49A^ ^^ .. Y4
IN THE SUPREME COURT OF OHIO
DAILY SERVICES, LLC,
Relator, Case No. 2013-0171
V.
STEPHEN BUEHRER, et al., Original Action in Prohibition
Respondents.
RELATOR DAILY SERVICES, LLC'S MEMORANDUM IN OPPOSITION TO RESPONDENTS' MOTION TO DISMISS RELATOR'S COMPLAINT
MICHAEL DeWINE W. Evan Price, II* (0056134) Ohio Attorney General *Counsel of Record James E. Arnold (0037712) James A. King* (0040270) Matthew J. Burkhart (0068299) *Counsel ofRecord David S. Bloomfield, Jr. (0068158) JAMES E. ARNOLD & ASSOCIATES, LPA L. Bradfield Hughes (0070997) 115 West Main Street, Fourth Floor Eric B. Gallon (0071465) Columbus, Ohio 43215 Telephone: (614) 460-1600 PORTER, WRIGHT, MORRIS & ARTHUR LLP Facsimile: (614) 469-1066 41 South High Street, Suites 2800-3200 Email: [email protected] Columbus, Ohio 43215 [email protected] (614) 227-2000 (voice) [email protected] (614) 227-2100 (fax) [email protected] Counsel for Relator, dblo omfield@porterwright. com Daily Services, LLC [email protected]
iF
FEB 2 5 2013 (1&K OF COURT REME COURI OF OHIO TABLE OF CONTENTS
1. INTRODUCTION ...... 1
II. BACKGROUND ...... 4
A. Daily Services' June 2009 Protest ...... 4
B. The BWC Files Suit Against Daily Services (September 2009) ...... 7
C. The First Administrative Hearing and the October 2009 Decision ...... 7
D. The BWC Files Illegal Judgments and Liens Against Daily Services (November 2009 and July 2010) ...... 8
E. The Second Administrative Hearing (January 2011) ...... 10
F. The BWC Files A Third Illegal Judgment Against Daily Services (February 2011) ...... 11
G. The Third Administrative Hearing (April 2011) ...... 11
H. The Second Lawsuit (January 2012) ...... 13
1. The BWC Notices a Fourth Hearing (January 2013) ...... 13
III. LAW AND ARGUMENT ...... 14
A. Respondents Patently and Unambiguously Lack Jurisdiction to Hold a Second Hearing on the June 2009 Protest ...... 14
1. An Administrative Agency Loses Jurisdiction to Hold a Second Hearing Once the Time for an Appeal Expires ...... 14
2. There is no Support for Respondents' Claim That the June 2009 Protest Remains «Pending...... 16
B. The Adjudicating Committee Also Lacks Jurisdiction Because the BWC Has Invoked the Jurisdiction of the Franklin County Court of Common Pleas ...... 21
C. Respondents Need Not Establish the Lack of an Adequate Remedy at Law ...... 23
IV. CONCLUSION ...... 25
ii TABLE OF AUTHORITIES
Cases
Canton Storage & Transfer Co. v. Public Util. Comm'n, (1995) 72 Ohio St. 3d 1, 647 N.E.2d 136 ...... 14
Cuyahoga County Bd. of County Comm'rs v. Daroczy, 10th Dist. No. 08AP- 123, 2008-Ohio-5564 ...... 14
Lorain Edn. Assn. v. Lorain City School Dist. Bd. Of Edn., (1989), 46 Ohio St.3d 12, 544 N.E. 2d 687 ...... 15
MB W. Chester, L.L. C. v. Butler County Bd of Revision, (2010) 126 Ohio St. 3d 430, 934 N.E. 2d 928 ...... 15
Ohio Bureau of Workers' Compensation v. Daily Services, LLC, 10th Dist. No. 11 AP 1122, 2012-Ohio-4242 ...... 13
State Bur. Of Workers' Comp. v. C. W. Fletcher, 1997 WL 119573 (Ohio App. 4 Dist) (Mar. 13, 1997) ...... 20
State ex rel. Duke Energy Ohio, Inc., 2010-Ohio-2450 ...... 23
State ex rel. Sapp v. Franklin Cty. Court ofAppeals, 118 Ohio St. 3d 368, 2008-Ohio-2637, 889 N.E.2d 500 ...... 23, 24
State ex rel Borsuk v. Cleveland, (1972), 28 Ohio St.2d 224, 277 N.E.2d 419 ...... 15
State ex rel. Cleveland Professional Football, L.L.C. v. Buehrer, 2012-Ohio- 6020 ...... 10
State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223 ...... 23
Waltco Truck Equipment Co. v. Tallmadge Bd. of Zoning Appeals, (1988) 40 Ohio St. 3d 41, 531 N.E.2d 685 ...... 14
Statutes
OAC 4123-17-02 ...... 4
OAC 4123-17-02(B) ...... 4
OAC 4123-17-02(C) ...... 5,10
iii OAC 4123-17-03(B) ...... 12
OAC 4123-17-03 (C) ...... 12
OAC 4123-02-17(C)(1) ...... 5
OAC 4123-14-06(E) ...... 20
R.C. 4123.291 ...... 6, 8, 11, 15
R.C. 4123.291(A) ...... 15
R.C. 4123.291(B)(5) ...... 15
R.C. 4123.32(C) ...... 4, 5
R.C. 4123.37 ...... passim
R.C. 4123.78 ...... 8
iv I. INTRODUCTION
Respondents' entire Motion to Dismiss the complaint for a writ of prohibition filed by
Relator Daily Services, LLC ("Daily Services") is premised on the erroneous contention that
Daily Services is somehow trying to "avoid a hearing on whether it is liable for over $3.5 million
in unpaid workers' compensation premiums that a related company, I-Force, LLC ("I-Force"),
owes to the" BWC. (Memorandum at 1.) In truth, Daily Services is trying to avoid a FOURTH
administrative hearing on this issue in addition to having to defend the same allegation by the
BWC in two separate cases in the Franklin County Court of Common Pleas, one of which the
BWC voluntarily dismissed on the eve of trial while the other remains pending.l
In a vain effort to defend the indefensible, Respondents have completely repudiated the
BWC's long held position that the adjudicating committee's October 2009 Decision became final as a matter of law when Daily Services failed to appeal. Instead, now that the BWC's
"misinterpretation" of the October 2009 Decision has been rejected by two judges on the
Franklin County Court of Common Pleas, as well as the Tenth District Court of Appeals, the
October 2009 Decision is miraculously no longer "final" but remains "pending." Hence,
Respondents claim that they can disregard the decision issued after the first hearing and hold a second hearing. While Respondents cite dozens of cases for a variety of propositions, none of those cases suggest, much less support, the BWC's position here - that an administrative agency
' As noted in Respondents' Memorandum, the hearing that is the subject of Daily Services' complaint has been continued to accommodate scheduling conflicts and has now been set for March 20, 2013 at 9:00 a.m. Daily Services requested that the hearing be continued indefinitely pending this Court's disposition of the complaint and Respondents' Motion to Dismiss to avoid the necessity of seeking an expedited ruling. However, Respondents have refused and, as a result, Daily Services may need to seek such relief if no decision is rendered by early March.
I can hold a second administrative hearing because it "misinterpreted" the decision from the first hearing that had become final by operation of law.
Apparently, Respondents believe that the only "final" decisions from the adjudicating committee are those that mean what the BWC thinks they mean. By contrast, if Daily Services or another Ohio employer approached the BWC and sought a second hearing on a three year old protest because they supposedly "misunderstood" the original decision, the BWC would flatly refuse based on the undeniable fact that the original decision was "final." There is no basis in law or logic that should not apply to the BWC with equal force.
Rather than confronting the real issue in this case - whether Respondents can "re-open" an almost four year old protest, hold a second hearing and issue a second decision - Respondents set-up and purport to refute a series of non-arguments. For instance, Respondents argue that the adjudicating committee had jurisdiction to hold the original hearing on the June 2009 Protest in
October 2009 and that the sixty day limit to hold that hearing was "directory" rather than jurisdictional. (Memorandum at 10-14.) Daily Services agrees, it has never suggested that
Respondents lacked the necessary jurisdiction to hold the original hearing even though it was held almost 120 days after the June 2009 Protest was filed. Respondents, however, ignore the fact that a hearing was held and a decision was rendered over three years ago. In fact, second and third administrative hearings were held in 2011. Yet, Respondents claim that Daily Services is somehow "seeking to avoid" a hearing.
Likewise, Daily Services has not questioned the BWC's jurisdiction to administratively determine (using the proper procedures) the issue of whether an employer "wholi_y succeeded" another for purposes of determining liability for a predecessor's obligations. However, Judge
Bessey held that the BWC could not make such a determination once it had filed suit against
2 Daily Services on September 1, 2009, and thereby submitted the issue to the jurisdiction of the
Franklin County Court of Common Pleas in Case No. 09-CVH09-13229. (the "Successor
Liability Case"). The BWC never appealed the Bessey Decision. Oddly, the BWC now claims that it believed (despite the pending Successor Liability Case) that the successor issue remained pending before the adjudicating committee at the October 2009 hearing and, indeed, that it remains pending there today. Conversely, Daily Services knew that issue was being litigated in the Franklin County Court of Common Pleas; after all, the BWC - not Daily Services - had filed the Successor Liability Case there. Respondents simply ignore these facts and cite no legal authority to refute Judge Bessey's holding that: "the Court finds that there is no basis for the
BWC to claim that it administratively decided the issue in its favor, when the issue was and still is pending before the Court in Case No. 09-CVH09-13229." (Bessey Decision at 6.) 2
The fundamental lack of any support for Respondents' remarkable assertion that the
BWC is basically entitled to "redo" the original hearing and issue a new decision has led
Respondents to misstate the procedural history of this dispute and ignore the applicable law.
However, as detailed below, there is simply no basis in law or fact for Respondents to re-open the June 2009 Protest and hold what would amount to a fourth administrative hearing on the successor issue. Respondents patently and unambiguously lack jurisdiction to hold a second hearing on a three year old protest. Therefore, as detailed below, Respondent's Motion to
Dismiss should be denied and a writ of prohibition granted to preclude a second hearing on Daily
Services' June 2009 Protest and a fourth hearing on Daily Services' alleged liability for any debt
I-Force actually owes the BWC.
