3Jn the

*Upre111e Court of ®biO

STATE OF OHIO ex rel.ROBERT D. WISE,

vs.

Appellant,

INDUSTRIAL COMMISSION OF OHIO,et al.,

Appellees.

Case No. 07-0660

On Appeal from the Franklin CountyCourt of Appeals, Tenth AppellateDistrict Case No. 05AP-872

MERIT BRIEF OF APPELLEES, INDUSTRIAL COMMISSION OF OHIO ANDADMINISTRATOR, BUREAU OF WORKERS' COMPENSATION

ADAM H. LEONATTI (0068058)Thompson, Meier & Dersom929 Harrison Ave, Suite 205Columbus, Ohio 43215(614) 424-6760

Counsel for Appellant,Robert D. Wise

^flLlZ®AUG ^'-' 8 F007

MARC DANNAttorney General of Ohio

DERRICK L. KNAPP (0077649)Assistant Attorney General150 East Gay Street, 22d FloorColumbus, Ohio 43215-3130614-466-6696614-728-9535 faxdknapp@ag.state.oh.us

Counsel for Appellee, Administrator,Bureau of Workers' Compensation andIndustrial Commission of Ohio

CLERK OF COURTSUPREME (;OUR'F OF OHIO

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

INTRODUCTION ...........................................................................................................................1

STATEMENT OF THE FACTS AND CASE ................................................................................2

ARGUMENT ................................................................................................................................... 7

Commission's Proposition of Law:

The requirements for the exercise of the commission's continuingjurisdiction under R.C. 4123.52 are (1) new and changed circumstances,(2) fraud, (3) clear mistake offact, (4) clear mistake of law, or (5) error ofan inferior tribunal. State ex rel. Nichols v. Indus. Comm. ( 1998),81 Ohio St.3 d 454 ................................................................................................................ 7

CONCLUSION .... .........................................................................................................................10

CERTIFICATE OF SERVICE ......................................................................................................1 I

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TABLE OF AUTHORITIES

Cases:

State ex rel. Jones v. Conrad,92 Ohio St.3d 389, 2001-Ohio-207 ......... ........................................................................................8

State ex rel. Nichols v. Indus. Comm. ( 1998),81 Ohio St.3d 454 ............................................................................................................................7

State ex rel. Pass v. C.S.T. Extraction Co. (1996),74 Ohio St.3d 373 ............................................................................................................................9

State ex rel. Pavis v. Gen. Motors Corp., B.O.C. Group (1992),65 Ohio St.3d 30 ..............................................................................................................................9

Other Authorities:

R.C. 4123.511(D) . .........................................................................................................................10

R. C. 4123.511(E) ...........................................................................................................................10

R.C. 4123.52 ....................................................................................................................................7

R.C. 4123.65(A) ..............................................................................................................................7

ni

INTRODUCTION

This mandamus action challenges Appellee Industrial Commission of Ohio's

("commission") order denying Appellant Robert D. Wise's ("Wise") March of 2002 request to

the commission to exercise its continuing jurisdiction to set aside or vacate the 1997 settlement

of his workers' compensation claim. The court of appeals found (1) the settlement agreement is

not void on grounds that the application allegedly fails to comply with R.C. 4123.65(A), and (2)

the commission did not abuse its discretion in determining that Wise had failed to prove he was

not competent to enter into the settlement agreement. The court of appeals correctly analyzed

the issues and properly decided the case, denying issuance of a writ of mandamus.

1

STATEMENT OF THE FACTS AND CASE

In November of 1995, Wise was injured in the course of and arising out of his

employment with Urban Industries of Ohio ("Urban"). Wise filed a workers' compensation

claim, which was allowed for "fractured left tibia, closed." (Supplement at 58, hereinafter

"Supp. at _.").

