Cirino v. Ohio Bureau of Workers' Comp.

Decision Date22 December 2016
Docket NumberNo. 104102.,104102.
Citation75 N.E.3d 965,2016 Ohio 8323
Parties Michael CIRINO, et al., Plaintiffs–Appellees v. OHIO BUREAU OF WORKERS' COMPENSATION, Defendant–Appellant.
CourtOhio Court of Appeals

Ronald D. Holman, II, Michael J. Zbiegien, Jr., Daniel H. Bryan, Taft Stettinius & Hollister L.L.P., Mark E. Mastrangelo, Jeffrey B. Duber, Assistant Attorneys General, Cleveland, OH, for Appellant.

W. Craig Bashein, John Hurst, Bashein & Bashein Co., L.P.A., Charles J. Gallo, Charles J. Gallo Co., L.P.A., Paul W. Flowers, Paul W. Flowers Co., L.P.A., Cleveland, OH, for Appellees.

Before: E.A. GALLAGHER, P.J., BOYLE, J. and S. GALLAGHER, J.

EILEEN A. GALLAGHER, P.J.

{¶ 1} This appeal involves a class action filed by plaintiff-appellee Michael Cirino on behalf of himself and other injured workers (collectively, "plaintiffs") who were paid workers' compensation benefits, most on a biweekly basis, through the Ohio Bureau of Workers' Compensation's (the "BWC's") mandatory electronic benefits transfer program (the "EBT program"). Under the EBT program, workers' compensation benefit payments were credited to debit cards issued by JPMorgan Chase Bank, N.A. ("Chase") that the benefit recipients then used to access their benefit payments. Cirino alleges that he and other benefit recipients who received workers' compensation benefits through the EBT program did not receive the full amount of the workers' compensation benefits to which they were entitled because they were assessed various fees by Chase to access their benefit payments using the debit cards. Cirino contends that the BWC's mandatory EBT program and, in particular, the fees that the BWC authorized Chase to charge benefit recipients to access their workers' compensation benefits under the EBT program, violates Article II, Section 35 of the Ohio Constitution and R.C. 4123.341 and 4123.67.

{¶ 2} The BWC appeals the trial court's denial of its motion to dismiss, its certification of a class under Civ.R. 23(B)(2) and 23(B)(3) and its rulings on summary judgment in favor of Cirino. The BWC contends that the trial court erred in denying its motion to dismiss for lack of subject matter jurisdiction because plaintiffs' claims constitute "legal claims" that can only be brought in the court of claims. The BWC contends that the trial court abused its discretion in certifying the class because (1) Cirino is not an adequate class representative and his claims are not typical of the claims of the class, (2) certification of the class under Civ.R. 23(B)(2) was improper because plaintiffs seek "a recovery of money that is individualized as to each class member" and (3) certification of the class under Civ.R. 23(B)(3) was improper because "individual issues predominate over common issues." Finally, the BWC contends that the trial court erred in concluding that the BWC's benefit payment practices under the EBT program violates Article II, Section 35 of the Ohio Constitution and R.C. 4123.341 and 4123.67 and in granting Cirino's motion for summary judgment and denying its own motion for summary judgment on that basis.

{¶ 3} For the reasons that follow, we affirm the trial court's rulings on subject matter jurisdiction and class certification, dismiss the BWC's challenge to the trial court's rulings on summary judgment and remand the matter for further proceedings.

Factual and Procedural Background
The BWC's Obligation to Make Workers' Compensation Benefit Payments

{¶ 4} The BWC is responsible for the payment of workers' compensation benefits to injured workers who have been awarded benefits for workplace injuries. R.C. 4123.54 et seq. As Mary Manderson, the BWC's EBT coordinator, testified: "That is what our job is, to put the benefits [in the hands of] the injured worker." Pursuant to R.C. 4123.341, the "administrative costs" incurred by the BWC in discharging its duties, including the payment of benefits to claimants awarded workers' compensation benefits ("benefit recipients"), are to be borne by the state and employers. R.C. 4123.341 provides, in relevant part:

The administrative costs of the industrial commission, the bureau of workers' compensation board of directors, and the bureau of workers' compensation shall be those costs and expenses that are incident to the discharge of the duties and performance of the activities of the industrial commission, the board, and the bureau under this chapter and Chapters 4121., 4125., 4127., 4131., and 4167. of the Revised Code, and all such costs shall be borne by the state and by other employers * * *
The Electronic Benefits Payment Program

{¶ 5} In or around 1995 or 1996, Ralph Morgan, the BWC's manager of benefits payable, had an idea for a cost-savings initiative. He observed that the BWC had been making benefit payments to benefit recipients who had bank accounts through electronic fund transfers ("EFTs"). These electronic transfers were a fraction of the cost of printing and mailing benefit checks. However, a number of benefit recipients did not have bank accounts into which funds could be electronically transferred. As a result, they still received their benefit payments through paper checks. Many of these recipients incurred substantial check-cashing fees to convert the paper checks into cash that could be used to pay for their living expenses. Morgan queried whether there was a way benefit payments to these benefit recipients could also be made electronically and began exploring whether debit cards could be used to pay benefits to benefit recipients who did not have bank accounts.

