State ex rel. Pleasant v. Indus. Comm. , 2017 Ohio 7130 ( 2017 )

[Cite as State ex rel. Pleasant v. Indus. Comm., 2017-Ohio-7130.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Keith Pleasant, :
Relator, :
v. : No. 15AP-637
Industrial Commission of Ohio : (REGULAR CALENDAR)
and City of Columbus,
:
Respondents.
:
DECISION
Rendered on August 8, 2017
On brief: Law Offices of Thomas Tootle, and Thomas Tootle,
for relator.
On brief: Michael DeWine, Attorney General, and Patsy A.
Thomas, for respondent Industrial Commission of Ohio.
On brief: Richard C. Pfeiffer, Jr., City Attorney, and
Wendy S. Cane, for respondent City of Columbus.
IN MANDAMUS
ON OBJECTION TO MAGISTRATE'S DECISION
BRUNNER, J.
{¶ 1} In this original action, relator, Keith Pleasant, requests a writ of mandamus
ordering respondent, Industrial Commission of Ohio ("the commission"), to specifically
state the evidence on which it relied to exercise continuing jurisdiction over two orders
issued by commission staff hearing officers ("SHO") on July 23, and October 31, 2014, or,
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No. 15AP-637
in the alternative, ordering the commission to reinstate the SHO orders. The July 23,
2014 SHO order had denied that part of a motion filed by the Bureau of Workers'
Compensation ("BWC") regarding Pleasant's permanent total disability ("PTD")
compensation. The October 31, 2014 SHO order had denied that part of BWC's motion
regarding his temporary total disability ("TTD") compensation.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate, who issued the appended decision,
including findings of fact and conclusions of law. The magistrate found the commission
did not abuse its discretion in exercising continuing jurisdiction over the two SHO orders
that had denied BWC's motion. The magistrate decided that Pleasant's request for a writ
of mandamus should be denied.
{¶ 3} Pleasant timely filed an objection to the magistrate's decision. The
commission timely filed its memorandum contra Pleasant's objection. Pleasant's
employer at the time of his injury, respondent City of Columbus, also filed a
memorandum contra Pleasant's objection.
{¶ 4} Having examined the magistrate's decision, conducted an independent
review of the record pursuant to Civ.R. 53, and undertaken due consideration of the
objection, we overrule Pleasant's objection and adopt the magistrate's decision, with
correction, as our own.
I. FACTS AND PROCEDURAL HISTORY
{¶ 5} On May 30, 2007, Pleasant sustained an industrial injury to his right
shoulder in the course of, and arising out of, his employment with the City of Columbus,
Division of Refuse.1 BWC allowed Pleasant's original claim and subsequently allowed
other conditions relating to Pleasant's right shoulder. BWC also allowed the conditions of
depressive disorder and dysthymic disorder to be added to Pleasant's claim. Pleasant was
awarded TTD compensation through May 26, 2011. He was awarded PTD compensation
beginning May 27, 2011, based on medical reports that he was unable to perform
sustained remunerative employment.
1 The magistrate's decision, Finding of Fact No. 1, contains a typographical error, stating Pleasant was
employed with the City of Columbus's "Division of Refuge," rather than the Division of Refuse.
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No. 15AP-637
{¶ 6} On April 25, 2012, BWC's Special Investigations Unit ("SIU") received an
allegation that Pleasant was working as a maintenance man. The allegation prompted a
two-year investigation culminating in a 19-page report supported by voluminous
documentation, which included statements from individuals who had paid Pleasant for
work he performed while he was receiving TTD compensation or PTD compensation,
hundreds of invoices provided by a company which had paid Pleasant for work, a spread
sheet created as part of the SIU investigation, Pleasant's bank records which showed
deposits into his account totaling $62,190 from January 11, 2011 to June 2012, his 1099
tax form for tax year 2012, his repeated denials of employment to medical providers, and
his certifications on his TTD forms that he was not working. The SIU investigators
concluded that Pleasant was gainfully employed by multiple entities during the time he
was receiving compensation from BWC, and that he had intentionally concealed his
employment in order to continue receiving BWC compensation.
{¶ 7} On April 7, 2014, BWC filed a motion requesting the commission to find an
overpayment of TTD compensation from December 30, 2008 through May 26, 2011, to
find an overpayment of PTD compensation beginning May 27, 2011, to find fraud relative
to the TTD compensation and PTD compensation, and to terminate PTD compensation.
{¶ 8} On July 10, 2014, a commission hearing officer heard BWC's motion. The
hearing officer heard all issues relative to the motion and, on July 23, 2014, rendered two
separate orders, one in the capacity of a district hearing officer ("DHO") on the fraud,
overpayment and continuing jurisdiction issues relative to the TTD compensation, and
one in the capacity of an SHO on the fraud, overpayment, termination, and continuing
jurisdiction issues relative to the PTD compensation.
{¶ 9} The DHO order issued July 23, 2014 denied that part of BWC's motion
regarding TTD compensation, finding that BWC had failed to establish that Pleasant was
actually working while receiving TTD compensation from December 30, 2008 through
May 26, 2011. The DHO accepted testimony from two individuals who stated they had
not actually seen Pleasant working and Pleasant's testimony "that he was merely trying to
help some 'out-of-work' guys." (Sept. 3, 2015 Stipulation of Evidence at 9.) The DHO
found Pleasant's activities did not constitute "work" which would have made him
ineligible for TTD compensation.
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No. 15AP-637
{¶ 10} The SHO order issued July 23, 2014 was based on the same findings as the
DHO order. It denied that part of BWC's motion regarding PTD compensation, finding
that BWC had failed to establish that Pleasant was actually working while receiving PTD
compensation beginning May 27, 2011 through the date of the hearing. Again relying on
testimony that no one had seen Pleasant actually working and Pleasant's own testimony
about just helping out some guys, the SHO found that Pleasant's activities did not
constitute "work" which would have made him ineligible for PTD compensation.
{¶ 11} On August 1, 2014, BWC filed a request for reconsideration of the July 23,
2014 SHO order. BWC asked the commission to exercise its continuing jurisdiction
pursuant to R.C. 4123.52, arguing the SHO order contained clear mistakes of fact and a
clear mistake of law. On August 26, 2014, the commission issued an interlocutory order
granting BWC's request, finding that BWC had "presented evidence of sufficient probative
value regarding the alleged presence of a clear mistake of fact in the order from which
reconsideration is sought, and a clear mistake of law of such character that remedial
action would clearly follow." (Stipulation of Evidence at 14.)
{¶ 12} Also on August 1, 2014, BWC appealed the July 23, 2014 DHO order. An
SHO heard that appeal on October 24, 2014. By order issued October 31, 2014, the SHO
affirmed the July 23, 2014 DHO order, finding BWC had not met its burden of proving
Pleasant was gainfully employed while he was receiving TTD compensation and had not
shown grounds for continuing jurisdiction.
{¶ 13} BWC appealed the October 31, 2014 SHO order. Initially, the commission
refused to hear the appeal. However, the commission subsequently issued an
interlocutory order sua sponte exercising continuing jurisdiction "based on a probable
clear mistake of fact in the [SHO] order, issued October 31, 2014, and a probable clear
mistake of law of such character that remedial action would clearly follow." (Stipulation
of Evidence at 22.) The commission found BWC's appeal of the October 31, 2014 SHO
order was closely related to the issues raised in BWC's request for reconsideration of the
July 23, 2014 SHO order. The commission concluded it was arguable the SHO who
issued the October 31, 2014 order had erred in finding Pleasant had not kept "any of the
money received for the work performed for the alleged employers and in finding
[Pleasant's] actions as an alleged 'go-between' did not constitute work activities so as to
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No. 15AP-637
preclude entitlement to temporary total disability compensation." Id. By a unanimous
vote, the commission ordered BWC's appeal from the October 31, 2014 SHO order and the
request for consideration of the July 23, 2014 SHO order be heard together before the
commission.
{¶ 14} The commission heard both matters on February 5, 2015, and issued two
separate orders on May 7, 2015. One order exercised continuing jurisdiction over BWC's
request for reconsideration of the July 23, 2014 SHO order and granted that part of
BWC's motion regarding PTD compensation. The commission decided BWC had met its
burden of proving the July 23, 2014 SHO order contained a clear mistake of fact from
which reconsideration was sought. The commission specifically found the SHO erred
when she found Pleasant did not keep money paid to him by individuals and did not
physically perform any work activities. The magistrate's decision quotes the following
passage in which the commission explained its finding:
With hundreds of invoices and checks addressed to
[Pleasant] and no persuasive evidence [Pleasant] paid others
to do the work, the Commission finds [Pleasant] was
working while receiving [PTD] compensation. Therefore,
[the commission] exercises continuing jurisdiction pursuant
to R.C. 4123.52 and State ex rel. Nicholls v. Indus. Comm., 81
Ohio St. 3d 454, 692 N.E.2d 188 (1998), State ex rel. Foster
v. Indus. Comm., 85 Ohio St. 3d 320. 707 N.E.2d 1122
(1999), and State ex rel. Gobich v. Indus. Comm., 103 Ohio
St.3d 585, 2004-Ohio-5990, 817 N.E.2d 398, in order to
correct the error.
(Stipulation of Evidence at 25-26.)
{¶ 15} The commission further explained that its finding that Pleasant had worked
while receiving PTD compensation was supported by statements from individuals who
had paid Pleasant for work he performed, invoices from one of those individuals, bank
records, Pleasant's 2012 tax forms, and a spread sheet created by a BWC SIU investigator.
Moreover, the commission found insufficient persuasive evidence Pleasant hired and paid
others to do the work listed on the invoices. The commission concluded "the evidence
overwhelmingly supports the conclusion [Pleasant] was working, and his testimony to the
contrary is not credible." (Stipulation of Evidence at 26.)
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No. 15AP-637
{¶ 16} Additionally, the commission's order with respect to the July 23, 2014 SHO
order discussed the six prima facie elements of fraud. Applying those elements to the
evidence that had been presented at the staff-level hearing, the commission found
"reliable, probative, and substantial evidence [Pleasant] knowingly used deception to
obtain [PTD] compensation." Id.
