State ex rel. Lutheran Hosp. v. Buehrer

[Cite as State ex rel. Lutheran Hosp. v. Buehrer, 2015-Ohio-380.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Lutheran Hospital, :

Relator, :

v. : No. 13AP-670

Stephen P. Buehrer Administrator : (REGULAR CALENDAR)
Ohio Bureau of Workers' Compensation,
Ohio Bureau of Workers' Compensation, :
and Elmira Brown,
:
Respondents.
:

D E C I S I O N

Rendered on February 3, 2015

Nicola, Gudbranson & Cooper, LLC, Michael J. Bertsch,
Kathleen E. Gee and Amy Berman Hamilton, for relator.

Michael DeWine, Attorney General, and Stephen D. Plymale,
for respondent Ohio Bureau of Workers' Compensation.

IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION

DORRIAN, J.
{¶ 1} Relator, Lutheran Hospital ("relator"), filed this original action requesting a
writ of mandamus ordering respondent Stephen P. Buehrer, Administrator of the Ohio
Bureau of Workers' Compensation ("administrator"), to vacate the order of his
administrator's designee denying relator's request for reimbursement of payments it
made to the Ohio Bureau of Workers' Compensation ("bureau") on semi-annual bills for
benefits paid to Elmira Brown ("Brown") from the disabled workers' relief fund
("DWRF"), and to enter an order granting reimbursement of those payments.
No. 13AP-670 2

{¶ 2} Pursuant to Civ.R. 53(D) and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate recommends
that this court deny the request for a writ of mandamus.
{¶ 3} Relator sets forth one objection to the magistrate's decision:
Relator objects to the Magistrate's Decision because it failed
to address the issue of whether Respondent violated its clear
legal duty under R.C. 4123.411 et seq. by issuing DWRF
payments to Brown to which she was not entitled and by
billing Lutheran Hospital for the DWRF payments made
without legal authority.

{¶ 4} As explained in the magistrate's decision, Brown was an employee of relator
and received an injury in the course of and arising out of her employment. An industrial
claim was allowed for that injury. Brown later filed an application for permanent total
disability ("PTD") compensation. She was initially awarded PTD compensation under an
order issued on February 15, 1990. On March 23, 1990, the bureau notified Brown that
she was eligible for DWRF payments and would receive benefits. Following a rehearing
pursuant to relator's request, Brown's application for PTD compensation was denied in an
order issued on May 8, 1992. It appears that Brown was not eligible for DWRF benefits
because she was not receiving PTD compensation, but that she received DWRF benefits
until August 2009, at which time the bureau notified her that the benefit payments were
being terminated. During the period when Brown was receiving DWRF benefits, the
bureau billed relator semi-annually for the amount of those benefits, pursuant to R.C.
4123.411(C).
{¶ 5} The magistrate concluded that both the bureau and relator operated under a
mutual mistake of fact during the period in which the bureau made DWRF payments to
Brown and relator paid the bills submitted by the bureau under R.C. 4123.411(C). Relator
asserts that the magistrate erred by failing to determine whether the bureau violated a
clear legal duty by issuing DWRF payments to Brown and by billing relator for those
payments.
{¶ 6} "To be entitled to a writ of mandamus, a relator must carry the burden of
establishing that he or she has a clear legal right to the relief sought, that the respondent
No. 13AP-670 3

has a clear legal duty to perform the requested act, and that the relator has no plain and
adequate remedy in the ordinary course of law." State ex rel. Van Gundy v. Indus.
Comm., 111 Ohio St.3d 395, 2006-Ohio-5854, ¶ 13. This standard places a heavy burden
on a relator to submit facts and produce proof that is plain, clear, and convincing. State ex
rel. Casto v. Indus. Comm., 10th Dist. No. 12AP-205, 2013-Ohio-1017, ¶ 9, citing State ex
rel. Stevens v. Indus. Comm., 10th Dist. No. 10AP-1147, 2012-Ohio-4408, ¶ 7. See also
State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-6117, ¶ 56 ("Parties seeking
extraordinary relief bear a more substantial burden in establishing their entitlement to
this relief. In mandamus cases, this heightened standard of proof is reflected by two of the
required elements—a 'clear' legal right to the requested extraordinary relief and a
corresponding 'clear' legal duty on the part of the respondents to provide it."). "The right
to mandamus must be shown by clear and convincing evidence, and a writ will not be
granted in doubtful cases." State ex rel. NHVS Internatl., Inc. v. Ohio Bur. of Workers'
Comp., 10th Dist. No. 13AP-356, 2014-Ohio-5522, ¶ 6.
{¶ 7} In its memorandum in support of its objection and in its brief before the
magistrate, relator argues that the bureau violated a clear legal duty by making DWRF
payments to Brown when she was not eligible for such payments and by billing relator for
the cost of those payments. The standard for mandamus relief, however, focuses on
whether the respondent has a clear legal duty to perform the requested act. In this case,
the act that relator seeks to compel through mandamus is reimbursement of the amounts
it paid to the bureau pursuant to the bills for DWRF payments made to Brown. Assuming
for purposes of analysis that the bureau violated a clear legal duty by making DWRF
payments to Brown and billing relator for those payments, relator has failed to present
clear and convincing evidence that it has a right to reimbursement or that the bureau has
a duty to pay reimbursement. See, e.g., State ex rel. Liberty Mut. Ins. Co. v. Indus.
Comm., 10th Dist. No. 83AP-430 (May 3, 1984) ("[R]elator gives no statutory basis upon
which it could be found that respondent is under a legal duty to reimburse an out-of-state
insurer for payments made to an Ohio employee for injuries sustained in another state
where a claim for benefits is later granted by the Ohio Industrial Commission.").
{¶ 8} Accordingly, relator's objection to the magistrate lacks merit and is
overruled.
No. 13AP-670 4