In April of 1997, the third party administrator for Urban's workers' compensation claims

sent Wise a letter offering $2,000 as a full and final settlement of his workers' compensation

claim, stating:

Upon discussing this claim with the employer, it is our mutualopinion that a full and final settlement may be in your best interest.Settlement takes into account the future costs and available awards.We are prepared to offer $2,000 as full and final settlement. Pleaselet us know if you are in agreement with this settlement amount bysigning the enclosed application and returning it to me in theenvelope provided. The application will then be filed with theBureau of Workers' Compensation.

When the Bureau has reviewed our agreement, an order will beissued and sent to all parties. Approximately 30 days after theorder is mailed, a check will be sent to you as a full and finalsettlement. This will mean a final closure of this claim againstUrban Industries.

(Supp. at 14).

Wise and the president of Urban signed the Settlement Agreement and/or Application for

Approval of Settlement Agreement. (Supp. at 15, 16). On July 30, 1997, the Bureau of

Workers' Compensation ("bureau") sent a letter approving the Application for Approval of

Settlement Agreement. (Supp. at 18). This approval informed Wise that payment of the

settlernent amount would be paid to Wise 30 days after the date of the approval unless Wise, his

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employer, or the bureau withdrew consent to the agreement by providing written notice of such

withdrawal to the other two parties.

The commission reviewed the settlement as required by R.C. 4123.65(D) and found the

settlement was "not clearly unfair." In September of 1997, payment was made to Wise, who

cashed the warrant. (Supp. at 19). Later, in March of 2002, Wise filed a motion, asking the

commission to exercise its continuing jurisdiction, under R.C. 4123.52, and grant him relief from

the settlement he received in 1997. (Supp. at 22).

At a hearing before a district hearing officer ("DHO") for the commission, Wise argued

that he was entitled to the requested relief because the bureau should have personally contacted

Wise to see if he wanted the settlement and to advise if a fair amount had been assessed in the

settlement offer and because the employer had exercised "undue influence" over Wise. (Supp. at

26). The DHO rejected Wise's motion, finding that no undue influence had been brought to

bear, as the employer's letter to Wise in proposing settlement was couched in language that did

not attempt to advise him.

Although Wise claimed diminished mental capacity, no medical evidence of Wise's

mental state at the time of the agreement was submitted. The DHO noted that Wise did have a

high school diploma an,d that Wise's mother had testified that Wise would have consulted with

his father before signing the agreement. Thus, the DHO found that Wise had failed to meet any

of the criteria for the commission to invoke its continuing jurisdiction under R.C. 4123.52 and to

revisit the appropriateness of the settlement. Wise appealed this decision.

In July of 2002, a staff hearing officer ("SHO") for the commission heard Wise's appeal

and affirmed the decision of the DHO. (Supp. at 40). Wise offered into evidence a report

prepared by Beal D. Lowe, Ph.D. ("Dr. Lowe"), in which Dr. Lowe concluded that, given his

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mental functioning, Wise could not have understood the settlement agreement he signed. The

SHO implicitly rejected the report, and noted that Wise handled his own money, having a

savings and a checking account, had a driver's license, had purchased four cars over the years

and currently owned a car, was not under any guardianship, and was currently involved in active

contracts. Moreover, the SHO found that there was no evidence that $2,000 was an unjust or

unreasonable settlement. Wise filed an appeal to the full commission.

In November of 2002, the commission affirmed the SHO's decision, stating:

On 03/11/2002, the injured worker filed a motion requesting thatthe Industrial Commission set aside a settlement agreement, dated07/30/1997 for the alleged reasons that the injured worker lackedthe mental capacity to enter into the settlement agreement and thatthe injured worker was unrepresented at the time he entered intothe settlement agreement.

Counsel for the injured worker argued that, pursuant to R.C.4123.52, the Industrial Commission has authority to invokecontinuing jurisdiction based upon a mistake by an inferior tribunal(Bureau of Workers' Compensation), when it processed thesettlement agreement.

