{¶ 27} Because I am unable to concur with the majority's conclusion with respect to the reasonableness of the bureau's interpretation and application of R.C. 4123.32(A), I must respectfully dissent. *Page 588
{¶ 28} I agree with the majority that the current facts do not give rise to a violation of constitutional equal-protection guarantees. I further agree that our analysis of the first two assignments of error begins with the legislative intent expressed by use of the word "subscriber" in R.C. 4123.32(A). I part ways from the majority here, however, because I believe that the bureau has adopted an arbitrary and unreasonable interpretation of the governing statute. The bureau seems to argue that there is no restraint on its discretion to author and apply its regulations concerning premium rebates. In drafting its administrative regulation authorized under R.C.4123.32(A), however, the bureau was not at liberty to adopt rules that conflicted with the legislature's express intent that "subscribers" to the fund be eligible for such premium rebates. Moreover, adoption of the bureau's position might have been easier in this case if the bureau had not muddied the waters by granting premium rebates to current Retro Program employers for both current-year premiums and past coverage year annual and final adjustments, a position that undermines any assertion that Retro Program payments differ in kind from other state-fund program payments that qualify for rebates.
{¶ 29} The legislature has indeed delegated to the bureau's substantial expertise the responsibility of executing in detail the legislative intent. State ex rel.McLean v. Indus. Comm. (1986), 25 Ohio St.3d 90,495 N.E.2d 370. In exercising this discretion, however, the bureau is not at liberty to interpret a term employed by the legislature in contradiction to the meaning intended by the legislature in its statute. The bureau invokes an administrative gloss put upon the term "subscriber" by the bureau after the fact, in an attempt to either assimilate or distinguish, as convenience of argument requires, this term from such equally loosely defined terms as "state risk" and "state fund employer." (The bureau's own personnel testified in deposition in this case that these were alternative terms used without significant distinction in the bureau's own internal business.) Considering the statute on its face, however, and in the context of the matters it intends to regulate, I am compelled to find that when the legislature employed the term "subscriber to the fund" in R.C. 4123.32(A) when addressing eligibility for premium rebates (particularly when the phrase "regardless of when the premium obligations have accrued" is appended to the provision), the legislature intended for employers currently affected by any ongoing premium obligations to receive corresponding premium rebates.
{¶ 30} The most reasonable and consistent reading of the statute is that R.C. 4123.32(A) is not concerned with the year in which risk accrues, covered claims are made, or covered claims are paid; it addresses excess surplus premium and the application thereof to premium-paying employers during the period in question. This is, in fact, entirely consistent with the bureau's decision to apply *Page 589 premium rebates to annual adjustment and final adjustment premiums made by those Retro Program employers who continue in the Retro Program for the coverage year in which the rebates are declared.
{¶ 31} As I interpret R.C. 4123.32(A), I would find that the bureau was not at liberty to deny premium rebates to former Retro Program employers who continued to pay annual adjustments and final adjustments through the ten-year period following each covered year, even if the employers were self-insured for the year in which the premium rebates were authorized. I would accordingly sustain the first two assignments of error.
{¶ 32} In addition, the bureau argues independently that even if R.C. 4123.32(A) authorizes and requires premium rebates for appellants Frisch's, UDF, and Hams, they have waived their right to those rebates under the explicit terms of the buyouts they executed to become self-insured. I find that the language of this waiver does not encompass the future Retro Program payments at issue here. This conclusion is buttressed by the fact that the bureau found it necessary to later amend the language of the buyout agreement form at issue by adding to the paragraph concerned an explicit reference tofuture premium payments and waiver of rebates applicable thereto: "The employer * * * also expressly waives it [sic] claim to any future rebates or dividends from the State Insurance Fund for state fund employers payable after the effective date of the employer's self-insurance." (Emphasis added.) (Form exhibit in appellee's memo opposing summary judgment.) The need for that clarification at the least compels the conclusion that the waiver language was so ambiguous as to be unenforceable against the employer on the terms now suggested by the bureau, and at most, it may suggest that future premium payments were never the object of the waiver.
{¶ 33} Appellants' third assignment of error even more compellingly argues for reversal because it raises the denial of Retro Program premium rebates to appellant PHB in this action, despite the undisputed fact that PHB for all relevant periods remained a state fund employer for current-year coverage, the very criterion that the bureau invoked as lacking in order to deny rebates to the other appellants.
{¶ 34} PHB did not elect to become self-insured, but after leaving the state-fund Retro Program remained a state-fund employer paying group-rated premiums for current years while continuing to pay its ongoing Retro Program premiums for prior coverage years. Since PHB did receive premium rebates for its group-rated premiums in those years, the bureau's position is that it would be "inequitable" for PHB to receive premium rebates on the concurrent annual and final adjustment payments for prior Retro Program covered years. *Page 590
{¶ 35} For the reasons given in my discussion of the first two assignments of error, in conjunction with the even more persuasive circumstance that PHB remained actively insured through the state fund under one program or another for all periods concerned, I would find that PHB was a subscriber for purposes of premium rebates under R.C. 4123.32(A) and may receive premium rebates for all annual and final adjustment payments under the Retro Program. There is nothing obviously inequitable in PHB receiving premium rebates for separate premium obligations under different state-fund programs in the same year. The bureau has not asserted that these separate premium obligations (and corresponding benefits) are reduced in light of each other or otherwise would give rise to some unjust enrichment in comparison to other state-fund employers who had not participated in the Retro Program in prior years. I would therefore sustain appellants' third assignment of error.
{¶ 36} Based upon my discussion of the issues raised in appellants' first three assignments of error, I would further find that there remains no genuine issue of material fact and appellants are entitled to judgment as a matter of law on the question of whether they must be considered "subscribers" under R.C. 4123.32(A) and are entitled to premium rebates applied to their annual and final adjustment payments under the Retro Program for prior coverage years. I would sustain appellants' fourth assignment of error as well.
{¶ 37} In summary, I would sustain appellants' four assignments of error, reverse the judgment of the trial court, and remand the matter with instructions to enter summary judgment in favor of appellees. I must respectfully dissent.