dissenting.
{¶ 55} I originally voted to decline jurisdiction in this case and continue to adhere to that decision. The issues posed in this action touch the very core of the powers and functions of a state agency charged with administrating a social mechanism for distributing losses in the industrial arena. They involve the basic accounting methods and actuarial standards utilized by the Bureau of Workers’ Compensation and its administrator to spread the risk of loss due to workplace *557injury among classes of occupation while ensuring a solvent fund for the payment of compensation and benefits to injured and diseased workers and those who depend on them for support.
{¶ 56} We are dealing here with a premium-related administrative determination formulated by an agency that has accumulated considerable expertise in the area and to whom the General Assembly has delegated the responsibility of implementing and administering the legislative command for an equitable rating system. See, e.g., R.C. 4123.34(C). These are matters in which deference to the bureau’s discretionary authority is paramount and judicial intervention is cautiously restricted to the most flagrant transgressions of administrative power. See State ex rel. Ohio Aluminum Indus., Inc. v. Conrad, 97 Ohio St.3d 38, 2002-Ohio-5307, 776 N.E.2d 63, at ¶ 20; Swallow v. Indus. Comm. (1988), 36 Ohio St.3d 55, 57, 521 N.E.2d 778. We are not experts in the field, and we have a duty to respect the legitimate policy choice made by the agency entrusted to make such a decision. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984), 467 U.S. 837, 865-866, 104 S.Ct. 2778, 81 L.Ed.2d 694. See, also, Northwestern Ohio Bldg. & Constr. Trades Council v. Conrad (2001), 92 Ohio St.3d 282, 287-288, 750 N.E.2d 130.
{¶ 57} The administrator has chosen to charge the employer’s risk on the survey date for rate setting (July 1 of each year), rather than waiting until after the final adjudication of the claim, because he has determined that it is essential to the premium-rating system to treat the amount of medical benefits paid under R.C. 4123.511(I)(1) as an actual loss to the State Insurance Fund that occurs at the time the payment is made.1 Yet there is no clearly discernible statutory or constitutional proscription against this methodology, and the court should be loath to fashion one out of the hodgepodge of overlapping arguments and oblique statutory provisions upon which Arth relies. Nor can such a prohibition be extrapolated from R.C. 4123.512(H), which provides:
{¶ 58} “If, in a final administrative or judicial action, it is determined that payments of compensation or benefits, or both, made to or on behalf of a claimant should not have been made, the amount thereof shall be charged to the surplus fund under division (B) of section 4123.34 of the Revised Code. In the event the employer is a state risk, the amount shall not be charged to the employer’s experience. In the event the employer is a self-insuring employer, the self-insuring employer shall deduct the amount from the paid compensation the self-insuring employer reports to the administrator under division (L) of section 4123.35 of the Revised Code.”
*558{¶ 59} It is true that R.C. 4123.512(H) cannot be interpreted to authorize the bureau to charge the employer’s risk account prior to a final determination and then credit the employer’s account in the event the employer’s appeal is successful. As pointed out by the majority, R.C. 4123.512(H) “says nothing about crediting an employer’s account. * * * The statute does not say that ‘if an employer’s experience has been charged, the employer’s experience should be credited.’ ” Thus, I do not agree with the court of appeals that the bureau has reasonably interpreted R.C. 4123.512(H) as providing authority for its actions in this case.
{¶ 60} However, I disagree with the majority that R.C. 4123.512(H) prohibits the bureau’s methodology in this case. As the majority states, “[tjhere is no contemplation in the statute that the employer’s experience will have already been charged prior to the final resolution of the appeal.” But this does not mean that the bureau is prohibited from charging the employer’s risk before a final determination is made. There is nothing in R.C. 4123.512(H) to indicate that the General Assembly gave deliberate thought to this eventuality and then decided to preclude its occurrence.
{¶ 61} The problem with the majority’s analysis is that it broadly interprets a postappeal provision in order to resolve a preappeal question. R.C. 4123.512(H) essentially provides for what happens after it is finally determined that payments of compensation or benefits made during the pendency of the employer’s appeal should not have been made. It contains three remedial measures: (1) charging the amount to the surplus fund, (2) not charging the amount to the experience of a state-fund employer, and (3) deducting the amount from the self-insured employer’s reporting form. The statute does not, however, purport to govern what happens in the time between the administrative order or event that triggered the payment of compensation or benefits and the final determination that reverses the award.
{¶ 62} Contrary to the majority’s interpretation, R.C. 4123.512(H) does not clearly require that “the decision to impose a charge on experience must follow ‘a final administrative or judicial action.’ ” That is not how the statute is worded. It does not say that “the amount shall not be charged to the employer’s experience prior to a final administrative or judicial action.” Nor does the statute specify that the bureau must wait until after a final determination of the claim to charge the employer’s experience. It simply provides that “[i]f * * * it is [finally] determined that payments * * * should not have been made, * * * the amount shall not be charged to the employer’s experience,” which neither authorizes nor prohibits the imposition of a charge on the employer’s experience prior to the final determination. It is only by way of reconstructing the syntax of *559R.C. 4123.512(H) that the majority is able to interpret this provision to preclude the bureau’s policy in this case.
Willacy, LoPresti & Marcovy, Aubrey B. Willacy and Timothy A. Marcovy, for appellant. Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, Stephen P. Carney, Senior Deputy Solicitor, Diane Richards Brey and William J. McDonald, Assistant Attorneys General, for appellee.{¶ 63} Since no provision in the workers’ compensation scheme expressly prohibits a prefinality charge to the employer’s risk account, and because the bureau has credited Arth’s experience for the full amount that was previously charged to its risk in the Ayala claim, judicial intervention in the agency’s accounting and actuarial practices is unwarranted in this case.
{¶ 64} I must, therefore, respectfully dissent.
F.E. Sweeney, J., concurs in the foregoing dissenting opinion.. If it is finally determined that the claimant is not entitled to participate in the fund, or is not entitled to the benefits received or paid on his or her behalf, the administrator then credits the employer’s risk account for the full amount that was previously charged to its experience.