendant pointed out in Ohio attorney fees may
generally be awarded if: “(1) a statute creates a duty; (2) an enforceable contract
provision provides for attorney fees; or (3) there is a finding that the losing party acted in
bad faith.” Camp-Out citing Nottingdale Homeowners Assn. Inc. v. Darby (1987), 33
Ohio St. 3d 32, 33-34, 514 N.E. 2d 702.            Furthermore, defendant indicated the
prevailing party may be entitled to recover attorney fees in situations where wanton
conduct is established in tort cases involving malice where punitive damages are
warranted. Galmish v. Cicchini, 90 Ohio St. 3d 22, 2000-Ohio-7. Defendant asserted
plaintiff has not produced any authority or statutory provision requiring BWC to
reimburse him for attorney fees incurred “as a result of the investigation into his
workplace conduct.”      Additionally, defendant asserted there is no provision in the
collective bargaining agreement between BWC and plaintiff’s collective bargaining unit
that would obligate BWC to pay attorney fees under the facts of the instant claim. Also,
defendant contended plaintiff has failed to produce evidence to establish the BWC
Internal Affairs investigators acted in bad fath in conducting an investigation concerning
plaintiff’s work time.
       {¶ 29} Plaintiff filed a response insisting his attorney fees are recoverable under
the circumstances of the claim presented.          Plaintiff contended “[t]he BWC acted
recklessly and irresponsibly in attempting to file criminal charges against me, with the
Mahoning County Prosecutor, by using information that was inaccurate and false.”
Plaintiff explained he hired an attorney to defend him in any criminal prosecution that
may have ensued from investigative material supplied from BWC Internal Affairs
department to the Mahoning County Prosecutor’s Office. Plaintiff stated, “I hired an
attorney to defend me against criminal allegations made against me regarding time
padding that were based on false and inaccurate information and recklessly submitted
to the Mahoning County Prosecutor requesting prosecution.” Plaintiff pointed out that if
not for the acts of the BWC Internal Affairs department in conducting its investigation he
would not have hired an attorney “to defend me against criminal allegations.” Plaintiff
has essentially stated a claim grounded in malicious prosecution.
       {¶ 30} To establish the tort of malicious prosecution, a plaintiff must prove three
essential elements: (1) malice in instituting or continuing the prosecution; (2) lack of
probable cause, and (3) determination of the prosecution in favor of the accused.
Froehlich v. Ohio Dept. of Mental Health, 114 Ohio St. 3d 286, 2007-Ohio-4161; Kriegar
v. Cleveland Indians Baseball Co., 176 Ohio App. 3d 410, 2008-Ohio-2183. Damages
in a malicious prosecution action include not only special damages plaintiff proves, but
also any injuries including, but not limited to, mental suffering, humiliation, indignity, and
loss of time and expenses in defending the action. See Reenan v. Klein (1981), 3 Ohio
App. 3d 142, 3 OBR 160, 444 N.E. 2d 63, paragraph three of the syllabus. A plaintiff
who prevails in a malicious prosecution action may recover as damages those attorney
fees expended to vindicate his rights. However absent express statutory authority, a
plaintiff is not entitled to recover such attorney fees where punitive damages are not
awarded. See e.g. Davis v. Tunison (1959), 168 Ohio St. 471, 7 O.O. 2d 296, 155 N.E.
2d 904; Taylor v. McKelvey (January 29, 1982), Warren App. No. 72.               In Drain v.
Koysdar (1978), 54 Ohio St. 2d 49, 8 O.O. 3d 65, 374 N.E. 2d 1253, the Ohio Supreme
Court determined that R.C. 2743, which codifies the states waiver of sovereign
immunity, does not permit the recovery of punitive damages against the state, unless
those damages are specifically authorized by statute. Drain at 55-56. In the present
claim, plaintiff provided no statutory authority for an award of punitive damages under
the action pursued.
       {¶ 31} R.C. 2743.16(A) the statute of limitations for filing actions in this court
provides:
       {¶ 32} “(A) Subject to division (B) of this section, civil actions against the state
permitted by sections 2743.01 to 2743.20 of the Revised Code shall be commenced no
later than two years after the date of accrual of the cause of action or within any shorter
period that is applicable to similar suits between private parties.” (Emphasis added.)
       {¶ 33} R.C. 2305.11(A), the statute of limitations for bringing actions such as
malicious prosecution states in relevant part:
       {¶ 34} “(A) An action for libel, slander, malicious prosecution, or false
imprisonment, an action for malpractice other than an action upon a medical, dental,
optometric, or chiropractic claim, or an action upon a statute for a penalty or forfeiture
shall be commenced within one year after the cause of action accrued.”
       {¶ 35} The facts of the instant claim show plaintiff’s cause of action based on
malicious prosecution accrued in July 2006 when investigatory material was referred to
the Mahoning County Prosecutor’s Office. Plaintiff filed this action on April 29, 2008,
more than one year after his cause of action accrued and outside the time limitations for
filing a malicious prosecution claim. Consequently, plaintiff’s claim is time barred.




                                Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us




PERRY PHIEL

      Plaintiff

      v.

OHIO BUREAU OF WORKERS’ COMPENSATION

      Defendant

       Case No. 2008-05541-AD

Deputy Clerk Daniel R. Borchert


ENTRY OF ADMINISTRATIVE DETERMINATION



       Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.
                                ________________________________
                                DANIEL R. BORCHERT
                                Deputy Clerk

Entry cc:

Perry Phiel                     Monique A. Hall, Legal Counsel
330 Christian Avenue            Ohio Bureau of Workers’ Compensation
Hubbard, Ohio 44425             30 W. Spring Street
                                Columbus, Ohio 43215
RDK/laa
11/16
Filed 12/2/09
Sent to S.C. reporter 3/18/10