{¶ 17} The other order issued May 7, 2015 exercised continuing jurisdiction over
the October 24, 2014 SHO order that denied that part of BWC's motion concerning
Pleasant's TTD compensation. The commission found Pleasant worked while receiving
TTD compensation, relying again on evidence presented in the form of statements from
individuals who had paid Pleasant for work he performed, invoices from one of those
individuals, bank records, Pleasant's 2012 tax forms, and a spread sheet created by a BWC
SIU investigator. The commission again found insufficient persuasive evidence that
Pleasant hired and paid others to do the work listed on the invoices. This commission
order also concluded "the evidence overwhelmingly supports the conclusion [Pleasant]
was working, and his testimony to the contrary is not credible." (Stipulation of Evidence
at 30.)
{¶ 18} Pleasant filed this mandamus action on July 2, 2015, arguing the
commission abused its discretion in exercising continuing jurisdiction over the two SHO
orders and requesting a writ ordering the commission to specifically state the evidence on
which it relied to exercise continuing jurisdiction or, alternatively, to reinstate both SHO
orders.
{¶ 19} The magistrate found the commission did not abuse its discretion by
exercising jurisdiction over the two SHO orders. The magistrate therefore decided this
Court should deny Pleasant's request for a writ of mandamus.
II. OBJECTION TO MAGISTRATE'S DECISION
{¶ 20} Pleasant presents a sole objection to the magistrate's decision:
The Industrial Commission did not have a proper basis to
exercise continuing jurisdiction. The Magistrate's Decision
finding otherwise is in error.
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No. 15AP-637
III. DISCUSSION
{¶ 21} To be entitled to relief in mandamus, Pleasant must establish that he has a
clear legal right to relief, that the commission has a clear legal duty to provide such relief,
and that he has no plain and adequate remedy in the ordinary course of law. State ex rel.
Berger v. McMonagle, 6 Ohio St. 3d 28 (1983). To do this, Pleasant must demonstrate
that the commission abused its discretion and, "in this context, abuse of discretion has
been repeatedly defined as a showing that the commission's decision was rendered
without some evidence to support it." State ex rel. Burley v. Coil Packing, Inc., 31 Ohio
St.3d 18, 20 (1987). To be successful in this mandamus action, Pleasant must show that
the commission's decision is not supported by some evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St. 3d 76 (1986). Conversely, where the record contains
some evidence to support the commission's findings, there has been no abuse of
discretion, and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St. 3d 56 (1987). Credibility and the weight to be given evidence are clearly
within the discretion of the commission as the fact finder. State ex rel. Teece v. Indus.
Comm., 68 Ohio St. 2d 165 (1981).
{¶ 22} At issue in this matter is whether the commission abused its discretion by
exercising continuing jurisdiction over the SHO orders issued July 23, and October 31,
2014. The magistrate found the commission did not abuse its discretion in doing so. We
agree.
{¶ 23} Pleasant's position on appeal is that the commission should defer to its
hearing officers who heard and weighed the evidence and issued orders finding in his
favor, and the magistrate erred in finding otherwise. He contends both SHO decisions
were legitimate interpretation of the evidence, rendering the commission's exercise of
continuing jurisdiction over the SHO orders improper.
{¶ 24} The magistrate's decision contains a review of the case law regarding PTD
compensation, TTD compensation, and the commission's exercise of continuing
jurisdiction. The magistrate correctly states that the commission's exercise of continuing
jurisdiction is not unlimited. One or more specific prerequisites must exist for the
commission to invoke continuing jurisdiction: new and changed circumstances, fraud,
clear mistake of fact, clear mistake of law, or error by an inferior tribunal. State ex rel.
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No. 15AP-637
Royal v. Indus. Comm., 95 Ohio St. 3d 97 (2002). Moreover, the presence of one of these
prerequisites must be clearly identified and explained in a commission order seeking to
exercise continuing jurisdiction. State ex rel. Gobich v. Indus. Comm., 103 Ohio St. 3d
585, 2004-Ohio-5990, ¶ 15.
{¶ 25} Applying this standard to the facts presented here, the magistrate
determined the commission had properly invoked continuing jurisdiction by identifying
in its orders resulting from the February 5, 2015 hearing the prerequisite of clear mistake
of fact in the SHO orders, and by providing explanations of its findings.
A. July 23, 2014 SHO Order as to PTD Compensation
{¶ 26} The magistrate determined the commission's order resulting from the
February 5, 2015 hearing demonstrates that the commission invoked the prerequisite of
clear mistake of fact and that it explained its finding. The magistrate in his decision
states:
The February 5, 2015 commission order identifies and
explains that the SHO's order "contains a clear mistake of
fact" which is that the SHO erred when she found that relator
"did not physically perform any of the work activities." The
February 5, 2015 commission order declares a clear mistake
of fact because the SHO's finding is counter to the "hundreds
of invoices and checks addressed to the Injured Worker and
no persuasive evidence the Injured Worker paid others to do
the work."
(App'x at ¶ 111.) The magistrate notes in his decision that the commission's order refers
to "the volume of documentation supporting a finding that [Pleasant] himself physically
performed much of the work documented by the invoices and checks." (App'x at ¶ 112.)
{¶ 27} The magistrate addressed Pleasant's assertion that there was no mistake of
fact, only an evidentiary disagreement between the SHO and the commission. The
magistrate found Pleasant's argument unpersuasive. The magistrate states in his decision
that the commission's finding was not merely about the number of documents, but the
fact that they contained a large amount of the information that was contrary to the SHO's
decision. The magistrate concluded the SHO's order issued July 23, 2014 contained a
clear mistake of fact on which the commission appropriately based the exercise of its
continuing jurisdiction.
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No. 15AP-637
{¶ 28} This Court agrees. The evidence before the hearing officers included a
significant amount of documentation that Pleasant was capable of, and was performing,
sustained remunerative employment, and thus was not entitled to PTD compensation.
The magistrate appropriately determined that "[t]he February 5, 2015 commission order
identifies and explains that the [July 23, 2014] SHO's order 'contains a clear mistake of
fact' which is that the SHO erred when she found that [Pleasant] 'did not physically
perform any of the work activities.' " (App'x at ¶ 111.)
{¶ 29} We find the commission did not abuse its discretion by exercising
continuing jurisdiction to remedy a clear mistake of fact which was identified and
explained in the commission's order as to the SHO order issued July 23, 2014.
B. October 31, 2014 SHO Order as to TTD Compensation
{¶ 30} Likewise, the magistrate did not err in holding the commission did not
abuse its discretion in exercising continuing jurisdiction over the October 31, 2014 SHO
order regarding TTD compensation. The magistrate found that, although this
commission order did not directly assert a clear mistake of fact or a clear mistake of law,
the commission2 stated "[t]he evidence overwhelmingly supports the conclusion
[Pleasant] was working, and his testimony to the contrary is not credible." (App'x at ¶
124, quoting Stipulation of Evidence at 30.) The magistrate also discussed the portion of
the commission's order addressing fraud.
{¶ 31} An examination of the commission's order as to TTD compensation shows
the commission found TTD compensation was overpaid from December 30, 2008 to
May 26, 2011, and that Pleasant committed fraud. The commission's order provided an
explanation of its finding that Pleasant worked while receiving TTD compensation,
resulting in the overpayment. The commission's order also identified fraud as a condition
for exercising continuing jurisdiction and provided a thorough explanation of that finding.
{¶ 32} We find the commission did not abuse its discretion by exercising
continuing jurisdiction to remedy a clear mistake of fact and fraud, which were identified
and explained in the commission's order as to the SHO order issued October 31, 2014.
2The magistrate's decision attached at paragraph 124 erroneously attributes this statement to the SHO.
The statement is contained in the commission's order issued May 7, 2015.
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No. 15AP-637
IV. CONCLUSION
{¶ 33} Upon review of the magistrate's decision, an independent review of the
record according to Civ.R. 53, and giving due consideration to Pleasant's objection, we
find the magistrate has properly stated the pertinent facts and applied the appropriate
law. Therefore, we overrule Pleasant's objection to the magistrate's decision and adopt the
decision as our own with corrections. In accordance with the magistrate's decision, the
requested writ of mandamus is denied.
Objection overruled;
writ of mandamus denied.
BROWN and KLATT, JJ., concur.
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No. 15AP-637
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Keith Pleasant, :
Relator, :
v. : No. 15AP-637
Industrial Commission of Ohio : (REGULAR CALENDAR)
and City of Columbus,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on May 5, 2016
Law Offices of Thomas Tootle, and Thomas Tootle, for
relator.
Michael DeWine, Attorney General, and Patsy A. Thomas,
for respondent Industrial Commission of Ohio.
Richard C. Pfeiffer, Jr., City Attorney, and Wendy S. Cane,
for respondent City of Columbus.
IN MANDAMUS
{¶ 34} On April 7, 2014, the Bureau of Workers' Compensation ("bureau") filed a
motion against relator, Keith Pleasant, in his industrial claim. The bureau sought
declarations of overpayments of temporary total disability ("TTD") and permanent total
disability ("PTD") compensation, and that the compensation was fraudulently obtained.
The bureau also sought termination of PTD compensation.
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No. 15AP-637
{¶ 35} In this original action, relator requests a writ of mandamus ordering
respondent Industrial Commission of Ohio ("commission") to vacate two of its orders
resulting from a February 5, 2015 commission hearing. One of the orders exercises
continuing jurisdiction over an October 24, 2014 order of a staff hearing officer ("SHO")
that denied that part of the bureau's motion regarding TTD compensation. The other
commission order exercises continuing jurisdiction over a July 10, 2014 order of an SHO
that had denied that part of the bureau's motion regarding PTD compensation.
{¶ 36} Relator requests that the writ order the commission to reinstate the October
24 and July 10, 2014 SHO orders such that the bureau's April 7, 2014 motion is denied in
its entirety.
Findings of Fact:
{¶ 37} 1. On May 30, 2007, relator injured his right shoulder while employed with
the City of Columbus, Division of Refuge. The injury occurred when he lifted a plastic
container with his right upper extremity. The industrial claim (No. 07-343258) is allowed
for multiple conditions of the right shoulder and cervical area. It is also allowed for a
dysthymic disorder.
