IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Baltimore Ravens, Inc., f.k.a.
:
Cleveland Browns, Inc.,
:
Plaintiff-Appellee,
:
v.
Nos. 99AP-1262
:
and
Self-Insuring Employers Evaluation Board
99AP-1263
et al.,
:
(REGULAR CALENDAR)
Defendants-Appellants.
:
O P I N I O N
Rendered on August 15, 2000
Dinn, Hochman, Potter & Levy, LLC , and Irwin J. Dinn, for
appellee.
Betty D. Montgomery, Attorney General, and William J.
McDonald, for appellant Self-Insuring Employers Evaluation
Board.
Cornrich & Cornrich Co., and Neil M. Cornrich, for appellant
Ricky Bolden, Paul Farren, Mark Harper, Lee Jones a nd
Stacey Hairston.
APPEAL from the Franklin County Court of Common Pl eas.
LAZARUS, J.
The issue in this consolidated appeal is whether
the Franklin County Court
of Common Pleas has jurisdiction over an appeal fro m a decision of appellant, Self-
Insuring Employers Evaluation Board ("SIEEB"), orde ring appellee, Baltimore Ravens,
Nos. 99AP-1262 & 99AP-1263
2
Inc. ("the Ravens"), to pay the Ohio Bureau of Work ers’ Compensation $50,000 as a civil
penalty for the Ravens’ continued refusal to pay wo rkers’ compensation awards for five
former Cleveland Browns football players. For the reasons that follow, we answer in the
affirmative.
On March 25, 1999, the Ravens filed a notice of ap peal with SIEEB and a
submission of notice of appeal (pursuant to R.C. 11 9.12) with the trial court from the
March 10, 1999 decision of SIEEB that imposed the $ 50,000 fine. R.C. 119.12 permits
parties adversely affected by an order of an agency
issued pursuant to any other
adjudication to appeal to the Franklin County Court of Common Pleas.
On April 29, 1999, SIEEB filed a motion to dismiss
the appeal for lack of
subject-matter jurisdiction and failure to set fort h a cause of action for which relief may be
granted. SIEEB argued that the court of common ple as lacked subject-matter jurisdiction
over the appeal because SIEEB's orders and decision s are part of the bureau of workers’
compensation and, therefore, excluded from the appe als process provided in R.C.
Chapter 119. R.C. 119.01(A) provides, in pertinent part, that: "Sections 119.01 to 119.13
of the Revised Code do not apply to actions of the
industrial commission or the bureau of
workers’ compensation under sections 4123.01 to 412 3.94 of the Revised Code with
respect to all matters of adjudication."
The Ravens responded with a memorandum contra on M ay 11, 1999. In its
memorandum, the Ravens argued that SIEEB was an ind ependent adjudicatory body and
only part of the bureau of workers’ compensation fo r administrative purposes.
Nos. 99AP-1262 & 99AP-1263
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On May 27, 1999, while the appeal was pending and
before the trial court
had ruled on the motion to dismiss, SIEEB vacated i ts decision of March 10, 1999 and
notified the Ravens that a new hearing would take p lace on June 14, 1999. SIEEB
indicated that its previous findings were being vac ated in order that a determination of the
matter could be made at a record hearing held in ac cordance with R.C. Chapter 119.
See R.C. 4123.35.2(C) (“ If the board determines, after a hearing conducted pursuant to
Chapter 119. of the Revised Code and the rules of the bureau, that the employer has
failed to correct the deficiencies within the time
fixed by the board or is otherwise in
violation of this chapter, the board shall recommen d to the administrator revocation of an
employer’s status as a self-insuring employer or su ch other penalty which may include,
but is not limited to, probation, or a civil penalty not to exceed ten thousand dollars for
each failure.”) [Emphasis added.]
On June 9, 1999, the trial court denied the motio n to dismiss, holding that it
had subject-matter jurisdiction over the appeal, as SIEEB was a part of the bureau of
workers’ compensation for administrative purposes,
not for adjudicatory purposes.
Despite this ruling by the trial court, the hearing
scheduled for June 14, 1999 went
forward. The claims administrator appeared for the Ravens, but the Ravens were not
represented by counsel and did not present any evid ence or defenses.