2 A copy of the Bessey Decision is attached to Relator's Memorandum in Support as Exhibit A.
3 II. BACKGROUND
For simplicity's sake, Daily Services did not detail the complete procedural history of this
dispute in its complaint but, instead, focused on Respondents' plan to hold a second hearing on a
nearly four year old protest. However, in an attempt to obfuscate the real issues, Respondents
went beyond the complaint and tried to re-write that history to paint Daily Services as somehow
seeking to "avoid a hearing" and failing to "exhaust the administrative process." (Memorandum
at 2, 20.) In truth, the BWC created the procedural morass that it now seeks to blame on Daily
Services by its repeated failure to follow Ohio law and its own administrative procedures. As a
result, the complete procedural history of this dispute actually provides additional support for
this Court to deny Respondents' Motion to Dismiss and issue a writ of prohibition.
A. Daily Services' June 2009 Protest.
As Respondents' concede, this dispute first arose when I-Force ceased operations in
March 2009. (Memorandum at 1.) I-Force and Daily Services shared common ownership and provided similar temporary employment services. (Complaint, ¶¶ 9, 11.) After I-Force closed,
Daily Services continued to operate and began offering certain services previously provided by I-
Force. (Complaint, ¶ 14.) To the extent that Daily Services "succeeded" to I-Force's business, the BWC was supposed to transfer the appropriate share of I-Force's claims experience for the purpose of calculating Daily Services' future workers' compensation premiums. R.C.
4123.32(C); Ohio Adm. Code 4123-17-02(B).3 In addition, a succeeding employer can also be
3OAC 4123-17-02(C) was amended effective August 1, 2009 (after I-Force closed). To avoid confusion and for the Court's convenience, a copy of the version of OAC 4123-17-02 that applied when I-Force closed in March 2009 is attached as Exhibit C (continuing the letters used in Relator's Memorandum in Support) and all cites to that regulation herein refer to that version.
4 liable for a predecessor's "obligations," such as premiums owed to the BWC. R.C. 4123.32(C);
Ohio Adm. Code 4123-17-02(C).
According to Respondents, a transfer of experience "necessarily implied that I-Force's rights and obligations would transfer to Daily Services." (Memorandum at 4, nl.) However, in both paraphrasing and quoting OAC 4123-17-02(C), Respondents omit the critical word
"wholly." (Memorandum at 9.)4 According to the BWC, OAC 4123-17-02(C)(1) provides:
"Where one employer succeeds another in the operation of a business, the bureau shall transfer the predecessor's rights and obligations under the workers' compensation laws." (Memorandum at 9.) In reality, that regulation provides: "Where one employer wholly succeeds another in the operation of a business, the bureau shall transfer the predecessor's rights and obligations under the workers' compensation laws." (emphasis added) Ohio Adm. Code 4123-02-17(C)(1). Thus, claims experience may be transferred to a partial successor for the purpose of calculating future premiums. Liability for past premiums only transfers to an employer that "wholly" succeeded the predecessor.
While Daily Services conceded that it captured some of I-Force's former business and that an experience transfer for the purposes of calculating Daily Services' future premiums was appropriate, it denied that it "wholly succeeded" to I-Force's business. (Complaint, Exhibit 2 at
1.) At that point, Ohio law allowed the BWC to conduct an audit on the successor issue, and to that end, the BWC started an audit in May 2009 for that purported purpose. (Ex. D at BWCPR
4 Specifically, Respondents attempt to explain their "misinterpretation" of the October 2009 Decision by omitting the word "wholly" and claiming that a transfer of experience equates to successor liability. (Memorandum at 4, n. 1.)
5 02 (May 22, 2009 e-mail: "we are starting [the audit on Wednesday.").)5 Strangely, before the audit even began, the BWC prepared a letter dated May 22, 2009 to notify Daily Services that the BWC had, in fact, already "determined" that Daily Services "wholly succeeded" I-Force.6
Under R.C. 4123.291, Daily Services could have protested that "determination" to the
BWC's adjudicating committee. However, perhaps realizing the unseemly appearance of adopting a "fire, ready, aim" approach by issuing a"determination" before the audit, the BWC decided not to send the letter until after the audit was completed. (Ex. D at BWCPR 02 (May 25,
2009 e-mail: "let's hold off until Nancy [Archer] has completed the audit.").) Ultimately, the audit was not completed until after December 2009, and neither the May 22, 2009 letter nor an updated version was ever sent to Daily Services. (Ex. D at BWCPR 011.)
Nonetheless, and despite the pending audit, the BWC proceeded to enforce the
"determination" reflected in the May 22, 2009 letter and sent Daily Services an invoice for $3.5 million in premiums allegedly owed by I-Force. (Complaint, ¶ 16.) That invoice prompted the
June 2009 Protest, which set the stage for an adjudicating committee hearing on both the issues of an experience transfer and whether Daily Services was a "successor" (i.e. wholly succeeded) to I-Force. (Memorandum at 3.) Of course, the first issue that could have been raised was the fact that the BWC sent Daily Services an invoice rather than the required notice of the BWC's
"determination" (i.e. the May 22, 2009 letter). On June 25, 2009, the BWC filed an
5 The planned audit is reflected in series of e-mails produced by the BWC in response to a public records request. Copies are attached to the Affidavit of Matthew J. Burkhart, Esq., attached as Exhibit D which was also attached to Daily Services' Memorandum in Opposition to the BWC's Motion to Stay in Case No. 11-CV-015913 (Successor Liability Case II).
6 The May 22, 2009 Letter is referenced in the BWC's Notice for the March 5, 2013 Hearing attached as Exhibit 3 to the Complaint.
6 administrative judgment pursuant to R.C. 4123.37 against I-Force in the Franklin County Court of Common Pleas for $3,886,816.08 (the "I-Force Judgment"). (Complaint, ¶ 20.)
B. The BWC Files Suit Against Daily Services (September 2009).
Although the June 2009 Protest remained pending, on September 1, 2009, the BWC filed
Case No. 09-CVH-13229 in the Franklin County Court of Common Pleas specifically seeking to hold Daily Services liable for the I-Force Judgment as I-Force's successor-in-interest (the
"Successor Liability Case"). Just six weeks later, however, the BWC filed a Satisfaction and
Discharge of the I-Force Judgment on October 13, 2009 even though both the June 2009 Protest and the Successor Liability Case remained pending. (Complaint, ¶ 22.)' Thus, while
Respondents repeatedly state that I-Force "owes" the BWC over $3.5 million, any such liability is refuted by the BWC's own Satisfaction and Discharge which specifically provides that the
Clerk of Courts is "authorized and directed ... to enter satisfaction and discharge of the judgment of record." (Memorandum at 2, 13; Exhibit E at 1.) The BWC ultimately dismissed the
Successor Liability Case on the eve of trial in March 2011.
C. The First Administrative Hearing and the October 2009 Decision.
While the successor issue was being litigated in the Successor Liability Case, the BWC's adjudicating committee heard Daily Services' June 2009 Protest on October 15, 2009. There,
Daily Services agreed that an "experience combination" was proper and the October 2009
Decision affirmed an "experience combination." (Complaint, ¶ 23 and Exhibit 2 at 1.) The
7 For the Court's convenience, a previously certified copy of the Satisfaction and Discharge is attached as Exhibit E.
7 October 2009 Decision was silent on whether or not Daily Services "wholly succeeded" I-Force.
No appeal was filed.
Respondents nonetheless claim that the BWC interpreted the October 2009 Decision as
"deciding the successor liability issue against Daily Services" - i.e. that Daily Services wholly succeeded I-Force. (Memorandum at 2.) If correct, that interpretation would have permitted the
BWC to commence collecting the alleged I-Force debt from Daily Services pursuant to Section
4123.37 of the Ohio Revised Code. That process starts with serving an assessment by certified mail. R.C. 4123.37. The assessment is subject to a protest, followed by adjudicating committee hearing, which can be appealed to the administrator's designee and, ultimately, to the court of common pleas. R.C. 4123.37 and 4123.291. If no protest is filed or after an administrative decision becomes final (i.e. no appeal is filed), the BWC is authorized to file a judgment in the court of common pleas as well as a liens on real and personal property in the county recorder's office. R.C. 4123.37 and 4123.78. Here, the BWC repeatedly failed to follow the procedures provided by Ohio law for filing judgments and liens.
D. The BWC Files Illegal Judgments and Liens Against Daily Services (November 2009 and July 2010)
In November 2009, shortly after the October 2009 Decision and while the Successor
Liability Case remained pending, the BWC proceeded to file an administrative judgment against
Daily Services for more than $54,000,000 and liens for $54,000,000 and $22,000,000 respectively. (Bessey Decision at 1-2.) After the BWC filed another such judgment for over
$3,100,000 in July 2010 (even though the Successor Liability Case still remained pending),
Daily Services responded by filing two Civil Rule 60(B) motions in the Franklin County Court
8 of Common Pleas. (Reece Decision at 2-3.) 8 The BWC did not oppose the motion with respect
to the $3,100,000 judgment, conceding that the assessment purporting to support the judgment
had been sent to the wrong address. As a result, Judge Fais vacated the $3,100,000 on October
4, 2010. (Reece Decision at 3.) The BWC then proceeded to re-serve the $3,100,000 assessment
(although, remarkably, it again failed to serve the assessment by certified mail as required by
R.C. 4123.37) (the "September Assessment"). (Complaint, ¶ 36 and Exhibit 4 at 1.)
Strangely, considering that it never created or even attempted to serve an assessment that
could support the $54,000,000 judgment (and the BWC's knowledge that the amount was wildly
inflated), the BWC vigorously opposed Daily Services' Civil Rule 60(B) motion with respect to the $54,000,000 judgment. (Bessey Decision at 1, 4.) Specifically, the BWC argued that two nearly identical invoices for $3,486,852.87 dated one day apart in May 2009 (which prompted the June 2009 Protest) and the October 2009 Decision sufficed to support the $54,000,000 judgment. (Bessey Decision at 4.) On February 8, 2011, Judge Bessey granted Daily Services'
Civil Rule 60(B) motion and vacated the $54,000,000 judgment finding "several problems" with how the BWC proceeded. (Bessey Decision at 5).
First, Judge Bessey noted that the BWC had already released the judgment against I-
Force that it was now seeking to collect from Daily Services. (Bessey Decision at 5.) Second,
Judge Bessey explained that the two $3,486,852.87 invoices did not satisfy the requirement to serve an assessment by certified mail, let alone support a judgment for more than $54,000,000.