{¶ 9} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of relator's objection, we find that the magistrate has
properly determined the pertinent facts and applied the appropriate law. We therefore
overrule relator's objection to the magistrate's decision and adopt the magistrate's
decision as our own, including the findings of fact and conclusions of law contained
therein. The requested writ of mandamus is hereby denied.
Objection overruled; writ denied.
TYACK and KLATT, JJ., concur.
_______________
No. 13AP-670 5

APPENDIX
IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Lutheran Hospital, :

Relator, :

v. : No. 13AP-670

Stephen P. Buehrer Administrator : (REGULAR CALENDAR)
Ohio Bureau of Workers' Compensation,
Ohio Bureau of Workers' Compensation, :
and Elmira Brown,
:
Respondents.
:

MAGISTRATE'S DECISION

Rendered on October 17, 2014

Nicola, Gudbranson & Cooper, LLC, Michael J. Bertsch,
Kathleen E. Gee and Amy Berman Hamilton, for relator.

Michael DeWine, Attorney General, and Stephen D. Plymale,
for respondent Ohio Bureau of Workers' Compensation.

IN MANDAMUS

{¶ 10} In this original action, relator, Lutheran Hospital, requests a writ of
mandamus ordering respondent Stephen P. Buehrer, Administrator of the Ohio Bureau of
Workers' Compensation ("administrator"), to vacate the order of his administrator's
designee that denied relator's request for reimbursement of payments it made to the Ohio
Bureau of Workers' Compensation ("bureau") on semi-annual bills for benefits paid to
No. 13AP-670 6

Elmira Brown from the disabled workers' relief fund ("DWRF"), and to enter an order
granting the requested reimbursement.
Findings of Fact:
{¶ 11} 1. On April 4, 1982, Elmira Brown ("claimant" or "Brown") received an
injury in the course of and arising out of her employment with Lutheran Hospital, a self-
insured employer under Ohio's workers' compensation laws.
{¶ 12} 2. The industrial claim (No. 784765-22) was allowed.
{¶ 13} 3. On November 29, 1988, Brown filed an application for permanent total
disability ("PTD") compensation.
{¶ 14} 4. Following a February 6, 1990 hearing before the then five-member
Industrial Commission of Ohio ("commission") an order was issued February 15, 1990
that awarded PTD compensation beginning February 2, 1988.
{¶ 15} 5. By letter dated March 23, 1990, the bureau's DWRF section informed
Brown that she was eligible for DWRF payments and would be receiving benefits.
{¶ 16} 6. Earlier, on March 7, 1990, pursuant to R.C. 4123.522, relator moved the
commission for rehearing of the PTD application on grounds that relator did not receive
notice of the hearing.
{¶ 17} 7. Following a December 4, 1990 hearing, the commission mailed an order
on August 15, 1991 that granted relator R.C. 4123.522 relief. The commission's order
instructed:
Claim file is to be referred to ADDOK to reset for hearing on
the Claimant's IC-2 filed November 29, 1988.

Permanent Total Disability benefits are to be continued to be
paid to date of Commission hearing.

