State ex rel. Daily Servs., L.L.C. v. Buehrer

[Cite as State ex rel. Daily Servs., L.L.C. v. Buehrer, 2015-Ohio-4956.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Daily Services, LLC, :
Relator, :
v. : No. 14AP-405
Stephen Buehrer, Administrator, : (REGULAR CALENDAR)
Ohio Bureau of Workers' Compensation,
:
Respondent.
:
D E C I S I O N
Rendered on December 1, 2015
Law Office of W. Evan Price II, LLC, and W. Evan Price, II,
for relator.
Porter, Wright, Morris & Arthur LLP, James A. King and
David S. Bloomfield, Jr., for respondent.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
BROWN, P.J.
{¶ 1} Relator, Daily Services, LLC ("Daily Services"), has filed an original action
requesting that this court issue a writ of mandamus ordering respondent, the
Administrator of the Ohio Bureau of Workers' Compensation ("respondent"), to vacate a
March 2013 hearing order of the Adjudicating Committee ("adjudicating committee") of
the Ohio Bureau of Workers' Compensation ("BWC"), as well as a November 2013 hearing
order of the BWC's Administrator's Designee ("administrator's designee"), determining
that Daily Services wholly succeeded I-Force, LLC ("I-Force").
No. 14AP-405 2
{¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the appended
decision, including findings of fact and conclusions of law, recommending that this court
issue a writ of mandamus ordering respondent to vacate the March 2013 hearing order of
the adjudicating committee and the November 2013 hearing order of the administrator's
designee.
{¶ 3} Respondent has filed four objections to the magistrate's decision, arguing
that the magistrate erred in: (1) applying the continuing jurisdiction doctrine under R.C.
4123.52 to vacate the orders of the adjudicating committee and the administrator's
designee; (2) finding that BWC delayed an unreasonable period of time to exercise its
continuing jurisdiction to adjudicate Daily Services' successor-liability protest; (3) failing
to find numerous critical facts supporting the merits of BWC's determination that Daily
Services succeeded I-Force; and (4) failing to conclude, as a matter of law, that Daily
Services succeeded I-Force.
{¶ 4} The following background facts and procedural history are taken from the
magistrate's findings of fact as well as from the record of proceedings. Ryan Mason was
the owner of I-Force, a company that provided temporary staffing services to other
businesses. I-Force opened a workers' compensation policy with BWC, effective
December 19, 2005. Due to a poor claims history, I-Force lost its group rating status on
June 30, 2008, and the company closed its business operations on March 23, 2009. Prior
to the closing, the I-Force headquarters was located in a building adjacent to the offices of
Daily Services, a company also owned by Mason and located on Morse Road, Columbus,
Ohio.
{¶ 5} Daily Services is in the business of providing temporary staffing services to
its clients and has maintained a workers' compensation policy with BWC since April 3,
2006. In April and May 2009, BWC conducted an audit of Daily Services. The BWC
issued a subpoena to Daily Services on April 29, 2009, seeking payroll records and client
lists, and investigators from the BWC's Special Investigations Unit subsequently
conducted interviews of former I-Force employees.
{¶ 6} In May 2009, BWC made a determination that Daily Services was the
successor to I-Force and was responsible for I-Force's unpaid premiums. In June 2009,
No. 14AP-405 3
BWC filed a certificate of judgment against I-Force for more than $3.8 million.1 In a letter
dated June 15, 2009, Daily Services protested BWC's determination that it was a
successor-in-interest to I-Force within the meaning of Ohio Adm.Code 4123-17-02(C).
The BWC's adjudicating committee subsequently held a hearing on the matter. On
September 1, 2009, BWC filed a suit in common pleas case No. 09CVH09-13229, seeking
to hold Daily Services liable as a successor-in-interest.2
{¶ 7} On October 15, 2009, the adjudicating committee issued an order, holding
in part: "Based on the testimony at the hearing and the materials submitted with the
protest, the Adjudication Committee affirms the experience combination." Daily Services
did not appeal the adjudicating committee's 2009 order.
{¶ 8} On November 6, 2009, the BWC filed a certificate of judgment against Daily
Services in common pleas case No. 09JG-11-46435. Daily Services subsequently filed a
motion to vacate the certificate of judgment.
{¶ 9} On July 13, 2010, BWC filed a certificate of judgment against Daily Services
for over $3.1 million in common pleas case No. 10JG-06-26568. On August 18, 2010,
Daily Services filed a motion to vacate the certificate of judgment pursuant to Civ.R.
60(B). The trial court subsequently granted the motion to vacate on the basis that the
BWC failed to properly serve Daily Services with an assessment.
{¶ 10} On September 21, 2010, BWC served Daily Services with an assessment in
the amount of $3,170,366.53. Daily Services filed a petition objecting to the assessment,
and the adjudicating committee conducted a hearing on January 13, 2011.
{¶ 11} On February 8, 2011, the trial court, in common pleas case No. 09JG-11-
46435, granted Daily Services' request for Civ.R. 60(B) relief from the certificate of
judgment filed by BWC on November 6, 2009. In its decision (hereinafter "the Judge
Bessey decision"), the trial court found in part that the BWC "mistakenly claims that the
hearing before the Adjudicating Committee of the BWC resulted in a finding that [Daily
Services] was a successor to I-Force." Rather, the trial court determined, the 2009 order
of the adjudicating committee "makes no reference to the issue of whether [Daily
1In October 2009, BWC filed a release and satisfaction, discharging its judgment against I-Force.
2On March 31, 2010, the trial court entered a preliminary injunction in common pleas case No. 09CVH09-
13229, under which Mason agreed to make monthly payments toward past due premiums. On August 26,
2010, the parties entered into an agreement to stay the action. On March 21, 2011, BWC voluntarily
dismissed the action without prejudice pursuant to Civ.R. 41(A).
No. 14AP-405 4
Services] was a successor to I-Force and thus liable for I-Force's deficiencies." The trial
court further held "there is no basis for the BWC to claim that it administratively decided
the issue in its favor, when the issue was and still is pending before the Court in [case No.]
09CVH09-13229."
{¶ 12} By order mailed February 9, 2011, the adjudicating committee upheld the
BWC's September 21, 2010 assessment, finding that the adjudicating committee's
October 15, 2009 order affirming the experience combination operated to transfer I-
Force's debt and liabilities to Daily Services. Daily Services appealed the decision of the
adjudicating committee, and the administrator's designee conducted a hearing on
April 19, 2011. By order mailed June 14, 2011, the administrator's designee upheld the
order of the adjudicating committee, finding in part that "the issue of liability under [Ohio
Adm.Code] 4123-17-03(C) was addressed by the Adjudicating Committee in its order
dated October 15, 2009 when it applied OAC 4123-17-03(B) and determined that the
employer was a successor employer under the rule."
{¶ 13} On February 18, 2011, the BWC filed a judgment against Daily Services in the
amount of $3,170,366.53. On March 9, 2011, Daily Services filed a motion to vacate
pursuant to Civ.R. 60(B). On November 21, 2011, the trial court rendered a decision in
common pleas case No. 11JG-02-7617 (hereinafter "the Judge Reece decision"), granting
the motion to vacate. In its decision, the trial court noted in part that "[t]he issue of
whether a successor-in-interest finding was made on October 15, 2009, was argued before
Judge Bessey [who] found that such a determination had not been made in the
October 15, 2009 order." The court therefore granted the motion to vacate on the basis
that Daily Services had presented a meritorious defense by way of the BWC's "failure to
follow the requirements" of R.C. 4123.37 and 4123.291 in filing a praecipe for judgment
"prior to said judgment having become final." This court, by decision rendered
September 18, 2012, affirmed the trial court's determination that Daily Services had a
meritorious defense. See Ohio Bur. of Workers' Comp. v. Daily Servs., LLC, 10th Dist.
No. 11AP-1122, 2012-Ohio-4242.
{¶ 14} On December 21, 2011, Daily Services filed a complaint for unjust
enrichment and declaratory judgment against BWC in common pleas case No. 11CV-
015913. On January 19, 2012, BWC filed an answer and counterclaim. In the
counterclaim, BWC alleged causes of action for fraudulent transfers, statutory successor
No. 14AP-405 5
liability, common law successor liability, and successor liability as contemplated under
Ohio Adm.Code 4123-17-02. The trial court subsequently granted summary judgment in
favor of BWC and dismissed Daily Services' unjust enrichment claim. The court also
dismissed BWC's counterclaims for successor liability, holding in part that "the
Adjudicating Committee is the proper forum for adjudicating the issue of [Daily Services']
successor liability." Daily Services appealed the trial court's decision. In Daily Servs.,
LLC v. Ohio Bur. of Workers' Comp., 10th Dist. No. 13AP-509, 2013-Ohio-5716, this court
affirmed the judgment of the trial court, finding that the BWC was entitled to judgment as
a matter of law on Daily Services' claim for unjust enrichment.
{¶ 15} By letter dated January 15, 2013, the secretary of the adjudicating committee
informed counsel for Daily Services that the adjudicating committee would schedule a
hearing as a result of decisions rendered by "the Franklin County Court of Common Pleas
in Case No. 11JG-02-7617 and in Case No. 09JG-46435" in which those courts "concluded
that the Adjudicating Committee's October 15, 2009 Order never resolved whether Daily
Services is the successor to I-Force within the meaning of O.A.C. 4123-17-02(C). That
issue, in the view of the BWC, remains pending."
{¶ 16} On January 29, 2013, Daily Services filed a complaint for a writ of
prohibition with the Supreme Court of Ohio, asserting that the adjudicating committee
lacked jurisdiction to schedule and conduct a hearing on the issue of successor liability.
On February 13, 2013, respondent filed a motion to dismiss the complaint. On March 15,
2013, the Supreme Court dismissed Daily Services' prohibition action pursuant to Civ.R.
12(B)(6).