(Bessey Decision at 5-6.) Third, Judge Bessey reviewed the October 2009 Decision and held that whii_e it specificall_y addressed an experience combination, it "made no reference to the issue
8 A copy of the Reece Decision is attached to Relator's Memorandum in Support as Exhibit B.
9 of whether [Daily Services] was a successor to I-Force and thus liable for I-Force's deficiencies." (Bessey Decision at 6.)9
Finally, Judge Bessey concluded that the BWC's claim that the October 2009 Decision addressed the successor issue was "contradicted" by the BWC filing the Successor Liability Case six weeks before the adjudicating committee hearing. (Bessey Decision at 6-7.) As a result,
Judge Bessey held that "there is no basis for the BWC to claim that it administratively decided the issue in its favor, when the issue was and is still pending before the Court in 09CVH09-
13229." (Bessey Decision at 7.) The BWC did not appeal the Bessey Decision.
E. The Second Administrative Hearing (January 2011)
While the Civil Rule 60(B) motion remained pending before Judge Bessey, Daily
Services protested the September Assessment (which was apparently premised on the BWC's mistaken belief that the October 2009 Decision determined that Daily Services "wholly succeeded" I-Force), and a second adjudicating committee hearing was held on January 13,
2011. On February 9, 2011, the day after the Bessey Decision, the adjudicating committee rejected Daily Services' protest (the "Assessment Decision"). (Complaint, ¶35 and Exhibit 4.)
After specifically noting that Daily Services did not appeal the October 2009 Decision, the
Assessment Decision held that the October 2009 Decision did, in fact, decide that Daily Services was the successor of I-Force and, therefore, the debt was transferred to Daily Services.
9 By contrast, in a recent decision also involving an experience transfer and a successor liability determination, the Tenth District quoted an October 2010 adjudicating committee decision which stated "BWC correctly transferred and/or combined the predecessor's [Old Gladiators] experience and/or rights and/or obligations to the subsequent Employer [New Gladiators] under the Code." State ex rel. Cleveland Professional Football, L.L.C. v. Buehrer, 2012-Ohio-6020 at ¶4. Thus, the BWC's adjudicating committee is able to address both issues (and track the language of OAC 4123-17-02(C)) when appropriate.
10 (Complaint, Exhibit 4 at 2.) Pursuant to R.C. 4123.291, Daily Services appealed this decision to
the administrator's designee the next day. (Reece Decision at 3-4.) Once again, however, the
BWC refused to allow Daily Services to exhaust its administrative remedies before taking action.
F. The BWC Files A Third Illelzal Judgment Against Daily Services (February 2011).
Although R.C. 4123.37 and 4123.291 allow the BWC to file a judgment after a final
decision by the administrator's designee, the BWC filed a judgment based on the Assessment
Decision on February 18, 2011 (the "February 2011 Judgment"). (Reece Decision at 4.) As a
result, Daily Services was forced to file a third Civil Rule 60(B) motion which was ultimately
assigned to Judge Reece in Franklin County Case No. 2011 JG 7617. After the BWC filed the judgment in its favor based on the Assessment Decision, the BWC dismissed the Successor
Liability Case on March 21, 2011 (the day before trial was scheduled to start so that Daily
Services was forced to prepare for trial on the successor issue). (Reece Decision at 2.)
G. The Third Administrative Hearing (April 2011)
While the Civil Rule 60(B) motion on the February 2011 Judgment remained pending,
the administrator's designee, Frank Titus, held a hearing on Daily Services' appeal from the
Assessment Decision on April 19, 2011. (Complaint, ¶ 36 and Exhibit 5.) The preclusive effect
of the Bessey Decision was specifically discussed at that hearing. Richard Blake, an attorney in
the BWC's legal division who attended the hearing as Mr. Titus' legal counsel, claimed that "the
issue of successorship [sic] carne up originally and was addressed by the Adjudicating
Committee and was not appealed in October of '09. ... But what it does mean is that the
successorship [sic] was determined by the Bureau. No appeal was taken from that." (Hearing Tr.
11 at 106.)10 Of course, Judge Bessey had actually already ruled that the October 2009 Decision
"made no reference to the issue of whether [Daily Services] was a successor to I-Force and thus liable for I-Force's deficiencies" and that "there is no basis for the BWC to claim that it administratively decided the issue in its favor, when the issue was and is still pending before the
Court in [the Successor Liability Case]." (Bessey Decision at 6-7.)
On June 14, 2011, Mr. Titus issued his decision which followed Mr. Blake's advice and essentially overruled the Bessey Decision (the "Titus Decision"):
The Administrator's Designee specifically rejects the arguments presented by the employer's legal counsel regarding the legal doctrines of res judicata and collateral estoppel. ^: * * Further it is noted, that the issue of liability under 4123-17-03(C) was addressed by the Adjudicating Committee in its order dated October 15, 2009 when it applied OAC 4123-17-03(B) and determined that the employer was a successor employer under the rule. When the Bureau determined that (B) applied and the experience transferred, OAC 4123-14-03(C) [sic] was automatically triggered and all appropriate liability and credit were transferred.
(Titus Decision at 2.)11 Thus, like Respondents here, Titus ignored the distinction between transfer of experience under OAC 4123-17-03(B) and the transfer of liability based on "wholly" succeeding another employer under OAC 4123-17-03(C). The BWC filed the Titus Decision in the pending Civil Rule 60(B) motion on the February 2011 Judgment and argued that the Titus
Decision controlled Judge Reece's disposition of Daily Services' Civil Rule 60(B) motion.
(Reece Decision at 7.)
On November 21, 2011, Judge Reece granted Daily Services' Civil Rule 60(B) motion for two reasons. (Reece Decision at 13-15.) First, Judge Reece ruled that the February 2011
10 The first page, referenced page, and signature page of the April 19, 2011 hearing transcript are attached as Exhibit F.
11 A copy of the Titus Decision is attached as Exhibit 4 to Relator's Complaint.
12 Judgment was filed "prior to the decision becoming final" due to Daily Services' pending appeal
to the administrator's designee. (Reece Decision at 14.) Second, Judge Reece agreed "with
Daily Services about the preclusive effect" of the Bessey Decision's holding that the October
2009 Decision did not, and could not, have decided the successor issue despite the contrary
rulings contained in the Assessment Decision and the Titus Decision. (Reece Decision at 16-17.)
In short, Judge Reece rejected the BWC's novel argument that the BWC could administratively
"overrule" a decision by the Franklin County Court of Common Pleas in a case where the BWC
was a party. The BWC appealed the Reece Decision to the Tenth District Court of Appeals.
H. The Second Lawsuit (January 2012)
While that appeal was pending, the BWC filed a counterclaim in a subsequent lawsuit
filed by Daily Services in Franklin County Court of Common Pleas Case No. 11-CV-15913 (the
"Successor Liability Case II"). In that case, Daily Services sought, inter alia, an order directing
the BWC to release a lien filed in the Franklin County Recorder's Office because the Reece
Decision had vacated the related judgment. In its counterclaim, the BWC specifically alleged
that Daily Services was the successor of I-Force. (Complaint, ¶ 26.) That case is currently
scheduled for trial on May 21, 2013 though, as noted in Respondents' Motion, the BWC has
moved to stay its counterclaims pending the second administrative hearing on the June 2009
Protest. (Memorandum at 14.)
1. The BWC Notices a Fourth Hearing (January 2013)
On September 18, 2012, the Tenth District affirmed the Reece Decision in Ohio Bureau of Workers' Compensation v. Daily Services, LLC, 10th Dist. No. 11 AP 1122, 2012-Ohio-
4242. The BWC did not appeal that decision to this Court. Instead, the BWC noticed a second
13 hearing on the June 2009 Protest (and the fourth hearing in total on the successor issue) under the
guise that the June 2009 Protest remained "pending" contrary to all of the BWC's claims over
the last three years that the October 2009 Decision was "final." That notice prompted Daily
Services' complaint for a writ of prohibition and Respondents' subsequent Motion to Dismiss. In
light of the BWC's contradictory actions over the last four years, there is simply no basis to
dismiss Daily Services' complaint.
III. LAW AND ARGUMENT
A. Respondents Patently and Unambiguously Lack Jurisdiction to Hold a Second Hearing on the June 2009 Protest.
1. An Administrative Agency Loses Jurisdiction to Hold a Second Hearing Once the Time for an Appeal Expires.
An entity created by statute is limited to exercising only the jurisdiction and power
expressly conferred upon it. Canton Storage & Transfer Co. v. Public Util. Comm'n, (1995), 72
Ohio St. 3d 1, 5, 647 N.E.2d 136 ("The [PUCO], as a creature of statute, may exercise only that
jurisdiction conferred upon it by statute") (citation omitted). As a result, it is the "statutory
language [that] determines the parameters of the agency's jurisdiction." Cuyahoga County Bd
of County Comm'rs v. Daroczy, 10th Dist. No. 08AP-123, 2008-Ohio-5564, ¶ 17 (citing Waltco
Truck Equipment Co. v. Tallmadge Bd. of Zoning Appeals, ( 1988), 40 Ohio St. 3d 41, 531
N.E.2d 685. Thus, the agency may not exercise-and a court may not create or infer- jurisdiction beyond that expressed in the statute. See Waltco, 40 Ohio St. 3d at 43 ("where jurisdiction is dependent upon a statutory grant, this court is without the authority to create jurisdiction when the statutory language does not. That power resides in the General
Assembly.").
14 Respondent Adjudicating Committee is a creature of statute. Pursuant to R.C.
4123.291(A) and (B)(5), the BWC's Administrator is authorized to appoint an "adjudicating committee" to hear an employer's protest of "an audit finding or determination of a . . . transfer or combination of experience." Here, the Adjudicating Committee has already exercised its statutory jurisdiction and decided Daily Services' protest in October 2009. R.C. 4123.291 does not grant Respondents "continuing jurisdiction" over protests that were previously decided and for which the appeal time has run. Nor is there any statutory authority akin to Civil Rule 60 of the Ohio Rules of Civil Procedure enabling anyone, let alone the BWC itself, to re-open a previous hearing or otherwise correct, amend, or supplement a previous order that has become final by operation of law.
This Court has long and consistently held that Ohio's administrative agencies lose jurisdiction to revisit their own decisions once an appeal is filed or the appeal period expires.
