LTV Steel Co. v. Indus. Comm.

• Decision Date: 12 December 2000
• Docket Number: No. 00AP-469.,00AP-469.
• Citation: 140 Ohio App.3d 680,748 NE 2d 1176
• Parties: LTV STEEL COMPANY, Appellant, v. INDUSTRIAL COMMISSION OF Ohio et al., Appellees.
• Court: Ohio Court of Appeals

140 Ohio App.3d 680

748 NE 2d 1176

LTV STEEL COMPANY, Appellant, v. INDUSTRIAL COMMISSION OF Ohio et al., Appellees.

No. 00AP-469.

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

Decided December 12, 2000.

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Manos, Pappas & Stefanski Co., L.P.A., Leonard J. Pappas and James A. Neff, for appellant.

Betty D. Montgomery, Attorney General, and William J. McDonald, Assistant Attorney General, for appellee Industrial Commission of Ohio.

Elliot, Heller, Maas, Moro & Magill Co., L.P.A., and Richard A. Magill, for appellee Glen A. Thornton.

Boyd, Rummell, Carach & Curry Co., L.P.A., and John C. Boyd, for appellee Ted Wacht.

Tablack, Wellman, Jeren, Hackett & Skoufatos Co., L.P.A., and John A. Jeren, Jr., for appellees Peter Bernardich and Howard Van Horn.

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BOWMAN, Presiding Judge.

Appellee, the Industrial Commission of Ohio ("commission"), found that four injured employees of appellant, LTV Steel Company ("LTV"), are entitled to workers' compensation for permanent total disability ("PTD"). The four injured employees are appellees Glen Thornton, Ted Wacht, Peter Bernardich and Howard Van Horn (collectively, "the claimants").

In each of the four workers' compensation claims, LTV sought to depose the claimants' treating physicians, physicians who examined the claimants on behalf of the commission, and vocational consultants who submitted employability assessment reports concerning the claimants. Pursuant to its interpretation of Ohio Adm.Code 4121-3-09, the commission granted one and denied thirteen of LTV's requests for depositions.

LTV filed a declaratory judgment action in the Franklin County Court of Common Pleas, seeking a declaration that Ohio Adm.Code 4121-3-09 is unconstitutional because (1) the rule as written and as applied by the commission in these four claims violated LTV's right to due process by preventing LTV from taking depositions, thereby denying LTV's rights to cross-examination, and (2) the rule violated LTV's right to equal protection of the law. LTV also argued that the administrative rule is unlawful because it is contrary to R.C. 4123.09. The trial court held that "an employer does not have a constitutional right to cross-examine physicians who have submitted written reports," and denied on all counts LTV's complaint for declaratory judgment.

Each of the four claims has a lengthy factual and procedural history. The following brief summaries pertain to LTV's requests to take the specific depositions at issue.

Claimant Glen Thornton filed an application for PTD on March 21, 1996, supported by a March 8, 1996 report from Thornton's physician, Dr. DeChellis. Following a hearing on May 22, 1997, an Industrial Commission staff hearing officer granted the claim for PTD. On June 25, 1997, LTV requested to take the deposition of Dr. DeChellis. The Industrial Commission denied the request on the grounds that Dr. DeChellis had examined Thornton at Thornton's request.

Claimant Ted Wacht filed an application for PTD on March 19, 1996, based on a February 27, 1996 report from his physician, Dr. Frangopoulus. On June 10, 1996, Wacht was examined by an Industrial Commission physician, Dr. Hunter, who opined that Wacht had a fourteen percent impairment. Following a hearing on October 31, 1996, an Industrial Commission staff hearing officer granted the claim for PTD. On November 26, 1996, LTV requested to take the depositions of Drs. Frangopoulus and Hunter. A hearing officer denied the requests as untimely. On June 18, 1997, the Industrial Commission issued an order granting PTD based on the report of Dr. Hunter and reports submitted by vocational evaluators, Mr. Simone and Ms. Pearson. On July 24, 1997, LTV requested to take depositions of Dr. Hunter, Simone and Pearson. The commission denied the requests on October 31, 1997.

Claimant Peter Bernardich applied for PTD on September 20, 1996, based on an August 23, 1996 report from his physician, Dr. Mersol. On behalf of the commission, Dr. Demeter examined Bernardich on January 8, 1997, and Dr. Perry examined Bernardich on January 13, 1997. On February 19, 1997, LTV asked to take the depositions of Drs. Demeter and Perry. The hearing officer granted LTV's request to depose Dr. Demeter but denied the request to depose Dr. Perry. On July 3, 1997, the commission granted the claim for PTD based on the reports of Drs. Perry and Mersol. On July 22, 1997, LTV asked to depose Bernardich's physician, Dr. Mersol, and asked again to depose Dr. Perry. On August 26, 1997, the commission denied LTV's request to depose Dr. Mersol because he examined Bernardich at his request. The commission also denied the request to depose Dr. Perry on the basis of res judicata.