On July 8, 1999, SIEEB mailed its new order (erro neously dated June 8,
1999) to the Ravens, again ordering them to pay a t otal of $50,000 in fines ($10,000 for
each of the five cases). The Ravens appealed that
order to the trial court on July 19,
1999. The trial court, in its decision of Septembe r 8, 1999, and a judgment entry of
Nos. 99AP-1262 & 99AP-1263
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October 6, 1999, found the actions of SIEEB taken a fter the first notice of appeal had
been filed to be null and void. The trial court th en considered the merits of the appeal
taken from the March 10, 1999 order. The trial cou rt found that there was no record of
proceedings related to the March 10, 1999 order and , accordingly, remanded the matter
to SIEEB to conduct a hearing pursuant to R.C. Chap ter 119 and to afford the Ravens the
opportunity to offer evidence and argument.
SIEEB appealed from the October 6, 1999 judgment,
assigning as error the
following:
The court below erred by failing to grant the motio n of the
Self-Insured Employers Evaluation Board to dismiss
the
purported appeals, as orders of the board are not s ubject to
the judicial review procedures of R.C. 119.12.
In its sole assignment of error, SIEEB argues tha t the trial court was without
subject-matter jurisdiction to review, pursuant to R.C. 119.12, the decisions and orders of
SIEEB. SIEEB argues that it does not enforce or ex ecute its own orders, and that its
actions are so dependent upon the directions and po wers of the bureau of workers’
compensation that it must, as a matter of law, be e ncompassed within the exclusionary
terms of R.C. 119.01(A). We disagree.
As discussed in our opinion in
Hillside Dairy Company v. Self-Insuring
Employers Evaluation Board (Aug. 3, 2000) Franklin App. No. 99AP-786, unreport ed,
SIEEB is a three-member board created by statute co nsisting of a member of the
Industrial Commission of Ohio, a member of the Ohio
self-insurance association, and a
representative of labor. R.C. 4123.35.2(A). The s tatute provides that, for administrative
Nos. 99AP-1262 & 99AP-1263
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purposes, SIEEB is part of the bureau of workers’ c ompensation, "and the bureau shall
furnish the board with necessary office space, staf f, and supplies." Id.
The purpose of SIEEB is to investigate and order c orrective action with
regard to complaints or allegations of misconduct a gainst self-insuring employers or
questions as to whether self-insuring employers con tinue to meet minimum standards.
R.C. 4123.35.2(C). SIEEB’s determinations in this regard "need not be made by formal
hearing but shall be issued in written form and con tain the signature of at least two board
members." Id. SIEEB may also conduct formal hearings pursuant t o R.C. Chapter 119,
and make recommendations to the administrator of wo rkers’ compensation for disciplining
a self-insuring employer.
Id. Where the board makes such recommendations to the
administrator, "the administrator promptly and full y shall implement the recom-
mendations." Id.
In Hillside Dairy, supra, this court affirmed the decision of the trial cou rt that
it did not have subject-matter jurisdiction over an appeal from an informal hearing after
which SIEEB merely requested Hillside Dairy to pay
certain medical bills of one of its
employees who had filed a workers’ compensation cla im. This court concluded that such
an informal action did not constitute an "adjudicat ion" within the meaning of R.C.
119.01(D).
In this case, however, we believe that SIEEB’s Ma rch 10, 1999 decision,
with respect to the Ravens, does constitute an adju dication within the meaning of R.C.
119.01(D), and is easily distinguished from the "in formal hearing findings" made with
respect to Hillside Dairy.
Nos. 99AP-1262 & 99AP-1263
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R.C. 119.01(D) defines "adjudication" as follows:
"Adjudication" means the determination by the highe st or
ultimate authority of an agency of the rights, duti es, privileges,
benefits, or legal relationships of a specified per son, but does
not include the issuance of a license in response t o an
application with respect to which no question is ra ised, nor
other acts of a ministerial nature.
To constitute an adjudication, for the purposes o f R.C. 119.12, a
determination must be: an action of the highest or
ultimate authority of an agency and an
action that determines the rights, privileges, bene fits or other legal relationships of a
person. Russell v. Harrison Twp. (1991), 75 Ohio App.3d 643, 648; Crowley v. Ohio
Rehab. Serv. Comm. (1998), 126 Ohio App.3d 783, 793-794.
