Due process


By Paul E Pfeifer - Court of Appeals



On May 28, 2006, Charles W. Evert died as a result of complications from surgery related to an industrial injury that he had sustained in 2004 while at work. On July 10, 2007, the Industrial Commission of Ohio – which handles workers’ compensation claims – allowed the claim for death benefits made by Donna Evert, Charles’s surviving spouse.

A few days later, on July 19, Donna filed a motion with the Bureau of Workers’ Compensation requesting an award for Charles’s loss of use of his arms and legs prior to his death. The Bureau referred that claim to the Industrial Commission, where a staff hearing officer denied the motion because it had not been filed within one year of the date of death as required by law.

More than a year later, on April 21, 2009, Donna filed a motion asking the Commission to exercise continuing jurisdiction to rehear the issue based on new and changed circumstances and an alleged mistake of law regarding the limitation period for filing a claim. But a staff hearing officer denied that motion as well.

Donna asked the Commission to reconsider that decision. So, on October 5, 2010, the Commission held a hearing on the matter with two of the three commissioners attending. Even though only two commissioners attended the hearing, all three of them voted on the matter.

By a vote of two-to-one, the Commission determined that Donna had failed to demonstrate that sufficient grounds existed to justify the Commission’s exercise of continuing jurisdiction. It denied reconsideration.

On the order denying reconsideration, there is a statement signed by Commissioner Jodie M. Taylor – the commissioner who did not attend the hearing. She said that she had discussed the matter with Alan Miller, a staff hearing officer who was present at the October 5 hearing. Taylor said that Miller summarized the testimony and arguments presented by Donna’s representative, “the Employer’s representative and the Bureau of Workers’ Compensation’s representative at hearing.”

After that discussion and review of all the evidence contained within the claim file, she wrote “I vote to deny the Spouse/Dependent’s request for reconsideration as I find that there is no persuasive evidence to support a finding of a requisite reason to invoke continuing jurisdiction in this matter.”

On May 20, 2011, Donna filed a complaint with the Tenth District Court of Appeals alleging that the Commission abused its discretion when it refused to exercise continuing jurisdiction and reconsider its denial of benefits. In one of her briefs, Donna further alleged that she had been denied due process of law when Commissioner Taylor voted on the motion for reconsideration despite not attending the hearing.

In making her claim that she had been denied due process, Donna relied on a decision that had only just been released by the Tenth District Court of Appeals in a case called State ex rel. Sigler v. Lubrizol Corp.

In that case – which was very similar to Donna’s case – a man named Sigler alleged that he was deprived of due process when one of the three voting commissioners did not attend the hearing that was held on a motion for reconsideration.

The court of appeals in Sigler’s case determined that the absent commissioner could not evaluate the credibility of witness testimony in the absence of a complete record, and the court therefore ordered the Commission to rehear the matter and make a complete record that would be available to an absent commissioner to review.

The Tenth District agreed that Sigler applied to Donna’s case. The court issued a writ vacating the Commission’s order and compelling the Commission to conduct a new hearing before all commission members or a hearing at which a record is kept. Consequently, the court did not review Donna’s arguments on the merits challenging the Commission’s denial of an award.

When Donna’s case came before us – the Supreme Court of Ohio, the narrow issue before us was whether we must reverse the judgment of the court of appeals because the court relied on its decision in Sigler. The trouble with relying on Sigler was that our court had subsequently reversed the Sigler decision.

When we reviewed Sigler, we stated that “the due process requirement of a full and fair hearing means that the decisionmaker must, in some meaningful manner, consider and appraise all the evidence to justify the decision.”

We also stated that “the method of the review is secondary.” In Sigler, the absent commissioner stated that he had reviewed the claim file and had talked with a longtime commission hearing officer who summarized the testimony, evidence, and argument for him.

Acknowledging that a presumption of regularity attaches to Commission hearings, we held that Sigler failed to prove that he was deprived of due process when that commissioner voted despite not attending the hearing.

Getting back to Donna’s case – the Commission and the Bureau of Workers’ Compensation both advocated that our court’s opinion in Sigler was a deciding factor for Donna’s case, and that that decision supported reversal.

They further maintained that Donna’s case involved a perceived mistake of law that is purely a legal issue, unlike Sigler, in which the commissioners had to evaluate the credibility of witness testimony.

Donna agreed that Sigler should apply. She additionally maintained that we should send her case back to the court of appeals for a final disposition on the underlying merits of the action.

As with the absent commissioner in Sigler, Commissioner Taylor stated that she had discussed the matter with an experienced staff hearing officer who had been present at the hearing and who summarized the testimony and arguments presented. In addition, Commissioner Taylor stated that she had reviewed the entire claim file.

Thus, in accord with our opinion in Sigler, she conducted a meaningful review of the matter sufficient to satisfy due-process concerns.

We therefore reversed the judgment of the court of appeals by a seven-to-zero vote, and sent the case back to the court of appeals with instructions to consider the merits of Donna’s complaint.

By Paul E Pfeifer

Court of Appeals

Paul E. Pfeifer is a judge in the Court of Appeals.

Paul E. Pfeifer is a judge in the Court of Appeals.

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