[Cite as State ex rel. Mike Coates Constr. Inc. v. Indus. Comm., 2017-Ohio-718.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Mike Coates Construction, Inc.,:
Relator, :
v. : No. 16AP-114
The Industrial Commission of Ohio : (REGULAR CALENDAR)
and James E. Van Buskirk, Jr.,
:
Respondents.
:
D E C I S I O N
Rendered on February 28, 2017
On brief: Calfee, Halter & Griswold LLP, and Donald E.
Lampert, for relator.
On brief: Michael DeWine, Attorney General, and Cheryl J.
Nester, for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
DORRIAN, J.
{¶ 1} Relator, Mike Coates Construction, Inc., requests a writ of mandamus
ordering respondent Industrial Commission of Ohio ("commission") to vacate the
November 2, 2015 order of its staff hearing officer ("SHO") that denies relator's July 23,
2015 motion requesting the commission exercise its continuing jurisdiction over the
September 25, 2002 order of the Ohio Bureau of Workers' Compensation that initially
allowed the industrial claim of respondent James E. Van Buskirk, Jr., ("claimant") for
lumbosacral sprain. Relator requests this court order the commission to enter an order
that disallows the entire industrial claim on grounds that the industrial claim was
fraudulently obtained based on an alleged September 3, 2002 injury.
No. 16AP-114 2
{¶ 2} Pursuant to Civ.R. 53 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
this court deny relator's request for a writ of mandamus.
{¶ 3} Relator has filed the following objection to the magistrate's decision:
The Magistrate erred when he implied that [the] fact-finders'
drawing of inferences relying upon their own common sense
is limitless, rejecting Relator's request that the Industrial
Commission exercise its Continuing Jurisdiction pursuant to
Revised Code 4123.52 and hold a Hearing on Allowance of
Workers' Compensation Claim 02-425333.
{¶ 4} Relator requests a writ requiring the commission to exercise its continuing
jurisdiction, pursuant to R.C. 4123.52, and to hold a hearing so that "facts may be found
and evaluated as to whether [claimant] was indeed hurt at work or made up the alleged
incident of September 3, 2002 as an initial means to perpetrate his fraud." (Relator's
Objection at 2.) Relator argues that because claimant was found to have engaged in fraud
related to his continuing receipt of temporary total disability compensation, the
commission should hold a hearing to determine if claimant was actually injured at work
in the first place. Relator contends that in finding the commission's rejection of relator's
allegations to be appropriate, the magistrate implied that the commission's reliance on
common sense is limitless. Finally, relator argues that the magistrate construed its
argument incorrectly and clarifies that it was not arguing that it "must" be inferred but
rather that it "should" be inferred from the February 21, 2014 Special Investigations
Department report, and the May 8, 2014 district hearing officer's order that the
September 25, 2002 claim allowance was also fraudulently obtained.
{¶ 5} Relator points to State ex rel. Supreme Bumpers, Inc. v. Indus. Comm., 98
Ohio St.3d 134, 2002-Ohio-7089, in support of its arguments. In Supreme Bumpers, the
Supreme Court of Ohio stated that "in determining the merits of a [violation of a specific
safety requirement] claim, the commission or its SHO, like any factfinder in any
administrative, civil or criminal proceeding may draw reasonable inferences and rely on
his or her own common sense in evaluating the evidence." (Emphasis added.) Id. at ¶ 69.
We disagree with relator that the magistrate implied that the commission may rely,
without limit, on common sense. To the contrary, in citing Supreme Bumpers, the
No. 16AP-114 3
magistrate used the term "reasonable"— which in and of itself constitutes a limit on the
reliance on common sense. Furthermore, even if the magistrate misconstrued relator's
argument that it "must" be inferred that the claim allowance was fraudulently obtained,
the magistrate analyzed the SHO's determination by conducting an examination of the
Anthony Bush, Adam Bush, and Mike Labey, Jr. affidavits and considered their similar
statements as well as the length of time between the injury and the execution of the
affidavits. Having considered the affidavits, we agree with the magistrate's determination
that it was clearly within the fact-finding discretion of the SHO to reject them and to reject
relator's inference that the injury itself was fraudulent.
{¶ 6} On review of the magistrate's decision, an independent review of the record,
and due consideration of relator's objection, we find 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. Accordingly,
relator's request for a writ of mandamus is hereby denied.
Objection overruled;
writ of mandamus denied.
SADLER and LUPER SCHUSTER, JJ., concur.
No. 16AP-114 4
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. :
Mike Coates Construction, Inc.,
:
Relator,
:
v. No. 16AP-114
:
The Industrial Commission of Ohio (REGULAR CALENDAR)
and :
James E. Van Buskirk, Jr.,
:
Respondents.
:
MAGISTRATE'S DECISION
Rendered on October 19, 2016
Calfee, Halter & Griswold LLP, and Donald E. Lampert, for
relator.
