State ex rel. Matlack, Inc. v. Indus. Comm.

• Citation: 73 Ohio App.3d 648,598 N.E.2d 121
• Decision Date: 25 June 1991
• Docket Number: No. 90AP-1316,90AP-1316
• Parties: The STATE ex rel. MATLACK, INC., Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees. *
• Court: United States Court of Appeals (Ohio)

Page 648

73 Ohio App.3d 648

598 N.E.2d 121

The STATE ex rel. MATLACK, INC., Appellant, v. INDUSTRIAL COMMISSION OF OHIO et al., Appellees. ^*

No. 90AP-1316.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided June 25, 1991.

Vorys, Sater, Seymour & Pease, Joseph A. Brunetto and Bradley K. Sinnott, Columbus, for appellant.

Lee Fisher, Atty. Gen. and Gerald Waterman, Columbus, for appellee Indus. Com'n of Ohio.

Nein & Olix, James R. Nein and Thomas J. Olix, Columbus, for appellee Steven L. Hemry.

PETREE, Judge.

This is an appeal from a judgment of the Franklin County Court of Common Pleas which denied a writ of mandamus to relator, Matlack, Inc. Relator assigns two errors for review:

"I. The trial court erred when it concluded that an Industrial Commission member may lawfully cast a decisive vote on a matter that he has not heard.

"II. The trial court erred when it concluded that there was some evidence before the Industrial Commission that claimant was temporarily totally disabled from September 2, 1982 through March 25, 1986."

Relator filed this original action in the common pleas court on May 30, 1989, seeking a writ of mandamus to order the Industrial Commission of Ohio to vacate its February 1, 1989 order granting claimant, Steven L. Hemry, temporary total disability compensation, and to further enter an order denying said compensation. The complaint alleges the following facts.

Claimant filed an application on September 24, 1982, requesting recognition of an occupational disease he contracted in the course of and arising out of his employment with relator. Claimant's application was allowed for "chronic industrial chemical bronchitis with associated compensatory emphysema."

On April 3, 1986, claimant filed a motion for an award of temporary total disability compensation pursuant to R.C. 4123.56. A district hearing officer heard this motion on December 24, 1987 and issued an order denying such compensation on the ground that claimant's condition was permanent. This order was based upon the initial C-84 of claimant's attending physician, Dr. Daneshvari, and upon his September 17, 1982 report. The hearing officer also noted the reports of Drs. Grodner, Kress, and Chinn. The Columbus Regional Board of Review affirmed this order in all respects.

Claimant appealed these orders to the entire Industrial Commission and the matter was heard on January 12, 1989. Commission members McAllister, McCarthy, and Trout were present at the hearing. Thereafter, on February 1, 1989, the commission issued an order granting claimant's appeal and vacating the administrative orders in question. The commission found claimant temporarily and totally disabled from September 2, 1982 to March 25, 1986 and therefore ordered relator to pay the corresponding compensation for this period. The commission further found that Dr. Daneshvari's March 25, 1986 report, which said that claimant should not be evaluated for rehabilitation and in which the doctor indicated that he doubted that claimant will ever return to work, constituted the first medical evidence of claimant's reaching maximum medical improvement. The commission also found that Dr. Daneshvari's reports between September 16, 1982 and March 25, 1986 did not indicate maximum medical improvement, but, rather, " * * * anticipated possible return to work and/or rehabilitation."

This order was made on the motion of Commissioner Smith and was seconded by Commissioner McCarthy. Commissioners Smith, McCarthy, and Trout voted in the affirmative while Commissioner McAllister voted against such action. Commissioner Smith did not attend the January 12, 1989 hearing nor did he have available to him the verbatim transcript of the hearing, which was filed after this order was voted on and issued.

The cause was tried to the common pleas court on the stipulated exhibits attached to the parties' briefs, which contained pertinent portions of the Industrial Commission claim file. The trial court found against relator on both issues presented. First, the court found that there was no procedural due process violation by virtue of Commissioner Smith's participation in the case because, even though he was not present at the hearing on the claim, at the time of his vote he had before him a case summary to review, which was prepared by a commission attorney who had attended the hearing. Second, the court found that there was some evidence supporting the commission's order finding claimant's condition temporary for the time period in question.

