State ex rel. Northern v. Indus. Comm. , 2021 Ohio 1940 ( 2021 )

[Cite as State ex rel. Northern v. Indus. Comm., 2021-Ohio-1940.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Stephen L. Northern :
C/O Natalie Northern, Child et al.,
:
Relators,
:
v. No. 20AP-63
:
Industrial Commission of Ohio et al., (REGULAR CALENDAR)
:
Respondents.
:
D E C I S I O N
Rendered on June 8, 2021
On brief: Hochman & Plunkett Co., L.P.A., Gary D. Plunkett,
and Marcus A. Heath, for relators.
On brief: Dave Yost, Attorney General, and Natalie J.
Tackett, for respondent Industrial Commission of Ohio.
On brief: Dinsmore & Shohl LLP, Brian P. Perry, and
Christen S. Hignett, for respondent OneSource Employee
Management, Avitor Holdings.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relators, Stephen L. Northern ("decedent") c/o Natalie Northern, child, and
Nathan Northern, child ("claimants"), initiated this original action requesting this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order granting the motion of respondent, OneSource
No. 20AP-63 2
Employee Management/Avitor Holdings ("OneSource"), to exercise continuing
jurisdiction and deny claimants' death application.
{¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53 and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate rendered a decision
that includes findings of fact and conclusions of law. The magistrate's decision, which is
appended hereto, recommends this court deny relators' request for a writ of mandamus.
{¶ 3} Relators have filed an objection to the magistrate's decision. Therefore, we
must independently review the decision to ascertain whether "the magistrate has properly
determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d).
Through their objection, relators assert the magistrate erroneously conducted a de novo
review of the facts in order to determine the commission properly exercised continuing
jurisdiction.
{¶ 4} The commission's power to reconsider a previous decision derives from its
general grant of continuing jurisdiction under R.C. 4123.52. State ex rel. Royal v. Indus.
Comm., 95 Ohio St.3d 97, 99 (2002). The commission may exercise continuing jurisdiction
when one of the following prerequisites is present: "(1) new and changed circumstances,
(2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5) error by an inferior
tribunal." State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, ¶ 14.
Here, the commission identified new and changed circumstances as the basis for its
continuing jurisdiction. As the magistrate noted, the new and changed circumstances
required to support the commission's exercise of continuing jurisdiction must occur
subsequent to the date of the order from which reconsideration is sought and could not,
with the exercise of due diligence, have been discovered prior to the date of the order from
which reconsideration is sought. Industrial Commission Resolution R18-1-06(D)(1)(a).
{¶ 5} Relators' argument before the magistrate and again through their objection
is that the commission based its order on facts that had no support in the record.
Specifically, relators assert that the commission denied the death claim based on an
erroneous date of certification of the original claim. While the staff hearing officer ("SHO")
who heard claimants' appeal erroneously found that OneSource certified the claim on
October 18, 2018, the evidence before the SHO demonstrated that the claim was certified
on either November 6 or November 8, 2018. The magistrate fully explained the SHO's error
No. 20AP-63 3
in his decision. Despite the magistrate's explanation of the SHO's use of the wrong date of
certification, relators assert the magistrate erred in proceeding to review the commission's
exercise of continuing jurisdiction after having recognized the SHO stated the wrong date
of certification.
{¶ 6} Relators argue the magistrate should not, in the first instance, determine
whether there were new and changed circumstances sufficient to support an exercise of
continuing jurisdiction once the magistrate accounted for the correct date of certification.
However, relator's argument mischaracterizes the magistrate's decision. The magistrate
did not conduct a de novo review of the facts and then make his own determination of
whether the commission could exercise its continuing jurisdiction. Rather, the magistrate's
decision explained that the SHO's use of the wrong date of certification was of no
consequence to the SHO's more relevant determination that OneSource exercised due
diligence to obtain all relevant information concerning the incident prior to certification.
As the magistrate explained, the SHO found that even though the toxicology report
indicating decedent's cocaine and marijuana intoxication was completed on November 6,
2018, the toxicology report was not readily available to OneSource, or to anyone else, until
it was attached as part of the coroner's December 11, 2018 report. Thus, a certification date
of October 18, November 6, or November 8, 2018, would not impact the SHO's finding that
OneSource exercised due diligence in obtaining all relevant medical information
concerning the incident prior to certifying benefits as all of those dates are prior to
December 11, 2018.
