2003 Ohio 7025 | Ohio Ct. App. | 2003
{¶ 2} This matter was referred to a court-appointed magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, recommending that relator's request for a writ of mandamus be denied. (Attached as Appendix A.)
{¶ 3} Relator has filed objections to the magistrate's decision, asserting the following: the Ohio Bureau of Workers' Compensation ("BWC") is required to comply with Civ.R. 45; an affidavit of relator, and testimony regarding the content of that affidavit should have been suppressed or not admitted into evidence; the affidavit of relator violated the rules of evidence and Ohio notary rules; and, the magistrate failed to apply correct principles of workers' compensation law with respect to a claimant engaged in work while receiving TTD compensation.
{¶ 4} The relevant facts indicate that relator suffered a work-related injury on February 17, 2000, while employed by respondent-employer, Julian Speer Company ("employer"). A claim was allowed for "sprain lumbar region," and relator received TTD compensation and living maintenance benefits for the period of February 18, 2000 through February 2, 2001. The BWC began an investigation regarding whether relator was engaged in self-employment as a heating, ventilation and air conditioning ("HVAC") system installer during the time he was receiving TTD compensation.
{¶ 5} The BWC issued subpoenas duces tecum to Key Bank, relator's HVAC suppliers, and Patricia Galbraith, relator's wife. Further, on January 26, 2001, Mike Cave, a BWC investigator, interviewed relator. Following the interview, Cave summarized his discussion with relator in an "affidavit," signed by relator and notarized by Cave, a notary public. The affidavit included the following statements by relator:
* * * I understand that I am not allowed to work. I have my own business, Galbraith Heating Cooling. I have had this company since about 1994/1995. I am the only installer in my business. I have worked this business since it began and have continued to work until present with the exception of my time in the Hospital following my injury. Since 2/00 I have continued to work my business, Repairing/installation of Heating and Air Conditioning equipment (Furnaces Air Conditioners). I understand this employment will be in conflict with my BWC disability. I knew I should not have done this but felt I had to work. I never advised my doctor, BWC or my Attorney that I was working while collecting BWC benefits. I understand that my actions may have resulted in an overpayment in BWC benefits and I will put forth an effort to pay the money back to BWC. * * *
{¶ 6} The BWC subsequently issued an order, finding that relator had concealed his work activities, misrepresented his continued work on TTD applications, and committed civil fraud, thus declaring an overpayment in the amount of $27,594.96. Relator appealed the BWC's order, and a district hearing officer ("DHO") issued an order finding relator had been overpaid TTD compensation and living maintenance benefits. Relator appealed the DHO's order, and filed motions to quash and to suppress relator's affidavit, the bank records and HVAC supply accounts. A pre-hearing conference was held, and a hearing administrator denied relator's motions.
{¶ 7} Following a hearing, a staff hearing officer ("SHO") issued an order finding that relator had been overpaid and that he had committed fraud. The SHO noted in the order that relator had refused to testify at the hearing. The commission refused a further appeal by relator.
{¶ 8} In his first objection, relator contends that the magistrate erred in failing to find that the BWC is required to comply with Civ.R. 45(A)(1)(c), which provides that every subpoena shall "set forth the text of divisions (C) and (D) of this rule." We note that division (C) of Civ.R. 45 provides for "[p]rotection of persons subject to subpoenas," while division (D) of the rule sets forth certain "[d]uties in responding to subpoena[s]." Relator maintains that the failure to include the language in divisions (C) and (D) to the subpoenas issued rendered them invalid.
{¶ 9} In general, the civil rules apply to the courts of the state and, absent statutory authority, administrative agencies are not bound by strict adherence to civil rules. Vaughn v. State Med. Bd. (Aug. 6, 1991), Franklin App. No. 90AP-1160, citing Civ.R. 1. Significantly, as noted by the magistrate, R.C.
The industrial commission shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than as provided in sections
{¶ 10} In LTV Steel Co. v. Indus. Comm. (2000),
{¶ 11} In the present case, the subpoena duces tecum issued by the investigator indicates that it was issued "pursuant to Ohio Revised Code
{¶ 12} R.C.
The administrator of workers' compensation and his designees, for the purposes mentioned in sections
{¶ 13} Relator maintains that the above language mandates that BWC subpoenas meet the requirements of a subpoena issued by the court of common pleas. However, we agree with respondents that, while R.C.
{¶ 14} In further support of his contention that the subpoenas were invalid, relator relies upon Cincinnati Bar Assn. v. Adjustment Serv.Corp. (2000),
{¶ 15} Under his second objection, relator contends that his affidavit, prepared by BWC investigator Cave following the interview with relator, should not be admitted based upon "the fruit of the poisonous tree" doctrine. Relator's argument is premised upon his contention, addressed above, that the subpoenas were invalid, and, thus, documentation gathered by those documents was invalid. In light of our disposition of the first objection, relator's argument under his second objection is without merit. Further, as aptly noted by the magistrate, relator does not deny he was interviewed by Cave or that he made the statements at issue, and, even assuming the subpoenas had been invalid, the investigator could have still testified as to those matters. As also noted by the magistrate, a review of Cave's testimony does not mention documents obtained through the subpoenas.