{¶ 38} 2. Relator has undergone two surgeries to the right shoulder.
{¶ 39} 3. As early as December 30, 2008, relator began receiving TTD
compensation. TTD compensation was paid through May 26, 2011.
{¶ 40} 4. On June 20, 2011, relator filed an application for PTD compensation.
{¶ 41} 5. Following a March 12, 2012 hearing, an SHO issued an order awarding
PTD compensation beginning May 27, 2011. The SHO relied on a May 27, 2011 report
from Nancy Renneker, M.D., a June 1, 2011 report from psychologist Lee Howard, Ph.D.,
and a November 28, 2011 report from psychologist John M. Malinky, Ph.D. The SHO
determined that relator was unable to perform any sustained remunerative employment
solely as a result of the medical impairment caused by the allowed conditions of the claim.
The SHO did not find it necessary to consider the non-medical disability factors in
awarding PTD compensation.
{¶ 42} 6. On April 25, 2012, the bureau's Special Investigations Unit ("SIU")
received an allegation from an anonymous source that relator was working as a
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No. 15AP-637
"maintenance man." The allegation prompted an SIU investigation that was performed
by Special Agent Norman McCloskey and Fraud Analyst Shawn Miller. About two years
later, on March 4, 2014, McCloskey and Miller issued a 19-page report of investigation in
which they concluded that relator had been gainfully employed by Environmental
Management Services ("EMS") and Mark Wehinger during the time he was receiving
compensation from the bureau. They also concluded that relator intentionally concealed
his employment in order to continue receiving compensation from the bureau.
{¶ 43} 7. According to the SIU report, in early June 2013, McCloskey learned that
relator's workers' compensation benefits were electronically deposited into his checking
account with JP Morgan Chase Bank ("Chase Bank").
{¶ 44} 8. McCloskey issued a subpoena for relator's Chase Bank account records.
{¶ 45} 9. In late June 2013, McCloskey reviewed the Chase Bank records. He
found 50 unidentified deposits into the Chase Bank accounts totaling $62,190 for the
period January 11, 2011 to June 2012. A subsequent subpoena was issued for the deposit
information.
{¶ 46} 10. According to the SIU report, in late July, McCloskey received the
requested line item deposit information from Chase Bank. The majority of the deposits
were from Wehinger V, Ltd., and EMS. Two additional deposits were noted: one from
Jeffrey and Patti Mortensen dated October 7, 2011, and another from Robert and Janise
Kowalski dated October 1, 2011.
{¶ 47} 11. According to the SIU report, on July 27, 2012, McCloskey interviewed
Patti Mortensen at her residence. In the SIU report, McCloskey describes the interview:
Mortensen stated she hired PLEASANT to paint the trim of
her residence. Mortensen stated PLEASANT had a helper
when she hired him for the job. She stated the work was
completed from October 5, 2011, to October 7, 2011.
Mortensen stated she worked third shift and was asleep
when the work was completed. Mortensen stated she did not
witness the work being completed. Mortensen was shown a
photo of PLEASANT and she identified him as the person
she hired and paid to paint the trim of her residence.
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No. 15AP-637
{¶ 48} Chase Bank records show that relator deposited into his account a check
from Jeffrey and Patti Mortensen in the amount of $1,200. The bank posting date is
October 11, 2011.
{¶ 49} 12. According to the SIU report, on September 27, 2012, McCloskey and
Criminal Investigator Cindy Berry interviewed Janise Kowalski at her residence. In the
SIU report, McCloskey describes the interview:
Kowalski explained that her husband, Bob Kowalski was
appointed by the Court to a receivership for an apartment
complex. She stated the bank handling the apartments hired
EMS to gut the complex. Kowalski stated EMS contacted
PLEASANT to perform this work. Kowalski stated thru their
relationship with EMS, she and her husband hired
PLEASANT to remove some carpet from a home they had
recently purchased. Kowalski stated PLEASANT and his
brother performed this work. Kowalski stated along with
removing the carpet, PLEASANT and his brother hauled a
large freezer out of the garage.
Kowalski provided to McCloskey the invoice that PLEASANT
provided to her for the work. Kowalski was shown a photo of
PLEASANT and she identified him as the person whom she
hired.
{¶ 50} Chase Bank records show that relator deposited into his account a check
from Robert and Janise Kowalski in the amount of $400. The bank posting date is
October 14, 2011.
{¶ 51} Attachment 3 to the SIU report contains a hand-written statement signed by
Janise Kowalski on September 27, 2012. Below a photograph, the statement reads:
This is the person who I hired to remove carpet, broom clean
house & remove several appliances from my home * * *.
{¶ 52} 13. According to the SIU report, in October 2012, McCloskey and Special
Agent John Koehl travelled to EMS to meet Wehinger. Upon arrival, they were advised
that Wehinger was out of the country. However, McCloskey and Koehl met with Chief
Financial Officer Tonya Adams instead. At that time, Adams was served with a subpoena.
Adams stated she would gather the requested EMS records and call SIU when the records
were ready.
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No. 15AP-637
{¶ 53} 14. In early November 2012, Adams called McCloskey to inform him that
the records were ready for pick-up. McCloskey travelled to EMS to meet with Adams and
to pick-up the records. According to the SIU report, Adams informed McCloskey that
relator had been performing "spot labor and maintenance repairs for EMS, Wehinger IV
and Wehinger V since 2011."
{¶ 54} According to the SIU report, Adams stated that Wehinger IV, and Wehinger
V were companies created to manage rental properties owned by Wehinger. Adams
stated that relator "would do the clean outs and repairs on rental properties when
needed." If an existing tenant needed a repair, the tenant would call relator instead of
Wehinger to perform repairs.
{¶ 55} According to the SIU report, Adams stated that all the work relator
completed for EMS would have been labor on foreclosed properties owned by Commerce
National Bank. When Commerce National Bank foreclosed on a property, EMS was called
to perform the "clean-out/clean-up and rehab work."
{¶ 56} According to the SIU report, the records provided by Adams included
approximately 260 invoices, requests for reimbursement for purchased supplies, and
copies of checks. The earliest dated invoice was noted to have been paid on December 30,
2008. That invoice was a record of Wehinger IV, Ltd., in the amount of $60. The service
was noted as "repair to house" at a stated address, and a notation indicating that the
invoice was paid with check No. 1494. The invoice instructed that all checks be made
payable to "Keith Pleasant." The most recent invoice included in the records was dated
September 20, 2012, and the most recent request for reimbursement for supplies
provided was dated October 12, 2012. The copies of checks included with the records
were made payable to relator and corresponded with work invoices submitted between
April 2011 and September 2012. All the checks were written on accounts held at
Commerce National Bank.
{¶ 57} 15. McCloskey then issued a subpoena to Commerce National Bank
requesting the checks noted on the invoices prior to April 2011. The checks, written from
the accounts held by Wehinger and dated between December 30, 2008 and April 1, 2011,
were forwarded to McCloskey.
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No. 15AP-637
{¶ 58} 16. According to the SIU report, on May 27, 2013, McCloskey interviewed
Wehinger. McCloskey summarized the interview in his report:
McCloskey traveled to EMS for a pre-arranged interview
with Wehinger. Wehinger was asked to explain his
relationship with PLEASANT. Wehinger stated that
PLEASANT was a renter of one of his properties. Wehinger
stated that he got to know PLEASANT through this rental
relationship. Wehinger stated he approached PLEASANT
originally about collecting rent for him so that he (Wehinger)
would not have to travel 45 minutes to do so. Wehinger
stated he offered PLEASANT $25.00 to collect the rent.
Wehinger stated another reason he offered this to
PLEASANT was because he knew PLEASANT was not doing
anything at the time. Wehinger stated he knew that
PLEASANT used to drive a trash truck but at the time was
out of work.
Wehinger stated his renters would call him when small
things would need fixed; for example leaking faucets, broken
door hinges, etc., small maintenance work. Wehinger stated
he approached PLEASANT about doing this type of work for
him, and PLEASANT stated he could perform the work.
Wehinger stated that progressed into PLEASANT
performing almost all of the maintenance work on his rental
properties. Wehinger stated PLEASANT would submit work
orders listing the material and labor costs for the work; and
he or the company would write checks to pay PLEASANT.
Wehinger stated the maintenance work progressed to bigger
jobs. Wehinger stated, for example, he would tell PLEASANT
that he had a property that might need a new roof; and
PLEASANT would say that he "knew people who could
perform this type of work." Wehinger stated PLEASANT
would get the work completed and submit a work order for
the job.
Wehinger stated the work escalated to bigger projects like
rehabbing properties and assisting on bank foreclosures for
rehab. Wehinger stated some of these jobs were through
Commerce National Bank. Wehinger stated that a sales rep
with his company by the name of Kris Miller was involved
with coordinating the jobs for Commerce National Bank.
Wehinger stated PLEASANT worked on some of these jobs.
17
No. 15AP-637
Wehinger was asked if he ever observed PLEASANT
performing any of the work activity. Wehinger stated he
observed PLEASANT at the properties but never saw
PLEASANT performing any work. Wehinger stated he was
not at the properties long enough to observe any work. He
stated he would just stop in and check on the progress.
{¶ 59} 17. According to the SIU report, on April 2, 2013, McCloskey and Special
Agent John Kenney interviewed EMS Account Manager Kris Miller. In his report,
McCloskey summarizes the Miller interview:
K. Miller was asked to explain his involvement with
PLEASANT. K. Miller stated he was involved with
PLEASANT on three projects that EMS was involved with. K.
Miller stated the projects were from receiverships appointed
by Commerce National Bank. K. Miller stated they would
contract PLEASANT and his helpers (usually his son and
another person) to perform basic cleanouts and cleaning. K.
Miller stated he would call PLEASANT about a job and/or
meet him on the work site to explain what was needed. K.
Miller stated he never observed PLEASANT perform any
work. Once he explained to PLEASANT what needed to be
done on the project, he would leave the work site and
therefore never observed any of the work being done.