{¶ 7} Accordingly, we disagree with relators' attempt to characterize the
magistrate's decision as an improper de novo review of the facts. Although relators
continue to argue generally that OneSource should have done more to learn of the pending
toxicology results, this is a challenge to the commission's finding that OneSource failed to
exercise due diligence prior to certification. As the magistrate explained, there is nothing
in the record suggesting what more OneSource could have done to learn of the pending
toxicology results prior to the December 11, 2018 coroner's report. The SHO's mistake of
fact on the actual date of certification was not outcome determinative as it did not affect the
central determination of whether OneSource exercised due diligence. See, e.g., State ex rel.
Little v. Indus. Comm., 10th Dist. No. 11AP-1110, 2013-Ohio-282, ¶ 7 (granting mandamus
No. 20AP-63 4
relief not appropriate where SHO's factual error is not outcome determinative). Therefore,
we agree with the magistrate that the commission did not abuse its discretion in exercising
its continuing jurisdiction on the basis of new and changed circumstances, and we overrule
relators' objection to the magistrate's decision.
{¶ 8} Following our independent review of the record pursuant to Civ.R. 53, we
conclude the magistrate correctly determined that relators are not entitled to the requested
writ of mandamus. Accordingly, we adopt the magistrate's decision, including the findings
of fact and conclusions of law therein. Having overruled relators' objection to the
magistrate's decision, we deny relators' request for a writ of mandamus.
Objection overruled; writ of mandamus denied.
BROWN and MENTEL, JJ., concur.
No. 20AP-63 5
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Stephen L. Northern :
C/O Natalie Northern, Child et al.,
:
Relators,
:
v. No. 20AP-63
:
Industrial Commission of Ohio et al., (REGULAR CALENDAR)
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on February 17, 2021
Hochman & Plunkett Co., L.P.A., Gary D. Plunkett, and
Marcus A. Heath, for relators.
Dave Yost, Attorney General, and Natalie J. Tackett, for
respondent Industrial Commission of Ohio.
Dinsmore & Shohl LLP, Brian P. Perry, and Christen S.
Hignett, for respondent OneSource Employee Management,
Avitor Holdings.
IN MANDAMUS
{¶ 9} Relators, Stephen L. Northern ("decedent") c/o Natalie Northern, child, and
Nathan Northern, child ("claimants"), have filed this original action requesting that this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order that granted the motion by respondent, OneSource
No. 20AP-63 6
Employee Management/Avitor Holdings ("OneSource"), to invoke continuing
jurisdiction and denied claimants' death application.
Findings of Fact:
{¶ 10} 1. On October 7, 2018, decedent, during the course of his employment with
Apex Express/Cordell Transportation ("Apex"), drove his semi-truck off the side of the
road.
{¶ 11} 2. Apex utilized the services of OneSource, a professional employer
organization that managed the workers' compensation coverage for Apex. Under such an
arrangement, pursuant to the Ohio Revised Code, OneSource is the co-employer for
purposes of workers' compensation and is a self-insured employer.
{¶ 12} 3. Decedent was first taken to Lima Memorial Hospital ("Lima Memorial")
and then transferred the same day to Miami Valley Hospital ("Miami Valley"). In the Lima
Memorial medical records, there is a reference to a urine screen, although there is no
reference to cocaine or marijuana being found in the decedent's system. A blood test
conducted at Lima Memorial indicates decedent had a blood alcohol level of .006 gm/dL.
{¶ 13} 4. Apex notified OneSource of the accident the day after the accident.
Subsequently, OneSource hired a nurse case manager to help coordinate and manage
various aspects of the claim.
{¶ 14} 5. On October 11, 2018, OneSource received the treatment notes of Miami
Valley. In those records, it was revealed decedent was a heroin user. The records were
reviewed by Alison N. Sackenheim, general counsel for OneSource, and Amy Harley, the
claims examiner for OneSource.
{¶ 15} 6. On three occasions between October 11 and October 18, 2018, Harley left
messages for "Dianne," a billing clerk at Miami Valley, asking whether a drug test had
been performed. OneSource also obtained the traffic crash report, which did not reference
drugs or alcohol being a factor in the accident.
{¶ 16} 7. On October 15, 2018, decedent passed away as a result of the injuries
sustained in the accident.
{¶ 17} 8. On October 16, 2018, the coroner's office performed an autopsy on
decedent.