{¶ 18} 8. Following a February 12, 1992 hearing, the then five-member
commission mailed an order on May 8, 1992 that denies that PTD application.
{¶ 19} The commission's May 8, 1992 order can be divided into three sections. The
middle section is captioned "Findings of Fact and Order of the Commission." Above the
middle section, certain information is listed such as Brown's name and address, the
employer's name and address, and the name and address of Brown's counsel.
No. 13AP-670 7

{¶ 20} Among the information listed (above the middle section) is the following:
BWC/LAW DIRECTOR
ACTUARIAL
DWRF

{¶ 21} Below the middle section are the signature blocks for the five
commissioners.
{¶ 22} 9. By letter dated March 24, 2009, the bureau's Chief of Customer Services
served on Lutheran Hospital a list of injured workers who, according to bureau records,
were receiving PTD benefits from Lutheran Hospital. The letter requested that Lutheran
Hospital review the list and report back to the bureau whether any of the injured workers
were no longer receiving PTD benefits or whether other injured workers should be added
to the list.
{¶ 23} 10. Accompanying the March 24, 2009 letter was a bureau form or
questionnaire captioned: "BWC review of permanent total disability (PTD) payments by
self-insuring employers." The form asks specific information regarding Brown.
{¶ 24} 11. Counsel for relator, Kathleen E. Gee, completed the form regarding
Brown, and, on April 22, 2009, wrote a letter to Kristie Danley of the bureau's Dayton
Customer Service Office.
{¶ 25} 12. Gee's April 22, 2009 letter to Danley states:
In response to the enclosed questionnaire, please note that,
according to our file, the Industrial Commission of Ohio,
without notice to or appearance by the self-insured
employer, awarded permanent total compensation to
claimant on February 15, 1990. The employer sought R.C.
§4123.522 relief and was advised by the BWC Self-Insured
Department not to pay on the February 15, 1990 ICO Order
until its R.C. §4123.522 Motion had been adjudicated. That
Motion was granted on December 4, 1990 and a rehearing
was ordered. Following rehearing, the ICO's February 12,
1992 Order denied claimant's Application for Permanent
Total Disability. Therefore, we do not believe any permanent
total disability compensation has been paid in this case.

{¶ 26} 13. By letter dated August 12, 2009, the bureau informed Brown that she
had been receiving DWRF benefits in error and that DWRF payments were being
terminated.
No. 13AP-670 8

{¶ 27} 14. On May 20, 2010, Gee wrote to Jim Fograscher, the director of the
bureau's self-insured department:
BWC began paying DWRF sometime in 1990 per BWC claim
notes. Notwithstanding the February 12, 1992 ICO Order,
those payments continued until August 20, 2009. As evid-
enced by the enclosed BWC payment listing, as of August 6,
2009, erroneous DWRF payments to claimant from
January 1, 1993 through that date totaled $93,256.15. DWRF
benefits paid between 1990 and December 31, 2002 add a
currently unknown figure to the overpayment. It also
appears an additional payment of $352.71 was made to
claimant on August 20, 2009 bringing the known
overpayment to $93,608.87. BWC directed Lutheran to
reimburse it for each of the payments made. Due to some
inadvertent clerical error, Lutheran complied. That error was
perpetuated with the receipt of subsequent BWC invoices.

In a conversation with Kristie Danley in the BWC Dayton
Service Office on April 22, 2009, we were assured BWC
would reimburse Lutheran for any wrongfully collected
DWRF monies. As of July 1, 2009, we were told that the only
issues delaying reimbursement were to determine what due
process was owed to claimant before stopping DWRF
payments and how BWC was to go about accomplishing a
reimbursement to Lutheran. Although this office and
Lutheran have made additional inquiries, and although BWC
stopped further DWRF payments to claimant, Lutheran has
yet to receive reimbursement.

Lutheran Hospital hereby formally requests reimbursement
of overpaid DWRF funds in the amount of $93,608.87 plus
the amount of any DWRF benefits paid to claimant between
February 15, 1990 and December 31, 2002.

{¶ 28} 15. On April 12, 2011, Gee wrote to Paul Flowers, the interim director of the
bureau's self-insured department:
Enclosed is our May 20, 2010 correspondence to Jim
Fograscher. Attempts to follow up with Mr. Fograscher by
telephone failed and we received no response to the letter,
either verbally or in writing. Lutheran Hospital maintains it
is entitled to reimbursement of all DWRF funds paid by BWC
to claimant following her PTD application. That application
was ultimately denied, but BWC continued to pay benefits.
The amount owed to Lutheran arising from BWC's error is
No. 13AP-670 9

$93,608.87 plus any amount of DWRF benefits paid to
claimant between February 15, 1990 and December 31, 1992.

We would appreciate an immediate written decision
responsive to this request and reimbursement of the
erroneously paid DWRF benefits as soon as practicable.