K. Miller stated one of the projects was an apartment
complex on Oakland Park. K. Miller stated he had
PLEASANT haul out the furniture, wipe down the walls and
board up the windows. Another project was a closed Daycare
Center in Heath. K. Miller stated he had PLEASANT clean
the floors and wet mop. K. Miller stated the third project was
a closed Daycare Center in Pataskala and PLEASANT
cleaned the floors at this location.
K. Miller stated he met PLEASANT [a] few times at Home
Depot to pay for supplies; and again stated he never
observed PLEASANT or any other people perform the
requested work. However, [K. Miller] did confirm the work
was completed.
K. Miller was asked how a price was determined for the work
that was completed. K. Miller stated PLEASANT would
always provide an informal estimate. He stated he never
received one in writing.
18
No. 15AP-637
K. Miller was asked if he was aware of any work that
PLEASANT did at the rental properties owned by Wehinger;
and Miller stated he was not. He stated he was only aware of
the work involving Commerce Bank.
{¶ 60} 18. In early April 2013, McCloskey obtained from EMS copies of 1099's
issued to relator for wages earned in 2012. Three 1099's were issued to relator for 2012 as
follows:
Wehinger IV for total earnings of $18,821.21
Wehinger V for total earnings of $14,028.37
Environmental Management Services, Inc. for total earnings
of $3,656.35
{¶ 61} 19. According to the SIU report, on July 30, 2013, McCloskey and Kenney
interviewed relator at his residence. According to the report, the interview went as
follows:
McCloskey explained to PLEASANT that the agents wanted
to talk to him about money he had received from Wehinger
and EMS.
PLEASANT stated in 2009 or 2010 he rented a house from
Wehinger * * *. One day Wehinger stopped by and
approached him about doing maintenance work on his
(Wehinger's) other rental properties. PLEASANT stated he
(PLEASANT) offered to get people that could perform the
work. PLEASANT stated from that point forward, Wehinger
would call him about maintenance that needed to be done.
PLEASANT would then drive to the EMS office and pick up
work orders. He stated he would call the guys he thought
could perform the work, usually Roland Pleasant and Stevie
Grant. PLEASANT stated he would meet these guys at the
job site and they would provide him with an estimate of how
much it would cost to complete the work. PLEASANT also
stated there were times when he would drive Roland
Pleasant and Stevie Grant to the job sites. PLEASANT stated
he would provide the estimate and the work order to
Wehinger who would then write him a check. PLEASANT
stated he would either go to Wehinger's bank, cash the check,
and then pay the workers; or he would deposit the check into
his own bank account and then take out cash to pay the
workers. PLEASANT stated he never performed any work
himself.
19
No. 15AP-637
PLEASANT was asked why EMS would issue him 1099's [sic]
if he never performed any work. PLEASANT stated he was
upset at them for issuing the 1099's [sic] because they knew
he never performed any work.
PLEASANT was asked about a job that was performed for
Janice [sic] and Bob Kowalski in Pataskala. PLEASANT
stated he remembered the job. PLEASANT was asked if he
performed any of the work at this job, and he stated he did
not. It was explained to PLEASANT that Janice [sic]
Kowalski stated she witnessed him perform work. That she
observed him ripping out carpet and carrying items to his
truck. PLEASANT stated he did not perform any work.
PLEASANT stated he has very little use of his right arm and
cannot work.
PLEASANT stated he was in the process of purchasing his
current residence from Wehinger on a Land Contract.
PLEASANT stated there had been times when he was short
on the monthly payment and Wehinger would knock off
some of the payment to help him out.
It was explained to PLEASANT the SIU had also received an
allegation that he had opened a car detail shop. PLEASANT
stated in October of 2012, he and his father-in-law leased a
building on [a] 6 month contract and attempted to open a
car detail business. He stated the lease was $500.00 per
month; and they were never able to get any business so they
shut the business down. PLEASANT stated another reason
he shut it down was because someone told him he could not
own a business and receive disability at the same time.
PLEASANT was asked if he knew he was not allowed to work
and receive disability at the same time. PLEASANT confirms
he knew he is not allowed to.
PLEASANT was asked again if he performed any work for
Wehinger. PLEASANT stated he did not perform any of the
work, he just arranged to get the work done and distributed
the funds.
{¶ 62} 20. According to the SIU report, on August 9, 2013, McCloskey interviewed
Steven Grant, Sr., over the phone. According to the SIU report, the interview went as
follows:
20
No. 15AP-637
Grant was asked what his working relationship was with
PLEASANT. Grant stated he used to work for PLEASANT,
but then changed his statement to PLEASANT was a middle
man. Grant stated PLEASANT would call him with a job for a
man he knew who owned properties. Grant stated
PLEASANT would call him about the job and he (Grant)
would provide PLEASANT with an estimate to complete the
job. Grant stated he would give PLEASANT the price and
PLEASANT would fill out the paperwork to get paid. Grant
stated he performed the work and that PLEASANT never did
any of the work.
Grant was asked how he was paid for the work. Grant stated
PLEASANT would sometimes give him a check, but 99% of
the time he was paid in cash. Grant was asked how payments
for jobs were split up, and Grant stated he didn't know they
were split up. He stated he always received the price of his
estimate. Grant was asked if he knew if PLEASANT ever kept
any of the money. Grant stated as far as he knew, PLEASANT
never kept any of the money.
Grant was asked if he ever worked with Roland Pleasant on
any of the jobs. Grant stated Roland worked before he did.
He stated he only worked a couple of jobs with Roland. Grant
was asked if he worked with anyone else. Grant stated
sometimes PLEASANT'S son would help out with jobs and
also PLEASANT's cousin. Grant stated they had a few friends
who would work sometimes also.
Grant was asked again if PLEASANT ever kept any of the
money. Grant stated again that as far as he knew PLEASANT
never kept any of the money.
{¶ 63} 21. According to the SIU report, Fraud Analyst Miller obtained 23 C-84
forms that were signed by relator from September 7, 2007 to February 21, 2012 and
submitted to the bureau to support requests for TTD compensation.
{¶ 64} According to the SIU report, relator answered "No" to question four on all
the C-84 forms submitted. Question four asks: "Have you worked, in any capacity,
(including full-time, part-time, self-employed or commission work) during the disability
period shown above?"
{¶ 65} The C-84s were signed just below the following language:
I understand that I am not permitted to work while
receiving temporary total compensation. I have answered
21
No. 15AP-637
the foregoing questions truthfully and completely. I am
aware that any person who knowingly makes a false
statement, misrepresentation, concealment of fact or any
other act of fraud to obtain compensation as provided by
the BWC or who knowingly accepts compensation to which
that person is not entitled is subject to felony criminal
prosecution and may, under appropriate criminal
provisions, be punished by fine or imprisonment or both.
(Emphasis sic.)
{¶ 66} 22. According to the SIU report:
A PTD Annual Contact letter was mailed to PLEASANT on
6/17/13. The letter requested the receiver answer the
questions listed and return the form to BWC. PLEASANT
answered the question, "Are you working or have you worked
since being granted PTD benefits?" by circling "NO."
PLEASANT signed and dated the letter on 6/28/13 just
below the statement, "I certify the information provided
above is accurate."
**This was noted as significant as PTD benefits were granted
at hearing 3/12/12. Between 3/12/12 and 10/12/12,
PLEASANT received 48 checks from EMS and Wehinger
totaling $28,902.58.
(Emphasis sic.)
{¶ 67} 23. The SIU report also extensively reviews the medical reports of record.
In those reports, the authoring doctors indicate that relator portrayed himself as being
physically unable to work.
{¶ 68} 24. The SIU report concludes:
The SIU's investigation confirmed PLEASANT was gainfully
employed with Enviromental [sic] Management Services and
Mark Wehinger. Evidence obtained during the course of the
investigation revealed PLEASANT intentionally
misrepresented and withheld his employment in order to
collect BWC benefits. Further, PLEASANT only ceased
working when learning of the SIU's investigation and not
because of his inability to do so due to his industrial injury
which occurred 5/30/07.
{¶ 69} 25. On April 7, 2014, as previously noted, the bureau filed a motion against
relator in his industrial claim. The motion requested that the commission declare an
22
No. 15AP-637
overpayment of TTD compensation for the period beginning December 30, 2008 through
May 26, 2011 and that the TTD compensation was fraudulently obtained. The motion
further requested that the commission declare an overpayment of PTD compensation
beginning May 27, 2011 and that the PTD compensation was fraudulently obtained. The
motion also requested that PTD compensation be terminated.
{¶ 70} 26. It can be noted that, pursuant to R.C. 4121.35, SHO's have original
jurisdiction to hear and decide applications for PTD awards. Also, pursuant to
R.C. 4121.35, SHO's have jurisdiction to hear and decide appeals from an order of a
district hearing officer ("DHO"). Pursuant to R.C. 4121.34, DHO's have original
jurisdiction over all contested claims matters except those matters over which SHO's have
original jurisdiction.
{¶ 71} 27. Given R.C. 4121.34 and 4121.35, a DHO had original jurisdiction over
that part of the bureau's motion regarding TTD compensation, while an SHO had original
jurisdiction over that part of the bureau's motion regarding PTD compensation.
{¶ 72} 28. Accordingly, on July 10, 2014, the bureau's motion was initially heard
by a hearing officer sitting as both a DHO and SHO. Following the hearing, Hearing
Officer K. Sampson issued two orders that were mailed July 23, 2014. In one order,
Sampson, sitting as a DHO, denied that part of the bureau's order regarding TTD
compensation. In the other order, Sampson, sitting as an SHO, denied that part of the
bureau's order regarding PTD compensation.
{¶ 73} 29. The SHO's order of July 10, 2014 (mailed July 23, 2014) regarding PTD
compensation explains the denial of the bureau's motion as follows:
It is the finding of the Staff Hearing Officer that the Injured
Worker was paid permanent total disability compensation
from 05/27/2011 through 07/10/2014, pursuant to his
request for the payment of permanent total disability
compensation, and the Staff Hearing Officer order issued
03/29/2012.
The Bureau of Workers' Compensation has alleged the
Injured Worker was employed during the period from
12/30/2008 through 05/26/2011, while collecting temporary
total disability compensation, and from 05/27/2011 to the
present, while collecting permanent total disability
compensation.