Michael DeWine, Attorney General, and Cheryl J. Nester, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 7} In this original action, relator, Mike Coates Construction, Inc. ("Coates" or
"relator"), requests a writ of mandamus ordering respondent, Industrial Commission of
Ohio ("commission"), to vacate the November 2, 2015 order of its staff hearing officer
("SHO") that denies relator's July 23, 2015 motion that the commission exercise its
continuing jurisdiction over the September 25, 2002 order of the Ohio Bureau of
Workers' Compensation ("bureau") that initially allowed the industrial claim for
lumbosacral sprain, and to enter an order that disallows the entire industrial claim on
No. 16AP-114 5
grounds that allegedly the industrial claim was fraudulently obtained based on an alleged
September 3, 2002 injury.
Findings of Fact:
{¶ 8} 1. On September 4, 2002, James E. Van Buskirk, Jr., initially sought
treatment from Edmund Csernyik, D.O., regarding a back injury that had allegedly
occurred the day before, i.e., on September 3, 2002. Dr. Csernyik practices at Falls Family
Practice, Inc.
{¶ 9} 2. The September 4, 2002 office note of Dr. Csernyik states:
Comes in for treatment of a new Workman's Compensation
Injury. Yesterday on 9/3/02 at approximately 11 AM, he was
bending down to pick up a concrete form for a concrete wall.
His left leg buckled, and he had a sharp pull and a burning
sensation in his lumbosacral area and down into his left leg.
He is still very uncomfortable in this area today with some
left sided pain. Also woke up this morning with left cervical
dorsal spasm and pain probably from sleeping in the wrong
position trying to make the left leg comfortable.
Lumbosacral area exhibits spasm, pain on palpation and
decreased range of motion. He does have some significant
sciatic nerve irritation which gives him discomfort and
parethesias down into the foot. There was no acute trauma
other than the strain. I don't think x-rays are indicated at
this time.
P: [One] We are going to treat this as an acute lumbosacral
strain and sprain. He's much too sore for any manipulative
therapy at this time. We are just going to have him use some
heat at home.
[Two] Put him on Skelaxin, 400-mg (#60) 1 t.i.d. with a
refill.
[Three] Ibuprofen, 800-mg (#60) 1 t.i.d. with a refill.
[Four] We got him some Vicodin ES, (#50) 1 q8h prn with no
refills.
[Five] Got him Depo-Medrol, 80-mg IM.
[Six] Next appointment five days.
No. 16AP-114 6
{¶ 10} 3. On September 9, 2002, Van Buskirk returned to Dr. Csernyik. In his
September 9, 2002 office note, Dr. Csernyik wrote:
In complaining of continued L/S pain from Workman's
Comp injury. His upper body resolved which I think was just
from sleeping in an awkward positon.
The lumbosacral area is slightly improved. There is still a lot
of pain on palpation, spasm and decreased range of motion.
A: [One] L/S strain and sprain.
P: [One] We injected trigger areas in the right lumbosacral
region with Marcaine and Depo-Medrol.
[Two] We are going to see him again in a week.
[Three] He continues off work and on same medications.
[Four] Commented about the Vicodin making him a little
nauseated and causing constipation. I told him all narcotics
would tend to do this, and he should use it very sparingly.
{¶ 11} 4. On September 13, 2002, Van Buskirk filed a bureau form captioned
"First Report of Injury, Occupational Disease or Death," which the bureau designates as
the FROI-1.
{¶ 12} Under "Description of Accident," Van Buskirk wrote: "Stripping form off
concrete wall hurt lower back down into left leg. Upper shoulder left side."
{¶ 13} On the portion of the form to be completed by the attending physician, Dr.
Csernyik certified a diagnosis of lumbosacral strain and sprain.
{¶ 14} On the portion of the form to be completed by the employer, the form
presents the employer a choice to mark one of two boxes regarding certification or
rejection of the claim. Coates failed to mark either box.
{¶ 15} 5. The record contains a form letter dated September 16, 2002 from the
bureau to relator. The letter asks the employer to either certify or reject the claim by
completing the form.
{¶ 16} In the spaces provided, the employer is identified as "Mike Coates
Construction Co., Inc." and the title of the person completing the form is identified as
"Joanne Coates, Secretary." "Certification" rather than "Rejection" is selected by a mark
No. 16AP-114 7
placed aside "Certification," and "9/27/02" is entered in the space provided aside the
"Date." However, in the space provided for "Employer's Signature" no signature is
entered.
{¶ 17} 6. On September 25, 2002, the bureau mailed an order allowing the claim
for "sprain lumbosacral" based on a "[m]edical report from Dr. Csernyik." The bureau
order also awarded temporary total disability ("TTD") compensation beginning
September 5, 2002. The bureau order advises: "THIS DECISION BECOMES FINAL IF A
WRITTEN APPEAL IS NOT RECEIVED WITHIN 14 DAYS OF RECEIVING THIS
NOTICE." (Emphasis sic.)
{¶ 18} 7. Relator did not administratively appeal the bureau's order of
September 25, 2002.
{¶ 19} 8. On November 20, 2002, Van Buskirk was examined by Douglas H.
