State ex rel. Lynch v. Indus. Comm.

Decision Date25 January 2007
Docket NumberNo. 05AP-1233.,05AP-1233.
Citation2007 Ohio 292,871 N.E.2d 618,171 Ohio App.3d 453
PartiesThe STATE of Ohio ex rel. LYNCH v. INDUSTRIAL COMMISSION OF OHIO et al.
CourtOhio Court of Appeals

Ward, Kaps, Bainbridge, Maurer & Melvin, L.L.C., Paul F. Ward, and William J. Melvin, Columbus, for relator.

Marc Dann, Attorney General, and Douglas R. Unver, Assistant Attorney General, for respondent Industrial Commission of Ohio.

TRAVIS, Judge.

{¶ 1} In this original action, relator, Henry Lynch, seeks a writ of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to vacate its order that terminated relator's permanent total disability ("PTD") compensation and declared an overpayment of compensation beginning January 31, 1994, and to reinstate relator's PTD compensation.

{¶ 2} Relator was born on January 6, 1932, and in 1967 was employed by Brookside Country Club, a state-fund employer located in Canton, Ohio. On March 16, 1967, relator suffered an industrial injury in the course of his employment. The injury was given claim No. 67-29813 and was allowed for "fracture[d] odontoid process [at] C-2 with forward subluxation C-1 on C-2." Subsequently, the commission found that relator was permanently and totally disabled.

{¶ 3} On July 16, 1997, a criminal complaint was filed against relator in the United States District Court, Northern District of Ohio. Among other things, the complaint alleged that from January 1, 1994 to July 17, 1997, relator did:

[C]onspire to distribute cocaine and/or cocaine base and to possess with intent to distribute cocaine and/or cocaine base; knowingly and intentionally use the telephone to distribute cocaine and/or cocaine base or to cause or facilitate the distribution of cocaine and/or cocaine base; and knowingly and intentionally distribute cocaine and/or cocaine base (crack cocaine) and possess cocaine and/or cocaine base with the intent to distribute in violation of Title 21 United States Code, Section(s) 846, 843(b), 841(a)(1).

{¶ 4} Attached to the complaint was an affidavit executed by special agent Kenneth A. Myers on July 16, 1997. The affidavit provided a general background of Myers's experience in the investigation of illegal drug sales and the investigation of a number of persons in the area of Canton, Ohio, for the illegal sale of cocaine. Summaries of conversations and telephone calls, some of which involved relator, were included. In addition, the affidavit recites information from confidential sources that relator had been selling cocaine since 1992. One source claimed weekly purchases of $300 to $400 worth of cocaine from relator between 1992 and 1994, while another claimed that relator sold large amounts of narcotics from his home.1 In addition, relator was convicted of drug trafficking in Columbiana County, Ohio, in 1994.

{¶ 5} The stipulated record also includes an 81-count indictment that accused relator and others of having committed various federal offenses. Relator was charged with conspiracy to possess cocaine with the intent to distribute, using a telephone to facilitate the distribution of cocaine, selling cocaine, and owning and maintaining a house for the purpose of using and distributing cocaine.2

{¶ 6} In December 1997, relator entered a guilty plea to count one, conspiracy to possess cocaine with the intent to distribute cocaine, in violation of Section 846(a)(1), Title 21, U.S.Code. On December 10, 1997, agents of the Special Investigations Unit of the Ohio Bureau of Workers' Compensation ("BWC"), received a copy of the criminal complaint, affidavit, and indictment. On January 29, 1998, the BWC moved to terminate relator's PTD compensation and to declare an overpayment of benefits based on the fact that relator was engaged in a continuing criminal enterprise for profit and, thus, was engaged in sustained remunerative employment.

{¶ 7} On March 10, 1998, a staff hearing officer ("SHO") of the commission conducted a hearing. Relator was incarcerated at the time. Notice of the hearing was sent to the address provided by relator when he applied for PTD, but was not sent to relator at his place of incarceration. As a result, no one appeared on relator's behalf at the hearing. On March 19, 1998, a staff hearing officer ("SHO") issued an order that terminated relator's benefits and declared an overpayment effective January 31, 1994.