No. 20AP-63 7
{¶ 18} 9. On October 18, 2018, Dianne called Harley and indicated that she could
find nothing in the records to indicate that a drug test was performed on decedent or that
there were any pending samples being tested.
{¶ 19} 10. Decedent's funeral was held on October 19, 2018.
{¶ 20} 11. On October 19, 2018, and October 22, 2018, Harley and the payroll
manager for Apex exchanged emails, in which Harley informed the payroll manager that
Dianne could not see anywhere in the medical records that a drug test was performed,
and Harley was going to stop pursuing drug-test results unless the payroll manager
discovered something different. The payroll manager replied that Apex has to request a
drug test or a hospital will not do one, she speculated that drug testing was a low priority
for Lima Memorial and Miami Valley because of the decedent's poor condition, and she
was not sure that they would have completed a drug screen on an unconscious person
even if Apex had requested one.
{¶ 21} 12. On October 23, 2018, a certificate of death was issued, and on
October 29, 2018, a supplementary medical certification was completed. Both indicate
the cause of death as complications of blunt force trauma and that the autopsy results
were reviewed.
{¶ 22} 13. A toxicology report, signed November 6, 2018, by the chief forensic
toxicologist, was completed by the Montgomery County Coroner's Office, and it indicated
the presence of cocaine and marijuana in the decedent's system.
{¶ 23} 14. On the same day, November 6, 2018, Harley made the decision to certify
the claim, and she informed the Bureau of Workers' Compensation ("BWC") via voicemail
of the decision.
{¶ 24} 15. On November 8, 2018, Harley spoke to BWC via telephone and indicated
again that OneSource was certifying the claim.
{¶ 25} 16. On November 14, 2018, OneSource started paying death benefits to
claimants.
{¶ 26} 17. On December 11, 2018, the coroner released his report, to which the
November 6, 2018, toxicology report was attached. The report indicated evidence of
cocaine and marijuana intoxication using blood acquired from Lima Memorial and dated
No. 20AP-63 8
October 7, 2018, at 6:18 p.m. The report listed cocaine and marijuana intoxication as
contributing causes of death.
{¶ 27} 18. On January 29, 2019, OneSource received a letter from a life insurance
company denying benefits to decedent based upon the toxicology report. This was the first
time OneSource became aware of the existence of the toxicology report and coroner's
report.
{¶ 28} 19. On February 5, 2019, OneSource ordered the records from the coroner
and received them on February 26, 2019.
{¶ 29} 20. On April 5, 2019, OneSource filed a C-86 motion to invoke continuing
jurisdiction and deny the death allowance based upon newly discovered evidence. A
hearing was scheduled for July 22, 2019.
{¶ 30} 21. On June 18, 2019, counsel for claimants requested from Harley the
certification letter sent to the BWC certifying the claim. Harley generated a certification
letter dated October 17, 2018, even though she had never actually given the letter to the
BWC, and she sent it to claimants' counsel.
{¶ 31} 22. On June 20, 2019, Harley and claimants' counsel participated in an
email exchange, in which Harley informed counsel that the BWC and claimants were told
verbally on November 8, 2018, that OneSource was certifying the claim, and because BWC
did not request a certification letter, she did not send the BWC the certification letter
dated October 17, 2018.
{¶ 32} 23. In the July 19, 2019, memorandum in opposition to claimants' motion
to dismiss OneSource's motion for continuing jurisdiction filed by Sackenheim,
Sackenheim indicated that OneSource certified the death claim around October 18, 2018,
relying upon the date indicated on Harley's certification letter.
{¶ 33} 24. At the July 22, 2019, hearing before the district hearing officer ("DHO"),
Sackenheim testified that OneSource held onto an October 17, 2018, certification letter
until it heard from Miami Valley as to whether there was a drug test, and the letter was
not mailed until at least October 18, 2018, after OneSource was informed by Miami Valley
that there was no drug test.
