Wloszek v. Ohio Bureau of Workers' Comp.
| Decision Date | 05 March 2013 |
| Docket Number | No. 12AP–529.,12AP–529. |
| Citation | 987 N.E.2d 342 |
| Parties | Monica M. WLOSZEK, D.C., Appellant–Appellant, v. OHIO BUREAU OF WORKERS' COMPENSATION, Appellee–Appellee. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Reminger Co., L.P.A., Melvin J. Davis and Ronald A. Fresco, Columbus, for appellant.
Michael DeWine, Attorney General, and Patsy A. Thomas, for appellee.
{¶ 1} Appellant-appellant, Monica M. Wloszek, D.C. (“appellant”), appeals from a judgment of the Franklin County Court of Common Pleas affirming an order issued by appellee-appellee, Ohio Bureau of Workers' Compensation (“BWC”), denying appellant's application for certification to participate in the BWC's Health Partnership Program (“HPP”). Because we conclude that applying the relevant administrative rule to bar appellant from being certified in the HPP does not violate her right to substantive due process and that the BWC did not err by considering the sealed records related to appellant's criminal convictions in denying her application, we affirm.
{¶ 2} Appellant is a chiropractor and is licensed to practice in the state of Ohio. In 2000, appellant pled guilty in a federal criminal case to two felony charges based on violations of a federal “anti-kickback” statute. Appellant later applied to the Cuyahoga County Court of Common Pleas for an order sealing the records pertaining to those convictions. The court issued an order sealing those records in 2007.
{¶ 3} In 2009, appellant applied for certification as a provider in the HPP, a comprehensive managed care program administered by the BWC to provide medical services to employees for their compensable work-related injuries or occupational diseases. Appellant had previously been certified as a provider in the HPP, but the BWC revoked her certification under a rule requiring that a certified provider shall not have a history of a felony conviction in any jurisdiction or a conviction for an act involving dishonesty, fraud or misrepresentation. Ohio Adm.Code 4123–6–02.2(B)(5).1 The BWC denied appellant's 2009 application for certification in the HPP. Appellant appealed the denial, and a hearing was conducted before a BWC referee. Following the hearing, the BWC issued an order adopting the referee's findings of fact and conclusions of law, as well as his recommendation that appellant's application for certification be denied. The BWC concluded that appellant failed to comply with the rules governing the HPP based on her prior felony convictions and that it lacked discretion to consider mitigating evidence related to those convictions. The BWC also concluded that it could consider the sealed records related to appellant's criminal convictions because the convictions bore a direct and substantial relationship to certification as an HPP provider.
{¶ 4} Appellant appealed the BWC's order to the Franklin County Court of Common Pleas. The court affirmed the order, concluding that it was supported by reliable, probative, and substantial evidence and was in accordance with law.
{¶ 5} Appellant appeals from the judgment, assigning two errors for this court's review:
(1) The trial court's Decision affirming the Bureau of Worker's Compensation's Order denying Dr. Monica Wloszek's application to participate in the Health Partnership Program is clearly wrong as a matter of law because Ohio Adm.Code 4123–6–02.2(B)(5), as applied to the facts of this case, violates Dr. Wloszek's substantive due process rights.
(2) The trial court's Decision affirming the Bureau of Workers' Compensation Order denying Dr. Monica Wloszek's application to participate in the Health Partnership Program is clearly wrong as a matter of law because the use of, and reference to Dr. Wloszek's criminal records, which were properly sealed, violated R.C. 2953.33(B).
{¶ 6} In an administrative appeal under R.C. 119.12, a common pleas court reviews the entire record and determines whether an agency's order is supported by reliable, probative, and substantial evidence and is in accordance with law. Leslie v. Ohio Dept. of Dev., 171 Ohio App.3d 55, 2007-Ohio-1170, 869 N.E.2d 687 (10th Dist.), ¶ 43, citing Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 110–11, 407 N.E.2d 1265 (1980). On appeal from a determination by the common pleas court that an agency's order was supported by reliable, probative, and substantial evidence, this court reviews the lower court's decision for abuse of discretion. Leslie at ¶ 44. An abuse of discretion occurs where a court's decision is “unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). “However, on the question of whether the agency's order was in accordance with law, this court's review is plenary.” Leslie at ¶ 44, citing Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d 339, 343, 587 N.E.2d 835 (1992).
