State ex rel. Perez v. Indus. Comm. (Slip Opinion) , 147 Ohio St. 3d 383 ( 2016 )


Menu:
  • [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
    ex rel. Perez v. Indus. Comm., Slip Opinion No. 2016-Ohio-5084.]
    NOTICE
    This slip opinion is subject to formal revision before it is published in an
    advance sheet of the Ohio Official Reports. Readers are requested to
    promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
    South Front Street, Columbus, Ohio 43215, of any typographical or other
    formal errors in the opinion, in order that corrections may be made before
    the opinion is published.
    SLIP OPINION NO. 2016-OHIO-5084
    THE STATE EX REL. PEREZ, APPELLEE AND CROSS-APPELLANT, v. INDUSTRIAL
    COMMISSION OF OHIO, APPELLANT AND CROSS-APPELLEE, ET AL.
    [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State ex rel. Perez v. Indus. Comm., Slip Opinion No.
    2016-Ohio-5084.]
    Workers’ compensation—Temporary total disability—Fraud—Commission did not
    abuse discretion in finding that claimant had been overpaid compensation
    while operating his auto-repair business or in finding that claimant
    fraudulently misrepresented that he was not working during period at
    issue—Court of appeals’ judgment affirmed in part and reversed in part.
    (No. 2015-0532—Submitted April 5, 2016—Decided July 26, 2016.)
    APPEAL and CROSS-APPEAL from the Court of Appeals for Franklin County,
    No. 14AP-394, 2015-Ohio-588.
    _______________________
    SUPREME COURT OF OHIO
    Per Curiam.
    {¶ 1} We must determine whether evidence supports the findings of
    appellant and cross-appellee, Industrial Commission of Ohio, that appellee and
    cross-appellant, Manuel A. Perez, was overpaid temporary-total-disability
    compensation from September 14, 2007, through October 3, 2011, and that he
    committed fraud in applying for it. The commission found that Perez continued to
    operate his auto-repair business during that time and fraudulently misrepresented
    to the commission that he had not worked since 2003.
    {¶ 2} The court of appeals affirmed the commission’s finding of an
    overpayment but concluded that the evidence did not support the commission’s
    finding of fraud. The court issued a writ of mandamus solely to compel the
    commission to vacate its finding of fraud.
    {¶ 3} For the reasons that follow, we affirm the court of appeals’ judgment
    to the extent that it affirmed the commission’s finding of an overpayment of
    temporary-total-disability compensation, but we reverse the court’s issuance of a
    writ of mandamus to compel the commission to vacate its finding of fraud.
    {¶ 4} Perez was injured while working in the construction industry on
    December 30, 2002. He filed a claim for workers’ compensation benefits, which
    was allowed for the following conditions: neck sprain, lumbar sprain, thoracic
    sprain, bulging disc and protruding discs, cervical spondylosis, major depression,
    and cognitive disorder. The commission awarded Perez temporary-total-disability
    compensation on several occasions. This appeal involves the order for disability
    payments beginning July 28, 2007, based on his psychological conditions only.
    {¶ 5} Prior to his injury in 2002, Perez owned and was operating an auto-
    repair business known as Manuel A. Perez Enterprises, Inc. The business was
    located in the first-floor garage of a two-story building. Perez lived on the second
    floor.
    2
    January Term, 2016
    {¶ 6} On March 18, 2011, the Bureau of Workers’ Compensation received
    information that Perez was operating his auto-repair business while receiving
