State ex rel. Cleveland Browns Football Co. v. Indus. Comm'n of Ohio

• Decision Date: 09 March 2017
• Docket Number: No. 14AP–1031,14AP–1031
• Citation: 2017 Ohio 837,85 N.E.3d 1238
• Parties: STATE EX REL. CLEVELAND BROWNS FOOTBALL CO., LLC, Relator, v. INDUSTRIAL COMMISSION OF OHIO and Ryan Pontbriand, Respondents.
• Court: Ohio Court of Appeals

85 N.E.3d 1238

2017 Ohio 837

STATE EX REL. CLEVELAND BROWNS FOOTBALL CO., LLC, Relator,

v.INDUSTRIAL COMMISSION OF OHIO and Ryan Pontbriand, Respondents.

No. 14AP–1031

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

Rendered on March 9, 2017

On brief: Fisher & Phillips, LLP, and Scott W. Gedeon, Cleveland, for relator. Argued: Scott W. Gedeon.

On brief: Michael DeWine, Attorney General, and Eric J. Tarbox, Grove City, for respondent, Industrial Commission of Ohio. Argued: John R. Smart.

DECISION

BRUNNER, J.

{¶ 1} Relator, Cleveland Browns Football Co., LLC ("the club"), is a professional sports franchise domiciled in Ohio and a self-insured employer under the Ohio workers' compensation laws. Respondent, Ryan Pontbriand, was a skilled football player the club employed at the time he incurred an injury during a league game in 2005. Pontbriand applied for a determination of percentage of permanent partial disability ("PPD") on May 30, 2013. The club has filed this original action requesting this Court to issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("the commission"), to vacate its August 19, 2014 order, resulting from its January 23, 2014 hearing, holding that Pontbriand's PPD application was timely filed and referring it to the Ohio Bureau of Workers' Compensation ("BWC").

{¶ 2} The club asserts that Pontbriand's claim is a medical claim subject to a six-year statute of limitations that expired on May 11, 2012, as provided by former R.C. 4123.52. In a two-to-one decision, the commission found that Pontbriand's claim is not a medical claim but a lost time claim subject to a ten-year statute of limitations, also set forth in former R.C. 4123.52, and that the his claim was filed before the ten years had expired.

{¶ 3} This Court referred this matter to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision, including findings of fact and conclusions of law, and recommended that this Court deny the club's request for a writ of mandamus.

{¶ 4} On December 22, 2015, the club filed its objections to the magistrate's decision. The commission filed its memorandum contra the objections on January 15, 2016.

{¶ 5} After reviewing the magistrate's decision, conducting an independent review of the record pursuant to Civ.R. 53, and giving due consideration of the club's objections, we overrule the club's objections and adopt the magistrate's findings of fact and conclusions of law as our own.

I. FACTS AND PROCEDURAL HISTORY

{¶ 6} Pontbriand sustained an injury on November 27, 2005 in the performance of his services as a professional football player for the club. At the time of his injury, Pontbriand was under a five-year NFL player contract ("the contract") with the club. Paragraph two of the contract relates to Pontbriand's duties as a player, as follows:

EMPLOYMENT AND SERVICES. Club employs Player as a skilled football player. * * * Player will report promptly for and participate fully in Club's official mandatory mini-camp(s), official preseason training camp, all Club meetings and practice sessions, and all pre-season, regular season, and post-season football games scheduled for or by the Club. If invited, Player will practice for and play in any all-star football games sponsored by the League.

(Feb. 3, 2015 Stipulation of Evidence at 33.) Paragraphs eight, nine, and ten of the contract relate to Pontbriand's physical condition, provide for provisions in the event of injury, and interface with workers' compensation, respectively:

8. PHYSICAL CONDITION. Player represents to Club that he is and will remain himself in excellent physical condition. Player will undergo a complete physical examination by the Club physician upon Club request, during which physical examination Player agrees to make full and complete disclosure of any physical or mental condition known to him which might impair his performance under this contract and to respond fully and in good faith when questioned by the Club physician about such condition. If Player fails to establish or maintain his excellent physical condition to the satisfaction of the Club physician, or make the required full and complete disclosure to the Club physician, then Club may terminate this contract.