No. 20AP-63 9
{¶ 34} 25. On July 25, 2019, the DHO issued an order, finding the following: (1)
R.C. 4123.52 permits the commission to invoke continuing jurisdiction over a self-
insuring employer's initial certification of a claim; (2) OneSource presented sufficient
evidence of new and changed circumstances by way of newly acquired evidence that was
not readily discoverable despite exercising due diligence at the time of the initial
certification of the claim by OneSource; (3) the employer certified the claim on
October 18, 2018; (4) a November 6, 2018, toxicology report, using blood obtained from
Lima Memorial, indicated high levels of cocaine and low levels of marijuana metabolites
in decedent's body at the time of death; (5) the December 11, 2018, coroner's report of
Bryan D. Casto, M.D., corroborates the toxicology findings; (6) OneSource exercised due
diligence in its attempts to obtain all relevant medical information concerning the
incident, while also being mindful of the fatal nature of the incident and the pending
funeral and procession expenses; (7) the toxicology report and coroner's report were not
readily discoverable by OneSource within a reasonable time following the date of incident
and constitute new and changed circumstances for purposes of invoking continuing
jurisdiction; (8) this newly discovered evidence was not able to be procured at an earlier
date, notwithstanding the reasonable efforts and due diligence performed by OneSource
to obtain such information; (9) the claimants' death application is denied, based upon a
finding that the evidence failed to establish that decedent's death resulted from an injury
or occupational disease that was sustained or developed in the course of and arising out
of his employment; and (10) the finding is based upon the November 6, 2018, toxicology
report; the December 11, 2018, coroner's report; the March 25, 2019, report of Paul T.
Hogya, M.D.; and the transcript of the proceedings.
{¶ 35} 26. Claimants appealed the DHO's decision, and the claim was scheduled
for a hearing before a staff hearing officer ("SHO") on December 9, 2019.
{¶ 36} 27. On December 6, 2019, Brian Perry, attorney for OneSource, sent
claimants' counsel an email, in which he indicated that, as he was preparing for the SHO
hearing, he learned for the first time that, although OneSource had verbally informed the
BWC that it was accepting the claim in November 2018, Harley's October 17, 2018,
certification letter was not actually generated until claimants' counsel requested it in June
2019.
No. 20AP-63 10
{¶ 37} 28. At the December 9, 2019, SHO hearing, the following pertinent
testimony was elicited: (1) Harley testified that the October 17, 2018, certification letter
was not sent in October and was printed for the first time in June 2019, when claimants'
counsel requested a copy of the written certification letter; (2) Harley testified that she
went through the Miami Valley records and saw no drug references or drug tests pending,
Dianne at Miami Valley told her that decedent did not undergo any drug testing, the nurse
case manager never indicated there was a drug test pending, and she did not actually
become aware that there had been a drug test until January 29, 2019, when the insurance
company denied the claim based upon the toxicology report; (3) Harley testified that she
asked the Montgomery County Coroner's Office for a copy of the toxicology report on
February 5, 2019, and she received it on February 26, 2019; (4) Sackenheim testified that
when claimants' counsel asked for a copy of the written certification letter, she directed
counsel to Harley because she was travelling at the time and the letter was an
administrative function; (5) Sackenheim testified that although she stated in her
pleadings before the DHO hearing and at the DHO hearing that the claim was certified
via the October 17, 2018, letter, the letter was created as an administrative function by
Harley, and she was taking the date of the letter at face value; (6) Sackenheim testified
that she never before testified as to the date of mailing of the October 17th certification
letter at the DHO hearing, as the mailing of the letter would have been an administrative
function; (7) Sackenheim testified she did not discuss the case with Harley between the
June 2019 request for the letter and the DHO hearing because she had a cancer scare,
doctor appointments, and surgery; and (8) Sackenheim testified she was unaware of the
actual facts with regard to the certification letter until one week before the SHO hearing.
{¶ 38} 29. In a December 12, 2019, decision, the SHO found the following: (1)
OneSource certified the death claim on October 18, 2018; (2) based upon blood evidence
secured by Lima Memorial, a toxicology report was undertaken on approximately
November 6, 2018; (3) benefits were commenced being paid to the claimants on
November 14, 2018; (4) the toxicology report dated November 6, 2018, indicated high
levels of cocaine and low levels of marijuana metabolites at levels above the confirmation
and cutoff limits; (5) the December 11, 2018, coroner's report corroborates the toxicology
findings of the illegal substances being found within the decedent's body at the time of
No. 20AP-63 11
death; (6) the blood testing was not undertaken at the request of OneSource or by any
physician employed by OneSource; (7) the blood testing was a qualifying test; (8) the only
records on file and available to OneSource at the time of the claim certification were the
hospital records from Lima Memorial and from Miami Valley; these pre-certification
records do not reference any blood test or toxicology testing or report; (9) OneSource
exercised due diligence in its attempts to obtain all relevant medical information
concerning the incident, while also being mindful of the fatal nature of the incident and
related expenses; (10) the toxicology report and coroner's report were not readily
discoverable by OneSource within a reasonable time following the date of the accident
and constitute new and changed circumstances supporting the exercise of continuing
jurisdiction; (11) the newly discovered evidence was not able to be procured at an earlier
date, notwithstanding the reasonable efforts and due diligence performed by OneSource
to obtain such information; (12) the exercise of continuing jurisdiction is appropriate; (13)
the death application is denied because the evidence fails to establish that the decedent's
death resulted from an injury or occupational disease that was sustained or developed in
the course of and arising out of his employment; (14) the decedent's injuries and ultimate
death were the result of an intoxication and not sustained or developed in the course of
and arising out of his employment; and (15) the findings are based upon the evidence,
including the November 6, 2018, toxicology report, the December 11, 2018, coroner's
report, and the March 25, 2019, report of Paul T. Hogya, M.D.
