State ex rel. Durant v. Superior's Brand Meats, Inc.

• Decision Date: 11 May 1994
• Docket Number: No. 93-798,93-798
• Citation: 631 N.E.2d 627,69 Ohio St.3d 284
• Parties: The STATE EX REL. DURANT, Appellant and Cross-Appellee, v. SUPERIOR'S BRAND MEATS, INC., Appellee and Cross-Appellant; Industrial Commission of Ohio, Appellee.
• Court: Ohio Supreme Court

Page 284

69 Ohio St.3d 284

631 N.E.2d 627

The STATE EX REL. DURANT, Appellant and Cross-Appellee, v. SUPERIOR'S BRAND MEATS, INC., Appellee and Cross-Appellant; Industrial Commission of Ohio, Appellee.

No. 93-798.

Supreme Court of Ohio.

Submitted March 1, 1994.

Decided May 11, 1994.

Appellant-claimant, Cathy S. Durant, injured her low back in the course of and arising from her employment with cross-appellant, Superior's Brand Meats. Superior's Brand, a self-insured employer, apparently initiated temporary total disability compensation on May 6, 1985. On May 29, 1987, an Industrial Commission district hearing officer terminated compensation for temporary total disability based on maximum medical improvement and ability to return to the former position of employment. Claimant's timely appeal has never been adjudicated.

Possibly in response to the district hearing officer's finding of maximum medical improvement, Superior's Brand sought to terminate its payment for claimant's ongoing chiropractic treatment. Following a November 25, 1987 hearing, a district hearing officer ordered Dr. Bille's outstanding chiropractic bills paid and discontinued authorization for further treatment, writing:

"The Employer's motion, filed July 27, 1987, is granted. No further chiropractic treatments are authorized; as per Dr. Bille's fee bill dated 9-16-87, covering services from May 4, 1987 through August 11, 1987, inclusive.

"Claimant has received the treatment recommended by Dr. Weaver in his March 19, 1987 report.

"This District Hearing Officer finds that the treatment rendered by Dr. Bille through August 11, 1987, was appropriate, necessary and due to the allowed conditions in the instant claim. The claimant is ordered to submit Dr. Bille's progress report to the file.

"The District Hearing Officer, in making this finding, has taken the following evidence into consideration:

"Dr. Bille, claimant's physician's fee bills in file.

"Dr. Weaver, state examiner's report of March 19, 1987."

A regional board of review affirmed on May 4, 1988. Claimant again appealed.

During the pendency of the chiropractic issue, the employer alleged that claimant had been employed elsewhere while receiving temporary total disability compensation and asked that an overpayment be declared. Shortly thereafter, claimant filed a C85A claim reactivation form seeking authorization for further treatment from newly retained physician, Robert C. Erickson II. These two motions were heard on December 2, 1988 by a district hearing officer, who held:

"The claimant's Application to Re-Activate Claim and motion are granted to the extent of this order.

"Authorization is granted for medical treatment rendered and further medical treatment.

"Authorization is granted for five treatments per week for six weeks, as requested on the C-161 filed October 19, 1988.

" * * * "The employer's motion is granted to the extent of this order.

"It is the finding of this Hearing Officer that the claimant received Temporary Total Disability compensation from the Self-Insured employer from October 31, 1985 through May 28, 1987, inclusive, in the total amount of $21,192.87[.] It is further the finding of this Hearing Officer that the claimant was self-employed and earning substantial commissions through Queens-Way to Fashion and Entourage International from October 31, 1985 through at least May 28, 1987, inclusive.

"Further, this Hearing Officer finds that due to her self-employment, the claimant was not eligible to receive Temporary Total Disability compensation from October 31, 1985 through May 28, 1987, inclusive.

"Therefore, it is ordered that the claimant was overpaid Temporary Total Disability compensation from October 31, 1985 through May 28, 1987, inclusive, in the total amount of $21,192.87.

"The claimant is ordered to repay said overpayment to the Self-Insured Employer.

"The Hearing Officer, in making these findings, has taken the following evidence into consideration:

"Dr. Erickson, claimant's physician's findings and opinion per multiple reports on file.

"Testimony at hearing.

"Multiple reports in file."

Claimant appealed the overpayment finding to the regional board. Superior's Brand likewise appealed, objecting to authorization for further treatment and the decision to declare an overpayment retroactive only to October 31, 1985. The regional board, however, denied both appeals on May 3, 1989 and affirmed the district hearing officer without comment.