{¶ 17} On March 20, 2013, the adjudicating committee conducted a hearing "to
provide the employer the opportunity to fully administratively adjudicate the Bureau's
determination on successor liability under O.A.C. 4123-17-02(C)." Following that
hearing, the adjudicating committee issued an order (hereinafter "the March 2013 hearing
order") denying the protest filed by Daily Services. In its order, the adjudicating
committee determined it had jurisdiction over Daily Services' protest because "[t]he
question of successor liability remains unresolved." With respect to the merits of the case,
the adjudicating committee concluded that "Daily Services is a successor-in-interest to I-
Force for workers' compensation purposes under Ohio Adm.Code 4123-17-02(C) and
thus, liable for I-Force's obligations."
No. 14AP-405 6
{¶ 18} Daily Services filed an appeal of that order to the administrator's designee
pursuant to R.C. 4123.291. Following a November 14, 2013 hearing, the administrator's
designee issued an order (hereinafter "the November 2013 hearing order") affirming the
adjudicating committee's March 2013 hearing order.
{¶ 19} On May 19, 2014, Daily Services filed its complaint in mandamus with this
court, asserting that respondent exceeded its jurisdiction in holding the March 20, 2013
hearing. In the magistrate's decision, the magistrate framed the issue presented as
whether the BWC had continuing jurisdiction under R.C. 4123.52 "to adjudicate that
portion of relator's June 2009 protest regarding the [BWC's] transfer of I-Force's
premium obligations under Ohio Adm.Code 4123-17-02(C) long after the [BWC], through
its adjudicating committee of October 15, 2009 had issued a final order adjudicating the
protest."3 The magistrate concluded that the BWC "lacked R.C. 4123.52 continuing
jurisdiction to convene an adjudicating committee to revisit the October 15, 2009 final
order of the adjudicating committee."
{¶ 20} Respondent's first and second objections are interrelated, and we will
consider them jointly. Under the first objection, respondent asserts the magistrate erred
in applying the continuing jurisdiction doctrine of R.C. 4123.52 to vacate both the
adjudicating committee's March 2013 hearing order as well as the November 2013
hearing order of the administrator's designee. Respondent argues that the magistrate sua
sponte raised a continuing jurisdiction issue that Daily Services did not allege in its
complaint, and then based the recommendation for issuance of a writ of mandamus on an
issue not applicable. Under the second objection, respondent argues the magistrate erred
in finding that the BWC unreasonably delayed its exercise of jurisdiction to adjudicate the
successor-liability protest.
{¶ 21} Respondent advances several arguments challenging the magistrate's
application of R.C. 4123.52 to the instant proceedings. Respondent argues that R.C.
4123.52, the statute establishing the continuing jurisdiction of the Industrial Commission
of Ohio ("Industrial Commission"), contains no language addressing the adjudicating
committee. Further, citing the absence of any cases applying R.C. 4123.52 in the context
3 In analyzing this issue, the magistrate noted the prerequisites for the Industrial Commission of Ohio's
exercise of continuing jurisdiction under R.C. 4123.52, as set forth in State ex rel. Gobich v. Indus. Comm.,
103 Ohio St.3d 585, 2004-Ohio-5900, ¶ 14 ("(1) new and changed circumstances, (2) fraud, (3) clear mistake
of fact, (4) clear mistake of law, or (5) error by an inferior tribunal").
No. 14AP-405 7
of proceedings by the adjudicating committee, respondent contends the magistrate erred
by seeking to import the limitations under R.C. 4123.52 into a proceeding governed by
R.C. 4123.291. In the alternative, respondent argues that, even assuming the applicability
of R.C. 4123.52, the continuing jurisdiction doctrine does not apply because the
adjudicating committee did not modify or change a former finding or order; rather,
respondent maintains, the adjudicating committee adjudicated the successor-liability
issue for the first time when it issued its order following the March 20, 2013 hearing.
{¶ 22} In response, Daily Services argues that respondent misconstrues the import
of the magistrate's ruling. Specifically, Daily Services argues that the magistrate did not
apply the continuing jurisdiction doctrine to vacate BWC orders; instead, it maintains,
after the magistrate concluded that jurisdiction was otherwise lacking, the magistrate held
that the continuing jurisdiction doctrine did not operate to confer jurisdiction on the
BWC. According to Daily Services, the issue is not whether the continuing jurisdiction
doctrine of R.C. 4123.52 is applicable but, rather, whether there was another source of
jurisdiction authorizing the BWC to hold the 2013 hearings with respect to the 2009
protest action.
{¶ 23} We begin with the general proposition that, "[l]ike all statutorily created
agencies, BWC can exercise only those powers conferred upon it by the General
Assembly." State ex rel. V&A Risk Servs. v. Ohio Bur. of Workers' Comp., 10th Dist. No.
11AP-742, 2012-Ohio-3583, ¶ 30. As such, "[i]t must conform its operations to the
procedures set out in the statutes or rules adopted pursuant to statutory authority." Id.{¶ 24} R.C. 4123.52(A) states that "[t]he jurisdiction of the industrial commission
and the authority of the administrator of workers' compensation over each case is
continuing, and the commission may make such modification or change with respect to
former findings or orders with respect thereto, as, in its opinion is justified." (Emphasis
added.) As noted by one commentator, "[e]ven though R.C. § 4123.52 confers continuing
jurisdiction on the Commission and the Administrator, the Commission's jurisdiction
differs from that of the Administrator." Fulton, Ohio Workers' Compensation Law,
Section 5.5, at 165 (4th Ed.2011).
{¶ 25} The issue of whether the adjudicating committee was authorized to conduct
the 2013 hearing in the instant case does not, in our view, implicate the industrial
commission's statutory authorization under R.C. 4123.52 to modify or change former
No. 14AP-405 8
findings or orders. Rather, it involves a consideration of the provisions of R.C. 4123.291,
which "authorizes the Administrator to appoint an 'adjudicating committee' to consider
[certain] risk premium matters." Fulton at 640, Section 14.10.4 Specifically, R.C.
4123.291(A) authorizes "[a]n adjudicating committee appointed by the administrator of
workers' compensation to hear any matter specified in divisions (B)(1) to (7) of this
section." Under this provision, "[a]n employer desiring to file a * * * protest, or petition
regarding any matter specified in divisions (B)(1) to (7) of this section shall file the * * *
protest * * * to the adjudicating committee on or before twenty-four months after the
administrator sends notice of the determination." R.C. 4123.291(A). Included among the
matters specified under divisions (B)(1) to (7) are "[a]n employer protest relating to an
audit finding * * *, experience rating, or transfer or combination of risk experience," (R.C.
4123.291(B)(5)), and "[a]ny decision relating to any other risk premium matter under
Chapters 4121., 4123., and 4131. of the Revised Code." (R.C. 4123.291(B)(6)).
{¶ 26} The adjudicating committee "may issue decisions without formal hearing,
but it must afford an employer a formal hearing if the employer so requests." Fulton at
670, Section 14.24. The decision of the adjudicating committee "shall be the decision of
the administrator." Ohio Adm.Code 4123-14-06(E). The employer may file a written
appeal of the decision of the adjudicating committee, and "the administrator or the
administrator's designee shall hear the appeal of the decision and shall conduct a hearing
for such purpose." Ohio Adm.Code 4123-14-06(E). See also R.C. 4123.291(B) ("An
employer who is adversely affected by a decision of an adjudicating committee appointed
by the administrator may appeal the decision of the committee to the administrator or the
administrator's designee," and the "administrator or the designee shall hold a hearing.").
{¶ 27} During the March 20, 2013 hearing before the adjudicating committee,
counsel for Daily Services argued that the adjudicating committee lacked jurisdiction "to
hold another hearing, a second hearing, on the June 2009 protest," in order to address
the issue of successor liability. In the March 2013 hearing order, the adjudicating
committee rejected this contention, holding in relevant part:
4Ohio Adm.Code 4123-14-06(B) provides that "[t]he adjudicating committee shall consist of three members
appointed by the administrator." Pursuant to Ohio Adm.Code 4123-14-06(C), the three-member
adjudicating committee "shall hold meetings and hearings to determine matters referred to it by the
administrator."
No. 14AP-405 9
Daily Services asserted in its hearing brief that this
Adjudicating Committee does not have jurisdiction to hold
another hearing. This assertion is moot in light of the
Supreme Court's denial of Daily Service's prohibition action
and the dismissal of the Bureau's counterclaim in case no. 11-
CV-015913. The question of successor liability remains
unresolved, therefore, the Adjudicating Committee retains
jurisdiction over Daily Service's original protest of the
Bureau's successor determination that was submitted by
Daily Services on June 15, 2009. Two separate court
decisions found the order from the Adjudicating Committee
held October 15, 2009, which was in response to the June 15,
2009 protest, failed to determine whether Daily Services is
the successor to I-Force. On May 15, 2013, in case no. 11-CV-
015913, the court found "the Adjudicating Committee is the
proper forum for adjudicating the issue of Plaintiff's
successor liability."
Daily Services' protest has not been fully adjudicated. Courts
that have interpreted the order from the Adjudicating
Committee held October 15, 2009 have found the
Adjudicating Committee did not address Daily Services'
protest challenging the Bureau's determination that Daily
Services is a successor to I-Force. As a matter of law, the
issue remains pending at the Adjudicating Committee
processing level.
{¶ 28} During the November 14, 2013 hearing before the administrator's designee,
Daily Services again argued that the adjudicating committee lacked jurisdiction to
consider the issue of its liability as a successor to I-Force. The administrator's designee
disagreed, adopting the analysis of the adjudicating committee and holding in part: "Prior
to March 20, 2013, the Adjudicating Committee had not issued a final administrative
order addressing the issue of Daily Services' liability under [Ohio Adm.Code] 4123-17-
02(C) as successor-in-interest to I-Force; therefore, the Committee had retained, and
properly exercised, jurisdiction to do so."