The first assignment of error presents the issue of whether procedural due process was violated by the nonattending commissioner's participation in the decision on claimant's workers' compensation claim.

Relator maintains that procedural due process was violated because Commissioner Smith cast the decisive vote on this disputed claim without ever having been in attendance at the oral hearing on the claim. Relator concedes that, under R.C. 4121.06(A), nonattending commissioners may vote on disputed issues without personally attending the hearing on the issues; however, relator contends that due process mandates that such a voting procedure be employed only if nonattending commissioners review either a verbatim transcript or some other substantial and fair recordation of the oral hearing, in addition to all of the other pertinent evidence. Relator emphasizes that there is nothing in the record herein to establish that this occurred. First, there was no transcript in the record at the time of Commissioner Smith's vote. Second, the so-called summary of the claim prepared for the commissioners by a commission attorney did not purport to be a summary of the evidence presented, but rather was merely a claim file summary.

Relator relies on State ex rel. Ormet Corp. v. Indus. Comm. (1990), 54 Ohio St.3d 102, 561 N.E.2d 920. In Ormet, the Supreme Court of Ohio affirmed this court's issuance of a writ of mandamus in a case in which a nonattending commissioner cast a tie-breaking vote to award compensation. Emphasizing the flexibility anticipated in the administrative process, the Supreme Court rejected the employer's argument that only personal observation and attendance at an oral hearing on an industrial claim could suffice under the Due Process Clause. Instead, the court recognized the core function of the due process guarantee in this context--that the decision-maker consider and appraise all the evidence so that the decision-maker truly can make an informed judgment. Id. at 103-104, 561 N.E.2d at 921-923.

While the court reaffirmed the principle that there is a presumption of regularity which attaches to commission proceedings, the court found that the presumption was destroyed on the evidence presented. Specifically, the court found that, although the nonattending commissioner in Ormet was obligated to consider the evidence in "some meaningful manner," id. at 107, 561 N.E.2d at 925, he had not considered the evidence in any manner. The court noted that the undisputed facts were: (1) the nonattending commissioner did not attend the oral hearing on the claim; (2) there was no transcript of the hearing; (3) there was no report or summary of the hearing prepared; and (4) no other hearing or meeting occurred between the nonattending commissioner and the attending commissioners. Id. In fact, the nonattending commissioner admitted that he did not consider the evidence presented at the hearing. Id.

Furthermore, the court rejected the Industrial Commission's argument that, in this situation, a review of the claim file satisfied due process. The court emphasized that a violation of due process cannot be excused by mere administrative inconvenience. The court also rejected the commission's argument that no meaningful evidence was presented at the oral hearing because, as the court noted, there was no transcript in the record to establish this. Id.

To be sure, Ormet teaches that under some circumstances the Due Process Clause requires more than merely reviewing the claim file. Though the claim file is truly the single most important aspect of the record before the commission--and generally is the determinative evidence--it must be remembered that evidence may be submitted at commission hearings on disputed issues. On this score, due process requires more than simply going through the motions.

Yet, in this case, we are not persuaded that due process was violated in a manner prejudicial to relator's rights. For, unlike the situation in Ormet, there is no stipulation here that the nonattending commissioner did not consider all the evidence. More importantly, in this case there is a verbatim transcript of the proceedings before the commission. ¹

The transcript of the proceedings before the commission contained in the record clearly reveals that no evidence was presented at the hearing. Rather, the hearing consisted only of oral argument conducted by the attorneys for the parties. While claimant was present at the hearing he was not sworn, did not testify, and did not participate in the hearing in any other manner.

Does the Due Process Clause mandate that deciding officers in an administrative hearing actually hear the oral argument presented? The answer is "no." 3 Davis, Administrative Law Treatise (2 Ed.1980), Section 17:2, citing McGraw Elec. Co. v. United States (E.D.Mo.1954), 120 F.Supp. 354, affirmed without opinion (1954), 348 U.S. 804, 75 S.Ct. 45, 99 L.Ed. 635.

In McGraw Electric, a three-judge panel upheld an order of the Interstate Commerce Commission concerning shipping rates where only one commissioner of the three-member commission heard the scheduled oral argument. In fact, this attending commissioner actually dissented from the order of the majority. One of the nonattending commissioners in the majority was unavoidably absent from the hearing, but reviewed a transcript of the argument before voting. The other nonattending...