{¶ 39} 30. On December 12, 2019, claimants appealed the SHO's decision.
{¶ 40} 31. On December 31, 2019, the commission refused claimants' appeal.
{¶ 41} 32. On February 3, 2020, claimants filed a petition for writ of mandamus.
{¶ 42} 33. On February 4, 2020, claimants filed a corrected petition for writ of
mandamus.
{¶ 43} 34. A magistrate of this court was appointed in this case, and on August 10,
2020, the current magistrate was appointed and substituted as magistrate.
Conclusions of Law and Discussion:
{¶ 44} For the reasons that follow, it is the magistrate's decision that this court
should not issue a writ of mandamus.
No. 20AP-63 12
{¶ 45} In order for this court to issue a writ of mandamus, a relator must establish
the following three requirements: (1) that relator has a clear legal right to the relief sought;
(2) that respondent has a clear legal duty to provide such relief; and (3) that relator has
no adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus.
Comm., 11 Ohio St.2d 141 (1967).
{¶ 46} Pursuant to R.C. 4123.52, "[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."
R.C. 4123.52(A) contains a clear and broad grant of continuing jurisdiction to the
commission. State ex rel. Neitzelt v. Indus. Comm., 160 Ohio St.3d 175, 2020-Ohio-1453,
¶ 15. However, that jurisdiction is conditioned on specific criteria: (1) new and changed
circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5) error by
an inferior tribunal. State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d 454, 459 (1998).
{¶ 47} The commission has further explained the new and changed circumstances
required to exercise continuing jurisdiction in Industrial Commission Resolution R18-1-
06, which provides, in pertinent part:
New and changed circumstances occurring subsequent to the
date of the order from which reconsideration is sought. For
example, there exists newly discovered evidence which by due
diligence could not have been discovered and filed by the
appellant prior to the date of the order from which
reconsideration is sought. Newly discovered evidence shall be
relevant to the issue in controversy but shall not be merely
corroborative of evidence that was submitted prior to the date
of the order from which reconsideration is sought.
R18-1-06(D)(1)(a).
{¶ 48} In the present matter, claimants present two main arguments. Claimants
first argue that the commission abused its discretion when it granted continuing
jurisdiction based upon crucial findings of fact that are erroneous and unsupported by
any evidence, asserting the following: (1) there was no evidence to support the finding of
the DHO and SHO that OneSource certified the claim on October 18, 2018; (2) attorney
Sackenheim's claim that the toxicology report was dated November 6, 2018, which was
No. 20AP-63 13
three weeks after the certification, was false; (3) Harley's October 17, 2018, certification
letter was false and was not actually created until June 2019; (4) neither Sackenheim nor
Perry suggested that Sackenheim's testimony at the DHO hearing regarding the
October 18, 2018, certification date was based upon anything other than personal
knowledge after she and Harley heard from Dianne at Miami Valley that there were no
drug tests; (5) at the SHO hearing, Perry and Harley conceded that the claim was certified
verbally on November 8, 2018, and there was never any written certification issued; yet,
the SHO still found that OneSource certified the claim on October 18, 2018; (6) no party
is taking the position that the claim was certified on October 18, 2018; (7) the certification
of the claim occurred on November 8, 2018; (8) although OneSource did not actually
know about the toxicology report when it certified the claim on November 8, 2018,
OneSource could have readily discovered with due diligence about the drug tests at the
time of the initial allowance; (9) as of October 7, 2018, there existed records from Lima
Memorial that showed blood was drawn and tested but not completed; (10) as of
October 23, 2018, there existed a death certificate that revealed the case was being
referred to the coroner's office and that an autopsy was completed; and (11) the toxicology
report was available on November 6, 2018.