State ex rel Borsuk v. Cleveland, (1972), 28 Ohio St.2d 224, 277 N.E. 2d 419 at paragraph of the syllabus; Lorain Edn. Assn. v. Lorain City School Dist. Bd. Of Edn., (1989), 46 Ohio St.3d 12,
544 N.E.2d 687 at the syllabus; MB W. Chester, L.L.C. v. Butler County Bd. of Revision, (2010),
126 Ohio St. 3d 430, 435, 934 N.E.2d 928, 933 (noting that rule only applies if a party is notified of a decision). That is exactly what occurred here. The October 2009 Decision resolved Daily
Services' June 2009 Protest and became final by operation of law when the time to appeal passed. Respondents' have not identified any "misinterpreted the decision" or "missed an issue" exception to this well-settled law.
Although this is the primary argument advanced by Daily Services in support of the writ of prohibition, it is largely ignored by Respondents. Instead, Respondents focus on the
"directory" nature of the requirement to hold a hearing within sixty days and argue that the
15 adjudicating committee has basic jurisdiction to hear protests concerning whether one employer succeeded another. However, these arguments merely establish that the adjudicating committee had the jurisdiction to hear the June 2009 Protest and issue the October 2009 Decision - two claims that Daily Services does not dispute. These arguments however, do not establish any basis to hold a second hearing and issue a new decision. Thus, Respondents patently and unambiguously lack jurisdiction to hold a second hearing on the June 2009 Protest since the time to appeal the October 2009 Decision has long since passed. Therefore, Respondents' Motion to
Dismiss should be overruled and a writ of prohibition should issue.
2. There is no Support for Respondents' Claim That the June 2009 Protest Remains "Pending."
In an effort to obfuscate the fact that Respondents' planned "second hearing" amounts to
"re-doing" the first hearing, Respondents claim that the successor issue has somehow remained pending and undecided for almost four years. To support this claim, Respondents first misconstrue the decisions issued by Judges Bessey and Reece to claim that: "As two courts have decided, there has been no previous administrative order on successor liability because the successor liability issue was never expressly decided in the Adjudicating Committee's October
2009 order." (Memorandum at 14.)
In truth, Judge Bessey ruled that: "the BWC mistakenly claims that the hearing before the
Adjudicating Committee resulted in a finding the Daily Services was the successor to I-Force. ...
The Court finds that this Order makes no reference to the issue of whether Defendant was a successor to I-Force and thus liable for I-Force's deficiencies." (emphasis added) (Bessey
Decision at 6.) Thus, the Bessey Decision does not support Respondents' claim that the issue remains "pending" and subject to a further hearing.
16 Instead, the October 2009 Decision simply did not grant the BWC the relief it purportedly sought - a finding that Daily Services "wholly succeeded" I-Force. Again, as recognized by Judge Bessey, this result is unsurprising since the BWC had just filed the
Successor Liability Suit raising the successor claims in the Franklin County Court of Common
Pleas. Respondents have failed to offer any rationale or legal support for the BWC to exercise jurisdiction over an issue it has submitted to a common pleas court. Finally, Judge Bessey noted that the BWC had actually filed the Satisfaction and Release of the purported I-Force debt two days before the October 15, 2009, hearing which cast further doubt on the BWC's ability to effectively transfer a debt that had already been extinguished. (Bessey Decision at 5.)
Likewise, the Reece Decision also does not support Respondents' claim that the issue remained "pending" after the October 2009 Decision. In fact, Judge Reece was confronted with the two administrative orders issued after the Bessey Decision which both held that Daily
Services was a successor to I-Force based on nothing more than the October 2009 Decision.
Judge Reece correctly concluded that these administrative orders improperly contradicted and purported to overrule the Bessey Decision when they held that the October 2009 Decision had already decided the successor issue in the BWC's favor. Based on principals of resjudicata and collateral estoppel, Judge Reece held that the scope of the October 2009 Decision was conclusively determined by Judge Bessey and, as a result: "the Court agrees with Daily Services about the preclusive effect of Judge Bessey's February 8, 2011 decision - as to whether a successor-in-interest determination was made in the October 15, 2009 order - on the February 9,
2011 decision by the Adjudicating Committee and on the June 14, 2011 decision by the
Designee." (Reece Decision at 16-17.) Thus, far from endorsing, Judge Reece actually rejected
Respondents' current position that the issue remained pending for an administrative hearing.
17 Judge Reece also noted that Judge Bessey expressly found that the interpretation argued by the BWC - that Daily Services was the successor to I-Force - "had not been made in the
October 15, 2009 order." Reece Decision at 16.) Nonetheless, Respondents draw the unsupported conclusion that if the October 2009 Decision did not grant them the relief they sought, the issue must remain pending. In reality, the opposite is true. By failing to affirmatively grant the relief sought by the BWC, the October 2009 Decision simply rejected that claim - consistent with the fact that the question was then pending in the Franklin County Court of Common Pleas.
Respondents' ever changing and inconsistent positions to suit the needs of the day are demonstrated by the BWC's own brief in their appeal of Judge Reece's decision to the Tenth
District Court of Appeals. There, the BWC specifically challenged Judge Reece's conclusion regarding the preclusive effect of the Bessey Decision. Indeed, in a rather bizarre attempt to re- write history (and time's arrow), the BWC claimed that it had alread given Daily Services a second hearing on the successor liability issue:
Since the Bessey Decision, the Bureau has not taken the position that the October 15, 2009 Adjudicating Committee Order held that the liability had been transferred pursuant to OAC 4123-17-02(C). Instead, the Bureau gave the employer a second chance at hearing in an abundance of caution, which resulted in the January 13, 2011 Adjudicating Committee Order that affirmed the assessment.
In this case, the Bureau remedied the omission in the October 15, 2009 Adjudicating Committee Order by re-noticing the assessment and giving Appellee a second hearing.
18 (BWC Brief at 15-16.) 12 Of course, the BWC failed to note that the January 13, 2011 hearing pre-dated the Bessey Decision. The BWC then "gave" Daily Services a third hearing on April
14, 2009 which resulted in the Titus Decision that also refused to follow the Bessey Decision.
The Tenth District's decision in the Reece appeal also demonstrates the logical fallacy in
Respondents' claim that if a decision doesn't specifically address an issue, the issue remains
"pending." In that case, the Tenth District failed to specifically address or reject the BWC's arguments regarding the "second" and "third" hearings. In addition, Respondents specifically note that although both parties "briefed the issue whether the Adjudicating Committee had ultimately decided the question of successor liability ... the court of appeals affirmed without addressing the issue." (Memorandum at 16.) Despite the Tenth District's silence, neither of those issues remain "pending" in the Tenth District. Instead, the BWC's assertions were implicitly rejected when the Tenth District affirmed the Reece Decision.
So too, the failure of the October 2009 Decision to specifically address and reject the
BWC's arguments regarding successor liability does not leave that issue pending. Indeed, Judge
Reece and the Tenth District implicitly rejected Respondents' arguments that the issue remained pending before the adjudicating committee when they refused to validate either the adjudicating committee's Assessment Decision or the Titus Decision. Quite simply, nothing in the Bessey
Decision, the Reece Decision, or the Tenth District Decision support Respondents' claim that the successor issue remains pending and ripe for adjudication in a fourth hearing. Instead of trying to "avoid" a hearing on the issue, Daily Services is seeking to avoid a fourth hearing when
12 As Respondents proposed with respect to the BWC's Motion to Stay in the Successor Liability Case II, this Court can also take judicial notice of the BWC's brief in the Reece Appeal. (Memorandum at 18, n 7.)
19 Respondents patently and unambiguously lack continuing jurisdiction or the right to keep
holding hearings and issuing decisions until they finally win.
The only case that Respondents cite in support of their claim that the issue remains
"pending" at the adjudicating committee is State Bur. Of Workers' Comp. v. C.W. Fletcher, 1997
WL 119573 (Ohio App. 4 Dist) (Mar. 13, 1997). (Memorandum at 5, 16.) The Fletcher case is
in fact to the contrary, and simply does not support Respondents claim that "the BWC's failure to administratively decide a petition challenging an assessment `left the matter pending'."
(Memorandum at 5.) In Fletcher, unlike here, the BWC never held a hearing on the employer's protest or issued a decision but merely sent a letter from the secretary to the Adjudicating
Committee stating that it would not hear the matter. Fletcher, 1997 WL 119573 at *4. Thus, the
Fletcher Court explained: "Orders are necessary to bring finality and resolution to matters. ...
We therefore agree with the trial court's determination that the BWC did not comply with R.C.
4123.37 because the BWC letter is not a decision of the committee as required by Ohio
Adm.Code 4123-14-06(E)." (underlining original) Id.
Here, by contrast, the adjudicating committee held a hearing and issued a decision in
October 2009 (and held another hearing in January 2011 and issued a second decision followed by a third hearing and the Titus Decision). Quite simply, the reasoning of the Fletcher court does not apply where, as here, a hearing is held and a decision is issued. That result is not altered by the fact that the BWC disagrees with or misinterprets that decision. Therefore,
Respondents' Motion to Dismiss fails on this basis as well.
20 B. The Adiudicatiniz Committee Also Lacks Jurisdiction Because the BWC Has Invoked the Jurisdiction of the Franklin County Court of Common Pleas.
In what amounts to the height of irony, Respondents complain that "Relator cannot obtain judicial review of the determination of successor liability in the BWC's June 2009 invoice until
Relator exhausts the administrative process for challenging such a finding." (Memorandum at
20.) Apparently lost on Respondents is the fact that the BWC - not Daily Services - has twice
invoked the jurisdiction of the courts to decide the successor liability issue - the Successor
Liability Suit on September 1, 2009 and the counterclaims that are currently pending in the
Successor Liability Case II. The BWC has sought to gaa - not dismiss - those counterclaims.
If, as the BWC suggests, the Franklin County Court of Common Pleas does not have jurisdiction
to hear the BWC's claims and counterclaims since the BWC did not exhaust its administrative
remedies, it should have so informed Daily Services before it incurred tens of thousands of
dollars defending those cases. Obviously, at a minimum, based on its current arguments here,
the BWC should immediately dismiss the pending counterclaims. Tellingly, it has not done so.