    temporary-total-disability benefits. The Special Investigations Unit (“SIU”) of the
    bureau began investigating and obtained surveillance evidence of Perez working,
    but it closed the investigation in January 2012, based on a lack of evidence that
    Perez was being paid for his work.
    {¶ 7} In November 2012, the SIU received a new tip from an anonymous
    source that Perez had been working while he received disability benefits.
    According to the SIU, the source provided customer names and information. The
    bureau reopened its investigation. Based on the new investigation, the bureau filed
    a motion alleging that Perez continued to operate his auto-repair business while
    receiving temporary-total-disability benefits and that he purposely concealed his
    activities in order to continue to receive benefits for which he would not otherwise
    be entitled. The bureau asked the commission to declare an overpayment in
    temporary-total-disability benefits from September 14, 2007, through October 3,
    2011, and to make a finding of fraud.
    {¶ 8} The commission concluded that Perez was overpaid temporary-total-
    disability compensation and had committed fraud in applying for it.             The
    commission determined that the business was more than a passive investment and
    that Perez had more than just minimal involvement, based on the following
    evidence:
    An investigation into the activities at the garage was
    conducted by the Bureau of Workers’ Compensation Special
    Investigations Unit, including surveillance with a video from
    06/03/2011 through 07/16/2011. The Injured Worker was observed
    performing auto repair work including working on a tractor and
    3
    SUPREME COURT OF OHIO
    helping with repair work on an engine block. He was also observed
    meeting customers and discussing auto issues with them.
    There are statements from various customers on file stating
    they dealt exclusively with the Injured Worker when doing business
    at his shop. They never actually saw him physically work on their
    cars, but he performed activities such as scheduling when to bring
    the car into the shop, diagnosing their car problem, and receiving
    payment when picking up the car. There is also a statement from
    Scott McNabb, Manager of Advanced Auto Parts stating the Injured
    Worker would order and pick-up parts. Also, on file are records
    supporting numerous purchases from Advanced Auto Parts and
    credit card records for auto parts purchased.
    {¶ 9} Perez filed a complaint for a writ of mandamus, arguing that the
    commission abused its discretion. The court of appeals affirmed the commission’s
    finding of an overpayment but concluded that there was insufficient evidence of
    fraud. The court issued a writ of mandamus to compel the commission to vacate
    its finding that Perez committed fraud.
    {¶ 10} This matter is before this court on the direct appeal of the
    commission and the cross-appeal filed by Perez.
    Overpayment of Temporary-Total-Disability Benefits
    {¶ 11} Perez contends that there was no evidence supporting the
    commission’s finding that he was working while he was receiving temporary-total-
    disability compensation from September 14, 2007 to October 3, 2011.
    {¶ 12} Work is not defined for workers’ compensation purposes, but it is
    generally considered to be labor in exchange for pay. State ex rel. Honda of Am.
    Mfg. Co. v. Indus. Comm., 
    113 Ohio St. 3d 5
    , 2007-Ohio-969, 
    862 N.E.2d 478
    ,
    ¶ 18; State ex rel. Griffith v. Indus. Comm., 
    109 Ohio St. 3d 479
    , 2006-Ohio-2992,
    4
    January Term, 2016
    