Musser, D.O., on referral from Dr. Csernyik. In his three-page narrative report, Dr.
Musser opines:
X-RAY EXAMINATION: Plain x-rays were reviewed today
that demonstrate the patient to have marked degenerative
changes noted at the lumbar spine which is significant at the
L3-4, L4-5, L5-S1 levels with the L5-S1 level being severe. He
does have a retrolisthesis which does increase 2mm in
hyperextension to a Grade I. There is stenosis noted at this
level. He has some mild degenerative spondylitic changes
noted in his lumbar spine.
MRI was reviewed today which demonstrated the patient to
have marked degenerative changes noted of the lumbar spine
at L3-4, L4-5, L5-S1. He has a herniated disc at these
associated levels at L3-4, L4-5, L5-S1 with the worse levels at
the L4-5 and the next level being the L5-S1 level. He has
noted spinal stenosis at these associated levels.
***
IMPRESSION/DIAGNOSIS:
[One] Herniated nucleus pulposis at the L3-4, L4-5, L5-S1.
[Two] Spinal stenosis L3-4, L4-5, L5-S1.
[Three] Retrolisthesis at L4-5 Grade I approximately 5mm to
6mm.
No. 16AP-114 8
[Four] Retrolisthesis at L3-4 which is approximately 2mm to
3mm. There is spinal stenosis at the L3-4, L4-5, L5-S1 levels.
[Five] Radiculopathy L3-L4, L4-L5, L5-S1 dermatomal
patterns.
RECOMMENDATION: Based on the patient's
examination and films I do think that the patient sustained
an injury at work that did cause him to herniate these discs.
He describes his pain with marked radiculopathy that he did
not have before. He describes an appropriate history for a
herniated disc and examination demonstrates him to have
tension signs suggestive of this. Currently, I think that also
he may have had the degenerative changes of his lumbar
spine but these are definitely aggravated by his current
injury and caused these herniations.
{¶ 20} 9. Based on Dr. Musser's November 20, 2002 report, Van Buskirk moved
for the allowance of additional conditions in the claim.
{¶ 21} 10. Following a March 6, 2003 hearing, an SHO additionally allowed the
claim for "aggravation of spinal stenosis at L3-S1, aggravation of lumbar degenerative disc
disease, radiculopathy L3-S1, herniated discs at L3-5, L4-5, and L5-S1." The SHO also
awarded TTD compensation beginning November 20, 2002 based on a C-84 from Dr.
Musser.
{¶ 22} 11. In May 2007, the industrial claim was additionally allowed for a major
depressive disorder, single episode.
{¶ 23} 12. In February 2008, the industrial claim was additionally allowed for
lumbar post laminectomy syndrome.
{¶ 24} 13. On March 14, 2011, the bureau's Special Investigations Department
("SID") received information from a confidential source who stated that Van Buskirk
worked on numerous construction jobs in Galveston, Texas after the area had been hit by
Hurricane Ike in 2009. Also, the source stated that Van Buskirk had been operating his
own construction company which was called S & J Construction since at least 2002. The
source further stated that Van Buskirk had completed numerous home improvement
projects in the greater Akron area for the past decade.
{¶ 25} 14. Following a lengthy investigation, SID issued a 66-page report on
February 21, 2014. The report provides the following summary:
No. 16AP-114 9
A confidential source contacted the BWC Special
Investigations Department (SID) and stated James
VanBuskirk (VANBUSKIRK) was working in a self-employed
capacity as a construction laborer. According to the source,
VANBUSKIRK was operating his own business called S&J
Construction. The SID coordinated a joint investigation with
the Social Security Administration/Office of Inspector
General (SSA/OIG) as VANBUSKIRK was also receiving
disability benefits from the Social Security Administration.
The investigation revealed VANBUSKIRK had been working
from the initial onset of his disability in November 2002 up
until the present time. VANBUSKIRK continued to work in
the construction field which was the exact same type of work
he was doing when he was originally injured on 9/3/2002.
VANBUSKIRK continued to work for the past 11 plus years
as a "carpenter/laborer." Bank records were obtained from
VANBUSKIRK'S accounts at PNC Bank (previously known as
National City Bank) which revealed a voluminous amount of
cash deposits being made into the account as well as a
substantial amount of checks from potential customers.
An extensive amount of interviews were completed with
customers who identified VANBUSKIRK as the individual
they had hired to make various home improvement repairs.
The customers provided copies of invoices and estimates
VANBUSKIRK had given them. Others had his business
card, flyers that he had placed in mailboxes offering his
services, photos of VANBUSKIRK making the repairs, etc.
Numerous court records were obtained in which
VANBUSKIRK was either sued for faulty work by his
customer or VANBUSKIRK was suing for non-payment for
the work he performed. A copy of a transcript was obtained
from one civil case in which VANBUSKIRK testified under
oath regarding the construction work he performed on a new
home.
Furthermore, the SID conducted several surveillances which
yielded an extensive amount of video obtained of
VANBUSKIRK working on various construction job sites.