Of course, and more to the point, Daily Services did exhaust its administrative remedies
when it was afforded the opportunity to do so. Daily Services filed the June 2009 Protest,
attended the October 2009 hearing and accepted the October 2009 Decision. Daily Services did
not appeal the October 2009 Decision and, indeed, was repeatedly told by the BWC that, as a
result, the October 2009 Decision was "final." What would Respondents have Daily Services
do? File an untimely appeal when it learned that the BWC had "misinterpreted" the October
2009 Decision? Rather than recognizing the reality that Daily Services exhausted its
administrative remedies in 2009, Respondents have cited numerous cases supporting the well-
established and undisputed proposition that Daily Services could not go to court without
exhausting its administrative remedies. However, Respondents have not cited any legal authority
21 refuting Judge Bessey's ruling that: "there is no basis for the BWC to claim that it administratively decided the issue in its favor, when the issue was and still is pending before the
Court in Case No. 09CVH09-13229." (Bessey Decision at 6-7.)
The BWC did not appeal the Bessey Decision and claims to have "accepted" the ruling.
Apparently, however, Respondents are unwilling to abide by the Bessey Decision since they now propose to "administratively decide the issue" while it remains pending in the Successor
Liability Case II (albeit, stayed if the BWC's motion is granted though Respondents' fail to explain why that would matter). In truth, there is no basis for the BWC to claim the issue remains "pending" with the adjudicating committee when the BWC - not Daily Services - has twice submitted that issue to the Franklin County Court of Common Pleas.
The BWC now claims that it believed (despite the then pending Successor Liability Case) that the successor issue was before the adjudicating committee at the October 2009 hearing and, indeed, that it remains "pending" there today. Conversely, Daily Services knew that issue was being litigated in the Franklin County Court of Common Pleas; after all, the BWC - not Daily
Services - had filed the Successor Liability Case there. The obvious implication of
Respondents' position is that, again, Judge Bessey is simply wrong and the BWC retained jurisdiction notwithstanding the pendency of the first Successor Liability Case and their current counterclaims in the Successor Liability Case II. Indeed, taken to its logical conclusion,
Respondents appear to argue that the BWC's attempts to invoke the jurisdiction of the Court of
Common Pleas were a nullity and Daily Services was free to disregard the BWC's claims.
However, the BWC lacks sufficient courage in its supposed conviction to take the next logical step and simply dismiss its counterclaims. Instead, Daily Services has been and still is being forced to defend the same claims in multiple venues of the BWC's choosing. In the absence of
22 any contrary authority, however, the BWC's decision to invoke the jurisdiction of the Franklin
County Court of Common Pleas is sufficient to divest it of jurisdiction to decide the issue
administratively.
Finally, the absurdity of Respondents' position is shown by what would happen if the
Franklin County Court of Common Pleas and the adjudicating committee reach inconsistent
results. Would the court be bound by the adjudicating committee's decision? Would the
adjudicating committee have to follow a court ruling (as Judge Reece held but Titus refused to
do)? Could the BWC just follow the decision it preferred? In truth, by seeking to invoke,
correctly or not, the jurisdiction of the Franklin County Court of Common Pleas, the BWC
divested itself of any jurisdiction to now decide the issue administratively. Therefore,
Respondents' Motion to Dismiss 'should be overruled on this basis as well, and a writ of
prohibition should issue precluding Respondents from administratively deciding an issue that the
BWC has submitted to the jurisdiction of the Franklin County Court of Common Pleas.
C. Respondents Need Not Establish the Lack of an Adequate Remedy at Law.
Respondents address the question of an adequate remedy of law by asserting that they do
not "patently and unambiguously" lack jurisdiction. (Memorandum at 20.) Respondents,
however, do not dispute the proposition that if a respondent "patently and unambiguously lacks jurisdiction to proceed in a cause, prohibition ... will issue to prevent any future unauthorized
exercise of jurisdiction . . . ." State ex rel. Duke Energy Ohio, Inc., 2010-Ohio-2450, at ¶ 17
(quoting State ex rel. Mayer v. Henson, 97 Ohio St.3d 276, 2002-Ohio-6323, 779 N.E.2d 223, ¶
12). In such cases, a relator "need not establish the lack of an adequate remedy at law because
the availability of alternate remedies like appeal would be immaterial." Id. at ¶ 17 (quoting State
ex rel. Sapp v. Franklin Cty. Court of Appeals, 118 Ohio St. 3d 368, 2008-Ohio-2637, 889
23 N.E.2d 500, ¶ 15). Thus, as Daily Services explained in its Memorandum in Support, this issue
does not need to be separately addressed.
Nonetheless, Respondents claim that Daily Services has an adequate remedy via appeal
though "Daily Services may complain that this alternative legal remedy would be time
consuming or expensive" such expense does not justify the extraordinary relief of prohibition.
(Memorandum at 21.) In truth, Daily Services is not complaining about the expense of appealing
the October 2009 Decision and, indeed, never sought to do so. Daily Services participated in the
October 2009 Hearing and chose to accept the resulting decision.
Daily Services then participated in the "second chance at [a] hearing" the BWC granted
to it "out of an abundance of caution." (BWC Brief at 15-16.) Daily Services participated in the
third hearing that resulted in the Titus Decision. Daily Services defended the claims filed by the
BWC in the Successor Liability Case and the counterclaims filed in the Successor Liability Case
II even though Respondents now claim that there was no jurisdictional basis for the BWC to file
those claims while the administrative remedies "remained pending." Daily Services filed three
Civil Rule 60(B) motions to vacate illegal judgments the BWC filed based on its
"misinterpretation" of the October 2009 Decision as well as the BWC's failure to follow R.C.
4123.37, all in violation of Daily Services' due process rights. Daily Services then defended the
BWC's appeal from Judge Reece's decision in the Tenth District Court of Appeals.
Ultimately, Daily Services repeatedly established that the BWC had failed though three hearings and two court cases to prove that Daily Services "wholly succeeded" I-Force. Thus,
Daily Services does object to a fourth administrative hearing to purportedly address the exact same issue. Frankly, the tortured procedural history authored by the BWC provides compelling support for issuing a writ of prohibition. However, even in the absence of the three prior
24 hearings, three administrative orders, two court cases, three Rule 60(B) motions and one appeal,
Daily Services is entitled to a writ of prohibition for one simple reason - a hearing was already held on the June 2009 Protest, the October 2009 Decision followed and was not appealed. Thus, the October 2009 Decision is final as a matter of law and Respondents patently and unambiguously lack jurisdiction to hold a second hearing. Therefore, Respondents' Motion to
Dismiss should be denied, and this Court should issue the writ of prohibition "to prevent [the] unauthorized exercise of jurisdiction."
IV. CONCLUSION
Respondents bemoan the possibility that the BWC will be "deprived of its right" to collect a significant debt "owed to the BWC, at the expense of every employer that pays its fair share into the workers' compensation system" to suggest that the justness of its cause should somehow dispense with the requirement that it actually follow Ohio's laws and the due process requirements in the United States Constitution. In truth, the BWC had numerous opportunities to adjudicate the successor issue and simply failed to do so correctly. Daily Services' alleged liability for I-Force's alleged debt is not an excuse for the BWC to disregard proper procedures; instead, Daily Services' liability for any such debts could only be established by the BWC following those procedures.
In other words, the BWC's supposed belief that Daily Services is liable for any debt actually owed by I-Force provided a compelling reason to follow the proper procedure - not an excuse to file illegal $54,000,000 judgments. As a result of the BWC's own repeated failures to adhere to those procedures, Respondents' patently and unambiguously lack jurisdiction to hold a second hearing on the June 2009 Protest more than three (3) years after the decision on that protest became final. Therefore, Daily Services respectfully requests that the Court deny
25 Respondents' Motion to Dismiss, issue a writ prohibiting Respondents from acting in excess of their authority by holding any further proceedings on the June 2009 Protest and grant such
further relief that the Court deems just and equitable.
Respectfully submitted,
W. Evan Price, II* (0056134) *Counsel of Record James E. Arnold (0037712) Matthew J. Burkhart (0068299)
JAMES E. ARNOLD & ASSOCIATES, LPA 115 West Main Street, Fourth Floor Columbus, Ohio 43215 Telephone: (614) 460-1600 Facsimile: (614) 469-1066 Email: [email protected] [email protected] [email protected]
Counsel for Relator, Daily Services LLC
26 CERTIFICATE OF SERVICE
I hereby certify that on February 25, 2013, I served a true and accurate copy of the foregoing via regular and electronic mail upon:
James A. King, Esq. David S. Bloomfield, Jr. L. Bradfield Hughes, Esq. Eric B. Gallon, Esq. Porter, Wright, Morris & Arthur LLP 41 South High Street Suites 2800-3200 Columbus, Ohio 43215 [email protected] dbloomfiel d@porterwright. com [email protected] [email protected]
Special Counsel to the Ohio Attorney General; Attorneys foN Respondents Stephen Buehrer, Administrator; Adjudicating Committee of the Ohio Bureau of Workers' Compensation; Jill Whitworth; Elizabeth Bravender; and John Best
.----^ W. Evan Price II
27 Exhibit C OAC 4123-17-02, OAC 4123-17-02
OAC 4123-17-02 Ohio Admin. Code § 4123-17-02 BALDWIN'S OHIO ADMINISTRATIVE CODE ANNOTATED 4123 WORKERS' COMPENSATION BUREAU CHAPTER 4123-17. GENERAL RATING FOR STATE INSURANCE FUND
Rules are complete through January 17, 2010; Appendices are current to July 31, 2009
4123-17-02 Basic or manual rate
(A) The "basic or manual rate" is hereby expressed as the unit of premium per one hundred dollars of payroll for accident and disease coverage.
(B) Succeeding employers -- experience.
(1) Where one legal entity, not having coverage in the most recent experience period, wholly succeeds another legal entity in the operation of a business, his or its rate shall be based on the predecessor's experience within the most recent experience period.
(2) Where a legal entity having an established coverage or having had experience in the most recent experience period wholly succeeds one or more legal entities having established coverage or having had experience in the most recent experience period and at least one of the entities involved has a merit rating experience, the experience of all the involved entities shall be combined to establish the rate of the successor.
(3) Where a legal entity succeeds in the operation of a portion of a business of one or more legal entities having an established coverage or having had experience in the most recent experience period, the successor's rate shall be based on the predecessor's experience within the most recent experience period, pertaining to the portion of the business acquired by the successor.
Pursuant to this rule, the bureau shall provide to the parties to the transfer of experience the necessary forms and instructions to complete the transfer of the appropriate payrolls and claims. Each party to the transfer of experience shall sign the completed forms. The bureau shall review the completed forms and if any questions arise, the bureau may conduct a premium audit on each party's risk account.