    849 N.E.2d 28
    , ¶ 10. We have recognized an exception to this general principle for
    “unpaid activities that directly generate income for a separate entity” that, in some
    situations, may be considered work for purposes of temporary-total-disability
    compensation eligibility. State ex rel. McBee v. Indus. Comm., 
    132 Ohio St. 3d 209
    ,
    2012-Ohio-2678, 
    970 N.E.2d 937
    , ¶ 4. In McBee, while the claimant received
    temporary-total-disability compensation, he also helped with his wife’s business.
    The commission determined that this constituted work, though unpaid, and the
    court of appeals affirmed, reasoning that his activities directly generated income
    and were consistent and ongoing. 
    Id. at ¶
    7 (noting that McBee did not appeal that
    determination to this court).
    {¶ 13} Conversely, if the claimant’s activities are minimal and relate only
    indirectly to generating income, they may not be considered work that would
    disqualify a claimant from receiving temporary-total-disability compensation.
    State ex rel. Ford Motor Co. v. Indus. Comm., 
    98 Ohio St. 3d 20
    , 2002-Ohio-7038,
    
    780 N.E.2d 1016
    , ¶ 24. In Ford, the claimant worked for Ford and also had a lawn-
    care business. After an injury at work temporarily forced him from his job at Ford,
    he began receiving temporary-total-disability compensation. Ford tried to recoup
    the compensation paid on the grounds that the claimant still worked at his lawn-
    care business.
    {¶ 14} The commission denied Ford’s request. We agreed, noting that
    following his injury, the claimant hired others to do the physical work for his
    business. Thus, his “activities did not, in and of themselves, generate income;
    claimant’s activities produced money only secondarily, e.g., claimant signed the
    paychecks that kept his employees doing the tasks that generated income.”
    (Emphasis sic.) 
    Id. at ¶
    23. The court concluded that his activities with the business
    “were truly minimal and only indirectly related to generating income” and therefore
    did not constitute work that would preclude payment of temporary-total-disability
    compensation. 
    Id. at ¶
    24.
    5
    SUPREME COURT OF OHIO
    {¶ 15} Likewise, in Honda, 
    113 Ohio St. 3d 5
    , 2007-Ohio-969, 
    862 N.E.2d 478
    , the injured worker was receiving temporary-total-disability benefits for an
    injury sustained while working at Honda. She also owned a scrapbook store. An
    investigator observed the claimant at her store on several occasions answering a
    customer’s questions, pointing out displays, and speaking on the telephone as well
    as once, using the cash register. The commission denied Honda’s request for a
    declaration of overpayment.     We agreed, reasoning that the claimant’s mere
    presence at the store did not itself disqualify her from receiving temporary-total-
    disability compensation and that even if she had engaged in some business
    activities, those activities were geared toward promoting goodwill and generated
    income only secondarily. 
    Id. at ¶
    28-29.
    {¶ 16} Perez argues that, like the claimants in Ford and Honda, his business
    activities were unpaid and minimal, that they did not directly produce income for
    the business, and that they therefore did not constitute work that would be
    inconsistent with receiving temporary-total-disability compensation. According to
    Perez, the video surveillance and witness statements did not establish that he was
    performing work for a customer or that his activities generated income for the
    business, and the mere existence of a commercial account to purchase car parts does
    not, by itself, generate business income.
    {¶ 17} The commission maintains that Perez was providing customer
    service that directly generated business and produced revenue—ordering and
    picking up parts, scheduling appointments, talking with customers—activities that
    were more than passive. According to the commission, this case is similar to State
    ex rel. Meade v. Indus. Comm., 10th Dist. Franklin No. 04AP-1184, 2005-Ohio-
    6206, and State ex rel. Cassano v. Indus. Comm., 10th Dist. Franklin No. 03AP-
    1227, 2005-Ohio-68, in which the unpaid activities of both claimants generated
    income for the business.
    6
    January Term, 2016
    {¶ 18} In Meade, the claimant was receiving temporary-total-disability
    compensation for an injury that he received while working for Allied Systems, Inc.
    He also owned a pizza business. The commission declared an overpayment of
    compensation because the evidence indicated that Meade “ ‘took an active and
    physically demanding part in the business working in the kitchen, conducting
    repairs, delivering pizzas and conducting various other work related activities.’ ”
    