{¶ 7} In appellant's first assignment of error, she argues that applying Ohio Adm.Code 4123–6–02.2(B)(5) to prohibither from being certified as a provider in the HPP violates her substantive due process rights. “The essence of substantive due process is the protection from certain arbitrary, wrongful governmental actions irrespective of the fairness of the procedures used to implement them.” Kistler v. Bur. of Workers' Comp., 10th Dist. No. 04AP–1095, 2006-Ohio-3308, 2006 WL 1781457, ¶ 14. When a constitutionally protected right is not implicated, courts apply a rational-basis test in determining a substantive due process challenge. Id. at ¶ 17. Under a rational-basis test, a rule is constitutional if it bears a rational relationship to a legitimate state interest and is not arbitrary, discriminatory, capricious or unreasonable. Id.
{¶ 8} This court has previously considered the constitutionality of Ohio Adm.Code 4123–6–02.2(B)(5) and its application in similar situations in two prior cases. The first case involved a chiropractor, Dr. Gralewski, who pled guilty to one count of false pretenses in a state case in 1992 and pled guilty to one count of felony mail fraud in a federal case in 1993, based on his participation in an unlawful referral scheme that involved fraudulent billing of an insurance company. Gralewski v. Bur. of Workers' Comp., 167 Ohio App.3d 468, 2006-Ohio-1529, 855 N.E.2d 879, ¶ 2 (10th Dist.). As a result of the guilty plea, his medical licenses in Michigan and Ohio were temporarily suspended. Id. at ¶ 3. In 1996, Dr. Gralewski applied for certification in the HPP and was certified as a provider under that program. He was later recertified in 2000. In both the initial application and the application for recertification, Dr. Gralewski disclosed his prior convictions. Id. at ¶ 6. Dr. Gralewski again applied for recertification in 2002. In response, the BWC notified him that it intended to revoke his certification based on his prior felony convictions. Id. Following a hearing, a referee recommended that Dr. Gralewski be recertified, but the BWC administrator rejected this recommendation and denied the application for recertification. Id. at ¶ 8–9. Dr. Gralewski appealed to the Franklin County Court of Common Pleas, which held that the BWC had acted arbitrarily and capriciously, and reversed the BWC's order. Id. at ¶ 11–12. Both parties appealed to this court.
{¶ 9} On appeal, this court concluded that the language of Ohio Adm.Code 4123–6–02.2(B)(5) was clear and unambiguous in providing that, to be certified in the HPP, a provider must not have a history of a felony conviction or a conviction for any act involving dishonesty, fraud or misrepresentation. Id. at ¶ 20. Accordingly, the BWC was authorized to decertify Dr. Gralewski. Id. at ¶ 21. The court also concluded that the rule did not contain any provisions for the BWC to consider mitigating circumstances. Id. at ¶ 22. The court reversed the common pleas court's ruling and directed it to enter an order affirming the BWC's order denying Dr. Gralewski's application. Id. at ¶ 63.
{¶ 10} Shortly after the Gralewski decision, this court once again considered the application of Ohio Adm.Code 4123–6–02.2(B)(5) in the Kistler case. The physician in that case, Dr. Kistler, pled guilty in 1981 to one felony count of conspiring to defraud insurance companies by submitting false and inflated medical bills. Kistler at ¶ 2. Despite the conviction, Dr. Kistler retained his medical licenses in Ohio and Florida. Id. In 1996, the BWC certified Dr. Kistler as an HPP provider, and it recertified him in 2002. Id. at ¶ 5. Then, in 2003, the BWC notified Dr. Kistler that his recertification was in error and that it planned to revoke the certification based on his prior conviction. Id. at ¶ 6. Following a hearing, the BWC revoked the certification, concluding that Dr. Kistler could not be certified under Ohio Adm.Code 4123–6–02.2(B)(5) due to his conviction in 1981. Dr. Kistler appealed to the Franklin County Court of Common Pleas, which reversed the BWC's order, finding that the rule violated his constitutional rights to due process and equal protection. Id.
{¶ 11} On appeal, this court noted that, under Ohio Adm.Code 4123–6–02.2(B)(5), the BWC has no discretion to certify a physician to participate in HPP once it is demonstrated that the physician has a felony conviction or a conviction for an act involving dishonesty, fraud or misrepresentation. Id. at ¶ 12, citing Gralewski at ¶ 22. We concluded that the state has legitimate interests in regulating the character, honesty, and business practices of its medical providers and in ensuring that payments from the state workers' compensation insurance fund do not go to convicted felons and those convicted of acts of fraud and dishonesty. Kistler at ¶ 18. Applying the rational-basis test, we concluded that Ohio Adm.Code 4123–6–02.2(B)(5) was rationally related to these legitimate state interests. Id. Considering the specific facts in Kistler, we concluded that Dr. Kistler's conviction “invo...
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