9. INJURY. Unless this contract specifically provides otherwise, if Player is injured in the performance of his services under this contract and promptly reports such injury to the Club physician or trainer, then Player will receive such medical and hospital care during the term of this contract as the Club physician may deem necessary, and will continue to receive his yearly salary for so long, during the season of injury only and for no subsequent period covered by this contract, as Player is physically unable to perform the services required of him by this contract because of such injury. * * *

10. WORKERS' COMPENSATION. Any compensation paid to Player under this contract or under any collective bargaining agreement in existence during the term of this contract for a period during which he is entitled to workers' compensation benefits by reason of temporary total, permanent total, temporary partial, or permanent partial disability will be deemed an advance payment of workers' compensation benefits due Player, and Club will be entitled to be reimbursed the amount of such payment out of any award of workers' compensation.

Id. at 34.

{¶ 7} On October 28, 2005, Pontbriand underwent a lumbar spine MRI

at the club's request, which resulted in the following medical finding: "IMPRESSION; LARGE CENTRAL AND RIGHT SIDED HERNIATION L5–S1." Id. at 6. The clinic note of October 31, 2005 indicates that the evaluating physician cleared Pontbriand to play football, but indicated that his condition would be re-evaluated if he had any increase in weakness or pain. On November 27, 2005, Pontbriand was re-evaluated for low back pain and disc herniation. The evaluating physician determined Pontbriand's condition had deteriorated and recommended surgical intervention. Pontbriand underwent surgery on December 6, 2005 for "[r]ight-sided L5–S1 microdiskectomy." Id. at 9.

{¶ 8} It is undisputed that Pontbriand was unable to play in the five regularly scheduled football games held on December 4, 11, 18, and 24, 2005 and January 1, 2006 as a result of his back injury and surgery. It is also undisputed that the club continued to pay Pontbriand his regular salary under the terms of the contract during the time that he was unable to play in football games and was recovering from his December 6, 2005 surgery.

{¶ 9} Pontbriand was examined January 9, 2006, at which time the examining physician wrote the following:

I do not want [Pontbriand] doing any active resistance exercises just yet. He can do some stretching and aerobic exercises and supported upper extremity exercises. I will see him again in approximately 3 months' time prior to the next football season. He is heading back to Houston for the remainder of the year. He can continue his rehab there and in 4 weeks slowly progress into a resistance program.

Id. at 10. Follow-up examinations indicated that Pontbriand's surgery had resulted in a "complete resolution of symptoms." Id. at 11. The club paid Pontbriand's medical bills, paying the last medical bill on May 11, 2006.

{¶ 10} In June 2007, Pontbriand filed with BWC a First Report of an Injury, Occupational Disease or Death ("FROI–1"), listing November 27, 2005 as the date of injury. Id. at 1. On June 19, 2007, the club, acting in its capacity as a self-insured employer, certified Pontbriand's claim for "L5–S1 Disc Herniation." Id. at 58–59.

{¶ 11} On May 30, 2013, Pontbriand filed an Application for Determination of Percentage of Permanent Partial Disability or Increase of Permanent Partial Disability ("C–92") under R.C. 4123.57(A). (Stipulation of Evidence at 24.) The club objected to Pontbriand's claim on the grounds that it had been filed beyond a six-year statute of limitations. The club filed with BWC a form on which it indicated that the claim was "medical only," not "lost time," and should be dismissed as untimely filed. Id. at 25. The club also indicated on the form that the last payment for Pontbriand's medical services was May 11, 2006.

{¶ 12} By order mailed June 11, 2013, BWC dismissed Pontbriand's application as barred by the expiration of the six-year statute of limitations.

{¶ 13} Pontbriand administratively appealed BWC's June 11 order, and a district hearing officer ("DHO") heard the appeal on July 29, 2013. In an order dated August 1, 2013, the DHO found that Pontbriand's claim was not subject to a six-year statute of limitations, but was subject to a ten-year statute of limitations that had not expired:

[DHO] finds this is a lost time claim, as the Injured Worker was unable to perform the duties of his former position of employment as a football player for the Cleveland Browns and missed five games in 2005 due to the allowed condition in the claim. The Employer paid his salary in lieu of temporary total disability compensation. Even though the Injured Worker continued to attend team meetings and practices and conducted his post-operative rehabilitation at the Employer's rehabilitation facilities, there is no dispute he missed five games due to the industrial injury. Since he was unable to perform the duties of his former position of employment for five games, this constitutes the claim as lost time.

As such, the applicable statutory closure period is ten years from the last date of compensation or medical benefits. In this claim, the payment of a medical bill was 05/11/2006.

Therefore, the C–92 application, filed on 05/30/2013, was timely filed and shall be referred to the [BWC] for processing.

Id. at 28.

{¶ 14} The club's appeal of the DHO's August 1, 2013 order was heard on September 20, 2013 by a staff hearing officer ("SHO"). In an order mailed September 27, 2013, the SHO denied the...