Claimant Howard Van Horn applied for PTD on April 30, 1996, attaching a March 4, 1996 report from Dr. Lagoutaris, a March 7, 1996 report from Dr. Lee and a March 28, 1996 report from Dr. Novosel. On behalf of the commission, Dr. Perry examined Van Horn on September 13, 1996, and Dr. Harris examined Van Horn on September 19, 1996. On October 28, 1996, LTV asked to depose Van Horn's physicians, Drs. Lagoutaris, Lee and Novosel and the commission's physicians, Drs. Perry and Harris. On December 12, 1996, the commission denied LTV's motions to depose Drs. Lagoutaris, Lee and Novosel on the grounds that they were Van Horn's doctors. On July 8, 1997, the commission also denied the request to depose Drs. Perry and Harris. On September 30, 1997, a hearing officer granted Van Horn's PTD claim.

On appeal, LTV raises the following five assignments of error:

Assignment of Error No. 1

"The trial court erred in holding that self insured employers in workers' compensation administrative proceedings have no due process rights."

Assignment of Error No. 2

"The trial court erred in holding that self-insured employers in the adjudication of PTD applications do not have a constitutional right to cross-examine physicians who have submitted written reports being used against it."

Assignment of Error No. 3

"The trial court erred in failing to address the issue of whether Ohio Adm. Code § 4121-3-09(A)(6) is invalid as 1) it is an usurpation of legislative function; 2) it exceeds the authority conferred by statute; 3) it modifies, conflicts with, and contravenes the governing statute; 4) it is arbitrary, vague, and has no reasonable relationship to the statute; and 5) its conditions are incongruous and unreasonable."

Assignment of Error No. 4

"The trial court erred in failing to address the issue of whether Ohio Adm. Code § 4121-3-09(A)(6), as it was applied by the commission in these claims, is unconstitutional and deprived appellant of its due process rights to confront and cross-examine witnesses."

Assignment of Error No. 5

"The trial court erred in failing to address the issue of whether Ohio Adm. Code § 4121-3-09(A)(6) and its application to appellant in these claims constitutes a denial of equal protection."

For the reasons that follow, we affirm the judgment of the Franklin County Court of Common Pleas.

Constitutional issues of due process and equal protection relating to workers' compensation are questions of law and this court's review is plenary. See Planet Earth Entertainment, Inc. v. Ohio Liquor Control Comm. (1998), 125 Ohio App.3d 619, 622, 709 N.E.2d 220.

For clarity, we consider LTV's first and second assignments of error together. In its first assignment of error, LTV contends that that trial court erred in holding that self-insured employers have no due process rights in workers' compensation administrative proceedings. By its own election, LTV is self-insured under Ohio's workers' compensation system. In its opinion, the court of common pleas stated:

"* * * In Ohio, once an employer has paid the premium into the fund, the fund becomes the property of the state and thus employers have no inherent due process rights as to this fund. Because an employer does not have a due process right to the fund, there is no constitutional right to cross-examine doctors at administrative proceedings that relate to the fund. Accordingly, LTV's argument is without merit."

It is clear from their appellate briefs that the parties are not sure what the trial court meant by this statement or about the applicability of the trial court's ruling to the instant action, which involves a self-insured employer that does not pay a premium into the fund.¹

In an effort to address any confusion generated by the statement from the trial court, we clarify that employers have certain due process rights in workers' compensation administrative proceedings. See State ex rel. B.F. Goodrich Co. v. Indus. Comm. (1991), 73 Ohio App.3d 271, 274, 596 N.E.2d 1118, 1119-1120. An employer who chooses the option of self-insurance under the Workers' Compensation Act has no additional and no fewer rights to procedural due process in an administrative hearing than an employer who opts to pay into the fund. Under either option, employers of claimants whose claims are allowed must pay to compensate claimants, either directly through self-insurance or indirectly through fund contributions. Moreover, under either option, employers are parties to the administrative proceedings. Because we conclude that self-insured employers have some due process rights in workers' compensation proceedings, we sustain LTV's first assignment of error.

Although we conclude that LTV has due process rights in workers' compensation administrative proceedings, however, we must also determine the type of process that LTV is entitled to under the federal and Ohio constitutions. Generally, due process rights guaranteed by the Fourteenth Amendment to the United States Constitution and by Section 16, Article I, of the Ohio Constitution apply, to some extent, in the context of...