(4) When any combination or transfer of experience is indicated under any of the provisions of this rule, the effective date of such combination or transfer shall be the beginning date of the next following payroll reporting period. In cases where an entity not having coverage wholly succeeds another entity or in cases where the date of succession is determined to be January first or July first, the experience of the predecessor shall be transferred to the successor-employer effective as of the actual date of succession.
(5) For an out of state employer purchasing an existing Ohio operation, the bureau may use the out of state experience of the employer as a factor in determining the employer's experience.
(C) Succeeding employers -- risk coverage transfer.
(1) Whenever one employer succeeds another employer in the operation of a business in whole or in part, the successor shall notify the bureau of the succession. Where one employer wholly succeeds another in the operation of a business, the bureau shall transfer the predecessor's rights and obligations under the workers' compensation law. The successor shall be credited with any credits of the predecessor, including the advance premium security deposit of the predecessor. This paragraph shall apply where an employer wholly succeeds another employer in the operation of a business on or after September 1, 2006. EXHIBIT 1_ © 2013 Thomson Reuters. No claim to original U.S. Government Works. I 9 OAC 4123-17-02, OAC 4123-17-02
(2) Transfer of risk coverage may be retroactive to the date of succession.
(3) The successor must preserve the predecessor's payroll records for the five years preceding the date of succession.
(4) A legal entity may be assigned only one risk. Where a legal entity succeeds one or more risks, he or it shall be assigned a single risk designation.
HISTORY: 2008-09 OMR pam. #1 (RRD); 2006-07 OMR pam. #1 (A), eff. 7-27-06; 2003-04 OMR 1640 (A), eff. 1-1-04; 2003-04 OMR 62 (A), eff. 8-8-03; 1996-97 OMR 1390 (A), eff. 1-27-97; 1993-94 OMR 279 (E), eff. 9-1-93
RC 119.032 rule review date(s): 7-1-13; 7-30-08; 3-1-08; 5-23-03
HISTORICAL AND STATUTORY NOTES
Amendment Note: 7-27-06 Inserted "or in cases where the date of succession is determined to be January 1 or July 1" in paragraph (B)(4); rewrote paragraph (C)(1) and deleted paragraph (C)(2), redesignating the remaining subparagraphs; deleted "an active" in former paragraph (C)(3); and deleted "to an active risk", substituted "the" for "at least", substituted "preceding" for "prior to", and substituted "succession" for "transfer" in former paragraph (C)(4).
Amendment Note: 1-1-04 Inserted paragraph (B)(5).
Amendment Note: 8-8-03 Deleted paragraph (B)(2), redesignating the remaining subparagraphs.
CROSS REFERENCES
RC 4121.12, Workers' compensation oversight commission RC 4121.121, Appointment and duties of administrator RC 4121.13, Powers and duties of administrator RC 4121.30, Adoption, publication, and proposal of rules RC 4123.32, Rules for administering state insurance fund RC 4123.34, Premium rates fixed and maintained; accounting; surplus; deficit; revision of rates; premium payment security fund
LIBRARY REFERENCES
Wasil and Mastrangelo, Ohio Workers' Compensation Law §§ 2:22, 3:49, 3:54, 3:85
NOTES OF DECISIONS
Bankruptcy effect 2 Succeeding employers, experience
'. Succeeding employers, experience
© 2013 Thomson Reuters. No claim to original U.S. Government Works. 2 OAC 4123-17-02, OAC 4123-17-02
Both RC 4123.32(D) and OAC 4121-7-02(B) imply that a "successor in interest" for workers' compensation purposes is simply a transferee of a business in whole or in part; presumably the general assembly would have expressly set forth a more specialized meaning if that was its intent, and therefore, there is no need to look beyond these provisions despite an employer's argument that since RC 4123.32 does not define the term, the court, under RC 1.49, must adopt a common-law definition. (Annotation from former OAC 4121-7-02.) State, ex rel. Lake Erie Constr. Co., v. Indus. Comm. (Ohio, 10-16-1991) 62 Ohio St.3d 81, 578 N.E.2d 458.
An employer's experience rating is properly combined with that of a dissolved corporation where the employer, in addition to the purchase of assets, contractually agrees to retain all of the dissolved corporation's employees and arrangements are made for a successor profit-sharing plan and there is a partial commonality of directors. (Annotation from former OAC 4121-7-02.) State, ex rel. Lake Erie Constr. Co., v. Indus. Comm. (Ohio, 10-16-1991) 62 Ohio St.3d 81, 578 N.E.2d 458.
An order of the industrial commission declaring an entity to be a successor employer obligated to buy out its predecessor's state fund risk liability is defective where of the three commissioners hearing evidence only two agree to the order and a fourth commissioner who neither heard nor reviewed the evidence supplies the third vote for the order. (Annotation from fonner OAC 4121-7-02.) State ex rel. Am. Business Machines v. Indus. Comm. (Ohio App. 10 Dist., 03-12-1992) 76 Ohio App.3d 244, 601 N.E.2d 221.
Sublessee of nursing home facility was a successor in interest to lessor, and thus, lessor's experience could be transferred to sublessee for purposes of determining sublessee's workers' compensation insurance rate, where sublessee agreed to continue operating the facility as a nursing home and retained all employees covered by collective bargaining agreement, although it did not retain key management personnel. State ex rel. Lynnhaven XIV, LLC. v. Conrad, 2003, 2003-Ohio-825, 2003 WL 462506, Unreported. Workers' Compensation 1063 Where a successor in interest is created by the merger of a corporation with another corporation which is subject to the maximum rate for contributions to the unemployment compensation fund, the administrator may not assess the maximum rate against the new corporation but must combine the rates of the two predecessor corporations. RCL Industries Inc v Steinbacher, No. 88AP-787 (10th Dist Ct App, Franklin, 3-28-89).
z. Bankruptcy effect
An employer filing a Chapter 11 petition in bankruptcy is not entitled to be treated as a new enterprise by the Ohio bureau of workers' compensation; the bureau may continue to use the employer's previous claims experience in calculating experience ratings and premiums. (Annotation from former OAC 4121-7-02.) In re A.C. Williams Co. (Bkrtcy.N.D.Ohio, 08-02-1985) 51 B.R. 496.
End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.
© 2013 Thomson Reuters. No claim to original U.S. Government Works. Exhibit D IN THE COURT OF APPEALS OF FRANICLIN COUNTY, OHIO TENTH APPELLATE DISTRICT
STATE OF OHIO, ex rel. DAILY SERVICES, LLC, In re EM CAPPING APPLICATION Relator,
V. Case No. I 1 AP675 -- Regular Caienda.r
OHIO BUREAU OF WORKERS COMPENSATION, Magistrate Macke
Respoazdent.
AFFIDAVIT OF MATTHEW J. BURI^TIART
State of Ohio ) ) ss: County of Franklin )
Matthew J. Burkhart, having been first duly cautioned and sworn, deposes and states the following.
I am an attorney at law duly licensed to practice in the several courts of record of the State of Ohio.
2. I am counsel to Relator Daily Services in another action captioned Daily Services
LLC and I-Force, LLC v. l3uehrer, Case No. 11APD-U9-408IQ (10th Dist.) (the '1'ublic Records
Action").
3. The Public Records Action is a mandamus action that was filed to secure public records that are in the possession of the Ohio Bureau of Workers' Compensation (the "BWC") and that are responsive to a June 23, 2011 public records request duly served upon the BWC.
4. Since the filing of the Public Records Action, the BWC has produced documents responsive to the June 23, 2011 public records request.
EXHIBIT
D S. Among the documents produced by the BWC are the e-ztaaiis that axe attached and
nwmbered BWCPR 001 through BWCPR 013.
FURTHER AFFIANT SAYETH NOT.
Matthew J. urkhart
^^^pAEAi SQ9{., DAi<41oN M. CLIF>:oRQ Sworn to be1'ore me and subscribed in my presence Ai70$NEYATIAW this 13th day of January 2012. NotaryPublfc,StafeotOhie NiyComroission tias No Fxpiratlon Date Sadon147.03ORC 9 Notary Public
-2- From: Archg Nancv To: 5ledstJ4hn Subject: I-Force/Da€ty Svcs E-mails concerning combine Date: Thursday, September 17, 2009 9:34:42 AM Attachments: L-EStLo Combine e-mails.doc
John, Attached is the e-mail chains regarding the cornfoine- I have also asked Vanessa and Paula to forward any of their correspondence as well. Looks like Heidi completed the combine, and we held off on sending Ryan's letters until after our visit. Let me know 1f you need anything else.
Nancy A. Archer BWC Premium Auditor Cambridge Service Office Cell 614-562-5739 Office Phone 740-435-4294 Fax 614-621-3403
public records law or under a legal Portions of this message may be confidcntial under an exemption to Ohio's to an unauthorized transmission or interception, please privilege. If you have received this message in error or due delete al] copies from your system without disclosing, copying, or transmitting this message.
BWCPR 001 From: Yorde Mary Sent: Tuesday, May 26, 2009 8:21 AM To: Pack Heidi; Archer Nancy; Harrington Cathy Cc; Glass Michael; Sledd John Subject: RE: I-Force LLC & Daily Services LLC 1495057 & 1484986
Cathy, please address any group issues related to this combination. Thanks
Afaiv C. Yorrle, CPCU Einployer Program Unit Supcrvisor Phona: (674) 728-7328
From: Sledd John Sent: Monday, May 25, 2009 9:11 PM To: Pack He€d€; Archer Nancy; Glass Michael Subject: RE: I-Force mailings
I agree with Michael, let's hold off if we can until Nancy has completed the audit. Nancy, you will need to let Heidi know when you have enough information to finalize your audit.
From: Archer Nancy Sent: Friday, May 22, 2009 4:41 PM To. Glass Michael; Pack Heldi Cc: Sledd John Subject: RE: I-Force mailings
John, if you want to make the final decision here and let Heidi know, that would be great. May I suggest we wait and see the level of cooperation on Wednesday, then decide.
From: Pack He9d€ Sent:: Fri 5/22/2009 4:41 PM To: Archer Nancy; Glass Michael Cc: Sledd John Subject: RE: I-iworce mailings
I will wait until I hear from you.