VANBUSKIRK was observed performing physical and
strenuous labor tasks that included construction repairs such
as installing new siding, roofing, windows, etc. Numerous
wholesale and retail suppliers were subpoenaed and they
provided documentation of materials and supplies that
VANBUSKIRK had purchased over the years dating back to
2002.
No. 16AP-114 10
VANBUSKIRK made numerous attempts to conceal his work
activities by requesting that he be paid in cash from many
customers. Additionally, VANBUSKIRK was hired as a
"subcontractor" on some construction projects. Some
contractors required his Social Security number so that a
1099 could legally be issued to him. In these instances,
VANBUSKIRK would provide his wife's Social Security
number so the wages would not be reported for him.
Additionally, for many of the customers who wrote
VANBUSKIRK a check, he did not always deposit the check
into his own personal bank account. Instead, he would travel
to the bank where the check was drawn from and would cash
it there. VANBUSKIRK would then take the cash and deposit
it into his own personal bank account. VANBUSKIRK would
do this to avoid the customer's check showing up in his own
bank records.
VANBUSKIRK was eventually located and interviewed by the
SID and the SSA/OIG. He was interviewed on a job site
where he was observed working on a new roof at a
customer's residence in Akron, Ohio. VANBUSKIRK was less
than truthful during the interview. VANBUSKIRK provided
different answers regarding when he actually returned to
work. VANBUSKIRK admitted and understood that he was
not permitted to work while receiving disability benefits.
VANBUSKIRK admitted that he failed to notify the BWC or
the SSA about his employment status.
{¶ 26} 15. On February 26, 2014, citing the SID report, the bureau moved as
follows:
This C-86 Motion respectfully requests the adjudication of
the following issues in claim 02-425333 as evidence gathered
as a result of an investigation performed by the Region One
Special Investigations Unit supports the following:
[One] The Special Investigations Unit requests the
declaration of an overpayment relative to all
Temporary Total Disability benefits (TT) paid from
11/20/02 through the present.
As a result of the investigation completed by the Region One
Special Investigations Unit (SIU) it was found James
VanBuskirk returned to work as a "carpenter/laborer" (same
No. 16AP-114 11
occupation at the time of injury) while receiving Temporary
Total Disability benefits (TT).
[Two] The Special Investigations Unit requests
Temporary Total Disability benefits (TT) be
terminated effective 11/20/02 the return to work
date.
Information obtained during the course of the investigation
verified James VanBuskirk continued to work as a
"carpenter/laborer" from 11/20/02 (first date he received
TT) through the present while receiving Temporary Total
Disability benefits (TT).
[Three] The Special Investigations Unit asks the
Ohio Industrial Commission to issue a finding of
Fraud relative to any overpayment declared for
Temporary Total Disability benefits (TT) paid from
11/20/02 through the present.
Information obtained during the course of the investigation
verified James VanBuskirk intentionally concealed his
employment as a "carpenter/laborer" (same occupation at
the time of injury) from the Bureau of Workers'
Compensation in order to receive benefits to which he would
not otherwise be entitled. The Special Investigations Unit
requests a finding of Fraud so that any overpayment declared
may be collected pursuant to the provisions of Ohio Revised
Code 4123.511(K). Evidence to support the prima facie
elements of Fraud will be presented at the time of hearing.
(Emphasis sic.)
{¶ 27} 16. Following a May 8, 2014 hearing, a district hearing officer ("DHO")
mailed an order on May 13, 2014 declaring an overpayment of all TTD compensation paid
to Van Buskirk from November 20, 2002 through the hearing date, and finding that the
compensation was fraudulently obtained.
The DHO order of May 8, 2014 explains:
It is the finding of this Hearing Officer that the Injured
Worker has committed fraud as a result of him engaging in
work inconsistent with the concept and rules of temporary
total disability compensation for the period commencing a
short time after the date of injury in this claim which was
09/03/2002. The Bureau of Workers' Compensation has
sustained their burden of proof by a preponderance of the
No. 16AP-114 12
evidence that this Injured Worker knowingly used deception
in different ways as set forth below to obtain temporary total
disability compensation benefits during periods for which he
was employed. The Bureau of Workers' Compensation has
established the required mandatory prima facie elements of
fraud: 1) a representation or where there is a duty to disclose,
or concealment of facts; 2) which is material to the
transaction at hand; 3) made falsely, with the knowledge of
its falsity; 4) with the intent of misleading the Bureau of
Workers' Compensation into relying upon it; 5) justifiable
reliance upon the representation or concealment; and 6) a
resulting injury approximately [sic] caused by the reliance.
It is ordered pursuant to Revised Code Section 4123.52 that
this Injured Worker is overpaid temporary total disability
compensation for the entire period from 11/20/2002
through 05/08/2014. Further, temporary total disability
compensation shall be terminated effective the date of
today's hearing. For each of the years from 2002 through
2013 this file contains evidence of material purchases,
individual job and home improvement arrangements with
various home owners, home owner's statements with regard
to this Injured Worker performing work at their home, a
transcript from a Common Pleas Court proceeding with the
Injured Worker making admissions of his employment, the
use of both the Injured Worker's Wife's Social Security
number as well as his Father's Social Security number in the
cashing of checks, many cash deposits into the account of the
Injured Worker over these years as well as various court
proceedings where the Injured Worker sued homeowners for
not paying him as agreed for the construction work that he
performed during the periods he was receiving temporary
total disability compensation.