{¶ 49} Claimants also argue that the commission abused its discretion when it
granted OneSource continuing jurisdiction to reopen a certified claim, in the absence of
fraud and due diligence, based upon the following reasons: (1) the certification of the
claim by OneSource occurred on November 8, 2018; (2) the certification date precludes
the invocation of continuing jurisdiction because there was evidence in existence before
that time that decedent was intoxicated, namely, the coroner's November 6, 2018,
toxicology report, the Lima Memorial records, and the fact that decedent's death had been
referred to the coroner before November 8, 2018; (3) Sackenheim's legal memorandum
filed before the DHO hearing was false in that it stated the toxicology report was dated
November 6, 2018, which was three weeks after the certification; (4) OneSource never
ordered the Lima Memorial records, which would have alerted OneSource to the fact that
blood was drawn and tested at the hospital on the day of the accident; (5) Perry's
statement at the DHO hearing was false in that he stated that the toxicology results were
dated November 6, 2018, and by that time OneSource had certified the claim;
No. 20AP-63 14
(6) Sackenheim falsely testified at the DHO hearing that the reason the claim was certified
on October 18, 2018, was that OneSource wanted to do the right thing and certify it prior
to the funeral; (7) Harley confirmed at the SHO hearing that the certification did not occur
until November 8, 2018; (8) OneSource did no due diligence with the Montgomery
County Coroner's Office to obtain the toxicology results prior to certification;
(9) Sackenheim's memorandum before the DHO hearing was blatantly false, in that she
claimed there was nothing to warrant the anticipation of any further pertinent evidence
at the time of certification, because on October 23, 2018, it was public record that the
cause of death was referred to the coroner's office for an autopsy; and (10) OneSource
should have contacted the coroner's office prior to certification.
{¶ 50} Initially, it is clear that the SHO erroneously found that the date of
OneSource's certification of the claim was October 18, 2018. The evidence showed that
Harley's October 17, 2018, certification letter to the BWC was not actually created until
June 2019. At the SHO hearing, neither party contended that the date of certification was
October 18, 2018. Furthermore, during Sackenheim's testimony at the SHO hearing, the
hearing officer, Perry, Harley, and claimants' counsel engaged in a discussion that
suggests the hearing officer was confused about the dates surrounding the creation of the
certification letter and when and whether it was ever sent to the BWC, which may be
telling as to why the SHO made the erroneous finding that OneSource certified the claim
on October 18, 2018.
{¶ 51} Notwithstanding this error, the crux of the matter is whether the
commission properly exercised continuing jurisdiction. Claimants initially spend a
substantial amount of space in their briefing attempting to portray OneSource's
explanation of the sequence of events surrounding the timing of the certification of the
claim as fraudulent. However, a review of the evidence credibly supports the respondents'
version of the events and fails to convincingly prove any fraudulent intent. Although
Sackenheim wrongly indicated in her July 19, 2019, memorandum in opposition that
OneSource certified the death claim around October 18, 2018, and she testified wrongly
at the July 22, 2019, DHO hearing that OneSource held onto the October 17, 2018,
certification letter until releasing it on October 18, 2018, Sackenheim, Perry, and Harley
later explained the confusion surrounding the October 17, 2018, letter and Sackenheim's
No. 20AP-63 15
and Perry's misconceptions. Harley explained at the SHO hearing that she did not
generate the certification letter until it was requested by claimants' counsel in June 2019.
Perry stated in his December 6, 2019, letter to claimants' counsel that he did not learn
that the October 17, 2018, certification letter was not actually generated on that date until
after the filing of the claim. Sackenheim testified that when claimants' counsel asked for
a copy of the written certification letter, she directed Harley to forward it. Sackenheim
said that the letter was created as an administrative function by Harley, and she had no
reason to question the date indicated on the letter; thus, that's why she stated in the
memorandum contra that the date of certification was October 18, 2018. Sackenheim said
she would not have been aware whether the letter was actually mailed because that was
an administrative function. Furthermore, Sackenheim testified that, although the issue
surrounding the creation and mailing of the certification letter first came to light after the
June 2019 email exchange between Harley and claimants' counsel, she did not speak with
Harley about the certification letter between June 2019 and the July 2019, DHO hearing
because she had a cancer scare during that period, which included a biopsy, surgery, and
follow-up appointments. Sackenheim testified before the SHO that she was unaware of
the actual facts with regard to the certification letter until one week before the SHO
hearing.