With respect to the Ravens, SIEEB assessed the max imum civil penalty of
$10,000 for each of the five cases pursuant to Ohio
Adm.Code 4123-19-13(B)(3)(c),
finding that the Ravens engaged in "blatant and def iant behavior" in refusing to pay
workers’ compensation awards. There is no question that this act adversely affected the
Ravens. We also agree with the Ravens that this ac t was made by the highest or
ultimate authority of the agency. Under the statut e, the administrator of the bureau of
workers’ compensation does not have the authority t o overturn or alter SIEEB’s
determinations.
SIEEB argues that, even if its actions constitute
an adjudication within the
meaning of R.C. 119.01(D), its adjudications are un der the control of the bureau of
workers’ compensation and, are therefore, specifica lly excluded from the appeals process
of R.C. 119.12. SIEEB points to the language of th e statute that permits the board to
meet only as required by the administrator of the b ureau of workers’ compensation, and
Nos. 99AP-1262 & 99AP-1263
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that it has no enforcement power of its own. In pa rticular, SIEEB argues that its decisions
are returned to the administrator in the form of re commendations, that it cannot itself take
disciplinary action, and that only the administrato r has the power to take action against a
self-insured employer.
The Ravens, on the other hand, argue that SIEEB i s separate from the
bureau of workers’ compensation and a distinct quas i-judicial entity. The Ravens point to
the language of the statute that provides for the a ppointment of a board of three
members, one of whom has already been appointed by
the governor as a member of the
Industrial Commission of Ohio, and two others who a re also appointed by the governor.
R.C. 4123.35.2(A).
With respect to enforcement, th e Ravens argue that SIEEB’s
disciplinary recommendations are binding, and the a dministrator is merely given the
ministerial function to "promptly and fully impleme nt the recommendations."
R.C.
4123.35.2(C).
We agree with the Ravens that, although linked to
the bureau of workers’
compensation for administrative purposes, SIEEB is
an independent quasi-judicial
agency created by statute and not under the control
of the bureau of workers’
compensation for adjudicatory purposes. Although t he administrator refers complaints to
SIEEB, it is SIEEB, not the administrator or the bu reau, that has jurisdiction to investigate,
make findings, and order that corrective action or
discipline be imposed by the
administrator. Nothing in the statute permits the
administrator to contravene any finding
or determination that SIEEB makes. Even though dis cipline recommended by SIEEB is
to be imposed by the administrator, the act of impo sing such discipline is ministerial in
Nos. 99AP-1262 & 99AP-1263
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nature because R.C. 4123.35.2(C) precludes him from exercising any discretion in this
regard. Therefore, we agree with the trial court t hat it had jurisdiction to hear the Ravens'
appeal from the March 10, 1999 order of SIEEB.
Finally, we agree with the trial court that the ac tions taken by SIEEB at the
June 14, 1999 hearing are of no effect. When the R avens filed their notice of appeal
pursuant to R.C. 119.12, SIEEB no longer had the ab ility to vacate its March 10, 1999
decision. Agencies retain power to set aside or ot herwise reconsider their decisions until
the actual institution of a court appeal or until e xpiration of the time for appeal, in the
absence of specific statutory limitation to the con trary. Hal Artz Lincoln-Mercury, Inc. v.
Ford Motor Co. (1986), 28 Ohio St.3d 20, paragraph three of the s yllabus. When a notice
of appeal from a decision of an administrative agen cy has been filed, the agency is
divested of its inherent jurisdiction to reconsider , modify, or vacate the decision.
Lorain
Edn. Assn. v. Lorain City School Dist. Bd. Of Edn. (1989), 46 Ohio St.3d 12. Accordingly,
the matter must be remanded to SIEEB for a new hear ing conducted in accordance with
R.C. Chapter 119 as the original hearing was not co nducted in accordance with R.C.
Chapter 119 and the second hearing was a nullity.
Based on the foregoing, SIEEB’s assignment of erro r is overruled, and the
judgment of the Franklin County Court of Common Ple as is affirmed.
Judgment affirmed.
PETREE, J., concurs.
TYACK, J., dissents.
Tyack, J., dissenting.
I respectfully dissent.
Nos. 99AP-1262 & 99AP-1263
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I believe that the Self-Insuring Employees Evaluat ion Board ("SIEEB")
should have its decisions reviewed through actions
in mandamus, not through direct
appeal utilizing R.C. Chapter 119. Therefore, I be lieve we should reverse the judgment of
the common pleas court and remand the case with ins tructions to dismiss the appeal.
R.C. 119.01(A) defines "agency" for purposes of R. C. 119.01 to 119.13.