Further, this file contains numerous notices by the Bureau of
Workers' Compensation on their forms, checks, entitlement
letters as well as other documents provided to the Injured
Worker for the periods from 2002 through 2014 where the
Injured Worker was advised that it was necessary for him to
notify the Bureau of Workers' Compensation if he performed
any type of work during the periods he was receiving
temporary total disability compensation. Further, the
Injured Worker attended several Industrial Commission
hearings with regard to the potential termination of his
temporary total disability benefits. The Injured Worker was
present at these hearings and the issue of whether the
Injured Worker was working was germane to the issue heard
No. 16AP-114 13
by the Industrial Commission Hearing Officer's [sic] in those
hearings. The original Industrial Commission hearing which
granted temporary total disability compensation for the
period 01/23/2003 through 09/11/2003 and continuing was
made by Hearing Officer Carol Pappas. Further this file
contains evidence that the Injured Worker was a
subcontractor/independent contractor for several businesses
including S & J Construction as well as Miller Construction.
The evidence on file indicates that in the year 2012 the
Injured Worker received a 1099 from Miller Construction for
approximately $19,000.00. The following year in 2013 the
Injured Worker received a 1099 from Miller Construction for
approximately $7,500.00 and he used his Wife's Social
Security number for this contractor.
Provided were video surveillance clips in 2013 which showed
the Injured Worker performing siding jobs for a contractor
and he was personally performing the work. When he
received payment for one of the surveillance jobs and
received a check he used his Father's Social Security number
to obtain the funds.
It is ordered by this Hearing Officer that this Injured Worker
engaged in fraud for the entire period from 11/20/2002
through the date of today's hearing. All temporary total
disability compensation paid during this period is declared
an overpayment [and] shall be recouped pursuant to the
fraud provisions of Revised Code Section 4123.511(K).
This order is based on the approximately 3000 pages of
investigatory work done by the SIU unit of the Bureau of
Workers' Compensation which clearly demonstrates that the
Injured Worker made false representations to the Bureau of
Workers' Compensation, knowing that the statements that
he was not working were false, with the intent of deceiving
the Bureau of Workers' Compensation who justifiably relied
on those statements and to their detriment paid him
temporary total disability compensation.
{¶ 28} 17. Van Buskirk administratively appealed the DHO's order of May 8, 2014.
{¶ 29} 18. Following a June 18, 2014 hearing, an SHO issued an order dismissing
Van Buskirk's administrative appeal pursuant to an oral request from Van Buskirk's
counsel.
No. 16AP-114 14
{¶ 30} 19. On July 23, 2015, invoking R.C. 4123.52, the commission's continuing
jurisdiction, relator moved that the commission disallow the entire industrial claim based
on the DHO's order of May 8, 2014 that determined an overpayment of TTD
compensation, and that the compensation was fraudulently obtained. In support, relator
submitted the affidavit of Michael Coates, Jr., executed July 22, 2015.
{¶ 31} 20. The Coates affidavit avers:
[One] I am Executive Vice President of Mike Coates
Construction, Inc., * * *.
***
[Three] Van Buskirk alleged that he pulled his lower back on
or about 11:00 AM on September 3, 2002 according to the
"Accident Investigation Report" attached hereto and
incorporated herein which was signed by Coates
Superintendent Chuck Ivan ("Ivan") on September 4, 2002.
Coates' Policies required immediate reporting of an incident
but it was not reported to Ivan until the next day after Van
Buskirk had completed a full day's work on September 3,
2002. When Ivan investigated he was unable to find any
witness to substantiate Van Buskirk's alleged incident.
[Four] During this time period my mother, Joanne Coates
("Joanne"), handled workers' compensation paperwork.
Apparently a First Report of Injury was completed by
Edmund Csernyik, D.O., based upon an office visit by Van
Buskirk dated September 4, 2002 * * *.
[Five] After September 3, 2002 Van Buskirk had no contact
with Coates. According to the handwritten note presumably
completed on or about September 25, 2002 attached hereto
and incorporated herein Van Buskirk reported for work on
September 25, 2002 to learn from Ivan that there were no
longer any carpenter jobs on the project.
[Six] On or about September 27, 2002 Joanne checked
"Certification" but did not sign the "Dear Employer" Form
Dated September 16, 2002. Joanne is the kind of person who
would believe an allegation of a work-related injury. At this
time the consequences of mistakenly certifying this Claim
appeared to be relatively minimal since Van Buskirk had
been cleared to return to work on September 25, 2002 for
"Sprain Lumbosacral."