{¶ 29} In its order rejecting Daily Services' jurisdictional challenge, the
adjudicating committee relied in part on State ex. rel. Bur. of Workers' Comp. v. C.W.
Fletcher, Inc., 4th Dist. No. 96CA32 (Mar. 13, 1997). Under the facts of that case, BWC
conducted an audit of C.W. Fletcher, Inc. ("Fletcher"), and ascertained that Fletcher owed
unpaid workers' compensation premiums. The BWC assessed Fletcher the amount due,
and Fletcher filed a petition with BWC's adjudicating committee objecting to the
No. 14AP-405 10
assessment. The adjudicating committee, however, never resolved Fletcher's petition.
The BWC subsequently obtained a judgment lien against Fletcher, and later garnished
Fletcher's bank account. Fletcher then filed an action with the trial court, seeking to have
the court either void the judgment lien or grant Civ.R. 60(B) relief; the trial court
ultimately granted Fletcher Civ.R. 60(B) relief.
{¶ 30} On appeal, the court in C.W. Fletcher held that the trial court did not abuse
its discretion in granting Fletcher relief under Civ.R. 60(B). In considering the issue of
whether Fletcher had a meritorious defense, the court found that BWC was not entitled to
a judgment for an unpaid assessment as it failed to comply with the requirements of R.C.
4123.37. More specifically, the court noted that "a petition objecting to the assessment
was filed but no finding was made resolving the petition," and therefore "the BWC was not
authorized to file a certified copy of the assessment with the clerk of courts." C.W.
Fletcher. Rather, the court held, the BWC's "failure to resolve the petition has left the
matter pending, thus precluding a judgment." Id. In so holding, the court characterized
the judgment filed by the BWC as "analogous to an order which neither adjudicates all
claims or parties nor has Civ.R. 54(B) 'no just reason for delay' language; the BWC partly
adjudicated the matter by making an assessment against Fletcher, but did not resolve the
petition." Id.
{¶ 31} As noted under the facts, in the instant case, two prior decisions by the
Franklin County Court of Common Pleas found that the adjudicating committee's
October 15, 2009 order did not adjudicate the issue of successor liability. Specifically, in
Judge Bessey's decision, the trial court found that the 2009 order of the adjudicating
committee "makes no reference to the issue of whether [Daily Services] was a successor to
I-Force and thus liable for I-Force's deficiencies," and that there was "no basis for the
BWC to claim that it administratively decided the issue in its favor." The subsequent
Judge Reese decision noted that the Judge Bessey decision had addressed the "issue of
whether a successor-in-interest finding was made on October 15, 2009," and "Judge
Bessey found that such a determination had not been made in the October 15, 2009
order." Further, in a May 2013 decision rendered by the Franklin County Court of
Common Pleas, addressing Daily Services' unjust enrichment claim and BWC's
counterclaims for successor liability, the trial court observed that "the Adjudicating
No. 14AP-405 11
Committee is the proper forum for adjudicating the issue of [Daily Services'] successor
liability."
{¶ 32} As outlined above, R.C. 4123.291(B)(5) and (6) set forth the administrative
procedures with respect to an employer's protest of certain risk premium matters, and the
statute authorizes the administrator to appoint an adjudicating committee to consider
and decide an employer's protest regarding "an audit finding" or a determination of an
"experience rating, or transfer or combination of risk experience," as well as "[a]ny
decision relating to any other risk premium matter." In the instant case, Daily Services
invoked the jurisdiction of the administrator and the adjudicating committee by filing a
protest of the BWC's determination that Daily Services was the successor to I-Force and
responsible for its premiums. Following the March 2009 hearing, the adjudicating
committee issued a decision in which it "affirm[ed] the experience combination." The
BWC subsequently sought to recover unpaid premiums from Daily Services based upon
the agency's interpretation of the March 2009 hearing order as having adjudicated the
issue of successor liability. However, as determined by two subsequent decisions of the
Franklin County Court of Common Pleas, the adjudicating committee's March 2009
hearing order failed to administratively decide the issue of successor liability at issue in
the protest.
{¶ 33} As observed by the court in C.W. Fletcher, "[a]djudicative functions by
administrative agencies allow matters to be resolved by experts in that area and often
provide for a less formal hearing atmosphere," but such "lesser level of formality does not
relieve the administrative agency from entering a final order on matters presented to it."
In the instant case, the adjudicating committee's failure to determine the issue of
successor liability prior to the March 2013 hearing "left the matter pending." Id. Thus, at
the time of that hearing, the adjudicating committee had yet to issue an order that finally
and fully adjudicated the rights, duties, and obligations of the parties with respect to the
protest. Under these circumstances, we conclude that the adjudicating committee, having
obtained jurisdiction of the matter following the filing of the 2009 protest, and in the
absence of statutory or administrative regulations to the contrary, retained and properly
exercised jurisdiction to hold the March 2013 hearing to adjudicate the issue of successor
liability and to issue an order that fully determined the protest. Accordingly, we decline to
adopt the magistrate's recommendation that the agency was without jurisdiction to
No. 14AP-405 12
conduct the 2013 hearing to adjudicate that portion of the protest by Daily Services
regarding the BWC's transfer of I-Force's premium obligations.
{¶ 34} Under the second objection, respondent contends the magistrate erred in
finding that BWC unreasonably delayed its exercise of continuing jurisdiction.
Specifically, respondent points to the following language in the magistrate's decision:
"Certainly, as of the date that Judge Bessey issued his judgment on February 8, 2011 * * *
the bureau should have been aware that its interpretation of the October 15, 2009 order of
the adjudicating committee was not the correct interpretation. Accordingly, it appears
that the bureau delayed an unreasonable period of time to exercise its continuing
jurisdiction." (Magistrate's Decision at ¶ 89.)
{¶ 35} Respondent challenges the magistrate's reliance on February 8, 2011 (the
date that Judge Bessey issued his judgment) as the starting point for the period used to
assess any delay by BWC in setting the March 2013 hearing of the adjudicating
committee. Respondent maintains there were compelling procedural reasons the hearing
took place on March 20, 2013, including related litigation between the parties, a standstill
agreement executed by both sides, and a request by Daily Services to delay the hearing.
{¶ 36} In general, under Ohio law, "[i]t is the duty of an administrative agency to
hear matters pending before it without unreasonable delay and with due regard to the
rights and interests of the litigants." Immke Circle Leasing, Inc. v. Ohio Bur. of Motor
Vehicles, 10th Dist. No. 05AP-1179, 2006-Ohio-4227, ¶ 13. This court has previously
observed that, "[i]n some instances, courts have held long delays to be unlawful when the
delay is completely unexplained." Gourmet Beverage Ctr., Inc. v. Ohio Liquor Control
Comm., 10th Dist. No. 01AP-1217, 2002-Ohio-3338, ¶ 25. See also Mowery v. Ohio State
Bd. of Pharmacy, 11th Dist. No. 96-G-2005 (Sept. 30, 1997) (noting that courts "have held
that an unexplained and unreasonable delay deprives the affected part of the due process
to which he is entitled"). Litigation between parties can be a factor in considering
allegations of unreasonable agency delay. Gourmet Beverage at ¶ 26 (delay of seven years
between decision and hearing on administrative appeal because of protracted litigation
between parties did not constitute due process violation).
{¶ 37} As evidenced by the background facts, the instant case has a somewhat
lengthy procedural history. While BWC took the position, following the March 2009
hearing order, that the adjudicating committee's finding as to the experience combination
No. 14AP-405 13
also resolved the issue of successor liability (a view similarly expressed by the
administrator's designee in the order following the April 19, 2011 hearing), two
subsequent decisions by the court of common pleas found that the issue of successor
liability had not been adjudicated. During this time, as noted by respondent, the parties
were involved in pending litigation, including (1) an action for unjust enrichment, filed by
Daily Services on December 21, 2011, in which BWC filed a counterclaim on the issue of
successor liability, and (2) BWC's appeal of the Judge Reece decision, which resulted in a
decision rendered by this court on September 18, 2012. The record also reflects that the
parties, on October 17, 2012, executed a standstill agreement which remained in effect
until January 2013. Further, after the secretary of the adjudicating committee provided
notice of a hearing date to determine the issue of successor liability, Daily Services filed a
prohibition action in the Supreme Court, which the Supreme Court dismissed on
March 15, 2013. Finally, the record supports respondent's contention that the agency,
having originally scheduled a hearing date for March 5, 2013, rescheduled the hearing for
March 20, 2013, at the request of counsel for Daily Services.
{¶ 38} Upon review of the procedural history of this case, we find that the delay is
not "completely unexplained," nor does the record suggest that administrative delay
hindered the ability of Daily Services to present its evidence before the adjudicating
committee and the administrator's designee as to the issue of successor liability during
the 2013 hearing proceedings. Gourmet Beverage at ¶ 25. We therefore decline to hold
that BWC's failure to schedule the hearing prior to March 20, 2013 constituted
unreasonable delay. Having determined that the adjudicating committee was not without
jurisdiction to conduct the March 2013 hearing, and further finding no unreasonable
delay in the proceedings, we sustain respondent's first and second objections.
{¶ 39} Respondent's third and fourth objections contend the magistrate erred in
failing to confirm Daily Services' successor liability for I-Force's premium obligations, as
determined by the adjudicating committee and subsequently affirmed by the
administrator's designee. The magistrate, however, having concluded that the
adjudicating committee lacked continuing jurisdiction to conduct the March 2013
hearing, never reached the merits of the successor liability issue. In light of this court's
disposition of the first and second objections, we remand this matter to the magistrate to
address, in the first instance, the merits of the successor liability determination by the
No. 14AP-405 14
adjudication committee (as affirmed by the administrator's designee). Because the
magistrate has not yet addressed the merits of this action, respondent's third and fourth
objections are rendered moot.