23
No. 15AP-637
Mark Wehinger, the owner of companies from which checks
were issued in the Injured Worker's name, testified that he
never saw the Injured Worker perform any physical labor.
Further, Wehinger testified that the Injured Worker "had
some guys" the Injured Worker called to do work for
Wehinger's properties when the Injured Worker was told of
work projects. The Injured Worker testified that when he
knew of work projects, he would call "guys" he knew who
could do the work and wanted to make some money. The
Injured Worker stated that he submitted the invoices to the
company for the work performed, and because most of the
actual workers did not have bank accounts, he would cash
the checks and pay the workers cash. The Injured Worker
also submitted receipts for supplies, and would be
reimbursed when he pre-paid the expenses. The Injured
Worker testified that he did not perform any physical work
and did not keep any of the money. He testified that he
wanted to save the workers the charges they would have had
to pay in order to cash a check through a check cashing
company, so he ran the checks through his bank account.
Steven C. Grant, Sr., testified that he performed work for
Wehinger's companies, and received the information
regarding each job from the Injured Worker. Grant stated he
would tell the Injured Worker the cost of the job, the Injured
Worker submitted the information to the company, and
Grant was paid cash, "almost always," for the job performed
at the actual cost he had quoted. Grant also stated the
Injured Worker did not perform any physical labor, and that
there were other "guys" who did work, or worked with him, if
he needed a helper. Grant stated that the Injured Worker
was just trying to help out guys who needed a job, and so, the
Injured Worker passed the work information on to them. Per
Grant, he was not aware of the Injured Worker keeping any
of the money for any of the jobs and work performed. Grant
stated the economy was so bad, there was a high
unemployment rate in the neighborhood, and many of the
guys who worked were just hanging around with nothing to
do. Also, most of the workers did not have bank accounts in
order to cash a check, so the Injured Worker just cashed the
checks since he had a bank account. The Injured Worker
paid the Wehinger funds to the workers who did the work.
The Staff Hearing Officer has reviewed the extensive banking
records, and all the evidence included with the Bureau of
24
No. 15AP-637
Workers' Compensation motion and Report of Investigation,
dated 03/04/2014, as well as the evidence in the claim file.
Absent witness evidence, signed by the witness, supporting
the Bureau of Workers' Compensation allegation that the
Injured Worker was actually working, and the testimony of
the Injured Worker that he was merely trying to help some
"out-of-work guys" in his area get some work and earn some
money, the Staff Hearing Officer finds the Bureau of
Workers' Compensation has failed to establish the Injured
Worker was working while receiving permanent total
disability compensation beginning 05/27/2011 through
today, 07/10/2014. The Staff Hearing Officer accepts the
Injured Worker's testimony that he used his bank account as
a conduit for moving the funds from the Wehinger
companies to the people who actually performed the labor.
While the Injured Worker may have been helping others find
employment on a sporadic and temporary basis with the
Wehinger companies, such activity is not found to constitute
"work" which would render the Injured Worker ineligible for
the payment of compensation.
Therefore, it is the order of the Staff Hearing Officer that the
Bureau of Workers' Compensation motion is denied. The
Staff Hearing Officer orders the Injured Worker was properly
paid permanent total disability compensation from
05/27/2011, through today, 07/10/2014, and there was no
overpayment of permanent total disability compensation
from 05/27/2011, through today 07/10/2014. Further, it is
the order of the Staff Hearing Officer that there is no
evidence of fraud during the period the Injured Worker
received permanent total disability compensation from
05/27/2011, through today. Finally, it is the order of the Staff
Hearing Officer that permanent total disability
compensation is to continue to be paid pursuant to the Staff
Hearing Officer order, issued 03/29/2012.
{¶ 74} 30. The DHO's order of July 10, 2014 (mailed July 23, 2014) provides an
explanation for denial of TTD compensation that is similar to the explanation in the
SHO's order of July 10, 2014. The DHO's order of July 10, 2014 will not be quoted here.
{¶ 75} 31. On August 1, 2014, the bureau administratively appealed the DHO's
order of July 10, 2014.
{¶ 76} 32. Also on August 1, 2014, the bureau requested reconsideration of the
SHO's order of July 10, 2014 that had denied that part of the bureau's motion regarding
25
No. 15AP-637
PTD compensation. In its memorandum in support of reconsideration, the bureau,
through staff counsel, argued that the SHO's order contained both a clear mistake of fact
and a clear mistake of law:
Mistake of Fact
The Staff Hearing Officer in the July 10, 2014 order made a
clear mistake of fact. The Staff Hearing Officer states "The
injured worker testified that he did not perform any physical
work and did not keep any of the money." Based on the
previously noted review of the banking information obtained
by BWC's Special Investigations Department, between
December 14, 2010 and June 13, 2012, Mr. Pleasant made
more than $17,800.00. In addition, 1099's [sic] were issued
to Mr. Pleasant from Mr. Wehinger's companies for 2012
totaling $36,505.93.
The Staff Hearing Officer also states "While the injured
worker may have been helping others find employment on a
sporadic and temporary basis with the Wehinger companies,
such activity is not found to constitute "work" which would
render the injured worker ineligible for the payment of
compensation." Mr. Pleasant's activity is not sporadic or
temporary. The records provided by Tonya Adams, the CFO of
the Wehinger companies included approximately 260 invoices,
requests for reimbursement of purchased supplies and copies
of checks. The first was in December of 2008 and the last in
October of 2012. (See Attachment 4 of BWC's previously filed
motion.)
Because of these clear mistakes of fact and the outcome these
mistakes would have had on the findings in the order, the
BWC requests the Industrial Commission accept the BWC's
request for reconsideration on the issue of clear mistake of
fact.
Mistake of Law
The Staff Hearing Officer made a clear mistake of law by
failing to find that Mr. Pleasant committed fraud and
intended to deceive the BWC as to his work status. A mistake
of law occurs when there is a flawed evaluation of facts
resulting in an incorrect legal determination.
Ohio Revised Code section 4123.58 (C) (2) states that
permanent total disability should be granted when "[t]he
26
No. 15AP-637
impairment resulting from the employee's injury or
occupational disease prevents the employee from engaging
in sustained remunerative employment utilizing the
employment skills that the employee has or may reasonably
be expected to develop." Mr. Pleasant is capable of and has
engaged in sustained remunerative employment while
working for the Wehinger companies. Mr. Pleasant acted as a
middle man, accepting work from the Wehinger companies,
coordinating work with people he knew, driving various
individuals to the work sites, purchasing supplies for the
work, accepting payment for the work, and paying the
individuals to do the work. There is evidence that Mr.
Pleasant made approximately $17,800 in about a year and a
half for performing this work. Mr. Pleasant was provided
1099's [sic] from the Wehinger companies. In at least one
instance Mr. Pleasant was identified as the individual
actually performing the work (See Attachment 3 -
Memorandum of Interview with Janise Kowalski). The
evidence in the BWC's report of investigation clearly
indicates Mr. Pleasant is capable of sustained remunerative
employment.
BWC asks that reconsideration be granted based on mistake
of law as Mr. Pleasant does not qualify for permanent total
disability compensation under Ohio Revised Code section
4123.58 (C) (2).
{¶ 77} 33. On August 26, 2014, the three-member commission, on a two-to-one
vote, mailed an interlocutory order stating:
The BWC's Request for Reconsideration filed 08/01/2014,
from the Staff Hearing Officer order, issued 07/23/2014, is
referred to the Commission Level Hearings Section to be
docketed before the Members of the Industrial Commission.
The issues to be heard are:
[One] Issue:
[One] Continuing Jurisdiction Pursuant To R.C. 4123.52
[Two] Terminate Permanent Total-Declare PTD
Overpayment
[Three] Permanent Total Disability Fraud
It is the finding of the Industrial Commission the
Administrator has presented evidence of sufficient probative
value to warrant adjudication of the Request for
Reconsideration regarding the alleged presence of a clear
mistake of fact in the order from which reconsideration is
27
No. 15AP-637
sought, and a clear mistake of law of such character that
remedial action would clearly follow.
Specifically, it is alleged that in denying the Administrator's
requests to terminate the payment of permanent total
disability compensation and to declare an overpayment of
such compensation, along with a finding of fraud on the
Injured Worker's part with respect to his receipt of such
compensation, the Staff Hearing Officer erred in finding the
Injured Worker did not physically perform any of the work
activity documented in the Administrator's investigation
report. In addition, it is alleged the Staff Hearing Offices
erred in finding the Injured Worker's involvement in locating
other individuals to perform the work activity in question
was sporadic and temporary, given the significant dollar
amount of billings related to the work and the volume of
documentation, including invoices, reimbursements, and
checks relating to the work, as referenced in the investigation
report.
Based on these findings, the Industrial Commission directs
the Administrator's Request for Reconsideration, filed
08/01/2014, be set for hearing to determine whether the
alleged clear mistakes of fact and law as noted herein are
sufficient for the Industrial Commission to invoke its
continuing jurisdiction.
In the interest of administrative economy and for the
convenience of the parties, after the hearing on the question
of continuing jurisdiction, the Industrial Commission will
take the matter under advisement and proceed to hear the
merits of the underlying issue(s). The Industrial Commission
will thereafter issue an order on the matter of continuing
jurisdiction under R.C. 4123.52. If authority to invoke
continuing jurisdiction is found, the Industrial Commission
will address the merits of the underlying issue(s).
{¶ 78} 34. As earlier noted, on August 1, 2014, the bureau administratively
appealed the DHO's order of July 10, 2014. The administrative appeal was heard on
October 24, 2014 by SHO B. Smith. Following the hearing, SHO B. Smith mailed an order
on October 31, 2014 that affirmed the DHO's order of July 10, 2014. The October 24,
2014 order of SHO B. Smith explains:
28
No. 15AP-637
It is the finding of the Staff Hearing Officer that the Bureau
of Workers' Compensation has not met its burden of proving
that the injured worker was gainfully employed with
Environmental Management Services, Inc., Mark Wehinger
IV, or Wenger [sic] V Ltd. over the period at issue and,
therefore, no grounds for continuing jurisdiction has been
shown. Based on this the request to find an overpayment and
fraud for the period requested at hearing, 12/30/2008
through 05/26/2011, is denied.