No. 16AP-114 15
[Seven] On or about December 11, 2002 Van Buskirk
himself, and then on or about December 31, 2002 through an
attorney, filed a Motion with the Bureau of Workers'
Compensation seeking additional allowances and
compensation in Claim 02-425333. This began the events
which, by the time I became responsible for Coates' workers'
compensation in the 2007-2008 period, had transformed
Claim 02-425333 into one which was virtually
unmanageable.
[Eight] I am aware of the February 21, 2014 "Bureau of
Workers' Compensation Special Investigations Unit C86
Motion" * * *. This Motion contains * * * records of office
visits dating back to November 5, 2002 at which Van Buskirk
reported various alleged physical complaints which served as
a basis for different treating physicians to keep him off work.
***
[Ten] Attached hereto and incorporated herein is the
June 10, 2015 office note of Chimezie C. Amanambu, M.D.
which demonstrates that Van Buskirk is still receiving
treatment and prescriptions paid under Claim 02-425333.
[Eleven] I ask all of the above be taken into consideration in
this Request for .52 Relief and Claim 02-425333 be set for
Hearing on the issue of Allowance.
{¶ 32} 21. Following a September 15, 2015 hearing, a DHO issued an order
denying relator's July 23, 2015 motion.
{¶ 33} 22. Relator administratively appealed the September 15, 2015 order of the
DHO.
{¶ 34} 23. On November 2, 2015, an SHO heard relator's administrative appeal
from the DHO's order of September 15, 2015. The hearing was recorded and transcribed
for the record.
{¶ 35} 24. Prior to the hearing, relator submitted three affidavits from employees
or former employees of relator.
{¶ 36} 25. The affidavit of Anthony Bish executed October 31, 2015 avers:
[One] I currently am employed by Mike Coates Construction,
Inc., * * * ("Coates") as a carpenter. I have worked
continuously/intermittently for Coates since 95.
No. 16AP-114 16
[Two] I became acquainted with James E. Van Buskirk, Jr.
("Van Buskirk") as a co-worker on the Akron Public Library
project in the [sic] 2002.
[Three] In particular, I worked with Van Buskirk in
September, 2002 on the Akron Public Library construction
project. On September 3, 2002, which I have been informed
was the Date of Injury in Workers' Compensation Claim 02-
425333, I was working with Van Buskirk and several other
co-workers. We were working on the same work crew, and in
close proximity to each other.
[Four] I did not observe Van Buskirk get hurt at work. Van
Buskirk did not say anything to me about getting hurt at
work.
[Five] I personally did not notice any kind of physical
impairment in Van Buskirk's performance of his job duties.
He appeared to be working normally and finished his full day
of work.
[Six] The next day, September 4, 2002, Van Buskirk did not
come to work. Within a couple of days co-workers and I
heard that Van Buskirk was claiming that he had gotten hurt
at work on September 3, 2002. Because of what I had
personally witnessed, I doubted that the injury had taken
place.
(Emphasis sic.)
{¶ 37} 26. The affidavit of Adam Bundy executed October 30, 2015 avers:
[One] I currently am employed by Mike Coates Construction,
Inc. * * * ("Coates") as a carpenter. I have worked
continuously/intermittently for Coates since 1993.
[Two] I became acquainted with James E. Van Buskirk, Jr.
("Van Buskirk") as a co-worker on the Akron Public Library
project in the [sic] 2002.
[Three] In particular, I worked with Van Buskirk in
September, 2002 on the Akron Public Library construction
project. On September 3, 2002, which I have been informed
was the Date of Injury in Workers' Compensation Claim 02-
425333, I was working with Van Buskirk and several other
co-workers. We were working on the same work crew, and in
close proximity to each other.
No. 16AP-114 17
[Four] I did not observe Van Buskirk get hurt at work. Van
Buskirk did not say anything to me about getting hurt at
work.
[Five] I personally did not notice any kind of physical
impairment in Van Buskirk's performance of his job duties.
He appeared to be working normally and finished his full day
of work.
[Six] The next day, September 4, 2002, Van Buskirk did not
come to work. Within a couple of days co-workers and I
heard that Van Buskirk was claiming that he had gotten hurt
at work on September 3, 2002. Because of what I had
personally witnessed, I doubted that the injury had taken
place.
(Emphasis sic.)
{¶ 38} 27. The affidavit of Mike Lahey, Jr. executed November 1, 2015 avers:
[One] I am currently retired from Mike Coates Construction,
Inc. * * *. I worked for Coates since 1987 as a carpenter,
carpenter foreman, assistant superintendent and then
superintendent.
[Two] I became acquainted with James E. Van Buskirk, Jr.
("Van Buskirk") on the Akron Public Library project in the
2002.
[Three] In particular, I was an assistant superintendent and
was responsible for directly supervising the crew on which
Van Buskirk worked in September, 2002 on the Akron Public
Library construction project. On September 3, 2002, which I
have been informed was the Date of Injury in Workers'
Compensation Claim 02-425333, I supervised Van Buskirk
and several other workers.
[Four] I did not observe Van Buskirk get hurt at work; and
Van Buskirk did not report any injury to me.