16. On May 12, 2011, Paul Flowers wrote to Gee:
After researching this issue, the BWC Self-Insured
Department has determined that the above requests for
reimbursement cannot be granted. Per Ohio Revised Code
4123.411(C) and Ohio Administrative Code 4123-17-29(B),
the BWC paid DWRF benefits to the Injured Worker and
then appropriately billed the self-insured employer for these
amounts. Lutheran Hospital subsequently reimbursed the
BWC for these payments without protest. Based on the
employer's reimbursement of these payments, the DWRF
fund is whole from a BWC perspective. Any remedy that the
employer seeks related to a reimbursement of these costs
would need to be pursued through the Industrial
Commission.

If you do not agree with this decision you have appeal rights.
{¶ 29} 17. On May 31, 2011, Gee wrote to the bureau's self-insured department:
Lutheran Hospital respectfully disagrees with the Self-
Insured Department's decision in this matter. The error in
payment of DWRF benefits to claimant whose PTD
application was denied was made by BWC. The responsibility
for that error should not be abdicated for the mere reason
that it passed on the cost of that error to the employer.
Therefore, please consider this Lutheran Hospital's appeal of
the May 12, 2011 letter denying its request for
reimbursement.

{¶ 30} 18. Following a July 20, 2011 conference or hearing, the bureau's three-
member Self-Insured Review Panel ("SIRP") mailed a three-page written decision on
August 31, 2011, stating:
The issue presented concerned the employer's appeal of
assessments charged to its self-insured risk. Specifically, the
employer has been charged for Disabled Workers' Relief
Fund (DWRF) benefits paid in the claim of Elmira Brown,
784765-22. The employer paid these assessed amounts to
No. 13AP-670 10

BWC and is now requesting reimbursement, alleging the
assessments were erroneously billed.

At the conference, the employer's representatives advised the
Panel of the following events. The employer, Lutheran
Hospital (Lutheran), became a self-insuring employer for
purposes of Ohio workers' compensation coverage on
January 1, 1973, and continues to be an active self-insuring
employer in Ohio under SI# 20003081. It has been under
the umbrella of the Cleveland Clinic since 1997.

The employer's representatives stated that claimant Elmira
Brown (Brown) was injured in 1982. Brown's claim was
allowed as a self-insured claim, charged to the employer's
risk number, and given claim no. 784765-22. Brown was
granted permanent total disability (PTD) benefits by the
Industrial Commission by order dated February 15, 1990,
with an effective start date of February 22, 1988. Lutheran
was ordered to pay these benefits to Brown. However,
Lutheran alleged it did not receive notice of the PTD hearing,
and on August 15, 1991, filed a motion for rehearing under
Ohio Revised Code §4123.522, which was granted. A second
order was issued following a hearing on December 4, 1990.
This order required Lutheran to continue paying PTD
benefits until a hearing could be scheduled before the full
Commission. Upon rehearing, the Industrial Commission
overturned its original order and denied Brown's PTD
application * * *.

It is undisputed that Lutheran paid no PTD benefits to
Brown at any time, including the period from 1988-1992
when it was ordered to do so by the Industrial Commission.
BWC began paying DWRF benefits after the initial PTD
award, and continued to pay DWRF benefits until August 20,
2009. The employer's representatives do not dispute that
Lutheran received semi-annual invoices for the DWRF
payments, and continued to reimburse BWC throughout this
17-year period for DWRF benefits paid on this self-insured
claim. The error was discovered by BWC in 2009 through an
internal audit of self-insuring employers, when BWC
contacted Lutheran by letter to verify [the] amount of the
PTD payments.

The employer initially requested reimbursement in the
amount of $93,608.87, plus additional unknown costs for
DWRF payments between February 15, 1990, and
No. 13AP-670 11

December 31, 1992. Lutheran has now revised the requested
reimbursement figure to $99,187.31. The employer's
representatives stated that because BWC has the expertise
and controls the calculation and billing of DWRF
assessments, BWC, rather than the employer, should bear
the burden of absorbing the loss for the benefits erroneously
paid to Brown.

A representative of the Self-Insured Department noted that
the DWRF invoices sent to the employer specifically indicate
the billing is for amounts paid on a particular self-insured
claim, listing both the claim number and the injured
worker's name. It is the Self-Insured Department's position
that because the employer reimbursed BWC without protest,
the DWRF Fund has been made whole.

Ohio Revised Code §4123.411(C) provides as follows with
respect to DWRF benefits:

For a self-insuring employer, the bureau of workers'
compensation shall pay to employers who are participants
regardless of the date of injury, any amounts due the
participants under section 4123.414 [4123.41.4] of the
Revised Code and shall bill the self-insuring employer,
semiannually, for all amounts paid to a participant.