{¶ 16} Relator's contention, under his third objection, that the affidavit at issue violated various rules of evidence is without merit. See R.C.
{¶ 17} Relator further contends that the affidavit was in violation of rules governing notaries public because the investigator was permitted to both draft the statement relator signed and to notarize the affidavit. Relator asserts in general that the affidavit violated R.C.
{¶ 18} In his final objection, relator argues that, even if he did work, the evidence did not demonstrate that his activities were medically inconsistent with his disability as an HVAC installer. We disagree. The magistrate noted that relator's statement to the investigator that he worked, as set forth in the affidavit, was some evidence to support a finding that he was not entitled to TTD compensation. The investigator testified at the commission hearing that relator told him during the interview that he was working during the period of disability, and that he was the only installer in his business. Upon review, we conclude that the magistrate did not err in finding that there was some evidence before the commission that relator was working during the time he was receiving TTD compensation and living maintenance benefits. See State ex rel. ParmaCommunity Gen. Hosp. v. Jankowski,
{¶ 19} After an examination of the magistrate's decision, an independent review of the record pursuant to Civ.R. 53, and consideration of relator's objections, we overrule the objections. Accordingly, we adopt the magistrate's decision as our own, including the findings of fact and conclusions of law contained therein, and relator's request for a writ of mandamus is hereby denied.
Objections overruled; writ denied.
Petree, P.J., and Watson, J., concur.
{¶ 22} 2. At the time of his injury, relator was employed as an HVAC installer and repair person for respondent-employer Julian Speer Company ("employer").
{¶ 23} 3. Relator submitted C-84s, certified by his physician of record, Sambhu N. Chaudry, M.D., for the period of February 17, 2000 through January 29, 2001.
{¶ 24} 4. Relator received TTD compensation and living maintenance benefits during the above time period.
{¶ 25} 5. The Ohio Bureau of Workers' Compensation ("BWC") began an investigation after receiving information that relator may have continued HVAC installation and repair work as a self-employed individual.
{¶ 26} 6. As part of the investigation, the BWC sent subpoenas duces tecum to Key Bank, relator's HVAC suppliers, and Patricia Galbraith, relator's wife.
{¶ 27} 7. The BWC received copies of cancelled checks and deposit slips from the Galbraith Heating Cooling checking account and the joint checking account of relator and his wife showing payments from February 10, 2000 through September 26, 2000 from several individuals and companies for HVAC work. Several of the checks indicate that the money was for work performed and some of the checks drawn on the account indicated that they were for "expenses." The BWC also received order forms from LUTE Supply, a wholesale distributor, who supplied HVAC parts for Galbraith Heating Cooling.
{¶ 28} 8. On January 26, 2001, Mike Cave, an investigator for the BWC, met with relator. According to Mr. Cave's testimony, relator initially indicated that he wanted his attorney present; however, when relator was unable to reach his attorney, he agreed to talk with Mr. Cave out of his attorney's presence. (Hearing tr. at 60-61.)
{¶ 29} 9. Following the interview, Mr. Cave summarized the substance of his discussions with relator in an "affidavit" which was signed by relator and which was notarized by Mr. Cave, a notary public. Within that "affidavit," relator made the following statements:
{¶ 30} "* * * I understand that I am not allowed to work. I have my own business, Galbraith Heating Cooling. I have had this company since about 1994/1995. I am the only installer in my business. I have worked this business since it began and have continued to work until present with the exception of my time in the Hospital following my injury. Since 2/00 I have continued to work my business, Repairing/installation of Heating and Air Conditioning equipment (Furnaces Air Conditioners). I understand this employment will be in conflict with my BWC disability. I knew I should not have done this but felt I had to work. I never advised my doctor, BWC or my Attorney that I was working while collecting BWC benefits. I understand that my actions may have resulted in an overpayment in BWC benefits and I will put forth an effort to pay the money back to BWC. * * *"
{¶ 31} 10. Based upon the above evidence, the BWC issued an order on May 2, 2001, finding that relator had concealed his work activities and had misrepresented his continued work on his TTD applications. The BWC found that relator had committed civil fraud and declared an overpayment in the amount of $27,594.96.
{¶ 32} 11. Relator appealed from the BWC's order to the commission citing only the underlying factual findings and not the BWC's evidence.
{¶ 33} 12. The appeal was heard before a district hearing officer ("DHO") on June 20, 2001, and resulted in an order finding that relator had been overpaid TTD compensation and living maintenance benefits because he was employed with his own company during that time period. The DHO relied upon the records of deposits and checks, as well as relator's affidavit wherein he admitted he had worked during the time period in question and that he was the only individual who performed the installation work.