[Five] I personally did not notice any kind of physical
impairment in Van Buskirk's performance of his job duties.
He appeared to be working normally and finished his full day
of work.
No. 16AP-114 18
[Six] The next day, September 4, 2002, Van Buskirk did not
come to work. Within a couple of days co-workers and I
heard that Van Buskirk was claiming that he had gotten hurt
at work on September 3, 2002. Because of what I had
personally witnessed, I always suspected his claim of injury
to be false.
(Emphasis sic.)
{¶ 39} 28. Following the November 2, 2015 hearing, the SHO mailed an order on
November 6, 2015 that affirms the DHO's order of September 15, 2015 and denies
relator's July 23, 2015 motion. The SHO's November 2, 2015 order explains:
It is the order of the Staff Hearing Officer that the C-84
Motion filed by the Employer on 07/23/2015 is denied.
It is the order of the Staff Hearing Officer that the
Employer's request that the Industrial Commission exercise
continuing jurisdiction and disallow this claim in its entirety
is denied.
By way of clarification, the Staff Hearing Officer notes that in
an order issued by a District Hearing Officer on 05/13/2015
the Injured Worker was found to have perpetrated a fraud in
this claim with respect to the receipt of temporary total
disability compensation and benefits from 11/20/2002
through 05/08/2014 inclusive. As a result, an overpayment
of temporary total disability compensation over this period
was found. In addition, the Staff Hearing Officer notes that
the Injured Worker was convicted in Federal Court for,
among other things, Workers' Compensation fraud. Based on
the Injured Worker's misdeeds the Employer is now
questioning the original allowance of this claim.
On 09/11/2002 [sic], the Injured Worker filed an FROI-1
First Report of an Injury, Occupational Disease or Death
application alleging a low back injury that occurred at work
on 09/03/2002. In support of allowance of this claim the
Injured Worker presented himself to Falls Family Practice on
09/04/2002. The treatment record from this visit notes the
mechanism of injury, diagnoses the allowed lumbosacral
sprain and indicates that medications were being prescribed
along with a request for the Injured Worker to follow-up.
The Staff Hearing Officer notes that while this office visit
reflected subjective complaints the provider also found
objective evidence of spasms. On 09/27/2002 the Employer
sent a certification of the claim which was completed by
No. 16AP-114 19
Joanne Coates, Secretary. Mr. Coates indicated by testimony
and in his Affidavit that Ms. Coates was his Mother and was
the person who handled the Workers' Compensation matters
for the Employer at the time of the Injured Worker's injury.
Therefore, the certification of this claim was made by an
individual who appeared to have authority to do so. Mr.
Coates did not begin handling the Employer's Workers'
Compensation matters until sometime in 2007. As a result of
the medical evidence on file and the Employer's certification,
the Bureau of Workers' Compensation issued an order on
09/25/2002 that allowed this claim for lumbosacral sprain.
This decision was not appealed by the Employer.
The Employer now alleges that because the Injured Worker
was dishonest about whether he was working and receiving
temporary total disability compensation benefits that he
must also be dishonest regarding the injury and allowance of
the claim. However, no proof has been submitted which
would establish that the mechanism of injury and resulting
medical information relied upon in allowing this claim was
fraudulent. As noted above, the initial treatment record
contained objective evidence of spasms in the low back. The
Employer is also noting concern that the injury happened on
the morning of 09/03/2002 and that the Injured Worker
continued to work that day, not immediately reporting it to
the Employer. This fact alone does not establish that the
injury was staged or fraudulent. The Injured Worker did
miss work on 09/04/2002, the day following the date of
injury, and sought medical treatment at that time. A majority
of the Employer's arguments actually concerned the deceit
that the Injured Worker used in order to obtain temporary
total compensation benefits to which he was not entitled and
allegations that the Injured Worker was selling the
prescription medications he obtained in this claim. Although
the Injured Worker perpetrated a fraud in order to obtain
temporary total disability compensation benefits to which he
was not entitled, it does not necessarily mean that the
09/03/2002 injury did not occur. Other than Affidavits from
three individuals employed [by] the Employer of Record's
company that were completed on 11/01/2015 [sic], no other
evidence has been provided to establish that an injury did
not occur on 09/03/2002. A review of these Affidavits reveal
that they are all remarkably similar, having been prepared by
the same person, and all that was necessary was for
individuals to sign the documents. Moreover, given the
length and time between the original injury and completion
of the Affidavits the Staff Hearing Officer questions the
No. 16AP-114 20
authors' recollection of events on or about 09/03/2002.
Lastly, these Affidavits offer nothing more to the record that
has not already been presented.