{¶ 52} Furthermore, both Sackenheim and Perry relied upon Harley's July 15,
2019, affidavit that Sackenheim attached to the memorandum in opposition to claimants'
motion to dismiss. In the affidavit, Harley averred that she certified the claim, without
specifying a date, but then referenced the attached letter dated October 17, 2018, leading
Sackenheim and Perry to believe the certification date was on or about October 18, 2018.
{¶ 53} Also, the record is clear that it was not until preparing for the SHO hearing
that Perry discovered the June 20, 2019, email exchange between Harley and claimants'
counsel. In the email exchange, Harley told counsel that the BWC was told verbally on
November 8, 2018, that OneSource was certifying the claim, and because BWC did not
request a certification letter, she did not send a letter.
{¶ 54} Therefore, given the evidence and testimony included in the record,
claimants' arguments with regard to the credibility of respondents' version of the events
surrounding the creation of the certification letter are unpersuasive. Sackenheim and
No. 20AP-63 16
Harley credibly explained the discrepancy between the two certification dates and the
confusion relating to the certification letter.
{¶ 55} Turning to the central issue in this case, the SHO did not abuse his
discretion in exercising continuing jurisdiction. Even in light of the error regarding the
date of certification, the record contains some evidence to support the SHO's
determination that continuing jurisdiction was appropriate based upon newly discovered
evidence. At the SHO hearing, Harley and Sackenheim clarified that the claim was
certified on November 6, 2018, and Harley confirmed the certification again with the
BWC on November 8, 2018. However, regardless of whether October 18, November 6, 0r
November 8, 2018, was the date of certification, the SHO's underlying findings still
support continuing jurisdiction. Harley testified that the traffic crash report did not
mention drugs or alcohol being a factor. She also testified that the hospital records from
Miami Valley, which were available by November 6 or 8, 2018, did not reference cocaine
or marijuana in the decedent's system, and did not reference any blood test, toxicology
test, blood samples, or pending tests from either Miami Valley or the transferring
hospital, Lima Memorial. Also, Harley testified that, before the claim was certified, she
contacted Miami Valley on several occasions to ask if any drug tests were pending, and a
hospital billing representative, Dianne, indicated she had looked through the records and
had seen no such tests. She testified that she assumed Dianne had reviewed the Lima
Memorial records. Furthermore, even if the Lima Memorial records had been obtained or
reviewed, the urine screen included in them did not reference cocaine or marijuana. The
Lima Memorial records also do not indicate that any drugs of abuse were discovered in
any of the blood tests ordered.
{¶ 56} In addition, although a toxicology report was completed on November 6,
2018, it was attached to and part of the coroner's report, which was not released until
December 11, 2018. There is nothing in the record to suggest that OneSource or any other
member of the public could have accessed the toxicology report until the coroner's report
was released. Harley testified that, as of November 6 and 8, 2018, she had no knowledge
that there existed a toxicology report or that the coroner was in the process of producing
a report.
No. 20AP-63 17
{¶ 57} Therefore, as the SHO found, OneSource exercised due diligence in its
attempts to obtain all relevant medical information concerning the incident prior to
certifying benefits. Buttressing a finding of due diligence are the actions undertaken by
OneSource preceding certification. Harley testified that OneSource hired a nurse case
manager to assist in the handling of the claim and records collection, and the nurse case
manager also searched the records and could find no drug tests pending. There was also
evidence that Harley and Apex cooperated in their attempts to find out whether drug tests
were completed at either hospital, but they were unable to find any.
{¶ 58} For the foregoing reasons, it is this magistrate's determination that there
existed some evidence in the record to support the commission's exercise of continuing
jurisdiction based upon new and changed circumstances occurring subsequent to the date
of certification. The toxicology and coroner's reports constituted newly discovered
evidence that, by due diligence, OneSource could not have discovered prior to the date of
certification. This newly discovered evidence, when combined with the other medical
evidence in the record, demonstrated that decedent's injuries and death were the result
of intoxication and not sustained in the course of and arising out of his employment.
{¶ 59} Accordingly, it is the magistrate's decision and recommendation that this
court should deny claimants' petition for writ of mandamus.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
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).