    Id. at ¶
    17, quoting the hearing officer’s order. The Tenth District Court of Appeals
    upheld the commission’s decision, reasoning that although he was not paid wages,
    “there can be no question that [the claimant’s] activities—taking orders, preparing
    food, serving customers, working the cash register, and delivering pizzas—
    generated income for” his pizza shop. 
    Id. at ¶
    7.
    {¶ 19} Likewise, in Cassano, the commission concluded that the claimant
    continued to operate his car dealership while receiving temporary-total-disability
    compensation. The court of appeals agreed that there was evidence that Cassano
    had engaged in work activities that generated income, such as performing
    mechanical work on cars and attending auto auctions. Cassano at ¶ 8.
    {¶ 20} The commission is the exclusive fact-finder with sole responsibility
    to evaluate the weight and credibility of the evidence. State ex rel. Burley v. Coil
    Packing, Inc., 
    31 Ohio St. 3d 18
    , 20-21, 
    508 N.E.2d 936
    (1987). As a reviewing
    court, we generally defer to the commission’s expertise in these matters and do not
    substitute our judgment for that of the commission. State ex rel. Pass v. C.S.T.
    Extraction Co., 
    74 Ohio St. 3d 373
    , 376, 
    658 N.E.2d 1055
    (1996). This court’s role
    is limited to determining whether there is some evidence in the record to support
    the commission’s stated basis for its decision. Burley at 21.
    {¶ 21} Mindful of these principles, we find that the evidence supports the
    commission’s decision that Perez, like the claimant in Cassano, was engaged in
    more than minimal activities that were income-producing for his auto-repair
    business. The bureau received a tip that Perez was working at his business while
    7
    SUPREME COURT OF OHIO
    receiving temporary-total-disability compensation. The SIU report, including the
    surveillance evidence, documented Perez in the garage area on several occasions
    looking under the hood of vehicles, engaging with customers, and performing repair
    work.
    {¶ 22} The evidence also documented Perez’s answering the telephone,
    scheduling repairs, coordinating drop-off and pick-up times, purchasing parts, and
    receiving payment from customers. Records established that during the time period
    at issue, Perez purchased more than $43,000 in auto parts, an amount that indicates
    they were not merely for personal use.
    {¶ 23} The commission adequately identified the evidence relied upon and
    briefly explained the reasoning for its decision. Consequently, the commission did
    not abuse its discretion when it found that Perez had been overpaid temporary-total-
    disability compensation for the period of time at issue, and we affirm the judgment
    of the court of appeals to the extent that it affirmed that finding.
    Fraud
    {¶ 24} In its appeal, the commission challenges the court of appeals’ grant
    of a writ of mandamus to compel the commission to vacate its finding that Perez
    fraudulently received the temporary-total-disability compensation.
    {¶ 25} “Fraud requires a knowing misrepresentation of a material fact.”
    McBee, 
    132 Ohio St. 3d 209
    , 2012-Ohio-2678, 
    970 N.E.2d 937
    , at ¶ 8. “[T]o qualify
    as a knowing misrepresentation, however, it must be shown that [the claimant] was
    aware than his unpaid activities could be considered work.” 
    Id. The commission
    points to the multiple C-84 forms requesting temporary-total-disability benefits on
    which Perez attested that he had not worked since 2003 and the medical evidence
    in the file demonstrating that Perez minimized to physicians his presence at the
    garage.
    {¶ 26} The commission has substantial leeway in interpreting and drawing
    inferences from the evidence in the record. State ex rel. Lawson v. Mondie Forge,
    8
    January Term, 2016
    
    104 Ohio St. 3d 39
    , 2004-Ohio-6086, 
    817 N.E.2d 880
    , ¶ 34. In doing so in this case,
    the commission did not abuse its discretion when it concluded that the evidence
    supported a finding of fraud. The evidence demonstrated that Perez not only
    represented to the commission on multiple occasions that he was not working, but
    also was not forthcoming to physicians about his activities with the auto-repair
    business. The multiple occasions on which he reported to examining physicians
    that he rarely left his home and spent most of his time watching TV or with his dogs
    sufficiently demonstrate that he attempted to conceal the extent of his business
    activities.
    {¶ 27} Therefore, we conclude that the court of appeals abused its discretion
    when it granted a writ of mandamus to compel the commission to vacate its finding
    of fraud.
    Conclusion
    {¶ 28} Based on the foregoing, we affirm the judgment of the court of
    appeals as to the finding of an overpayment of temporary-total-disability
    compensation for the period September 14, 2007, through October 3, 2011, and we
    reverse the court’s judgment issuing a writ of mandamus to compel the commission
    to vacate its finding of fraud.
    Judgment affirmed in part
    and reversed in part.
    O’CONNOR, C.J., and O’DONNELL, LANZINGER, KENNEDY, FRENCH, and
    O’NEILL, JJ., concur.
    PFEIFER, J., dissents and would affirm the judgment of the court of appeals.
    _________________
    The Bainbridge Firm, L.L.C., and Christopher J. Yeager, for appellee and
    cross-appellant.
    Michael DeWine, Attorney General, and Cheryl J. Nester, Assistant
    Attorney General, for appellant and cross-appellee, Industrial Commission.
    9
    SUPREME COURT OF OHIO
    _________________
    10
    

Document Info

Docket Number: 2015-0532

Citation Numbers: 2016 Ohio 5084, 147 Ohio St. 3d 383

Judges: O'Connor, O'Donnell, Lanzinger, Kennedy, French, O'Neill, Pfeifer

Filed Date: 7/26/2016

Precedential Status: Precedential

Modified Date: 10/19/2024