{¶ 40} Based upon the foregoing, we adopt the magistrate's findings of fact, but not
the conclusions of law, and we decline to adopt the magistrate's recommendation that this
court issue a writ of mandamus. Respondent's first and second objections are sustained,
the third and fourth objections are rendered moot, and this matter is remanded to the
magistrate for further proceedings in accordance with law, consistent with this decision.
Objections sustained in part and rendered moot in part;
action remanded with instructions.
SADLER and LUPER SCHUSTER, JJ., concur.
_____________________
No. 14AP-405 15
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio ex rel. Daily Services, LLC, :
Relator, :
v. : No. 14AP-405
Stephen Buehrer, Administrator, : (REGULAR CALENDAR)
Ohio Bureau of Workers' Compensation,
:
Respondent.
:
MAGISTRATE'S DECISION
Rendered on April 27, 2015
Law Office of W. Evan Price II, LLC, and W. Evan Price, II,
for relator.
Porter, Wright, Morris & Arthur LLP, James A. King and
David S. Bloomfield, Jr., for respondent.
IN MANDAMUS
{¶ 41} In this original action, relator, Daily Services, LLC ("Daily Services" or
"relator"), requests a writ of mandamus ordering respondent, the Administrator of the
Ohio Bureau of Workers' Compensation ("administrator" or "bureau") to vacate the
March 20, 2013 order of the adjudicating committee and the November 14, 2013 order of
the administrator's designee that revisited the adjudication of relator's June 15, 2009
protest of the bureau's finding that it is the successor employer to I-Force LLC ("I-Force").
Relator claims that the bureau lacked jurisdiction to convene its March 20, 2013
No. 14AP-405 16
adjudicating committee. In the alternative, relator requests that the writ order
respondent to vacate the November 14, 2013 order of its administrator's designee that
determined that Daily Services wholly succeeded I-Force, and that pursuant to former
Ohio Adm.Code 4123-17-02(C)(1), Daily Services is liable for the unpaid premiums and
obligations of I-Force. Relator requests that, in the alternative, the writ order respondent
to enter an order finding that Daily Services did not wholly succeed I-Force and is thus
not liable for the unpaid premiums and obligations of I-Force.
Findings of Fact:
{¶ 42} 1. I-Force was in the business of providing temporary staffing services to its
customer employers. Up to the time it closed its business on or about March 23, 2009, I-
Force was owned by Ryan Mason. I-Force opened a workers' compensation policy with
the bureau effective December 19, 2005.
{¶ 43} 2. Also owned by Mason, Daily Services has had a workers' compensation
policy with the bureau since April 3, 2006. Daily Services is also in the business of
providing temporary staffing services to its customer employers.
{¶ 44} 3. Due to a poor claims history, I-Force lost its group rating status on
June 30, 2008.
{¶ 45} 4. For the payroll reporting period for the second half of 2008, premiums
were due by February 28, 2009. I-Force filed a payroll report, but did not make the
payroll payment for the second half of 2008.
{¶ 46} 5. Prior to its closing, the I-Force headquarters was located in a building
adjacent to Daily Services' offices on Morse Road in Columbus, Ohio.
{¶ 47} 6. In April and May 2009, the bureau conducted an audit of Daily Services.
{¶ 48} 7. On April 29, 2009, the bureau executed a subpoena. Payroll records and
client lists were obtained.
{¶ 49} 8. In May 2009, investigators from the bureau's Special Investigations Unit
conducted interviews of former I-Force employees.
{¶ 50} 9. By letter dated May 22, 2009, Michael Glass, the bureau's director of
underwriting and premium audit department, informed relator:
We received notification of a business acquisition/merger or
purchase/sale, and have determined you are the successor
employer for Ohio workers' compensation purposes.
No. 14AP-405 17
As the successor employer for the entire operation, you are
responsible for all existing and future financial rights and
obligations of the former employer. BWC will base your
workers' compensation rate(s) on the former employer's
experience or the combined experience of all employers
involved in the transaction if you had established coverage
prior to acquiring the business. As a result, BWC will re-
calculate your premium rates, which may result in a rate
change.
{¶ 51} 10. On or about May 22, 2009, the bureau mailed to Daily Services an
invoice indicating that Daily Services owed the bureau $3,486,852.87. The balance was
due June 19, 2009.
{¶ 52} 11. By letter dated June 15, 2009, relator's counsel protested the invoice:
The invoice contains language stating "as the successor to I-
FORCE LLC, you are responsible for any total balance shown
on the invoice Invoice/Statement for this policy." Daily
Services is unaware of any prior determination that it is the
successor to I-Force LLC and hereby protests to and appeals
any such determination. Daily submits that the amount
invoiced is a liability solely of I-Force, not Daily, and
requests that the matter be referred to the Bureau's
Adjudicating Committee for resolution.
{¶ 53} 12. On June 25, 2009, the bureau filed with the clerk of the Franklin County
Court of Common Pleas ("common pleas court") a certificate of judgment against I-Force
in the amount of $3,886,816.08.
{¶ 54} 13. On October 13, 2009, the bureau discharged its judgment lien against I-
Force.
{¶ 55} 14. Earlier, on September 1, 2009, the bureau filed in the common pleas
court a complaint against Mason, Daily Services, and I-Force. The complaint alleged that
I-Force, through Mason, fraudulently transferred its assets to Daily Services to avoid the
payment of its liabilities to the bureau. The complaint sought an injunction against
Mason and the appointment of a receiver. The bureau alleged that, as of the date I-Force
closed, i.e., March 23, 2009, I-Force had unpaid obligations for workers' compensation
premiums in the amount of $3,926,605.26. The action was assigned case No. 09-CVH-9-
13229.
{¶ 56} 15. On March 21, 2011, the bureau voluntarily dismissed its action in case
No. 09-CVH-9-13229.
No. 14AP-405 18
{¶ 57} 16. Earlier, following an October 15, 2009 hearing, the bureau's
adjudicating committee issued an order stating:
Background Facts and Issues Presented: During an
Audit, the BWC transferred experience, rights and
obligations from predecessor I-FORCE LLC, Policy
#1484986 to successor DAILY SERVICES LLC, Policy
#1495057 pursuant to Ohio Administrative Code (O.A.C.)
4123-17-02(B) and (C).
***
The Employer protested the transfer/combination and
requested a hearing before the Adjudicating Committee.
***
Employer's Position:
The experience combination was proper. The bureau
properly applied the rules. The two companies started as
separate businesses. They had separate contracts and
customers. However, I-Force was closed and certain
employees and contracts were transferred to Daily Services,
LLC.
Bureau's Position:
The BWC representative stated the employer's
representatives stated that employer ran a temporary
agency. The owner of I-Force is also the owner of Daily
Services. The businesses are the same. The clients are the
same. The location of the business is the same. The
employees of the companies are the same. The employer
never notified the Bureau of the transfer of the business
when it applied for the new policy.
Findings of Fact and Conclusion of Law:
Based on the testimony at the hearing and the materials
submitted with the protest, the Adjudicating Committee
affirms the experience combination. The employer
representatives indicated at hearing they were in agreement
with the BWC position.
***
An appeal of this order may be filed within thirty
days of its receipt by the employer.
No. 14AP-405 19
{¶ 58} 17. The October 15, 2009 order of the adjudicating committee was not
administratively appealed to the administrator's designee as provided by R.C. 4123.291.
{¶ 59} 18. On November 6, 2009, the bureau filed with the clerk of the common
pleas court a certificate of judgment against Daily Services in the amount of
$54,959,570.71.
{¶ 60} 19. On August 18, 2010, pursuant to Civ.R. 60(B), Daily Services moved the
common pleas court to vacate the bureau's November 6, 2009 certificate of judgment.
(The case was assigned No. 09JG-46435.)
{¶ 61} 20. On February 8, 2011, the common pleas court, through Judge John
Bessey granted Daily Services' August 18, 2010 motion to vacate the bureau's
November 6, 2009 certificate of judgment. In his decision and entry granting relief to
Daily Services, Judge Bessey explained:
[T]he Court finds that before Plaintiff BWC filed its suit in
Case No. 09CVH09-13229, seeking to hold Defendant liable
for I-Force's debt as a successor-in-interest, Defendant did
protest the BWC's attempt to combine the experience of
Defendant with I-Force for the purpose of setting future
premiums. However, the Court finds that the BWC
mistakenly claims that the hearing before the Adjudicating
Committee of the BWC resulted in a finding that Defendant
was a successor to I-Force. The October 15, 2009 Order of
the Adjudicating Committee of the BWC specifically states:
Based on the testimony at the hearing and the
materials submitted with the protest, the Adjudicating
Committee affirms the experience combination. The
employer representatives indicated at the hearing
they were in agreement with the BWC position.
[Emphasis added.]
The Court finds that this Order makes no reference to the
issue of whether Defendant was a successor to I-Force and
thus liable for I-Force's deficiencies.
(Emphasis sic.)
{¶ 62} 21. The judgment of the common pleas court (Judge Bessey) that vacated
the November 6, 2009 certificate of judgment was not appealed to this court.
{¶ 63} 22. Earlier, during September 2010, the bureau issued an "assessment" in
the amount of $3,170,366.53. Daily Services protested the "assessment."
No. 14AP-405 20
{¶ 64} 23. Following a January 13, 2011 hearing, the adjudicating committee
issued an order upholding the assessment in the amount of $3,170,366.53. As indicated
in the order, during the hearing Daily Services' counsel objected to the jurisdiction of the
committee to hear the protest. Daily Services argued that the committee lacked
jurisdiction over Daily Services' protest because of the civil action then pending in the
common pleas court in case No. 09-CVH-9-13229. (Judge Bessey's judgment entry was
filed February 8, 2011 and the committee's order was mailed February 9, 2011.)