The Bureau of Workers' Compensation representative stated
at the hearing that there was no evidence that the injured
worker physically did any work activity or did physical
activity showing an ability to return to the former job over
the period in question and stated they were not making such
an argument at this time.
The sole question then becomes whether the Bureau of
Workers' Compensation has proven that the injured worker
was gainfully employed by Environmental Management
Services, Inc., Mark Wehinger, Wehinger IV, or Wenger V
Ltd., over the period at issue. It is found that the Bureau of
Workers' Compensation has not met it's [sic] burden of proof
and the motion is denied.
The Bureau of Workers' Compensation has provided
insufficient evidence to show that the injured worker kept
any of the moneys [sic] he received from the named alleged
employer's [sic]. 1) The injured worker was never given a W-
2 or 1099 over the period at issue. Further, Mr. Wehinger
testified that his company only gave one to the injured
worker in 2012 because the SIU investigators were asking
about such and because of this Mr. Wehinger became
concerned that he might be doing something wrong if he did
not. 2) Mr. Wehinger testified that he was not aware of the
injured worker keeping any of the money he received from
Mr. Wehinger or his companies. 3) Mr. Grant's affidavit,
dated 10/23/2014, states that he performed work on Mr.
Wehinger's rental properties. It states that he was told about
the jobs by the injured worker and he would look at the job
and tell the injured worker what the cost would be. Mr.
Grant states that he would do the actual work along with his
co-worker's [sic] and that he was always paid the same
amount that he quoted for the cost of the job. He concludes
that he was not aware of the injured worker keeping any of
the money paid for the jobs. 4) The Bureau of Workers'
29
No. 15AP-637
Compensation has submitted no statement from anyone that
states the injured worker kept any of the money to show that
he was not merely a go-between as he alleges
{¶ 79} 35. On November 13, 2014, the bureau administratively appealed the SHO's
order of October 24, 2014 that addressed only TTD compensation.
{¶ 80} 36. On December 2, 2014, on a two-to-one vote, the three-member
commission mailed an order refusing the bureau's administrative appeal from the SHO's
order of October 24, 2014 (mailed October 31, 2014).
{¶ 81} 37. On January 13, 2015, the three-member commission, on a unanimous
vote, mailed an interlocutory order that sua sponte exercises continuing jurisdiction over
the SHO's order of October 24, 2014. The interlocutory order explains:
The Commission finds grounds to exercise continuing
jurisdiction, sua sponte, based on a probable clear
mistake of fact in the Staff Hearing Officer order issued
10/31/2014, and a probable clear mistake of law of such
character that remedial action would clearly follow.
On 12/02/2014, an order was issued refusing the
Administrator's Appeal, filed 11/13/2014, from the Staff
Hearing Officer order, issued 10/31/2014. The
Commission finds the Administrator's Appeal, filed
11/13/2014, is closely related to the issues raised in the
Administrator's Request for Reconsideration, filed
08/01/2014, from the Staff Hearing Officer order, issued,
7/23/2014, for which the Commission found presented
evidence of a clear mistake of fact in the order from which
reconsideration is sought, and a clear mistake of law of such
character that remedial action would clearly follow, and
issued an Interlocutory Order on 8/26/2014, referring the
Request for Reconsideration for hearing.
It is arguable the Staff Hearing Officer erred in finding
the Injured Worker did not keep any of the money
received for the work performed for the alleged
employers and in finding the Injured Worker's actions as
an alleged "go-between" did not constitute work
activities so as to preclude entitlement to temporary total
disability compensation.
Therefore, the Commission orders the Refusal Order, issued
12/02/2014, vacated. By unanimous determination, the
30
No. 15AP-637
Administrator's Appeal, filed 11/13/2014, from the Staff
Hearing Officer order, issued 10/31/2014, is accepted for
hearing. The Commission further orders the Administrator's
Request for Reconsideration, filed 08/01/2014, and the
Administrator's Appeal, filed 11/13/2014, be heard together
before the Commission. The parties will be properly notified
of the time and place of hearing in compliance with the
requirement contained in R.C. 4123.511.
{¶ 82} 38. Following a February 5, 2015 hearing before the three-member
commission, the commission issued two orders. One of the orders exercises continuing
jurisdiction over the October 24, 2014 order of the SHO that denied that part of the
bureau's motion regarding TTD compensation. The other commission order exercises
continuing jurisdiction over the July 10, 2014 order of the SHO that denied that part of
the bureau's motion regarding PTD compensation.
{¶ 83} 39. The February 5, 2015 commission order that exercises continuing
jurisdiction over the SHO's order of October 24, 2014 (mailed October 31, 2014) and
grants that portion of the bureau's motion regarding TTD compensation, explains:
After further review and discussion, it is the decision of the
Industrial Commission the order of the Staff Hearing Officer,
issued 10/31/2014, is vacated, and the Administrator's
Motion, filed 04/07/2014, is granted.
The Commission finds temporary total disability
compensation overpaid from 12/30/2008 to 05/26/2011.
The Commission further finds the Injured Worker
committed fraud and orders the overpayment collected
consistent with R.C. 4123.511(K)(4).
The Commission finds the Injured Worker worked while
receiving temporary total disability compensation. This
finding is supported by the statements from Patti Mortensen
dated 07/27/2012, Janise Kowalski dated 09/27/2012, and
Tonya Adams dated 11/05/2012; the invoices obtained from
Ms. Adams; the Chase Bank records; the Injured Worker's
2012 1099 tax form; and the spread sheet created by BWC
Special Agent Norman McCloskey. The Commission further
finds insufficient persuasive evidence the Injured Worker
hired and paid others to do the work listed on the invoices.
The evidence overwhelmingly supports the conclusion the
31
No. 15AP-637
Injured Worker was working, and his testimony to the
contrary is not credible.
Moreover, the Commission finds reliable, probative, and
substantial evidence the Injured Worker knowingly used
deception to obtain temporary total disability compensation.
The prima facie elements of fraud are: 1) a representation, or
where there is a duty to disclose, concealment of fact;
2) which is material to the transaction at hand; 3) made
falsely, with the knowledge of its falsity, or with such utter
disregard and recklessness as to whether it is true or false
that knowledge may be inferred; 4) with the intent of
misleading another into relying upon it; 5) justifiable
reliance upon the representation or concealment; and 6) a
resulting injury proximately caused by the reliance.
Hundreds of invoices from Mark Wehinger and his
companies, beginning 12/30/2008, confirm the Injured
Worker's ongoing employment while the Injured Worker
received temporary total disability compensation from
12/30/2008 to 05/26/2011. Accordingly, the Commission
finds the first element of fraud present, i.e. the Injured
Worker concealed from the Administrator that he was
working. The second element of fraud was present, i.e., the
Injured Worker's concealment was material because his
employment would preclude temporary total disability
compensation.
The Commission finds sufficient evidence to support the
third and fourth elements of fraud, i.e., the statements were
made falsely, with the knowledge of its falsity, or with such
utter disregard and recklessness as to whether it is true or
false that knowledge may be inferred, and with the intent of
misleading another into relying upon it. Specifically, the
Injured Worker repeatedly denied employment to medical
providers, and he certified on 18 C-84, Request for
Temporary Total Compensation, forms that he was not
working. However, the Chase Bank records, invoices, and
BWC spread sheet not only document years of payment from
Mark Wehinger and his companies to the Injured Worker,
these records further substantiate the Injured Worker
profited from the employment relationship. Additionally, the
statements from Janise Kowalski (10/01/2011), Patti
Mortensen (10/07/2011), and Tonya Adams (11/05/2012)
confirm the Injured Worker performed spot labor and
maintenance work. Because the Injured Worker concealed
32
No. 15AP-637
his ongoing employment, the Commission concludes the
Injured Worker intentionally and falsely did so in order to
receive compensation.
The fifth element of fraud is met as the Administrator
justifiably relied upon the Injured Worker's false allegation
that he was disabled. Finally, the sixth element of fraud
requires "a resulting injury proximately caused by the
reliance"; this element has been established when the
Injured Worker was inappropriately awarded temporary
total disability compensation.
{¶ 84} 40. The February 5, 2015 commission order that exercises continuing
jurisdiction over the SHO's order of July 10, 2014 (mailed July 23, 2014) and grants that
portion of the bureau's motion regarding PTD compensation, explains:
After further review and discussion, it is the decision of the
Industrial Commission the Administrator has met his
burden of proving the Staff Hearing Officer order, issued
07/23/2014, contains a clear mistake of fact from which
reconsideration is sought. Specifically, the Staff Hearing
Officer erred when she found the Injured Worker did not
keep money paid to him from Mark Wehinger or Mr.
Wehinger's companies and did not physically perform any of
the work activities. With hundreds of invoices and checks
addressed to the Injured Worker and no persuasive evidence
the Injured Worker paid others to do the work, the
Commission finds the Injured Worker was working while
receiving permanent total disability compensation.
Therefore, the Industrial Commission exercises continuing
jurisdiction pursuant to R.C. 4123.52 and State ex rel.
Nicholls v. Indus. Comm., 81 Ohio St. 3d 454, 692 N.E.2d
188 (1998), State ex rel. Foster v. Indus. Comm., 85 Ohio St.
3d 320. 707 N.E.2d 1122 (1999), and State ex rel. Gobich v.
Indus. Comm., 103 Ohio St. 3d 585, 2004-Ohio-5990, 817
N.E.2d 398, in order to correct this error.
The Administrator's Request for Reconsideration, filed
08/01/2014, is granted, and the Staff Hearing Officer order,
issued 07/23/2014, is vacated.
It is the order of the commission the Administrator's Motion,
filed 04/07/2014, is granted. Permanent total disability
compensation is terminated as of the date of hearing before
the Commission, 02/12/2015, and permanent total disability
33
No. 15AP-637
compensation is found overpaid from 05/27/2011 to
02/12/2015 The Commission finds the Injured Worker
committed fraud and orders the overpayment collected
consistent with R.C. 4123.511(K)(4).