On November 14, 1989, Superior's Brand, in response to claimant's refusal to release her medical records, moved to suspend all action in claimant's claim. Without addressing this motion, staff hearing officers, on March 16, 1990, heard claimant's appeal of the May 4, 1988 chiropractic termination order and the joint appeal of the May 3, 1989 order. Staff hearing officers denied all appeals, writing:

"It is the finding and order of the Hearing Officers that Claimant's appeal filed 6-1-88 be denied, and the finding and order of the Regional Board dated 5-4-88 be affirmed for the reason that it is supported by proof of record and is not contrary to law.

"It is the further finding and order of the Hearing Officers that Claimant's appeal filed 7-5-89 and the Employer's Appeal filed 7-11-89 be denied, and the finding and order of the Regional Board dated 5-3-89 be affirmed for the reason that it is supported by proof of record and is not contrary to law.

"In arriving at this decision, the following evidence was reviewed and evaluated:

"1) Claimant's testimony at hearing;

"2) Letter of Gerald Durant dated 11-16-89;

"3) Transcript of hearing of 12-2-88;

"4) 1985 and 1986 joint tax returns and exhibits thereto;

"5) Industrial Commission Investigation Division report, including:

"a) Entourage Enterprises, Inc[.] letter of 11-11-87;

"b) 1985 and 1986 1099 tax forms from Queens-Way to Fashion, Inc[.];

"c) Entourage 'Application Form';

"d) Queens-Way letter of 11-5-87;

"e) Investigation report of E[.] Joseph Schmitt dated 2-3-88;

"(6) Reports of Dr. Erickson previously filed, including C-85A report filed 8-19-88 and report of 12-1-88."

The litigants moved to the Court of Appeals for Franklin County. Superior's Brand alleged that the commission abused its discretion by (1) failing to find that the overpayment began on May 6, 1985, and (2) proceeding with the March 16, 1990 staff hearing without addressing its suspension motion. Claimant contested both declaration of overpayment and chiropractic termination. The appellate court ultimately (1) upheld the overpayment order in its entirety; (2) upheld the C85A claim reactivation; (3) ordered the regional board to proceed on claimant's appeal of the May 27, 1987 order terminating compensation for temporary total disability; and (4) vacated that portion of the staff hearing officer's March 16, 1990 order denying further chiropractic treatment and ordered the commission to issue a new order consistent with State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245.

This cause is now before this court upon an appeal and cross-appeal as of right.

R.E. Goforth Co., L.P.A., R.E. Goforth, New Philadelphia, and Steven G. Thomakos, Canton, for appellant and cross-appellee.

Buckingham, Doolittle & Burroughs, Eleanor J. Tschugunov and Brett L. Miller, Akron, for appellee and cross-appellant.

Lee I. Fisher, Atty. Gen., and Gloria P. Castrodale, Asst. Atty. Gen., for appellee.

PER CURIAM.

This dispute has three components: (1) claimant's C85A claim reactivation, (2) chiropractic treatment, and (3) overpayment. Upon review, we affirm in full the appellate court's disposition of the first two. Its judgment as to the remaining question is upheld only in part.

Common to each challenge is the March 16, 1990 staff hearing--either in terms of the proceeding itself or the order that it generated. As to the former, Superior's Brand contends that its pending motion for suspension of further activity in claimant's claim should have prevented the March 1990 hearing from going forward. We disagree.

Certainly, it would have been preferable for the commission to have disposed of Superior's Brand's motion before the staff hearing. We do not, however, find that this failure was an abuse of discretion. Superior's Brand's motion was precipitated by claimant's failure to relinquish certain medical records, and we recognize Superior's Brand's frustration with claimant's position.

Superior's Brand's argument, however, appears to be largely premised on its belief that had its motion been heard, the commission would have been required to suspend the claim, forcing claimant to surrender her records. However, Ohio Adm.Code 4121-3-12(B) states that in the event that a claimant fails to cooperate with his or her self-insured employer, the commission "may withhold action on the claim." (Emphasis added.) Thus, suspension was not a given and Superior's Brand was not stripped of a right it otherwise would have possessed had its motion been decided first.

We are equally unpersuaded by Superior's Brand's suggestion that the commission's failure to suspend the claim left it without any means to force claimant to relinquish her records. Superior's Brand could have asked the commission to demand the records. Had claimant still refused, the commission may have been more inclined to act.

Finally, we find no merit to Superior's Brand's allegation of a constitutional violation. Superior's Brand maintains that the commission denied it due process by forcing it to address claimant's C85A without claimant's medical records. Superior's Brand's argument, however, ignores its own substantial contribution to its predicament.

Claimant filed her C85A on August 19, 1988. Superior's Brand's first request for medical records was not made until approximately one year later. More important, Superior's Brand's preliminary request to claimant was not made until ten weeks after the...