{¶ 65} The adjudicating committee's decision to uphold the assessment was
premised upon its interpretation of the scope of the October 15, 2009 committee order
that was not administratively appealed:
The Bureau's representative stated that the subject debt was
transferred to Daily Services as the result of an experience
combine with the experience of I-Force having been
transferred to Daily Services. The Committee notes that the
specific issue of the experience combination was specifically
before the Adjudicating Committee on October 15, 2009. In
the resulting order, the Adjudicating Committee, in affirming
the experience combination, specifically stated that "[t]he
employer representatives indicated at hearing they were in
agreement with the BWC position." The order from the
October 15, 2009 hearing, was not appealed.
{¶ 66} 24. Daily Services administratively appealed the January 13, 2011 order of
the adjudicating committee to the administrator's designee.
{¶ 67} 25. On February 18, 2011, while the January 13, 2011 order of the
adjudicating committee was pending before the administrator's designee, the bureau filed
with the clerk of the common pleas court a certificate of judgment against Daily Services
in the amount of $3,170,366.53.
{¶ 68} 26. Pursuant to Civ.R. 60(B), on March 9, 2011, Daily Services moved the
common pleas court to vacate the bureau's February 18, 2011 certificate of judgment
{¶ 69} 27. Following an April 19, 2011 hearing, the administrator's designee
mailed an order on June 14, 2011 that affirms the January 13, 2011 order of the
adjudicating committee.
{¶ 70} 28. On November 21, 2011, the common pleas court, through Judge Guy L.
Reece, II, granted Daily Services' March 9, 2011 motion to vacate the bureau's
No. 14AP-405 21
February 18, 2011 certificate of judgment. In his lengthy decision and entry (18 pages)
Judge Reece explains:
The issue of whether a successor-in-interest finding was
made on October 15, 2009, was argued before Judge Bessey
in Case No. 09JG-46435 and Judge Bessey found that such a
determination had not been made in the October 15, 2009
order. Daily Services and the BWC were both parties to the
action pending before Judge Bessey and it is undisputed that
this is a court of competent jurisdiction. Accordingly, the
Court agrees with Daily Services about the preclusive effect
of Judge Bessey's February 8, 2011 decision - as to whether a
successor-in-interest determination was made in the
October 15, 2009 order - on the February 9, 2011 decision by
the Adjudicative Committee and on the June 14, 2011
decision by the Designee.
{¶ 71} 29. The bureau appealed the November 21, 2011 judgment of Judge Reece
to this court. On September 18, 2012, this court issued its decision affirming Judge
Reece's decision granting relief to Daily Services under Civ.R. 60(B). This court held that
R.C. 4123.37 did not permit the bureau to obtain a judgment lien against Daily Services
while its administrative appeal to the administrator's designee was pending. State ex rel.
Ohio Bur. of Workers' Comp. v. Daily Serv., LLC, 10th Dist. No. 11AP-1122, 2012-Ohio-
4242.
{¶ 72} 30. By letter dated February 28, 2013, the bureau noticed Daily Services
that its "experience combine protest" has been rescheduled for a hearing before the
adjudicating committee on March 20, 2013. The letter informed that "[o]nly issues
contained in Enclosed Statement of Protest will be heard at the hearing." (Emphasis sic.)
The enclosure stated:
In May 2009, the Bureau determined that Daily Services,
LLC was the successor to I-Force, LLC and responsible for I-
Force's unpaid premiums. In June 2009, the Bureau issued
invoices to Daily Services, billing Daily Services for I-Force's
unpaid premiums. The invoices noted that Daily Services
was the successor to I-Force, LLC and responsible for I-
Force's unpaid premiums, stating that "As a successor to I-
Force, LLC, you are responsible for any total balance shown
on the Invoice/Statement for this policy."
In a letter dated June 15, 2009, the employer protested the
Bureau's determination that the [sic] Daily Services was a
successor in interest to I-Force within the meaning of O.A.C.
No. 14AP-405 22
4123-17-02(C). Specifically, the employer argued that the
"amount invoiced is a liability solely of I-Force, not Daily
[Services]…."
On October 15, 2009, the bureau's Adjudicating Committee
held a hearing on the employer's protest. The statement of
facts for that hearing noted that the Bureau would determine
first, whether I-Force's experience should be transferred to
Daily Services under O.A.C. 4123-17-02(B), and second,
whether Daily Services was a successor to I-Force and thus
was liable for I-Force's obligations under O.A.C. 4123-17-
02(C).
In a decision dated October 15, 2009, the Adjudicating
Committee held that I-Force's experience should be
transferred to Daily Services under O.A.C. 4123-17-02(B). As
determined by two judges of the Franklin County Court of
Common Pleas, however, the Adjudicating Committee never
determined the second issue, i.e., whether Daily Services was
a successor to I-Force and thus was liable for I-Force's
obligations under O.A.C. 4123-17-02(C).
Therefore, a hearing is scheduled with the Adjudicating
Committee to provide the employer the opportunity to fully
administratively adjudicate the Bureau's determination on
successor liability under O.A.C. 4123-17-02(C).
(Emphasis sic.)
{¶ 73} 31. Earlier, on January 16, 2013, the bureau issued notice that Daily
Services' June 2009 protest was scheduled for hearing before the adjudicating committee
on March 5, 2013. The notice of hearing prompted relator to file an original action in
prohibition in the Supreme Court of Ohio on January 29, 2013. In its complaint, Daily
Services requested a writ prohibiting respondent "from exercising any further jurisdiction
on the 2009 Protest."
{¶ 74} 32. On March 15, 2013, the Supreme Court of Ohio granted the
respondents' motion to dismiss the prohibition action.
{¶ 75} 33. Following a March 20, 2013 hearing, the bureau's three-member
adjudicating committee issued a lengthy order (23 pages) in which it concluded:
This Adjudicating Committee DENIES the Employer's
protest of the transfer/Combination based on the Joint
Exhibits, evidence outlined in the Statement of Facts, and
the referenced testimony and evidence. The Committee finds
No. 14AP-405 23
Daily Services is a successor-in-interest to I-Force for
workers' compensation purposes under Ohio Adm.Code
4123-17-02(C) and thus, liable for I-Force's obligations. Ryan
Mason guided I-Force [sic] through a "seamless" takeover of
I-Force's occupation or industry in such a way that Daily
Services wholly succeeded I-Force for workers'
compensation purposes. The maneuvering that moved
business operations from one legal entity to another
discussed above amounts to a voluntary transfer of business
operations.
{¶ 76} 34. The order of the adjudicating committee was mailed in July 2013.
{¶ 77} 35. During the period between the hearing date of the adjudicating
committee and the mailing of its order, the common pleas court, through Judge Kim
Brown, issued a decision in a civil action that had been filed by Daily Services against the
bureau in December 2011. That civil action was assigned case No. 11CV-15913. In that
action, the bureau had filed a counterclaim against Daily Services. On May 15, 2013,
Judge Brown issued a decision and entry that, among other things, dismissed the bureau's
counterclaim.
{¶ 78} 36. Relator administratively appealed the March 20, 2013 order of the
adjudicating committee to the administrator's designee pursuant to R.C. 4123.291.
{¶ 79} Following a November 14, 2013 hearing, the administrators' designee issued
an order affirming the March 20, 2013 order of the adjudicating committee. The order of
the administrator's designee explains:
Pursuant to Ohio Revised Code Section 4123.291, this matter
came on for hearing before the Administrator's Designee on
the employer's appeal of the Adjudicating Committee order
dated March 20, 2013. At issue before the Administrator's
Designee was the Bureau's determination that Daily Services,
LLC ("Daily Services") was the successor to I-Force, LLC ("I-
Force") and responsible for I-Force's unpaid premiums.
In a decision dated October 15, 2009, the Adjudicating
Committee held that I-Force's experience should be
transferred to Daily Services under OAC 4123-17-02(B). As
determined by two judges of the Franklin County Court of
Common Pleas, however, the Adjudicating Committee never
determined the second issue, i.e., whether Daily Services was
a successor to I-Force and thus was liable for I-Force's
obligations under OAC 4123-17-02(C).
No. 14AP-405 24
Therefore, the Administrator's Designee hearing was
scheduled to provide the employer the opportunity to fully
administratively adjudicate the Bureau's determination on
successor liability under OAC 4123-17-02(C).
***
The Administrator's Designee adopts the Statement of Facts *
* * contained in the order of the Adjudicating Committee
dated March 20, 2013.
As a preliminary matter, Daily Services argued before the
Administrator's Designee * * * and in its Hearing Brief
submitted November 14, 2013, that the Adjudicating
Committee lacks jurisdiction to consider the issue of Daily
Services' liabilities as a successor to I-Force under OAC
4123-17-02(C). The Administrator's Designee rejects Daily
Services' argument and finds the Adjudicating Committee
retained jurisdiction to consider the issue of Daily Services'
successor liability on March 20, 2013, as the issue, having
been raised by Daily Services' June 15, 2009, protest,
remained unresolved; the Adjudicating Committee had never
issued a final administrative order addressing the matter.
The Administrator's Designee is persuaded by, and hereby
adopts, the analysis contained in pages 15-16 of the
March 20, 2013, Adjudicating Committee order, which states
in part:
Daily Services asserted in its hearing brief that this
Adjudicating Committee does not have jurisdiction to hold
another hearing. This assertion is moot in light of the
Supreme Court's denial of Daily Services' prohibition action
and the dismissal of the bureau's counterclaim in case no. 11-
CV-015913. The question of successor liability remains
unresolved, therefore, the Adjudicating Committee retains
jurisdiction over Daily Services' original protest of the
Bureau's successor determination that was submitted by
Daily Services on June 15, 2009. Two separate court
decisions found the order from the Adjudicating Committee
held October 15, 2009, which was in response to the June 15,
2009 protest, failed to determine whether Daily Services is
the successor to I-Force. On May 15, 2013, in case no. 11-CV-
015913, the court found "the Adjudicating Committee is the
proper forum for adjudicating the issue of Plaintiff's
successor liability." * * *
Daily Services' protest has not been fully adjudicated. Courts
that have interpreted the order from the Adjudicating
No. 14AP-405 25
Committee held October 15, 2009 have found the
Adjudicating Committee did not address Daily Services'
protest challenging the Bureau's determination that Daily
Services is a successor to I-Force. As a matter of law, the
matter remains pending at the Adjudicating Committee
processing level. See State Bur. of Workers' Comp. v. C.W.