Heidi Pack
From: Glass Michael Sent: Friday, May 22, 2009 4:34 PM To: Archer Nancy; Pack Heidi Cc: Sledd John Subject: RE: I-Force mailings
Long enough for you to get in and audit.
BWCPR 002 From: Archer Nancy Sent: Friday, May 22, 2009 3:29 PM To: Pack Heidi; Glass Michael Cc: Sledd John Subject: RE: I-Force mailings
Could we please hold these until Thursday of Friday? I do not know if this employer is going to cooperate for the audit. We are starting it on Wednesday and do not know how long it will take, at this time. Michael orlohn, do you think we should hold off even longer?
Froin: Pack Heidi Sent: Friday, May 22, 2009 2:37 PM To: Archer Nancy; Glass Michael Sttbject: RE: I-Force mailings
The letters should go down to our mailroom on Tuesday but I am not sure how long it take to be sent out from there. I would think they should receive it the end of next week sometime.
I-Icidi Pack Policy Processing l:>epartmen l Phone: (614)466-9112 Fax: (6I4)62]-3389 Email Heicli.p. I Obwc.state.oh.us
Froxn: Archer Nancy Sent: Friday, May 22, 2009 1:30 PM Tcs: Pack Heidi; Glass Michael Subject: I-Force mailings
When will Mr. Mason receive the news that we have completed the combines? We are to go on-site on Wednesday (5/27/09), and need to be aware if he will have the news by then..... NancyA. Archer i3WC Premlum Auditor ------
From: Pack Heidi Sent: Friday, May 22, 2009 9:07 AM To: Archer Nancy; Yorde Mary Cc: Glass Michael; Sledd John Subject: RE: I-Force LLC & Daily Services LLC 1495057 & 1484986 Importance: High
The combines have been completed and I have letters wiJi be sent to the employer and their representatives to acknowledging the successorship combine. I also included Mary Yorde due to the impact on the Group.
Heidi Pack
BWCPR 003 From: Archer Nancy Sent: Thursday, May 21, 2009 4:25 PM To: Pack Heidi Cc: Glass Michael; Sledd )ohn Subject: I-Force LLC & Daily Services LLC Tmportance: High
Hello, Heidi (and Michael)l
Please contact me when you receive this e-mail. I need to be sure this gets entered for processing over the weekend.
The following policies are to be eombined as of 3/23/2009: 1466904 Daily Services LLC (CANFI 7/1/2005) 1484986 I-Force LLC (ACTIVE 12/19/2005 - EMOD 2.17 / bal $3,486,852.87) into 1495057 Daily Services LLC dba Talocity (ACTIVE 4/3/2006 - EMOD .z5 / bal $0)
The following are all companies listed under the SOS website with association to owner, Ryan C Mason. Could you have someone determine if any other BWC policies exist? We may need to include them in the combine.
RYLEE LTD filed 08/04/2000 charter #1173283 Articles of Organization MASON MARYSVILLE LLC ffied 12/18/2003 charter #1428703-Articles of Organization MASON MARYSVILLE it LLC filed 02/05/2004 charter #1437868-Articies of Organization MASON MARYSVILLE iii LLC filed 02/05/2004 charter #1437863-Articies of Organization AMISH COLLECTION OF SUGARCREEK LLC filed 06/01/2005 charter i11546942-Articies of Organization AMIS14CtlLLECTii}NS.CC)M LLC filed 12/05/2005 charter #1585209-Articies of Organization I-FORCE LLC filed 12/15/2005 charter #1587398-Articles of Organization I-SELECT LI.C filed 01/26/2006 charter #1597090-Articies of Organization DAILY SERVICES LLC filed 02/14/2006 charter #1518734-Articles of Organization I-LABOR LLC filed 03/29/2006 charter #1613861-Articles of Organization I-FORCE LABOR LLC filed 03/31/2006 charter #1610780-Articles of Organization MASON EQUITY GROUP INC filed 11/21/2006 charter #1662019-Articles of Organization I-FORCE RENTAL CARS LLC filed 11/13/2007 charter #1739808 (i-Force rents company cars) MASON EQUITY GROUP LLC filed 01/09/2009 charter il1828860-Articles of Organization I-FORCE OHIO LLC filed 01/02/2009 charter #1827165-Articles of Organization TALOCITY filed 02/17/2009 charter #1836626-Registerant: Daily Services LLC TALOCITY LLC filed 02/24/2009 charter #1838514 -Concent given by Daily Services LLC, owner of trade name TALOCITY PEOPLE WHO WORK BETTER LLC filed 02/24/2009 charter #1838515-Articies of Organization TALENT STAFFING LLC filed 02/24/2009 charter #1838513-Articies of Organization SUN CABLE SYSTEMS LLC filed 02/25/2009 charter #I587398-Amended/Artides of Organization w/Authorized Rep: I-Force LLC (name change for I-Force -same charter#)
BWCPR 004 Also on SOS site, but have not been able to associate w/Ryan Mason: fassociation made w/Barry Wolinetz, Agentl MASON FREEPORT LTD LLC charter #1425255 MASON DIRECT LLC charter #1471376 MASON PROPERTIES 2 LLC charter #1508689 MASON DUNDEE LLC charter #1561655 MASON APARTMENT CAPITAL LLC charter #1567672 MASON CAPITAL PARTNERS LLC charter #1617223 MASON ASTOR CENTER LLC charter #J.642380 MANSFIELD MASON LLC charter #1647588 MASON WOODLANDS LLC charter #1656888
BWCPR 005 Krom: Stedd Iohn To: Archer Nancy Subject: RE: 1484986 Re-rate Date: 111ursday, December 17, 2009 3:33:07 PM
Talked to Michael, he has the picture and is trying to get Mary Yorde on it to sort it out for us. We can't afford to putthe billing off until April. I can see adjusting it to sometime later in January, but not Apri!!!! I told Michael that this whole issue is making us look as if we don't know what we are doing and could look bad for us in the Court Case. He agrees. Waiting on a call back now!!
John B. Sledd _._.___...,._...... _.._._.._John B. Sledd ...... _...... _...._._ .. .._ From: Archer Nancy Sent: Thursday, December 17, 2009 3:18 PM To: Sledd John Subject: RE: 1484986 Re-rate
There has to be a problem because the balance is near what it was when we started this audit process (3.4M) ALIGH!!!!! ...... _._..---._.-.___--_____...... _...... From: Sledd John Sent: Thursday, December 17, 2009 3:08 PM To: Archer Nancy Subject: RE: 1484986 Re-rate
Let me touch base with Michael in the AM. I don't think I can handle one more thing right now.
John S. 51edd John. B.... Sledd ...... _...... From: Archer Nancy Sent: Thursday, December 17, 2009 3:07 PM To: Sledd John Subject: RE: 1484986 Re-rate
Well, at least we are lost together. AND Kay is off until after the new year.
...... From: Sledd John Sent: Thursday, December 17, 2009 3:06 PM To; Archer Nancy Subject: RE: 1484986 Re-rate
I'm lost now!!!
John B. Sledd John U. Sledd From: Archer Nancy Sent: Thursday, December 17, 2009 2:46 PM
BWCPR 006 To: Sledd ]ohn Subject: M1: 1484986 Re-rate
So, this A/R balance can not be righti Can you help me understand this?
From: Blateri Rex Sent: Thursday, December 17, 2009 2:12 PM To: Archer Nancy Oc: Sledd ]ohn; Spicer Kay Subject: RE: 1484986 Re-rate
the true calculation is out on WCJS now, that is why you see will see the 12-17-2009 Rate Adjustment transactions on UW400s. This now reflects the new accts receivable balance. The system, only rerated policy year 2008 because the employer is in group for previous years and the next group rerate is not until April/May. If you need groups rerated prior to that, you will have to contact Mary Yorde.
Rex Slated Bureau of Workers' Compensation Acfuarial Division- Rate Adjustments Unit
Phone: 614-466-8709 Rate Adj Unit Phone: 614-995-8648 Unit Fax: 614-621-1217 Please visit OHIOBWC.com ...... _...... From: Archer Nancy Sent: Thursday, December 17, 2009 1:55 PM To: Blaterl Rex Cc: Sledd John Subjerrt: 1484986 Re-rate
Rex, I am looking at the WCIS 400 screen forthis policy (I-Force). The rate adjustment entries look like they include 2nd half 2008 and 1st half 2009 only. First, am I reading this correct? AND second, IS this correct? I understand that the true calculations will not show until tomorrow, Friday (as per Kay Spicer). But, if I am missing something her, please advise.
Thank you,
Nancy A. Archer BWC Premium Auditor Cambridge Service Office Cell 614-562-5739 Office Phone 740-435-4294 Fax 614-621-3403
Portions of this message may be confidential under an exemption to Ohio's ptihlic records law or under a legal privilege. If you have received this message in error or due to an unauthorized transmission or interception, please delete all copies from your system without disclosing, copying, or transinitting this inessage.
BWCPR 007 From: Archer Nancr T0: Cox o uWona L. Cc: SQlce[ Kay SubfeCt: FW: Code confirmation Date: r+londay, December 28, 2009 9:24:55 AM
LOUWona, Please see note from Daily Services LLC dba Talocity. I recently completed an extensive audit on this policy (1495057) and their previous policy under 1- Force L1.C(1484986). During the review process, Kay Spicer and Bill Ginn worked very closely with me to correct any
iss u es. One of the issues was the temp laborers sent to Premier Mfg (policy 20005592-from 990027 combined w/1319630, then SI) After much discussion, research, and interview with Ms Russell, it was determined that these individuals were/are cleaning and PMing the paint booths at the plant. J It was decided by Kay that manual 5474 will be applied (originally from 1319630). If you have any questions, please feei free to contact me or Kay.
Tha nks f ...... _... From: Russell, Angy [mailto:[email protected]] Sent: Monday, December 21, 2009 4:30 PM To: Archer Nancy Subject: FW: Code confirrnation
Premier email
Angy Russell Support Cenier Manager Tal6ci:ty 1 100 Morse Rd. Columbus, OH 43229 P: 1614) 431-5100x203 C: (614) 653-9189 F: (614) 802-0406 [email protected] www.iaiocify.corn
From: Christman, DPna Sent: Monday, December 21, 2009 3:05 PM To: Russell, Angy Subject: FW: Code confirmation
Here is Lou Wona's response-
Diracs Christman Risk Management Coordinator Tat6city 1 110 Morse Rd. Coluirbus. OFi 43229 P: (614)431-5100x214
BWCPR 008 C: (614) 746-0298 F: (614) 438-0010 [email protected] wrwv.tolocity,com . .. __ ...... _...... _.._.._....-...... __...... _ ...... From: Louwona.C.2@ bwc.state.oh.us jmaifto:[email protected]] Sent: Monday, December 21, 2009 2:42 PM To: Christman, Dina Subject: RE: Code confirmation
9014 for ground rate.135364 and 9170 above ground .132807. Thank you ...... From: Christman, Dina [mai!to:[email protected]) Sent: Monday, December 21, 2009 2:13 PM To: Cox LouWona L. Subject: Code confirmation
F!ey Lou Wona, can you confirm the code for this customer please? Our policy is 1495057-0.