The statute is supplemented by Ohio Administrative Code
Rule 4123-17-29(B)(1), which provides the following:

Each self-insuring employer shall reimburse the bureau
for DWRF payments made in claims in which it is
the employer of record, without regard to the date the
employer was granted the privilege to pay compensation
directly, for all DWRF payments made on or after August 22,
1986. (Emphasis added.)

The Disabled Workers' Relief Fund was established in 1953
to provide supplemental benefits to workers who have been
granted PTD awards. It is separate from the State Insurance
Fund. Prior to 1986, DWRF benefits were funded by
employer payroll assessments charged to both state fund and
self-insuring employers. In 1986, the General Assembly
changed the DWRF funding mechanism for self-insuring
employers, and BWC began billing each self-insuring
employer of record for the full amount of DWRF payments
made after August 22, 1986, without regard to the date of
No. 13AP-670 12

injury, in accordance with the provisions referenced above.
The change in the funding mechanism was upheld by the
Ohio Supreme Court in the case of Wean Inc. v. Industrial
Commission of Ohio (1990), 52 Ohio St.3d 266. In that case,
the Court stated that "self-insured employers are currently
responsible to reimburse the bureau for all past, present and
future employees who are eligible for the DWRF." Id. at 269.

BWC's right to be reimbursed by self-insuring employers for
DWRF benefits was also upheld in the case of Goodyear Tire
& Rubber Co. v. Ohio Bureau of Workers' Compensation,
2000 WL 192364 (Ohio App. 10th Dist.), in which the Court
found that a "self-insured employer's obligation for
reimbursement arises at the time disbursements are made,
rather than at the time the workers' right to receive them
accrues under the other pertinent DWRF statutory sections."
Id. at 5. In that case, self-insuring employers challenged
invoices to reimburse for lump sum DWRF benefits paid to
claimants * * * whose DWRF eligibility was not determined
until substantial arrearages had accrued. The court
determined that the obligation for a self-insuring employer
to reimburse BWC for DWRF benefits arises at the time BWC
pays the DWRF benefits, stating this is the "current
responsibility" discussed in the Wean case, which refers to
"all current DWRF outlays by the BWC regardless of the date
of injury in relation to the date the employer became self-
insured." Id. at 4. While the Panel notes that these cases do
not directly address the scenario presented by Lutheran, it is
clear from the discussion in these cases that the only act
necessary to trigger the self-insuring employer's
reimbursement obligation is the payment of DWRF benefits
by BWC.

The Panel has considered the evidence submitted by the
employer, and notes the following. Pursuant to questioning
from the Panel, the self-insuring employer has no knowledge
or evidence of whether it ever notified BWC that PTD
benefits had been terminated. Additionally, the employer
was informed on the invoices received from BWC that the
billing was for Brown's claim, and never questioned the
amounts due. Rather, it paid BWC without protest twice a
year, for a period of some 17 years after PTD benefits were
terminated.

The responsibilities of being a self-insuring employer include
statutory compliance and proper administration of claims by
No. 13AP-670 13

the employer. Lutheran, not BWC, was the party who had
direct knowledge that Brown's PTD application had been
denied. Therefore, Lutheran was in the best position to
discover and correct what it now characterizes as "some
inadvertent clerical error." The failure to make this
correction should not be borne by BWC or state fund
employers in general, who would absorb the loss if Lutheran
is reimbursed. BWC has complied with the statutory
requirements governing payment of DWRF benefits. Those
requirements do not include reimbursement for such
situations as the employer has presented. The employer's
appeal is denied.

(Emphasis sic.)
{¶ 31} 19. Relator administratively appealed the SIRP decision to the
administrator's designee.
{¶ 32} 20. On December 7, 2011, the administrator's designee issued an order that
affirms the SIRP decision. The order explains:
Pursuant to Ohio Administrative Code Rule 4123-19-14, the
Administrator's Designee hereby undertakes consideration
of the employer's appeal of the Self-Insured Review Panel
order from August 31, 2011. The issue presented is refund of
assessments for the Disabled Workers' Relief Fund (DWRF).

The order of the Self-Insured Review Panel contains a
detailed discussion of the proceedings, which the
Administrator's Designee adopts in total. In particular,
Lutheran Hospital knew when the application for permanent
total benefits (PTD) of Elmira Brown had been denied and
had, in fact, never paid any PTD benefits. Accordingly,
Lutheran Hospital was in the position to know that
seventeen years of billings for DWRF benefits paid to the
injured worker in this self-insured claim were in error and
should not have been reimbursed to BWC.