Fletcher, 4th Dist. No. 96CA32, 1997 Ohio App. LEXIS 923,
*12 (Mar. 13, 1997) (holding that the BWC's failure to
administratively decide a petition challenging an assessment
"left the matter pending"); see also State Bur. of Workers'
Comp. v. Daily Services, LLC, 10th Dist. No. 11AP-1122,
2012-Ohio-4242, 1 ¶ 22-23 (recognizing and following the
Fourth District's Fletcher opinion).
***
As the court in Fletcher noted, "Adjudicative functions by
administrative agencies allow matters to be resolved by
experts in that area and often provide for a less formal
hearing atmosphere. However, a lesser level of formality
does not relieve the administrative agency from entering a
final order on matters presented to it. Orders are necessary
to bring finality and resolution to matters." Fletcher, 1997
Ohio App. LEXIS 923, at *9. Prior to March 20, 2013, the
Adjudicating Committee had not issued a final
administrative order addressing the issue of Daily Services'
liability under OAC 4123-17-02(C) as successor-in-interest to
I-Force; therefore, the Committee had retained, and properly
exercised, jurisdiction to do so.
Determination of Successorship
At issue in this case is whether Daily Services is the successor
employer of I-Force under the Ohio workers' compensation
laws, specifically for purposes of determining Daily Services'
liability for the unpaid premium obligations of I-Force. The
relevant issues in determining whether there is a
successorship are whether there was a transfer of the
operations of the business, in whole or in part, and whether
the transfer was voluntary.
R.C. 4123.32 provides the basis for the Bureau to make
successorship determinations. R.C. 4123.32(C) states:
The administrator of workers' compensation, with the advice
and consent of the bureau of workers' compensation board of
directors, shall adopt rules with respect to the collection,
No. 14AP-405 26
maintenance, and disbursements of the state insurance fund
including all of the following:
***
(C) Such special rules as the administrator considers
necessary to safeguard the fund and that are just in the
circumstances, covering the rates to be applied where one
employer takes over the occupation or industry of another or
where an employer first makes application for state
insurance, and the administrator may require that if any
employer transfers a business in whole or in part or
otherwise reorganizes the business, the successor in interest
shall assume, in proportion to the extent of the transfer, as
determined by the administrator, the employer's account and
shall continue the payment of all contributions due under
this chapter; …
(emphasis added.)
On the authority of R.C. 4123.32(C), BWC adopted Rule
4123-17-02 to further the purposes embodied in the statute.
The rule has been in effect in some form since at least 1962.
During the time period relevant to this case [March 2009],
Paragraph (B) of the rule provided (and still provides)
various scenarios to determine whether the Bureau will
transfer the experience of the predecessor, in whole or in
part, to the successor to establish an experience modifier rate
for the successor, based upon the Bureau's determination of
whether, and the extent to which, the employer succeeded
another legal entity in the operation of a business. The
Adjudicating Committee order dated October 15, 2009,
affirmed that Daily Services wholly succeeded I-Force for
purposes of experience combination under OAC 4123-17-
02(B), and that order was not appealed. * * *
Paragraph (C) of the rule as in effect during the time period
relevant to this case (the version initially effective July 27,
2006), provided for the transfer of the liabilities of the
predecessor to the successor employer where the Bureau
determines that "one employer wholly succeeds another in
the operation of a business:"
(C) Succeeding employers -- risk coverage transfer.
(1) Whenever one employer succeeds another employer in
the operation of a business in whole or in part, the successor
shall notify the bureau of the succession. Where one
No. 14AP-405 27
employer wholly succeeds another in the operation of a
business, the bureau shall transfer the predecessor's rights
and obligations under the workers' compensation law. The
successor shall be credited with any credits of the
predecessor, including the advance premium security deposit
of the predecessor. This paragraph shall apply where an
employer wholly succeeds another employer in the operation
of a business on or after September 1, 2006.
(Emphasis added.)
In State ex rel. Lake Erie Constr. Co. v. Indus. Comm.
(1991), 62 Ohio St.3d 81, the Ohio Supreme Court held that
"a successor in interest, for workers' compensation purposes,
is simply a transferee of a business in whole or in part." Id. at
83. The Court noted that "the General Assembly would have
expressly set forth a more specialized meaning if that was its
intent." Id. at 83.
In State ex rel. Valley Roofing, L.L.C. v. Ohio Bur. of
Workers' Comp., 122 Ohio St.3d 275, 2009-Ohio-2684 the
Court emphasized the importance of a voluntary transfer of
the business in the determination of successorship. Citing
State ex rel. Crosset Co., Inc. v. Conrad (2000), 87 Ohio
St.3d 467, the Court stated "the specific language of R.C.
4123.32(D) [now R.C. 4123.32(C)] * * *, i.e., employer
transfers his business in whole or in part or otherwise
reorganizes the business, is plain and unambiguous. The
language of the statute clearly refers to a voluntary act of the
employer and not the involuntary transfer of the employer's
business through an intermediary bank." (emphasis added.)
Daily Services argued before the Administrator's Designee
and in its Hearing Brief submitted November 14, 2013 that
the Ohio Supreme Court decision in State ex rel. K&D
Group, Inc. v. Buehrer, 135 Ohio St.3d 257, 2013-Ohio-734,
precludes a finding that Daily Services is a successor to I-
Force because, it alleges, there was no "voluntary transfer" of
business operations from I-Force to Daily Services. The K&D
Group, Inc., case dealt with the management of an
apartment complex upon transfer of ownership of the
apartment complex. The Court found in that case that the
new management company was not a successor to the old
management company; prior to doing so, the Court stated
the following standards to determine successorship:
. . . First, K&D Group argues that it was not a party to the
sale of the apartments and it did not acquire any assets as a
No. 14AP-405 28
result of the transaction. But neither R.C. 4123.32(C) nor
Ohio Adm.Code 4123-17-02(B)(3) requires the transfer of
assets. The focus of the statute and the rule is the transfer of
business operations or labor, not the legal concept of
corporate succession. R.C. 4123.32(C) ("where one employer
takes over the occupation or industry of another" [emphasis
added]); Ohio Adm.Code 4123-17-02(B)(3) ("Where a legal
entity succeeds in the operation of a portion of a business * *
*" [emphasis added]). A business operation may be
transferred through methods other than a purchase …
K&D Group, Inc., at 14 (emphasis added)
The Administrator's Designee finds that the Court held K&D
Group, Inc. was not a successor because of the unique facts
of that case, facts that are not present in this adjudication.
In that case, K&D Enterprises, Inc. contracted with Fame-
Midamco Company, L.L.C. (by and through Fame-
Midamco's management company, Mid-America) to
purchase an apartment complex, and assigned its rights
under the purchase agreement to newly created company
Euclid-Richmond Gardens, Ltd. The new company hired
K&D Group, Inc. to manage the apartments. K&D Group,
Inc. hired some former employees of Mid-America and
assumed the day-to-day operations of the complex. Under
these facts, the Court found there was no voluntary transfer
of business operations from Mid-America to K&D Group,
Inc.; rather, the Court held, "K&D Group merely contracted
with the new owner to assume management of the existing
apartment complex." K&D Group, Inc., at ¶ 16. In other
words, the Court held that the new owners of the complex
had simply hired a new management company.
The present case is distinguishable. Both I-Force and Daily
Services are owned by the same individual. Ryan Mason
* * *, and the testimony and other evidence submitted to the
Adjudicating Committee support the Committee's conclusion
that, at Ryan Mason's direction * * *, employees transferred
the business operation of long-term temporary staffing from
I-Force to Daily Services, which previously had offered only
day laborer services * * *. Among the evidence to support
such conclusion, as set forth in the Adjudicating Committee's
Statement of Facts and the evidence presented:
 When I-Force shut down, Daily Services "had
something like six or seven" permanent employees
and hired a number of I-Force permanent employees.
No. 14AP-405 29
* * * Daily Services made job offers "to virtually
everyone" and on "the next pay date, or the first that
came after that, 54 of those folks were then employed
by Daily Services." Id. They were terminated on
Friday and most accepted positions at Daily Services.
* * * I-Force did not have the right to sell or assign its
permanent staff to anyone…" * * * Some of the
permanent staff are long-time employees doing the
same thing some were "previously employed by
Mancan when I-Force was still part of Mancan…" * * *
 Daily Services asserted that "I-Force's leases were
terminated or breached. Daily Services went in and
signed new leases for the properties, to the extent they
were able to. Some of the properties were actually
owned by Ryan Mason personally. They have
previously been leased by I-Force and were
subsequently leased by Daily Services." * * * "[T]he
properties weren't transferred, I-Force shut down,
had 31 locations and Daily Services was able to lease
11 of those locations thereafter." * * * Daily Services
took over the computer leases of I-Force. * * * Daily
Services made all of their quarterly tax payments to
the Federal Government. Id. * * *
 Mr. Mason had his employees contact his I-Force
clients who were to contact and re-sign them to Daily
Services. * * *
 The contracts mirrored those of I-Force with the only
difference being the name of the company and
contracting services. * * *
 The staff employees were moved from one company to
the other over a weekend and were required to sign
no-compete clauses and some employees were asked
to backdate those employee forms to March of 2009.