The Commission finds the Injured Worker worked while
receiving permanent total disability compensation. This
finding is supported by the statements from Patti Mortensen
dated 07/27/2012, Janice [sic] Kowalski dated 09/27/2012,
and Tonya Adams dated 11/05/2012, the invoices obtained
from Ms. Adams; the Chase Bank records; the Injured
Worker's 2012 1099 tax form; and the spread sheet created
by BWC Special Agent Norman McCloskey. The Commission
further finds insufficient persuasive evidence the Injured
Worker hired and paid others to do the work listed on the
invoices. The evidence overwhelmingly supports the
conclusion the Injured Worker was working, and his
testimony to the contrary is not credible.
Moreover, the Commission finds reliable, probative, and
substantial evidence the Injured Worker knowingly used
deception to obtain permanent total disability compensation.
The prima facie elements of fraud are: 1) a representation, or
where there is a duty to disclose, concealment of fact; 2)
which is material to the transaction at hand; 3) made falsely,
with the knowledge of its falsity, or with such utter disregard
and recklessness as to whether it is true or false that
knowledge may be inferred; 4) with the intent of misleading
another into relying upon it; 5) justifiable reliance upon the
representation or concealment; and 6) a resulting injury
proximately caused by the reliance.
Permanent total disability compensation was awarded by
Staff Hearing Officer order issued 03/29/2012, with such
compensation beginning 05/27/2011. However, the checks
dated 10/01/2011 and 10/07/2011, from Janise Kowalski and
Patti Mortensen respectively confirm the Injured Worker
received payment for work during the period he alleged he
was permanently and totally disabled. The hundreds of
invoices, which began on 12/30/2008, also confirm the
Injured Worker's ongoing employment for Mark Wehinger.
Accordingly, the Commission finds the first element of fraud
present, i.e. the Injured Worker concealed from the Staff
Hearing Officer at the permanent total disability
compensation hearing that he was working. The second
element of fraud is present, i.e., the Injured Worker's
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No. 15AP-637
concealment was material because his employment status
would preclude permanent total disability compensation.
The commission finds sufficient evidence to support the third and
fourth elements of fraud, i.e., the statements were made
falsely, with the knowledge of its falsity, or with such utter
disregard and recklessness as to whether it is true or false
that knowledge may be inferred, and with the intent of
misleading another into relying upon it. Specifically, the
Injured Worker repeatedly denied employment to medical
providers and argued he was not capable of any sustained
remunerative employment. However, the Chase Bank
records, invoices, and BWC spread sheet not only document
years of payment from Mark Wehinger and his companies to
the Injured Worker, these records further substantiate the
Injured Worker profited from the employment relationship.
Additionally, the statements from Janise Kowalski
(10/01/2011), Patti Mortensen (10/07/2011), and Tonya
Adams (11/05/2012) confirm the Injured Worker performed
spot labor and maintenance work. Because the Injured
Worker concealed his ongoing employment, the Commission
concludes the Injured Worker intentionally and falsely did so
in order to receive compensation.
The fifth element of fraud is met as the Staff Hearing Officer
justifiably relied upon the Injured Worker's false allegation
that he was permanently and totally disabled. Finally, the
sixth element of fraud requires "a resulting injury
proximately caused by the reliance"; this element has been
established when the Injured Worker was inappropriately
awarded permanent total disability compensation.
{¶ 85} 41. On July 2, 2015, relator, Keith Pleasant, filed this mandamus action.
Conclusions of Law:
{¶ 86} Two issues are presented: (1) did the commission abuse its discretion in
exercising its continuing jurisdiction over the SHO's order of July 10, 2014 that denied
that part of the bureau's motion regarding PTD compensation, and (2) did the
commission abuse its discretion in exercising continuing jurisdiction over the SHO's
order of October 24, 2014 that denied that part of the bureau's motion regarding TTD
compensation?
35
No. 15AP-637
{¶ 87} Finding that the commission did not abuse its discretion over either part of
the bureau's motion, it, therefore, is the magistrate's decision that this court deny relator's
request for a writ of mandamus.
PTD Basic Law
{¶ 88} PTD is defined as the inability to perform sustained remunerative
employment. State ex rel. Stephenson v. Indus. Comm., 31 Ohio St. 3d 167 (1987).
{¶ 89} In State ex rel. Lawson v. Mondie Forge, 104 Ohio St. 3d 39, 2004-Ohio-
6086, the Supreme Court of Ohio set forth three separate criteria for the termination of
PTD compensation based on prior case law. Payment of PTD compensation is
inappropriate where there is evidence of (1) actual sustained remunerative employment
(State ex rel. Kirby v. Indus. Comm., 97 Ohio St. 3d 427, 2002-Ohio-6668); (2) the
physical ability to do sustained remunerative employment (State ex. rel. Schultz v. Indus.
Comm., 96 Ohio St. 3d 27, 2002-Ohio-3316); or (3) activities so medically inconsistent
with the disability that they impeach the medical evidence underlying the award. See
State ex rel. Timmerman Truss, Inc. v. Indus. Comm., 102 Ohio St. 3d 244, 2004-Ohio-
2589; Lawson at ¶ 41.
{¶ 90} "Schultz * * * teaches that unpaid activity that is potentially remunerative
can be considered for purposes of establishing a physical capacity for remunerative
employment." Lawson at ¶ 42.
TTD Basic Law
{¶ 91} Temporary total disability is the inability to return to the former position of
employment. State ex rel. Ramirez v. Indus. Comm., 69 Ohio St. 2d 630 (1982). TTD
compensation is prohibited to one who has returned to work. R.C. 4123.56(A).
{¶ 92} Activities medically inconsistent with the inability to return to the former
position of employment bar TTD compensation regardless of whether the claimant is
paid. State ex rel. Ford Motor Co. v. Indus. Comm., 98 Ohio St. 3d 20, 2002-Ohio-7038, ¶
23, citing State ex rel. Parma Community Gen. Hosp. v. Jankowski, 95 Ohio St. 3d 340,
2002-Ohio-2336. Activities that are not medically inconsistent, however, bar TTD
compensation only when a claimant is remunerated for them. Id. Moreover, even
sporadic employment can bar TTD compensation. Ford at 23, citing State ex rel.
Blabac v. Indus. Comm., 87 Ohio St. 3d 113 (1999).
36
No. 15AP-637
{¶ 93} Activities that are not minimal and that directly generate income for a
separate entity may be considered work and may disqualify a claimant from receiving
TTD compensation even when the claimant is not paid. State ex rel. McBee v. Indus.
Comm., 132 Ohio St. 3d 209, 2012-Ohio-2678, ¶ 7. (Claimant helped his wife with her
business, but he was not paid for his services.)
Continuing Jurisdiction
{¶ 94} Continuing jurisdiction is not unlimited. Its prerequisites are (1) new and
changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5)
error by an inferior tribunal. State ex rel. Royal v. Indus. Comm., 95 Ohio St. 3d 97
(2002).
{¶ 95} The presence of one of these prerequisites must be clearly articulated in any
commission order seeking to exercise reconsideration jurisdiction, i.e., continuing
jurisdiction. State ex rel. Gobich v. Indus. Comm., 103 Ohio St. 3d 585, 2004-Ohio-5990,
¶ 15. This means that the prerequisite must be both identified and explained. Id.
{¶ 96} In Royal, the commission had awarded Gerald Royal PTD compensation.
Thereafter, the employer timely sought reconsideration. After initially denying the
motion, the commission granted reconsideration. Pertinent here is the court's discussion
of mistake of fact:
The reliance on "mistake of fact" is equally untenable. When
the initial PTD order and disputed reports are read closely,
the perceived error is not so much mistake as a difference in
evidentiary interpretation. The report of vocational
consultant Roger Livingston is confusing and can be
interpreted several ways. The commission and appellant-
employer took the narrow interpretation, looking exclusively
at the academic and vocational conclusions. The SHO, on the
other hand, read these things in conjunction with the
unfavorable medical prognosis that Livingston repeatedly
stressed, and concluded that regardless of an affirmative
vocational profile, claimant could not overcome the obstacles
imposed by the loss of his right arm.
This is significant because a legitimate disagreement as to
the evidentiary interpretation does not mean that one of the
interpretations is wrong. Thus, any assertion of a clear error
of fact is questionable.
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No. 15AP-637
Id. at 100.
{¶ 97} Here, relator places reliance upon Gobich. Accordingly, that case merits
review.
{¶ 98} John F. Gobich was awarded PTD compensation in 1998. It was made
retroactive to July 1996. In 2002, the bureau alleged that Gobich had worked during this
period and moved to have PTD benefits terminated, an overpayment assessed, and fraud
declared.
{¶ 99} The evidence showed that before being declared permanently and totally
disabled, Gobich had done a couple of odd jobs in 1996 and 1997. These jobs became
problematic when the commission back-dated the PTD award over this period. There was
also evidence that Gobich had worked four hours for a total of $120 in January 1997 and
he was paid $350.63 for an odd job in early 1998, both jobs again preceding Gobich's
notification that he had been awarded PTD compensation.
{¶ 100} A commission SHO denied the bureau's motion. In his order, the SHO
noted Gobich's hearing testimony that he had performed odd jobs for a friend/business
owner earning $855 in 1996 and $960 in 1997. The SHO determined that the
performance of odd jobs does not demonstrate that Gobich is able to perform sustained
remunerative employment despite his limitations due to his allowed conditions in his
claims.
{¶ 101} The bureau moved for reconsideration.
{¶ 102} In October 2002, the commission found that it had continuing jurisdiction
to reconsider PTD based on what it called "clear mistakes of law." Id. at ¶ 11. The
commission explained that the SHO "failed to consider the fact that the injured worker
was working immediately prior to, and after, the hearing on 01/22/1998." Id.
In issuing the writ, the Gobich court explained:
Two questions arise from this reasoning: (1) Was there a
mistake? (2) If so, was it clear? On close examination, it
appears that, regardless of how the bureau tried to
characterize it, its complaint with the SHO's order was really
an evidentiary one: the bureau produced evidence that it
believed established a capacity for sustained remunerative
employment, and the SHO found otherwise, Royal, however,
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No. 15AP-637
has specifically stated that a legitimate disagreement as to
evidentiary interpretation does not mean that one of them
was
mistaken and does not, at a minimum, establish that an error
was clear. Id., 95 Ohio St.3d at 100, 766 N.E.2d 135.