On appeal, the employer focuses on the May 8, 1992,
Industrial Commission order denying PTD and on the
alleged fault of BWC in not taking corrective action.
However, this miss-characterizes the primary issue raised by
the employer's protest. The protest is over rejection of the
employer's 2011 request for a refund of payments. There is
no dispute that there was fault on the part of the employer
over a seventeen year period. Also, in many circumstances
No. 13AP-670 14

regarding alleged BWC errors, both employers and BWC are
limited to a two-year look-back for corrections to employer
accounts. Compare, Ohio Administrative Code Rules 4123-
17-17(C), 4123-17-27, and 4123-17-28(B) & (C). Moreover,
BWC will not bear any long-term negative monetary
consequences in making a refund. The refund costs will be
passed on to other employers contributing to the DWRF
funds. To grant the employer's request in this instance would
unjustly burden other Ohio employers.

For these reasons, the Administrator's Designee upholds the
order of the Self-Insured Review Panel. The employer's
appeal is denied.

{¶ 33} 21. On August 1, 2013, relator, Lutheran Hospital, filed this mandamus
action.
Conclusions of Law:
{¶ 34} It is the magistrate's decision that this court deny relator's request for a writ
of mandamus, as more fully explained below.
{¶ 35} R.C. 4123.411 through 4123.419 sets forth the statutory framework
regarding the DWRF fund.
{¶ 36} R.C. 4123.411(C) sets forth a funding mechanism with respect to self-
insured employers:
For a self-insuring employer, the bureau of workers'
compensation shall pay to employees who are participants
regardless of the date of injury, any amounts due to the
participants under section 4123.414 of the Revised Code and
shall bill the self-insuring employer, semiannually, for all
amounts paid to a participant.

{¶ 37} R.C. 4123.412 creates DWRF as a fund separate from the state insurance
fund. Although the state treasurer has custody of the fund, disbursements from the fund
are made by the bureau.
{¶ 38} R.C. 4123.413 defines participant eligibility:
To be eligible to participate in said fund, a participant must
be permanently and totally disabled and be receiving
workers' compensation payments, the total of which, when
combined with disability benefits received pursuant to The
Social Security Act is less than three hundred forty-two
No. 13AP-670 15

dollars per month adjusted annually as provided in division
(B) of section 4123.62 of the Revised Code.

{¶ 39} R.C. 4123.414 establishes the amount of payments to eligible DWRF
participants:
Each person determined eligible, pursuant to section
4123.413 of the Revised Code, to participate in the disabled
workers' relief fund is entitled to receive payments, without
application, from the fund of a monthly amount equal to the
lesser of the difference between three hundred forty-two
dollars, adjusted annually pursuant to division (B) of section
4123.62 of the Revised Code, and:

(1) The amount he is receiving per month as the disability
monthly benefits award pursuant to The Social Security Act;
or

(2) The amount he is receiving monthly under the workers'
compensation laws for permanent and total disability.

{¶ 40} R.C. 4123.416 provides in part:

The administrator of workers' compensation shall promptly
require of each employer who has elected to pay
compensation direct under the provisions of section 4123.35
of the Revised Code a verified list of the names and
addresses of all persons to whom the employer is paying
workers' compensation on account of permanent and total
disability and the evidence respecting such persons as the
administrator reasonably deems necessary to determine the
eligibility of any such person to participate in the disabled
workers' relief fund.

{¶ 41} Supplementing the statute, Ohio Adm.Code 4123-17-29(B) provides:

(1) Each self-insuring employer shall reimburse the bureau
for DWRF payments made in claims in which it is the
employer of record, without regard to the date the employer
was granted the privilege to pay compensation directly, for
all DWRF payments made on or after August 22, 1986.

(2) Self-insuring employers shall be billed on a semi-annual
basis for the DWRF payments made pursuant to this rule.
No. 13AP-670 16

{¶ 42} In Wean Inc. v. Indus. Comm., 52 Ohio St.3d 266 (1990), the Supreme
Court of Ohio held that R.C. 4123.411(C), as amended August 22, 1986, does not violate
the retrospective provision of Article II, Section 28 of the Ohio Constitution.
{¶ 43} In Wean, the Supreme Court had occasion to summarize the statutory
history of DWRF. The court explains:
The Disabled Workers' Relief Fund ("DWRF") was created in
1953 by the General Assembly to provide a subsidy to
qualifying recipients of workers' compensation. To qualify,
an employee, pursuant to R.C. 4123.412 through 4123.414,
must be permanently and totally disabled as a result of
occupational injury or disease and one whose workers'
compensation benefits, when combined with Social Security
Act disability payments, fall below a statutorily mandated
amount.