***
 Ms. Archer also testified about a ranking system that
was used to determine which clients Daily Services
would want to keep from I-Force where the client
employers were ranked between 1 and 3. * * *
 During the month of April and early March of 2009,
BWC's Workers' Compensation Insurance System
(WCIS) reflects an extreme number of notes for new
No. 14AP-405 30
manual codes to be added to the Daily Services'
account. * * * This indicates "they were preparing to
move the clients from I-Force to Daily so the manual
codes would be there so when they had to report the
payroll under that six months [reporting period],
there would be three months under one company and
three months under the other." * * *
 "Based on the interviews … the regional supervisors
were sent out with new contracts and told them to let
the customers know that it was just a name change, it
would be no interruption of their services, that they
were just wanting them to sign the new paperwork
with the new Talocity name on it." * * *
 Daily Services asserted before the Adjudicating
Committee that "roughly one-third of the business
that formerly belonged to - the payroll that it formerly
belonged to I-Force wound up being utilized, being
billed out by Daily Services in the following months."
* * * However, as counsel for the Bureau pointed out
during the hearing, on day one of business, Daily
Services had approximately half of I-Force's business.
The 30 percent of the customers comprised 50
percent of I-Force sales for that snapshot period of
time. * * *
 On March 23, 2009, Ryan Mason ceased operating I-
Force's line of business through I-Force, LLC. * * *
 Daily Services purchased the right to use the name "I-
Force. * * * Since then, Daily Services has operated
under the trade name "I-Force" with date of first use
being listed as 5/01/2010. * * *
 Daily Services dba I-Force held itself out as a
continuation of I-Force on its website, which at the
time of the Adjudicating Committee hearing on
March 20, 2013 displayed a company history nearly
identical to that on I-Force's website in February
2009, prior to I-Force's ceasing operations. * * *
 Columbus CEO magazine's ranking of temporary
staffing agencies based on the number of Central Ohio
hours billed during 2008 (prior to I-Force's ceasing
operations), 2011, and 2012 all list "I-Force" as the
second-largest temporary staffing agency in Central
No. 14AP-405 31
Ohio, with the same address, website, and telephone
number for "I-Force" on all three lists. * * *
Thus, the evidence supports the Adjudicating Committee's
conclusion that Ryan Mason, as owner of both companies,
orchestrated the assumption of I-Force's long-term
temporary staffing business operations by Daily Services,
targeting the most desirable client employers based on a
ranking system, to avoid the negative experience rating and
unpaid premium obligations of I-Force.
As noted above, the Court in K&D Group, Inc., clearly stated
that "[a] business operation may be transferred through
methods other than a purchase," and it is reasonable to find
these circumstances to constitute such an occasion. For Daily
Services to assert there was no voluntary transfer of business
operations in this case is akin to arguing that Mr. Mason's
right hand did not know what his left hand was doing.
In addition to K&D Group, Inc., Daily Services cites to two
Tenth District Court of Appeals cases as support that a
finding of successorship against Daily Services is not
appropriate; however, a reading of the cases does not
support Daily Services' contention.
In State ex rel. Cleveland Professional Football, L.L.C. v.
Buehrer, 2012-Ohio-6020, following the bankruptcy of the
old Arena Football League ("Old League"), the old Cleveland
AFL team ("Old Gladiators") ceased operations, and a new
company ("New Gladiators") purchased the rights to the
Cleveland Gladiators logo from an investor group ("New
League") that had purchased the assets of the Old League in
the bankruptcy proceeding. Unlike the Old League, under the
business model of the New League the players and coaches
would be employed by the league, not by the individual
teams, which would be involved solely with the sale of
tickets, sponsorship, and merchandise for sports
entertainment. Cleveland Professional Football at ¶ 51-52.
The BWC Adjudicating Committee and Administrator's
Designee found that New Gladiators wholly succeeded Old
Gladiators. The 10th District Court of Appeals, however,
found otherwise, holding that a partial rather than a
complete transfer of experience was appropriate, since the
players and coaches part of Old Gladiators business
operations did not carry over to New Gladiators:
No. 14AP-405 32
{¶ 6} We are unable to discern whether the BWC objects to
the remaining portion of the magistrate's decision that
directs the BWC to expressly address how it will apply Old
Gladiators' experience rating to New Gladiators, given that
New Gladiators is the transferee of only a portion of Old
Gladiators' business. We note that if only a portion of Old
Gladiators' business was transferred to New Gladiators, Old
Gladiators' experience rating is transferred in proportion to
the business transferred pursuant to Ohio Adm.Code 4123-
17-02(B)(3). We see no defect in this part of the magistrate's
analysis.
{¶ 7} As noted by the magistrate, New Gladiators does not
employ players or coaches. Therefore, it is not the transferee
of this portion of Old Gladiators' business. Therefore, we
agree with the magistrate that the BWC abused its discretion
by transferring all of Old Gladiators' experience rating to
New Gladiators. To the extent that the BWC objects to this
portion of the magistrate's conclusion of law, we overrule the
objection.
Cleveland Professional Football at ¶ 6, 7. (emphasis added.)
In State ex rel. RFFG, L.L.C. v. Ohio Bur. of Workers' Comp.,
2013-Ohio-241, temporary staffing agency Ameritemps, Inc.
("Ameritemps") was purchased by WTS Acquisition
Company and subsequently transferred to RFFG. RFFG
notified BWC of the purchase, and BWC notified RFFG that
BWC would consider it the successor to Ameritemps for
workers' compensation purposes. RFFG did not want to
assume all the risks associated with Ameritemps and argued
that it had changed significant portions of how and where
Ameritemps had formerly done business. RFFG at ¶ 4-6.
However, RFFG ultimately failed to provide sufficient
documentation to substantiate those assertions, and as a
result, the Tenth District Court of Appeals upheld BWC's
determination of successorship.
In the course of its analysis, the court indicated that a
reduction in the number of offices or employees, or the
number of client employers was itself not determinative;
rather, the key issue was whether the risks were the same for
RFFG as they were for Ameritemps -- in other words, were
the business operations of RFFG the same as Ameritemps,
even if fewer offices/employees were performing them for
fewer client employers:
No. 14AP-405 33
{¶ 9} As to the first objection, the information provided to
BWC did not really address the key issue of the risks involved
in the ongoing business. The fact that only 4 of 12 offices
remained open did not inform the BWC of the alleged
changes in the business… A reduction in the number of
business clients, without information of which business
clients were involved and what services were provided to the
remaining clients does not tell the BWC whether the risk of
injury has changed …
{¶ 10} The magistrate acknowledges that some information
provided by RFFG is present in the record before us. Key
information as to the risks for workers in the ongoing
business was not provided. RFFG/Ameritemps may employ
fewer people, but the risks associated with the work done
may well be unchanged. What RFFG/Ameritemps pays BWC
will be reduced if fewer people are employed but the rate per
employee does not need to change just because fewer or
different people may be employed doing the same tasks.
***
{¶ 13} The adjudicating committee had only allegations as to
the change of the tasks performed on behalf of the ongoing
clientele, no real proof of a significant change in the risk to
employees. The information provided via the U–118 and
purchase agreement clearly showed WTS and RFFG were a
successor to Ameritemps. RFFG did not demonstrate that
the risks changed, only that fewer and/or different people
were performing the functions previously performed by
Ameritemps.
RFFG at ¶ 9, 10, 13 (emphasis added.)
Daily Services cites to both the Cleveland Professional
Football and RFFG cases for the proposition that, since Daily
Services "did not pick up all of I-Force's business operations,
customers, or employees" * * * a finding that Daily Services
wholly succeeded I-Force is improper. Daily Services'
argument hinges largely on its pointing out that it did not
assume 100% of I-Force's permanent staff, temporary staff,
or client employers on March 23, 2009.
However, as the RFFG case suggests, the numbers alone are
not dispositive. Like RFFG, Daily Services has not
demonstrated, and the evidence submitted does not support,
that the nature of Daily Services' business operations (or
risks) as of March 23, 2009, forward is significantly different
from that of I-Force. Instead, the evidence shows that Daily
No. 14AP-405 34
Services requested "an extreme number of new manual
codes" be added to its BWC account, so as to enable it to
offer the long-term temporary staffing services I-Force had
offered, which it could then offer not only to I-Force clients
moving to Daily Services, but to any new clients as well. * * *
In Cleveland Professional Football, New Gladiators could
demonstrate its risk was significantly different from that of
Old Gladiators, and the Tenth District accordingly found
New Gladiators did not wholly succeed Old Gladiators'
business operations: Daily Services, like RFFG, has not
demonstrated so. Therefore, a finding that Daily Services
wholly succeeded I-Force -- both for purposes of experience
combination under OAC 4123-17-02(B), as the Adjudicating
Committee had previously determined * * *, and for the
transfer of liabilities under OAC 4123-17-02(C) -- is
appropriate.
***
[T]he Administrator's Designee specifically finds, for the
reasons set forth in this order and in the Adjudicating
Committee order dated March 20, 2013, that Daily Services
wholly succeeded I-Force for purposes of the transfer of I-
Force's "rights and obligations under the workers'
compensation law," including I-Force's unpaid premium
liabilities, to Daily Services pursuant to OAC 4123-17-
02(C)(1) as in effect at the time of the voluntary transfer of I-
Force's business operations to Daily Services on March 23,
2009.
Based on the testimony and other evidence presented at the
hearing, the Administrator's Designee, with the Affirmation
of Legal Standard Applied as set forth above, AFFIRMS the
decision, findings, and rationale set forth in the order of the
Adjudicating Committee dated March 20, 2013.
{¶ 80} 37. On May 19, 2014, relator, Daily Services, LLC, filed this mandamus
action.
Conclusions of Law:
{¶ 81} The issue is whether the bureau had R.C. 4123.52 continuing jurisdiction to
adjudicate that portion of relator's June 2009 protest regarding the bureau's transfer of I-
Force's premium obligations under Ohio Adm.Code 4123-17-02(C) long after the bureau,
No. 14AP-405 35
through its adjudicating committee of October 15, 2009 had issued a final order
adjudicating the protest.
{¶ 82} It is the magistrate's decision that the bureau lacked R.C. 4123.52
continuing jurisdiction to convene an adjudicating committee to revisit the October 15,
2009 final order of the adjudicating committee. Accordingly, as more fully explained
below, it is the magistrate's decision that this court issue a writ of mandamus ordering the
bureau to vacate the March 20, 2013 order of its adjudicating committee and the
November 14, 2013 order of its administrator's designee.