R.C. 119.01(A) specifically notes:
Sections 119.01 to 119.13 of the Revised Code do no t apply
to actions of the industrial commission or the bure au of
workers' compensation under sections 4123.01 to 412 3.94 of
the Revised Code with respect to all matters of adj udication,
and to the actions of the industrial commission and bureau of
workers' compensation under division (D) of section 4121.32
and sections 4123.29, 4123.34, 4123.341 [4123.34.1] ,
4123.342
[4123.34.2],
4123.40,
4123.411
[4123.41.1] ,
4123.44, 4123.442 [4123.44.2], and divisions (B), ( C), and (E)
of section 4131.14 of the Revised Code.
Given the express wording of R.C. 119.01(A) whethe r the decision of the
SIEEB is by way of action or by way of adjudication
is utterly irrelevant, if the SIEEB is
part of the Ohio Bureau of Workers' Compensation (" BWC").
Both actions and
adjudications of the BWC are barred from review und er R.C. 119.01 to 119.13. Thus, the
dispositive issues is whether the SIEEB is part of
the BWC.
The SIEEB was created in 1986 through the enactmen t of R.C. 4123.35.2.
The three-member board is subject to many of the sa me requirements which apply to the
Industrial Commission of Ohio. The Governor of Ohi o appoints two of the members with
the advice and consent of the Ohio Senate. The thi rd member is the member of the
Industrial Commission representing the public.
R.C. 4123.35.2 indicates:
Nos. 99AP-1262 & 99AP-1263
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(A) *** For administrative purposes, the board is a part of the
bureau of workers compensation, and the bureau shal l furnish
the board with necessary office space, staff, and s upplies.
The board shall meet as required by the administrat or of
workers' compensation.
(B) In addition to the grounds listed in section 4 123.35 of the
Revised Code pertaining to criteria for being grant ed the
status as a self-insuring employer, the grounds upo n which
the administrator may revoke or refuse to renew the
status
includes failure to comply with any rules or orders
of the
administrator or to pay contributions to the self-i nsuring
employers' guaranty funds established by section 41 23.351
[4123.35.1] of the Revised Code, continued failure
to file
medical reports bearing upon the injury of the clai mant, and
failure to pay compensation or benefits in accordan ce with law
in a timely manner. A deficiency in any of the gro unds listed
in this division is sufficient to justify the admin istrator's
revocation or refusal to renew the employer's statu s as a self-
insuring employer. The administrator need not revo ke or
refuse to renew an employer's status as a self-insu ring
employer if adequate corrective action is taken by
the
employer pursuant to division (C) of this section.
(C) The administrator shall refer to the board all
complaints or
allegations of misconduct against a self-insuring e mployer or
questions as to whether a self-insuring employer co ntinues to
meet minimum standards. The board shall investigat e and
may order the employer to take corrective action in
accordance with the schedule the board fixes. The
board's
determination in this regard need not be made by fo rmal
hearing by shall be issued in written form and cont ain the
signature of at least two board members.
If the bo ard
determines, after a hearing conducted pursuant to C hapter
119. of the Revised Code and the rules of the burea u, that the
employer has failed to correct the deficiencies wit hin the time
fixed by the board or is otherwise in violation of
this chapter,
the board shall recommend to the administrator revo cation of
an employer's status as a self-insuring employer or such other
penalty which may include, but is not limited to pr obation, or a
civil penalty not to exceed ten thousand dollars fo r each
failure. A board recommendation to revoke an emplo yer's
status as a self-insuring employer shall be by unan imous
vote. A recommendation for any other penalty shal l be by
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majority vote. Where the board makes recommendatio ns to
the administrator for disciplining a self-insuring employer, the
administrator promptly and fully shall implement th e
recommendations.
Given the various links between the BWC and the SI EEB, I see the SIEEB
as being part of the BWC. The BWC provides office
space, staff and supplies. The BWC
provides all the work the SIEEB performs by referri ng all complaint or allegations of
misconduct for review. The BWC implements any reco mmendation from the SIEEB.
I see no reason to insert an appeal to the common
pleas court under R.C.
119.12 into the process here. Self-insuring employ ers who disregard their obligations to
their injured workers already have extensive rights and protections. I believe that review
by way of mandamus action is preferable both legall y and practically. I, therefore, dissent
from the majority opinion.
______________