Employer information Employer: PREMIER MANUFACTURING SUPPORT SVCS INC Employer type: PRIVATE EMPLOYER Policy number: 990027-0 Policy status: NO COVERAGE - SUCCESSOR POLICY EXISTS DBA: Address: 9395 itENWOOD RD # 200 City: CINCINNATI State: OH ZIP code: 45242
Job Duties: janitorial-preventative maintenance, tool inspections, cleaning, mopping sweeping and/or taking out the trash,
Thank you!!
Dina Christman Risk Management Coordinaior Ta!sicity f1I0MorseRd. Columbus, OH 43229 P: (614) 431-5100 x214 C: (614) 746-0298 F: (614) 438-0010 dchristi,[email protected] www.tolocity.corn
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BWCPR 009 Portions of this message inay be con#idential under an exeinption to Ohio's public records law or under a legal privilege, If you laave received this message in error or due to an unauthorized transmission or interception, please delete all copies from your system without disclosing, copying, or transmitting this message. ***'****E-maiJ. Confidentiality*******
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BWCPR 010 From: A[cber Nancv To: "Hofland. Scott" Subject: RE: Audlt Results Date: Monday, ]anuar/ 04, 2010 4:39:39 PNi
Scott, The audit is still in the review process. I do see that it has partially posted, ft is anticipated that the entire posting will be complete on or about the 23 of January. And, your billing will follow shortly thereafter.
If you have further questions, please feel free to contact me. I will try to keep an eye on the progress and let you know.,
...... _...... __....._-.....___...... _._._._...... _ ..._...... From. Holland, Scott [mailto:[email protected]] Sent: Monday, January 04, 2010 1:39 PM To: Archer Nancy Subject: Audit Results
Hello Nancy,
I was wondering if you had the final result of the audit for Iforce?
Scott Holland Controller Tal6city 1110 Morse Rd. Columbus, OH 43229 P: (614) 431-5100 x2A3 C: (614) 653-9191 F: (614) 802-0406 [email protected] www.talocity.com
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BWCPR v'1'1 From: s Ie d d John To: Archer Nancy Subject: RE: Daily Services and lforce Audit reports Date: Monday, January 11, 2010 9:27:19 AM
Didn't you present them with a copy of the audit findings during the exit interview?
John B. Sledd John B. Sledd From: Archer Nancy Sent: Monday, ]anuary 11, 2010 9:25 AM To: Sledd John St:bjeLts FW: Daily Services and iforce Audit reports
I have decided NO. J wili combine the spreadsheet to contain only single lines for each client with the wrong info, and the right info contained on each line.
...... From: Archer Nancy Sent: Monday, January 11, 2010 9:23 AM To: Sledd John Subject: FW: Daily Services and iforce Audit reports
Should I just send her a copy of the actual audits? (I will remove the comment box, as it is an internal dialog)
From: Russell, Angy [malito:[email protected] Sent: Monday, January 11, 2010 9:25 AM To: Archer Nancy Subject: RE: Daily Services and iforce Audit reports
Yes, that is exactly what I was looking for.
Angy Russell Support Center Manager Ta Ecscity 1100 Morse Rd. Columbus, 01•I 43229 P: (614)431-5100 x203 C: (614)653-9189 F: (614) 802-0406 arussellC?iolocity.co m www-ialociiy.cam ...... From: [email protected] [mailto:[email protected]] Sent: Monday, January 11, 2010 9:20 AM To: Russell, Angy Subject: RE: Daily Services and iforce Audifi reports
Angy,
BWCPR 012 Do you need all clients, all periods, with corrected info (policies & manuals)?
_...._...-- From: Russell, Angy (mailto:[email protected]] Sent: Friday, January 08, 2010 3:11 PM To: Archer Nancy Cc: Beauman, Kacy; Mason, Ryan•, Holland, Scott Subject: Daily Services and iforce Audit reports
Good afternoon Nancy,
We are doing an internal audit and wanted to see if you had the completed spreadsheets for Daily Services and iforce with all the changes made. I am assuming you have this since you were able to determine percentages of errors on our accounts. I appreciate your help!
Angy Russell Support Center Manager Tot6City 1100 Morse Rd. Columbus, OM 43229 P: (614j 431-5100x203 C: (614) 653-9189 F: (614) 802-0406 [email protected] www.tafociiy.com
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Portions of this message may be confidential under an exemption to Ohio's public records law or under a legal privilege. If you have received this message in exror or due to an unauthorized transmission or interception, please delete all copies from your system without disciosing, copying, or transmitting this message. *******E-maiZ Confidentiality*******
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BWCPR 013 Exhibit E EXHIBIT D^3 83 - J21 ,'
Septecuber 25, 2009 state of Ohio ss In the Court of Common Pleas Bureau of Atorkers' CompensaCion of Ohio Plaintiff .TIII]C'a. DA'PE: 06-25-09 CASE 09JG026920 DOCxCET PAGE 000000
i'-- F'aRCE LLC RSSK #
:.104 MORSE RD ACCOIIET kJ0. 7982177
COLU[+4BUS,oH 43229-6384 JOURNAL BMM.Y
Ilef endants
The Sureau of P7orkers` Compensataozz of Ohio coming on this
day to consider the matter of sati.sfaCtion and discharge of
jndgCaent entered by the C3.erlc of Common Pleas Court of FRANKLIN
Gounty for the State ot Ohio iBu'Yeau of workers' Compensation of
OYsiol agaixist T-FO12CE LLC f Ohio being fu]_ly The Bureau of Workers' Compensation o
advised J.n the premises, finds that said lien i.s no ionger ^ b^ e ►^ px'operty considered in effect against the real and pexsonaZ
the •above mentioned defendant. [ Ci WHFREFO22E, the Cler]e of Common Pleas Court of FRAD7AL7N o ^ .,.^dtrizec3 and dixeCt.ed upon the payrnen't of t^ •r^^ Y ^ o and discharge of the judgmernt^ w c^^^ courtCount costs to ., t^^^s^^'q^^ of re oj^^,TATEDFO![I0^ isF3ItD0U}^TQFOrir"'^',G^i _ L FrnnklinP.tvmbf r.q ^^.^!!s!h'I^1^?1I[tsD r^k^ „ . ^ THiE A!^i'^,1ti^E A1^D ! %Jf'^ te Fa.^ye tIZSaR OF ACCOI]NTS REGEZVABLE ^ UL! e'ria-^O 1.^U^ ^' ddi^ ^^VRIFIs^:J C61Vl^ry f^^ ^_;^ri^E^^^^._^.^^^...^^ ^!^"^.^..x•m,.^•..
^^ . IG^^^l V!7 rlil_ II'}:!!1% ..Ii_f•^lJl- awc-?6 [^}c ^!^eP^; )F^ ln4'OUrTly r'T$27 f^^^ •• ^ ^^^ ^J^ ^ I ^I! 1^111alflil{[I{lillll[1111 Illlll^l11^1111i[I[lllll'^I[fIlIN11111!{lilll 2 7 res sgs^ssgu am ^ _ ^ ^_. ---._. _._..._.. ^ ►^U Exhibit F Proceedings
W 1 BEFORE THE OHIO BUREAU OF WORKERS' COMPENSATION 2 - - -
3 IN THE MATTER OF:
4 Daily Services, LLC
5
. ,C 6 q? C
7
8 PROCEEDINGS
9 before Mr. Frank A. Titus; Administrator's Designee,
10 Mr. Richard Blake, Legal Division, and Mr. Paul
11 Watson,.Secretary, Administrator's Designee, at the
12 Bureau of Workers' Compensation, 30 West Spring
13 Street, 3rd Floor, Room H, Columbus, Ohio, called at
14 10:02 a.m. on Tuesday, April 19th, 2011.
15
16 fir".
17
18
19 ARMSTRONG & OKEY, INC. 222 East Town Street, 2nd Floor 20 Columbus, Ohio 43215 (614) 224-9481 - (800) 223-9481 21 Fax - (614) 224-5724
22 - - - EXHIBIT 23
.0 24 I ^ F
ARMSTRONG & OKEY, INC., Columbus, Ohio (614)'224-9481 Proceedings
106 1
0 1 Daily Services is not a successor to I-Force.
2 MR_ JOHNSTON: You can read the English
3 language as well as I do. I mean, that's what it
4 say.
5 HEARING EXAMINER TITUS: I know what it
6 says. I wanted to hear both of your studied opinions
7 as to the legal import of that as it pertains to the
8 matter before me today. Mr. Blake.
9 MR. BLAKE: As your legal counsel, I
10 think the more important thing, not more important,
11 but one of the important issues to consider is that
12 the issue of the successorship came up originally and
13 was addressed by the Adjudicating Committee and was
14 not appealed in October of '09. Although, they
15 characterized --- the language that they spoke
16 characterized and addressed only one issue, one
17 prong, the experience and they didn't happen to
18 mention the liability, that doesn't mean that you
19 don't have to pay three and a half million dollars
20 and that doesn't mean that it hasn't been raised
21 here. But what it does mean is that the
22 successorship was determined by the Bureau. No
23 appeal was taken from that. It wouldn't even have
. 24 been properly before the Court in a 60 (B) Motion.
ARMSTRONG & OKEY, INC., Columbus, Ohio (614) 224-9481
BWC 000910 Proceedings
130 1
.CERTIFICATE
2 I do hereby certify that the foregoing is a
3 true and correct transcript of the proceedings taken
4 by me in this matter on Tuesday, April 19, 2011, and
5 carefully compared with my original stenographic
6 notes.
7 Sandra D. KIM Registered 8 Professional Reporter and Notary Public in and for the 9 State of Ohio.
10
11 My Commission Expires May 14, 2012.
12 {sdk-1308}
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