Had the Employer had concerns about the allowance of this
claim, as indicated by Mr. Coates in his Affidavit and
testimony, the same could have been pursued early in this
claim's life. Prior to the finding of fraud on 05/28/2014 eight
hearings were held in front of Hearing Officers of the
Industrial Commission from 01/23/2003 through
09/11/2013, inclusive. The first three hearings were attended
by the Employer's Third Party Administrator. In addition,
four orders were issued by the Bureau of Workers'
Compensation between 09/25/2002 and 02/15/2008 that
allowed this claim, set the Injured Worker's wages and
granted additional allowances. The Employer never
challenged these decisions. Accordingly, based on a totality
of the evidence the Staff Hearing Officer finds that the
Employer has not substantiated that the allowance of this
claim was predicated upon the Injured Worker's fraud and,
therefore, the Employer's request to have this claim
disallowed the claim [sic] is denied.
{¶ 40} 29. On November 20, 2015, relator appealed the SHO's order of
November 2, 2015 to the three-member commission.
{¶ 41} 30. On December 12, 2015, the three-member commission mailed an order
refusing to hear relator's appeal from the SHO's order of November 2, 2015 (mailed
November 6, 2015).
{¶ 42} 31. On February 17, 2016, relator, Mike Coates Construction, Inc., filed this
mandamus action.
Conclusions of Law:
{¶ 43} The issue before the SHO at the November 2, 2015 hearing was whether the
commission should invoke continuing jurisdiction over the September 25, 2002 bureau
order that allowed the industrial claim. The commission, through its SHO, determined
that the exercise of continuing jurisdiction is inappropriate based on the evidence of
record.
{¶ 44} Here, the issue is whether the commission, through its SHO, abused its
discretion in determining that the exercise of continuing jurisdiction over the
September 25, 2002 bureau order was inappropriate. Finding no abuse of discretion, it is
No. 16AP-114 21
the magistrate's decision that this court deny relator's request for a writ of mandamus, as
more fully explained below.
Basic Law
{¶ 45} The commission's continuing jurisdiction under R.C. 4123.52 is not
unlimited. Continuing jurisdiction can be invoked only where one of these prerequisites
exists: (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. State ex rel. Nicholls v. Indus. Comm., 81
Ohio St.3d 454, 458 (1998).
Which Prerequisite?
{¶ 46} Relator's request for the exercise of continuing jurisdiction was premised on
fraud. This was made abundantly clear by relator's counsel at the November 2, 2015
hearing before the SHO:
And I would initially note that one of the reasons we have
continuing jurisdiction is because facts may become known
after that initial moment of certifying a claim.
Secondly, and this is what we're really trying to address
today, which is, [the district hearing officer] noticed that
there was no proof submitted that would establish that the
mechanism of injury and resulting medical information
relied upon in allowing the claim was fraudulent. Although,
the injured worker perpetrated a fraud, it does not
necessarily follow that the original injury did not occur.
And one of the things, as I say, we are focused on today, is
that kind of proof that the incident itself was fraudulent.
(Tr. at 5.)
{¶ 47} Moreover, relator makes clear in this action that fraud is the prerequisite
that relator relies on. (Relator's brief, 8.) (Relator's reply brief, 1.)
Analysis
{¶ 48} The February 21, 2014 SID report and the May 8, 2014 DHO's order that
determined that TTD compensation was fraudulently obtained based on that SID report
are at the core of relator's argument for the exercise of continuing jurisdiction based on
fraud. Relator's argument suggests that it must be inferred from the SID report and the
No. 16AP-114 22
DHO's order that the September 25, 2002 claim allowance was also fraudulently
obtained. Neither the commission nor this court are required to accept relator's
inference.
{¶ 49} The commission members and their hearing officers, like any fact-finder in
any administrative, civil, or criminal proceeding, may draw reasonable inferences, and
rely on their own common sense in evaluating the evidence. State ex rel. Supreme
Bumpers, Inc. v. Indus. Comm., 98 Ohio St.3d 134, 2002-Ohio-7089, ¶ 69.
{¶ 50} The SHO's order of September 15, 2015 strikes directly at the very core of
relator's argument:
Although the Injured Worker perpetrated a fraud in order to
obtain temporary total disability compensation benefits to
which he was not entitled, it does not necessarily mean that
the 09/03/2002 injury did not occur.
{¶ 51} In concluding that the perpetration of a fraud in obtaining TTD
compensation does not necessarily mean that the September 3, 2002 injury did not occur,
the SHO simply relied on his own common sense in evaluating the evidence. This exercise
of continuing jurisdiction was well within the fact-finding discretion of the SHO who
conducted the November 2, 2015 hearing. Relator's inference was appropriately rejected
by the SHO.
{¶ 52} Moreover, while the affidavits of Anthony Bish, Adam Bundy, and Mike
Lahey, Jr., aver that no injury was observed at the worksite on September 3, 2002, the
SHO appropriately explained why the affidavits failed to provide credible evidence that
the injury did not occur. As noted by the SHO, the affidavits are remarkably similar,
having been prepared by the same person. Also, given the length and time between the
injury and the execution of the affidavits, the SHO questioned the authors' recollection of
events. It was clearly within the fact-finding discretion of the SHO to reject the affidavits.
{¶ 53} Given the above analysis, it is the magistrate's decision that this court deny
relator's request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
No. 16AP-114 23
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).