From 1953 to 1959, DWRF generated its funds from the
state's general revenues. In 1959, the General Assembly,
pursuant to R.C. 4123.411, altered the plan of financing the
program and provided for an employer payroll assessment.
R.C. 4123.411 provided, in its original form, that appellant
Industrial Commission of Ohio ("commission") levy an
assessment against all amenable employers in January of
each year and that the rate was not to exceed three cents per
hundred dollars of payroll. The commission's authority to
maintain and administer the DWRF is derived from Section
35, Article II of the Ohio Constitution.

Since 1959, R.C. 4123.411 has been amended on numerous
occasions. For instance, in 1975, the statute was amended
increasing the employer payroll assessment from a
maximum of three cents to five cents per one hundred
dollars of payroll. When assessments were found to be
insufficient, investment income from the State Insurance
Fund was provided, a funding procedure approved by this
court in Thompson v. Indus. Comm. (1982), 1 Ohio St.3d
244, 1 OBR 265, 438 N.E.2d 1167.

In 1980, the assessment was again increased to a minimum
of five cents but not to exceed ten cents per one hundred
dollars of payroll. This assessment was to be apportioned
among four classes of employers: (1) private fund, (2)
counties and taxing districts, (3) the state, and (4) self-
insurers.
No. 13AP-670 17

In 1986, the General Assembly decided once again to change
the funding plan. Effective August 22, 1986, R.C. 4123.411(A)
was amended to remove self-insured employers as one of the
four classes established in 1980. In addition, R.C.
4123.411(C) provided that self-insured employers shall be
liable for the full amount of DWRF payments to qualified
employees "regardless of the date of injury." The DWRF
payment is made by appellant Ohio Bureau of Workers'
Compensation ("bureau") to the qualifying employee, after
which the bureau collects the payment from the self-insured
employers.

{¶ 44} In holding that R.C. 4123.411(C), as amended, does not violate the
retrospective provision of the Ohio Constitution, the Wean court explained:
[I]t is clear to this court that the General Assembly has
amended R.C. 4123.411 at all times with the specific intent
that the statute apply prospectively. Clearly, the statute, by
its terms, applies to self-insured employers who have a
current responsibility to totally and permanently disabled
employees, regardless of the date of their injury. Although
the statute speaks to prior employees who presently qualify
for DWRF payments, this does not mean R.C. 4123.411(C)
automatically mandates a retrospective reading. We have
held previously that " ‘[a] statute is not retroactive merely
because it draws on antecedent facts for a criterion in its
operation.’ "

From the statute's inception, the purpose of R.C. 4123.411
has been to prescribe the method of funding the DWRF. To
date, the purpose has remained unchanged. The only effect
on Wean, as well as on all self-insured employers, is the
method by which self-insured employers are assessed. Prior
to August 22, 1986, Wean's contribution to the DWRF was
based upon a percentage of its then current payroll. The
General Assembly, pursuant to the 1986 amendment,
directed Wean to reimburse the bureau dollar-for-dollar for
those qualified employees entitled to DWRF payments
regardless of the date the employee was injured. As was the
case prior to August 22, 1986, the effect of the amendment
speaks only to a self-insured employer's current
responsibility.

(Emphasis sic.; Citations omitted.) Id. at 269.
No. 13AP-670 18

{¶ 45} R.C. 4123.52 provides:
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.

{¶ 46} In State ex rel. Martin v. Connor, 9 Ohio St.3d 213 (1984), noting "that the
recoupability of payments made under a mistake of fact depends on the circumstances,"
the Supreme Court of Ohio issued a writ essentially ordering the administrator to cease
the collection of alleged DWRF overpayments by reducing the monthly PTD award.
{¶ 47} In Martin, the issue arose when, in 1981, Martin's monthly Social Security
Disability ("SSD") payments increased significantly and he obtained a lump sum payment
from the Social Security Administration for "back pay." Id. at 213. The administrator
viewed the lump sum warrant as past SSD payments which would have reduced or
terminated past DWRF payments. Upon Martin's failure to respond to several offered
repayment options, the administrator reduced his monthly PTD award.
{¶ 48} In Martin, the court determined "[n]o mistake was made with regard to
[Martin's] right and respondent's duty at the time the DWRF payments in question were
made," and, on that basis, held that the administrator lacked authority to recover the
alleged overpayments. (Emphasis sic.) Id. at 214.
{¶ 49} The Martin case is significant here for at least two reasons: (1) it clearly
indicates that the administrator has R.C. 4123.52 continuing jurisdiction powers, and (2)
it indicates the recoupability of payments made under a mistake of fact depends on the
circumstances.
{¶ 50} In State ex rel. Weimer v. Indus. Comm., 62 Ohio St.2d 159 (1980), a case
the Martin court distinguished, a bureau claims examiner discovered, while reviewing the
file of claimant Betty Weimer, that Weimer had been overpaid $3,476.58 because of a
clerical error. The administrator issued an order notifying Weimer that the overpayment
would be deducted from any future compensation. Weimer had a PTD award that would
be reduced by the administrator's decision.
No. 13AP-670 19