{¶ 34} 13. Relator appealed the DHO's order and filed motions to quash and to suppress relator's affidavit, the bank records, and the HVAC supply accounts. A pre-hearing conference was held with a hearing administrator on November 15, 2001, to address relator's motions. By letter dated January 29, 2002, the hearing administrator made the following findings:
{¶ 35} "It is the finding of the Hearing Administrator that the following provision(s) have been decided upon: The claimant's motions filed 8-8-01 and 9-10-01 to `quash/strike and suppress any and all evidence obtained by the Ohio Bureau of Workers' Compensation' in regards to the pending issue of fraud/overpayment, are hereby denied.
{¶ 36} "Claimant argued that the BWC obtained evidence from illegal and defective subpoenas. Claimant also argued the BWC obtained affidavits that do not comply with the laws and rules governing notary publics.
{¶ 37} "Claimant's request to strike evidence are denied in light of ORC
{¶ 38} 15. Relator's appeal from the prior DHO order was heard before a staff hearing officer ("SHO") on February 1, 2002, and resulted in an order finding that relator had been overpaid and that he had committed fraud. The SHO relied upon the same records upon which the DHO relied as well as relator's signed statement. The SHO also noted that relator refused to testify at the hearing, and found that relator had concealed the fact that he was working while receiving compensation. The SHO further noted that relator represented to the BWC that he was entitled to TTD compensation by filing his disability statements and by cashing the TTD compensation checks which he received. The SHO found that these actions were material representations which were made intentionally by relator in order that the BWC would rely upon those statements and issue the compensation to relator while he was working. The SHO also found that relator's representation that he was disabled and not working between February 18, 2000 to February 2, 2001, was false and that it was material to the payment of TTD compensation, was intended by relator to cause the BWC to pay him compensation while he was working, and was relied on by the BWC when it paid him improperly as a direct result of his misrepresentation.
{¶ 39} 16. Further appeal filed by relator was refused by order of the commission mailed February 21, 2002.
{¶ 40} 17. Thereafter, relator filed the instant mandamus action in this court.
{¶ 42} Relator's first two challenges allege the illegality of the subpoenas used to acquire the bank and HVAC supply records and the affidavit containing his confession of fraud. Relator asserts that the evidence obtained should have been excluded from consideration in the administrative proceedings.
{¶ 43} Relator contends that the BWC is required to comply with Civ.R. 45(A)(1)(c) which provides that every subpoena shall set forth the text of divisions (C) and (D) of this rule. Those provisions provide information regarding the protection of parties subject to subpoenas and the duties of parties responding to subpoenas. For example, Civ.R. 45(C)(2)(b) provides that a person may file written objections to production and that the party serving the subpoena will not be entitled to production of those documents unless the court orders them to do so. Relator contends that, without including the language from Civ.R. 45, the subpoenas served on Key Bank, the HVAC suppliers, and his wife were invalid.
{¶ 44} Civ.R. 1 makes it clear that the civil rules are to be followed in all courts of the state of Ohio in the exercise of civil jurisdiction law or in equity.
{¶ 45} However, R.C.
{¶ 46} "The industrial commission shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than as provided in sections
{¶ 47} In State ex rel. Roberts v. Indus. Comm. (1984),
{¶ 48} Relator attempts to make Civ.R. 45 applicable to the BWC's administrative subpoenas because of R.C.
{¶ 49} Unlike actions before the Board, R.C.
{¶ 50} Relator also contends that his signed confession of fraud should have been excluded. Relator contends that Mr. Cave was not permitted to both draft the statement which relator ultimately signed and notarize that same statement. Relator points to R.C.
{¶ 51} Lastly, relator contends that the commission abused its discretion by finding that he was working during the time he was receiving TTD compensation and living maintenance benefits. Relator contends that the income he received from Galbraith Heating Cooling did not constitute evidence that he actually did any of the work. This magistrate disagrees.
{¶ 52} First, in his affidavit, relator admitted to doing installation work for his company. That, in and of itself, constitutes some evidence that relator was performing work outside his restrictions. Secondly, R.C.
{¶ 53} "Work is not defined for workers' compensation purposes. We have held, however, that any remunerative activity outside the former position of employment precludes TTC. State ex rel. Nye v. Indus. Comm.
(1986),
{¶ 54} Clearly, there was some evidence before the commission that relator was working as defined in Ford Motor Co., and was, therefore, not entitled to receive TTD compensation. As such, this argument of relator fails as well.
{¶ 55} Based on the foregoing, it is this magistrate's decision that relator has not demonstrated that the commission abused its discretion by finding that he was working while receiving TTD compensation and living maintenance benefits and relator's request for a writ of mandamus should be denied.
Stephanie Bisca Brooks, Magistrate.