{¶ 8} Approximately six years later, on June 10, 2004, relator moved for relief from the commission's order terminating his PTD. Relator sought invocation of the commission's continuing jurisdiction under R.C. 4123.52. Relator also sought relief under R.C. 4123.522 because he had not received notice of the March 10, 1998 hearing. On August 30, 2004, SHO conducted a hearing on relator's request for relief. Although relator had not filed a change of address with the commission, relator's wife had advised the commission that relator was incarcerated and provided the location of his incarceration. The relevant portions of the order are as follows:

The injured worker's request to vacate the 03/10/1998 Staff Hearing Officer hearing and order is denied. The injured worker did fail to receive notice of the 03/10/1998 hearing. This failure was due to his own fault. He was incarcerated since 07/05/1997, and had failed to notify the Industrial Commission and Bureau of Workers' Compensation of his change of address. Therefore, the notice for the 03/10/1998 hearing had been correctly mailed to the address (P.O. Box 20004, Canton, Ohio 44701-0004) that the injured worker had instructed per his change of address form filed 01/28/1998. Therefore the request for Ohio Revised Code 4123.52 relief is denied.

However, the request for Ohio Revised Code 4123.522 relief is granted. The 03/08/1998 CSS note in file records that the injured worker's wife on that date told the Bureau of Workers' Compensation that her husband was incarcerated, and she gave the Bureau of Workers' Compensation the correct incarceration address. Therefore, the order from the 03/10/1998 Staff Hearing Officer hearing should have been mailed to the location of incarceration.

Therefore, it is found that the injured worker on 06/10/2004 timely filed a request for reconsideration to the 03/10/1998 Staff Hearing Officer order. This claim is referred to the Industrial Commission Legal Services Section to screen the injured worker's request for reconsideration filed 06/10/2004.

{¶ 9} On April 9, 2005, the commission issued an interlocutory order stating that relator's request for reconsideration would be set for hearing "to determine if the alleged mistake of law as noted herein is sufficient for the Industrial Commission to invoke its continuing jurisdiction." The "alleged mistake of law" refers to relator's claim that the March 19, 1998 order which terminated PTD contained a clear mistake of law: the holding that relator's continuing criminal enterprise for profit was sustained remunerative employment.

{¶ 10} On June 8, 2005, the commission made the following findings and upheld the SHO order mailed on March 19, 1998:

It is the finding of the Commission that it does not have authority to invoke continuing jurisdiction, pursuant to R.C. 4123.52 and the case law of State ex rel. Nicholls v. Indus. Comm. (1998), 81 Ohio St.3d 454, 692 N.E.2d 188; and State ex rel. Foster v. Indus. Comm. (1999), 85 Ohio St.3d 320, 707 N.E.2d 1122. It is further the finding of the Commission that the injured worker has failed to meet his burden of proving that the Staff Hearing Officer order, dated 03/19/1998, contains a clear error of such character that remedial action would clearly follow. Therefore, the injured worker's request for reconsideration, filed 06/10/2004, is denied and the order of the Staff Hearing Officer, dated 03/19/1998, remains in full force and effect.

{¶ 11} Relator filed the within mandamus action on November 7, 2005. The matter was referred to a magistrate of this court pursuant to Civ.R. 53(C) and Loc.R. 12(M). On July 25, 2006, the magistrate issued a decision that included findings of fact and conclusions of law. (Attached as Appendix A.) The magistrate held that "(1) the commission properly invoked its continuing jurisdiction over the PTD award at the March 10, 1998 hearing before the SHO and (2) the commission's determination that relator has been engaged in sustaining remunerative employment beginning January 31, 1994 is supported by some evidence." The magistrate recommended that the requested writ of mandamus be denied. Relator timely objected to the magistrate's decision.

{¶ 12} Relator objects to the magistrate's decision on three grounds. First, relator believes that the magistrate failed to apply the correct standard when analyzing the SHO order mailed March 19, 1998. Relator argues that the SHO order failed to properly identify and explain the basis for exercising continuing jurisdiction as required by decisions of the Supreme Court of Ohio.3 Second, relator objects to the magistrate's finding that sustained remunerative employment, as used in workers' compensation cases, includes continuing criminal activity for profit. Finally, relator objects to the magistrate's conclusion that the order of the commission properly invoked continuing jurisdiction and was supported by some evidence.

{¶ 13} An award of benefits for PTD compensation of an injured worker is governed by R.C. 4123.58. Initially, the claimant bears the burden to prove that the inability to perform sustained remunerative employment arises exclusively from the allowed conditions. State ex rel. Wean United, Inc. v. Indus. Comm. (1993), 66 Ohio St.3d 272, 611 N.E.2d 828. Once the claimant's initial burden is met and an award of PTD is made, the award continues until death, and the injured worker is under no obligation to provide additional evidence of disability. "The lifetime nature of the award negates the need for continuing medical...

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