{¶ 51} Denying relief to Weimer, the court noted that "[a]t no point does [Weimer]
dispute that due to clerical error she was overpaid compensation for her industrial claim."
Id. at 159. The Weimer court further states:
Although the question presented here is sui generis, the
mistake in this case was indisputably a clerical error. This is
clearly a mistake of fact.

Id. at 160.
{¶ 52} Here, it is clear that both the bureau and relator operated under a mutual
mistake of fact during the bureau's payments of DWRF benefits to Brown and relator's
reimbursements to the bureau under R.C. 4123.411(C). That is, both the bureau and
relator mistakenly believed that Brown was receiving PTD compensation when in fact the
initial PTD award had been vacated by the commission's order of May 8, 1992. It can
indeed be said that for a period of some 17 years, both the bureau and relator operated
under a clear mistake of fact based on an erroneous belief that Brown was receiving PTD
compensation.
{¶ 53} Here, the December 7, 2011 order of the administrator's designee is based
on a determination that relator was at "fault." Relator does not dispute that a
determination of fault is an appropriate basis for the decision. In fact, relator spends
much effort arguing that the bureau was primarily at fault and, thus, the refund should be
ordered.
{¶ 54} The final two paragraphs of the SIRP order largely places fault on relator:
The Panel has considered the evidence submitted by the
employer, and notes the following. Pursuant to questioning
from the Panel, the self-insuring employer has no knowledge
or evidence of whether it ever notified BWC that PTD
benefits had been terminated. Additionally, the employer
was informed on the invoices received from BWC that the
billing was for Brown's claim, and never questioned the
amounts due. Rather, it paid BWC without protest twice a
year, for a period of some 17 years after PTD benefits were
terminated.

The responsibilities of being a self-insuring employer include
statutory compliance and proper administration of claims by
the employer. Lutheran, not BWC, was the party who had
direct knowledge that Brown's PTD application had been
No. 13AP-670 20

denied. Therefore, Lutheran was in the best position to
discover and correct what it now characterizes as "some
inadvertent clerical error." The failure to make this
correction should not be borne by BWC or state fund
employers in general, who would absorb the loss if Lutheran
is reimbursed. BWC has complied with the statutory
requirements governing payment of DWRF benefits. Those
requirements do not include reimbursement for such
situations as the employer has presented. The employer's
appeal is denied.

{¶ 55} In an effort to show that the bureau was primarily at fault, relator argues
that the commission's order denying the PTD application "clearly put Respondents on
notice that Brown was not eligible for DWRF benefits." (Relator's Brief, 8.) Apparently,
this is relator's reference to the upper portion of the commission's order which contains
the following:
BWC/LAW DIRECTOR
ACTUARIAL
DWRF

{¶ 56} Presumably, the above language indicates that a copy of the commission's
order was to be sent to the bureau's DWRF section and perhaps to the bureau's law
director.
{¶ 57} But even if we can presume that the bureau's DWRF section was sent a copy
of the commission's order, that does not negate the obvious fact that relator was
represented at the February 12, 1992 hearing and opposed the application. We must
likewise presume that relator also received a copy of the commission's decision denying
the PTD application. That is, relator, as a self-insured employer, was indeed an interested
party to the commission proceedings.
{¶ 58} Relator does not deny that it was informed on the invoices received from the
bureau that the billing was for Brown's claim. As SIRP concluded, relator never
questioned the invoices and paid them twice a year for some 17 years. Certainly, relator
bears responsibility for the neglect which supports a finding of fault.
{¶ 59} Relator's position here is largely premised on the assertion that the bureau
had "no authority" to pay Brown DWRF payments given that the commission had denied
No. 13AP-670 21

the PTD application. Given that the bureau lacked authority to make the payments,
relator concludes it must be refunded the reimbursements it made for the unauthorized
DWRF payments. Relator's argument simply ignores that the mistake of fact was mutual
and that relator was in the best position over the years to correct the mistake.
{¶ 60} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.

/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).