{¶ 6} In 1997, the BWC conducted a pilot program with Bank One for the electronic delivery of workers' compensation benefit payments. Participants were selected randomly and given the option of participating in the pilot program. Under the pilot program, a benefit recipient could have benefit payments deposited directly into his or her bank account or could receive benefits through a Visa debit card credited with the amount of the benefit payments due the benefit recipient. All costs of the pilot program were borne by the BWC, i.e., the BWC paid any bank fees or other fees that would have otherwise been charged to benefit recipients for accessing their benefits using the debit card.1 The pilot program was a success and, sometime prior to 2000, the BWC decided to implement the program permanently, offering it to all workers' compensation benefit recipients statewide on a voluntary basis.

{¶ 7} In 2006, the General Assembly enacted R.C. 4123.311, which authorized the BWC to make payments of workers' compensation benefits to benefit recipients through direct deposit of funds by electronic transfer and debit cards. R.C. 4123.311 provides:

(A) The administrator of workers' compensation may do all of the following:
(1) Utilize direct deposit of funds by electronic transfer for all disbursements the administrator is authorized to pay under this chapter and Chapters 4121., 4127., and 4131. of the Revised Code;
(2) Require any payee to provide a written authorization designating a financial institution and an account number to which a payment made according to division (A)(1) of this section is to be credited, notwithstanding division (B) of section 9.37 of the Revised Code ;
(3) Contract with an agent to do both of the following:
(a) Supply debit cards for claimants to access payments made to them pursuant to this chapter and Chapters 4121., 4127., and 4131. of the Revised Code;
(b) Credit the debit cards described in division (A)(3)(a) of this section with the amounts specified by the administrator pursuant to this chapter and Chapters 4121., 4127., and 4131. of the Revised Code by utilizing direct deposit of funds by electronic transfer.
(4) Enter into agreements with financial institutions to credit the debit cards described in division (A)(3)(a) of this section with the amounts specified by the administrator pursuant to this chapter and Chapters 4121., 4127., and 4131. of the Revised Code by utilizing direct deposit of funds by electronic transfer.
(B) The administrator shall inform claimants about the administrator's utilization of direct deposit of funds by electronic transfer under this section and section 9.37 of the Revised Code, furnish debit cards to claimants as appropriate, and provide claimants with instructions regarding use of those debit cards.
(C) The administrator, with the advice and consent of the bureau of workers' compensation board of directors, shall adopt rules in accordance with Chapter 119. of the Revised Code regarding utilization of the direct deposit of funds by electronic transfer under this section and section 9.37 of the Revised Code.

{¶ 8} Ohio Adm.Code 4123–3–10 was thereafter revised to provide that "[t]he standard method of delivering payment to a claimant or benefit recipient shall be by electronic fund transfer." Ohio Adm.Code 4123–3–10(A)(4). Ohio Adm.Code 4123–3–10(D)(2) provides that "[f]or any compensation paid directly to an injured worker or a dependent, the bureau shall require either an electronic fund transfer into a savings or checking account, or shall issue to the payee an electronic benefits card." The BWC is required to notify benefit recipients that benefits are paid through electronic transfer and to request bank account information from benefit recipients for directly depositing benefit payments. Ohio Adm.Code 4123–3–10(D)(3). If a benefit recipient does not have a bank account or fails to provide the BWC with his or her bank account information, the BWC issues payments electronically to the benefit recipient by debit card. Id.

The BWC's Agreement with Chase to Distribute Benefits to EBT Program Participants

{¶ 9} Pursuant to the authorization provided in R.C. 4123.311(A)(3) and (4), on December 22, 2006, the BWC entered into an agreement with Chase, the Chase Direct Payment Card Program—Agency Service Agreement (the "BWC–Chase agreement"), to distribute benefit payments to benefit recipients under the...

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7 cases
  • Foster v. Foster
    • United States
    • Ohio Court of Appeals
    • May 17, 2018
    ...into a final appealable order by merely reciting the language required under Civ.R. 54(B). Noble at id. ; Cirino v. Ohio Bur. of Workers' Comp. , 2016-Ohio-8323, 75 N.E.3d 965, ¶ 124 (8th Dist.). {¶ 19} In the instant matter, the trial court's order granting appellees' motion for summary ju......
  • Barrow v. Vill. of New Miami
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    • Ohio Court of Appeals
    • January 22, 2018
    ...because a plaintiff characterizes the relief he seeks as being equitable in nature, does not mean it is so.2 Cirino v. Ohio Bur. of Workers' Comp. , 2016-Ohio-8323, 75 N.E.3d 965, ¶ 48. Conversely, not every claim for monetary relief constitutes money damages. LaBorde at ¶ 19. A specific re......
  • Beck v. Lally
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    • September 3, 2020
    ...order into a final appealable order by merely reciting the language required under Civ.R.54(B). Noble at id.; Cirino v. Ohio Bur. of Workers' Comp., 2016-Ohio-8323, 75 N.E.3d 965, ¶ 124 (8th Dist.).Foster v. Foster, 2018-Ohio-1961, 113 N.E.3d 150, ¶ 18 (8th Dist.). {¶ 22} In the instant mat......
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