{¶ 83} R.C. 4123.52 states:
The jurisdiction of the industrial commission and the
authority of the administrator of workers' compensation over
each case is continuing, and the commission may make such
modification or change with respect to former findings or
orders with respect thereto, as, in its opinion is justified.
{¶ 84} 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; (5)
error by an inferior tribunal. State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585,
2004-Ohio-5990; State ex rel. Royal v. Indus. Comm., 95 Ohio St.3d 97 (2002); State ex
rel. Foster v. Indus. Comm., 85 Ohio St.3d 320 (1999); State ex rel. Nicholls v. Indus.
Comm., 81 Ohio St.3d 454 (1998).
{¶ 85} Any commission order seeking to exercise continuing jurisdiction must
clearly state which of the five bases it is relying on. Nicholls at 459. The reason for the
exercise of continuing jurisdiction must be articulated contemporaneously with the
exercise of continuing jurisdiction, not belatedly. Royal at 100. An incomplete
continuing jurisdiction order cannot be rehabilitated by a subsequent order. Id.{¶ 86} In Gobich, the court describes Nicholls, Foster, and Royal as
"uncompromising in their demand that the basis for continuing jurisdiction be clearly
articulated." Gobich at ¶ 18. "This rule destroys any assertion that an informal or silent
invocation of continuing jurisdiction can occur." State ex rel. Internatl. Truck & Engine
Corp. v. Indus. Comm., 119 Ohio St.3d 402, 2008-Ohio-4494, ¶ 15. As R.C. 4123.52
indicates, like the commission, the administrator of workers' compensation is also
statutorily granted continuing jurisdiction. Presumably, the rules regarding continuing
No. 14AP-405 36
jurisdiction made applicable to the commission through case law are also applicable to the
administrator. See State ex rel. Ochs v. Indus. Comm., 85 Ohio St.3d 674 (1999).
{¶ 87} Here, while the March 20, 2013 order of the adjudicating committee and the
November 14, 2013 order of the administrator's designee address a jurisdictional issue,
neither order articulates which of the five bases for continuing jurisdiction is relied upon.
Rather, the orders find jurisdiction, in large part, based upon two court decisions in which
the trial judges determined that the October 15, 2009 adjudicating committee order fails
to adjudicate whether relator is a successor-employer for purposes of transferring liability
of I-Force's premium obligations to relator pursuant to former Ohio Adm.Code 4123-17-
02(C)(1). Neither judge actually determined or ordered that the October 15, 2009
adjudicating committee order must be revisited by the bureau. The two judges simply
determined that the October 15, 2009 adjudicating committee order did not determine all
that the bureau was purporting. That is, the judges disagreed with the bureau's
interpretation of its order.
{¶ 88} The October 15, 2009 order of the adjudicating committee is a final bureau
order because there was no administrative appeal to the administrator's designee.
However, that the October 15, 2009 order was not administratively appealed did not
alone prohibit the bureau from exercising continuing jurisdiction over the October 15,
2009 order. State ex rel. Scott v. Ohio Bur. of Workers' Comp., 73 Ohio St.3d 202 (1995).
{¶ 89} However, the March 20, 2013 attempt by the adjudicating committee to
exercise continuing jurisdiction over the October 15, 2009 order of the adjudicating
committee occurred more than four years after the October 15, 2009 order. Like the
commission, the bureau must exercise its continuing jurisdiction within a reasonable
period of time. State ex rel. Gordon v. Indus. Comm., 63 Ohio St.3d 469 (1992).
Certainly, as of the date that Judge Bessey issued his judgment on February 8, 2011 in
Case No. 09JG-46435, the bureau should have been aware that its interpretation of the
October 15, 2009 order of the adjudicating committee was not the correct interpretation.
Accordingly, it appears that the bureau delayed an unreasonable period of time to exercise
its continuing jurisdiction.
{¶ 90} Both the March 20, 2013 order of the adjudicating committee and the
November 14, 2013 order of the administrator's designee rely upon the dismissal of
relator's prohibition action in the Supreme Court of Ohio. Yet, the order of the Supreme
No. 14AP-405 37
Court dismissing the action simply explains that the respondents' motion to dismiss is
granted. No court opinion accompanied the court's dismissal entry.
{¶ 91} "In order for a writ of prohibition to issue, the relator must establish that
the court, official or tribunal against whom it is sought, must be about to exercise judicial
or quasi-judicial power; the exercise of power must amount to an unauthorized
usurpation of judicial power; and refusal of the writ would result in an injury for which
there is no adequate remedy." State ex rel. Eaton Corp. v. Lancaster, 40 Ohio St.3d 404(1988).
{¶ 92} Prohibition tests and determines " 'solely and only' " the subject matter
jurisdiction of an inferior tribunal. Eaton at 409, quoting State ex rel. Staton v. Common
Pleas Court, 5 Ohio St.2d 17, 21 (1965). In a prohibition action, the question is whether
jurisdiction is "patently and unambiguously" lacking. State ex rel. Red Head Brass, Inc.
v. Holmes Cty. Court of Common Pleas, 80 Ohio St.3d 149, 151 (1997).
{¶ 93} Here, it can be observed that no one contends that the bureau lacks
jurisdiction generally to determine employer protests relating to premium obligations.
{¶ 94} Contrary to what is stated in the November 14, 2013 order of the
administrator's designee, the Supreme Court's dismissal of relator's action did not render
"moot" relator's claim that the bureau lacks jurisdiction to revisit the October 15, 2009
order of the adjudicating committee.
{¶ 95} Citing Ohio Bur. of Workers' Comp. v. C.W. Fletcher, Inc., 4th Dist. No.
96CA32 (March 13, 1997), respondent argues that it had jurisdiction to convene the
March 20, 2013 adjudicating committee because there was a matter before the
October 15, 2009 adjudicating committee that the committee failed to "resolve," and that
the adjudicating committee of March 20, 2013 "was simply resolving an issue never
previously decided as part of Daily Services' 2009 protest." (Respondent's brief, 56.)
{¶ 96} Relator seems to emphasize the word "resolve" so as to suggest jurisdiction
must exist to "resolve" that which has not been resolved. Relator's reliance upon Fletcher
is misplaced.
{¶ 97} Following an audit, the bureau assessed C.W. Fletcher, Inc. ("Fletcher") for
unpaid workers' compensation premiums in the amount of $820,871.58. Fletcher filed a
petition (protest) with the bureau's adjudicating committee objecting to the assessment.
No. 14AP-405 38
However, the adjudicating committee never held a hearing or formally resolved Fletcher's
petition.
{¶ 98} Thereafter, the bureau obtained a judgment lien against Fletcher in the
amount of $820,871.58 in Pickaway County.
{¶ 99} The secretary of the adjudicating committee mailed Fletcher a letter that the
adjudicating committee would not hear Fletcher's petition because the adjudicating
committee viewed the petition as a request for a payment plan rather than an objection to
the audit.
{¶ 100} Following Fletcher's default on the payment plan and the garnishment of
its bank account, Fletcher moved to void the judgment lien pursuant to Civ.R. 60(B)(5).
{¶ 101} In Fletcher, the trial court found that the adjudicating committee's letter to
Fletcher did not resolve the petition and that the bureau's judgment was voidable because
the bureau failed to hold a hearing or dismiss the petition, thus depriving Fletcher of the
opportunity to appeal to the common pleas court pursuant to R.C. 4123.37. The trial
court granted Fletcher's Civ.R. 60(B) relief from judgment and the bureau appealed to the
Fourth District Court of Appeals.
{¶ 102} The appellate court agreed with the trial court that the letter "leaves one
guessing as to whether it is the final decision of the adjudicating committee that may be
appealed" to the common pleas court under R.C. 4123.37. Fletcher at 4.
{¶ 103} In Fletcher, the appellate court held that the bureau was not authorized to
file a certified copy of the assessment with the clerk of courts and obtain a judgment lien
because the bureau had failed to "resolve" the petition. The court states: "The BWC's
failure to resolve the petition has left the matter pending, thus precluding a judgment."
Id. at 4.
{¶ 104} The appellate court did not foreclose the bureau from ruling on the petition
and obtaining a proper judgment by complying with R.C. 4123.37. The court states:
Fletcher still owes a significant sum to the BWC and if the
BWC complies with R.C. 4123.37 in obtaining a judgment,
then it is entitled to utilize the enforcement powers provided
by the Revised Code.
Id. at 6.
{¶ 105} The complete failure of the adjudicating committee in Fletcher to
adjudicate or dismiss the petition is equated here by respondent with the bureau's sua
No. 14AP-405 39
sponte assertion of continuing jurisdiction over the October 15, 2009 adjudicating
committee order that, in fact, did adjudicate relator's June 2009 protest although not as
to an issue that has been the subject of much litigation. Thus, the so-called failure of the
adjudicating committee in Fletcher to "resolve" the petition is not the same as the failure
of the October 15, 2009 adjudicating committee order to "resolve" the issue that
respondent wants to resolve by the exercise of continuing jurisdiction.
{¶ 106} In Fletcher, there is no issue as to the adjudicating committee's continuing
jurisdiction because the adjudicating committee had never exercised jurisdiction in the
first instance to adjudicate Fletcher's petition. In fact, the Fletcher court does not even
mention R.C. 4123.52 continuing jurisdiction presumably because the case does not
involve continuing jurisdiction.
{¶ 107} In short, respondent's reliance upon Fletcher to support its assertion of
continuing jurisdiction over the October 15, 2009 order of the adjudicating committee is
misplaced.
{¶ 108} Accordingly, for all the above reasons, it is the magistrate's decision that
this court issue a writ of mandamus ordering respondent to vacate the March 20, 2013
order of its adjudicating committee and the November 14, 2013 order of its
administrator's designee.
/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).