Id. at ¶ 17.
First Issue
{¶ 103} Analysis begins with scrutiny of the SHO's order of July 10, 2014 that
denied that part of the bureau's motion regarding PTD compensation.
{¶ 104} The SHO accepts relator's testimony that he kept none of the money that
he handled when he paid workers for work they performed for Wehinger and his
companies. The SHO accepts relator's testimony notwithstanding the substantial amount
of documents that strongly suggest otherwise. The SHO also accepts relator's testimony
that he performed none of the physical labor that Wehinger paid to be performed.
{¶ 105} Under Schultz, PTD compensation is inappropriate when it is shown that
the PTD claimant has the physical ability to do sustained remunerative employment even
though the claimant has not been paid for the activities that show a physical ability to do
sustained remunerative employment.
{¶ 106} Given the SHO's determination that relator kept none of the money that
he allegedly disbursed to the workers that he recruited for the Wehinger jobs, the Schultz
situation was therefore before the SHO. That is, relator's activities as the intermediary
between Wehinger and the workers who performed jobs for Wehinger demanded a
determination from the SHO as to whether those potentially remunerative activities show
a physical ability to perform sustained remunerative employment as a manager for
Wehinger. One would normally expect some type of payment for those types of activities.
{¶ 107} While the SHO's order of July 10, 2014 does not cite to Schultz, the SHO
seems to have had the Schultz scenario in mind when the SHO states:
While the Injured Worker may have been helping others find
employment on a sporadic and temporary basis with the
Wehinger companies, such activity is not found to constitute
"work" which would render the Injured Worker ineligible for
the payment of compensation.
39
No. 15AP-637
{¶ 108} In its interlocutory order mailed August 26, 2014, the three-member
commission invoked the prerequisites of clear mistake of law and clear mistake of fact.
After identifying the two prerequisites for the exercise of continuing jurisdiction, the
commission's interlocutory order explains:
[T]he Staff Hearing Officer erred in finding the Injured
Worker did not physically perform any of the work activity
documented in the Administrator's investigation report. In
addition, it is alleged the Staff Hearing Officer erred in
finding the Injured Worker's involvement in locating other
individuals to perform the work activity in question was
sporadic and temporary, given the significant dollar amount
of billings related to the work and the volume of
documentation, including invoices, reimbursements, and
checks relating to the work, as referenced in the investigation
report.
{¶ 109} In its February 5, 2015 order, the commission invokes clear mistake of
fact. Clear mistake of law is not mentioned. In pertinent part, the commission order
explains:
[T]he Administrator has met his burden of proving the Staff
Hearing Officer order, issued 07/23/2014, contains a clear
mistake of fact from which reconsideration is sought.
Specifically, the Staff Hearing Officer erred when she found
the Injured Worker did not keep money paid to him from
Mark Wehinger or Mr. Wehinger's companies and did not
physically perform any of the work activities. With hundreds
of invoices and checks addressed to the Injured Worker and
no persuasive evidence the Injured Worker paid others to do
the work, the Commission finds the Injured Worker was
working while receiving permanent total disability
compensation. Therefore, the Industrial Commission
exercises continuing jurisdiction.
{¶ 110} Thus, the interlocutory order identifies and explains that the SHO's order
"erred in finding the Injured Worker did not physically perform any of the work activity
documented in the Administrator's investigation report." The interlocutory order refers
to the "volume of documentation."
{¶ 111} The February 5, 2015 commission order identifies and explains that the
SHO's order "contains a clear mistake of fact" which is that the SHO erred when she
40
No. 15AP-637
found that relator "did not physically perform any of the work activities." The February 5,
2015 commission order declares a clear mistake of fact because the SHO's finding is
counter to the "hundreds of invoices and checks addressed to the Injured Worker and no
persuasive evidence the Injured Worker paid others to do the work."
{¶ 112} Both the interlocutory order and the commission's February 5, 2015 order
refer to the volume of documentation supporting a finding that relator himself physically
performed much of the work documented by the invoices and checks.
{¶ 113} According to relator, there is no mistake of fact. Citing to Royal and
Gobich, relator argues that there is merely an evidentiary disagreement between the SHO
and the commission.
{¶ 114} The magistrate disagrees that Royal and Gobich require this court to view
the commission's holding as merely a legitimate disagreement as to evidentiary
interpretation. In the view of this magistrate, the documentary evidence submitted in the
SIU report is so overwhelming that it was unreasonable for the SHO to reject it in favor of
relator's testimony. This is particularly so because relator never disputed the
documentation. What relator did was to weave an explanation that simply invites the
reviewer to ignore common sense.
{¶ 115} In short, this is not the case of two reasonable interpretations of the
evidence that can be described as a legitimate disagreement. Thus, the magistrate
concludes that the SHO's order of July 10, 2014 indeed contains a clear mistake of fact on
which the commission appropriately based the exercise of its continuing jurisdiction.
Second Issue
{¶ 116} Analysis begins with scrutiny of the SHO's order of October 24, 2014 that
denied that part of the bureau's motion regarding TTD compensation.
In his order, the SHO found that relator kept none of the money that he
handled when he allegedly paid workers for work they performed for Wehinger and his
companies.
{¶ 117} In his order, the SHO finds that the bureau "has provided insufficient
evidence to show that the injured worker kept any of the moneys [sic] he received from
the named alleged employer's [sic]." In support of this finding, the SHO relied on the
affidavit of Steven Grant, Sr., executed October 23, 2014, the day prior to the October 24,
41
No. 15AP-637
2014 hearing before the SHO. (As earlier noted, Agent McCloskey conducted a telephone
interview of Grant on August 9, 2013 and the interview is summarized by McCloskey in
the SIU report.)
The Grant affidavit avers:
[One] I know Keith Pleasant;
[Two] I have performed worked for rental properties owned
by Mark Wehinger and his companies;
[Three] I would obtain information regarding these jobs
from Keith Pleasant;
[Four] I would then look at what the job entailed and tell
Keith Pleasant what the costs would be and Keith Pleasant
would then submit the information to Mark Wehinger;
[Five] I was paid in cash almost always for the work
performed at the actual costs that I had quoted to Keith
Pleasant.
[Six] I never observed Keith Pleasant perform any physical
labor on these job sites;
[Seven] There were other people who performed the work
and worked with me if I needed help;
[Eight] In the neighborhood where these properties are
located, the economy is very bad, with a high unemployment
rate especially for African Americans. Most of the people
who worked on these jobs with me were unemployed and
had nothing to do. Further, most of the people who worked
with me did not have bank accounts in order to cash checks;
[Nine] I observed Keith Pleasant pay the money given to him
by Mark Wehinger to the workers' [sic] who did the work, in
cash;
[Ten] I was always paid the same amount that I had quoted
to Keith and I am unaware that Keith ever kept any of the
money paid by Mark Wehinger and his companies to
perform the work.
42
No. 15AP-637
{¶ 118} The SHO's finding regarding an alleged lack of remuneration was also
based on testimony of Wehinger who testified that he was not aware that relator had kept
any of the money he received from Wehinger or his companies.
{¶ 119} As noted by the court in Ford, activities that are not medically inconsistent
with the inability to return to the former position of employment bar TTD compensation
only when a claimant is remunerated for them.
{¶ 120} Thus, the SHO's order of October 24, 2014 is focused on the remuneration
issue. At the hearing, the bureau did not allege that any of relator's physical activities
demonstrated an ability to return to the former position of employment. Accordingly, the
remuneration issue became dispositive as to whether TTD compensation was appropriate.
{¶ 121} In short, the SHO stated reliance on three items of evidence in
determining that relator was not remunerated for his activities: (1) the hearing testimony
of Wehinger, (2) the affidavit of Grant, and (3) the absence of any statement from anyone
that relator kept any of the money.
{¶ 122} As earlier noted, on January 13, 2015, the three-member commission sua
sponte issued an interlocutory order that put relator on notice that the commission
intended to consider the exercise of its continuing jurisdiction over the October 24, 2014
order of the SHO that denied that part of the bureau's order regarding TTD
compensation.
{¶ 123} Invoking both a clear mistake of fact and a clear mistake of law, the
interlocutory order explains:
It is arguable the Staff Hearing Officer erred in finding the
Injured Worker did not keep any of the money received for
the work performed for the alleged employers and in finding
the Injured Worker's actions as an alleged "go-between" did
not constitute work activities so as to preclude entitlement to
temporary total disability compensation.
{¶ 124} Unlike the February 5, 2015 commission order that addressed PTD
compensation, the February 5, 2015 commission order addressing TTD compensation
does not directly assert a clear mistake of fact or a clear mistake of law. However, the
SHO does state that "[t]he evidence overwhelmingly supports the conclusion the Injured
Worker was working, and his testimony to the contrary is not credible."
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No. 15AP-637
{¶ 125} Significantly, in that portion of the commission's order addressing fraud,
the commission finds:
[T]he Chase Bank records, invoices, and BWC spread sheet
not only document years of payment from Mark Wehinger
and his companies to the Injured Worker, these records
further substantiate the Injured Worker profited from the
employment relationship.
{¶ 126} Thus, the commission's order of February 5, 2015 finds that relator was
paid or remunerated for his activities in obtaining the workers to perform the Wehinger
jobs.
{¶ 127} While the commission's order of February 5, 2015 does not directly assert
a clear mistake of fact as the other commission's order of February 5, 2015 does, it is
nevertheless clear that the documentary evidence submitted in the SIU report is so
overwhelming that it was unreasonable for the SHO to reject it in favor of the statements
of Wehinger and Grant.
{¶ 128} Thus, the magistrate concludes that the commission's order of February 5,
2015 regarding TTD compensation appropriately exercised continuing jurisdiction.
{¶ 129} Accordingly, for all the above reasons, it is the magistrate's decision that
this court deny relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).
44
No. 15AP-637