It is the finding of the Industrial Commission that it does not haveauthority to invoke continuing jurisdiction for the reason that theinjured worker failed to meet his burden of proving that the StaffHearing Officer decision of 07/08/2002 contained a mistake of factor law of such character that remedial action would clearly follow.The Staff Hearing Officer stated, "There is no evidence that anyparty, the Bureau of Workers' Compensation or the employer triedto take advantage of the injured worker by settling the claim."More specifically, the Industrial Commission finds, pursuant to theprovisions of R.C. 4123.65, that the injured worker failed toprovide sufficient evidence that the settlement agreement was"clearly unfair" or a "gross miscarriage of justice." There is nobasis, therefore, for the Commission to invoke its continuingjurisdiction.

(Supp. at 58, 59).

4

Wise filed this mandamus action alleging that the commission abused it discretion. The

magistrate who initially considered the case framed the issues as "(1) whether the settlement

must be voided because the application allegedly fails to comply with R.C. 4123.65(A), and (2)

whether relator was competent to execute the settlement agreement." Decision at ¶52. The

magistrate found that it "does not follow that a failure to clearly set forth, in the application

itself, `the circumstances by reason of which the proposed settlement is deemed desirable' makes

it impossible for the SHO to determine whether the settlement agreement is a`gross miscarriage

of justice' or that it is `clearly unfair."' Decision at ¶61. The magistrate noted that "R.C.

4123.65(D) does not confine the SHO's inquiry to the application itself. Presumably, the SHO

has access to the claim file in rendering a determination. Thus, the entire application would not

necessarily be essential to the performance of the SHO's duty under R.C. 4123.65(D)." Decision

at ¶62. The magistrate concluded "that the instant settlement agreement is not void nor voidable

for the failure of the application itself to clearly set forth the circumstances by reason of which

the proposed settlement is deemed desirable." Decision at ¶63.

In regard to the second issue, the magistrate found "the SHO's order of July 8, 2002,

which the commission administratively affirmed, sets forth the evidence and the explanation

supporting the commission's determination that relator failed to show incompetency." Decision

at ¶67. "Relator's own testimony as reported by the SHO, is not in dispute. Relator has a

checking and savings account and understands that he receives interest on those accounts. He

obtained a driver's license and he currently owns a car. He has purchased four automobiles in

his life." Decision at ¶68. The magistrate concluded "given the findings contained in the SHO's

order of July 8, 2002, the commission did not abuse its discretion in determining that relator had

failed to prove that he was incompetent to enter into the settlement agreement." Decision at ¶69.

5

Wise filed two objections to the magistrate's decision. Wise argues the magistrate's

decision 1) incorrectly concluded that a settlement need not strictly comply with the provisions

of R.C. 4123.65, and that the magistrate 2) incorrectly concluded the commission was within its

discretion to find Wise competent to settle his workers' compensation claim.

The court of appeals agreed with the magistrate's analysis on the first issue finding it

"would not be appropriate to establish a bright line rule holding the failure to include a specific

statement setting forth the circumstances making a particular settlement desirable results in the

settlement being either void or voidable by either party, even where other information in the

record makes it possible for the SHO to fulfill the duty set forth in R.C. 4123.65(D)." Decision

at ¶16. The court of appeals also agreed with "the magistrate's conclusion that there was

sufficient evidence in the record for the approving SHO to evaluate the settlement as required,

even in the absence of the information sought by the application form." Id.

With regard to the second objection, the court of appeals found "it is clear that there was

some evidence other than Dr. Beal [Lowe'sT report in the record. First, there was the evidence

relied upon by the DHO regarding relator's father's role in reviewing the proposal, and the

evidence that relator is not under a guardianship and graduated from high school. In addition,

the SHO pointed to evidence that relator has both checking and savings accounts, and

understands the difference between the two; and that relator has a driver's license and has

purchased motor vehicles." Decision at ¶19. The court of appeals decided there "was some

evidence supporting the conclusion that relator was not incompetent to enter into the settlement

agreement. Consequently, the commission did not abuse its discretion in reaching this

conclusion." Decision at ¶20. The court of appeals denied the writ, and Wise has appealed.

6

ARGUMENT

Appellees' Proposition of Law:

The requirements for the exercise of the commission's continuing jurisdiction under R.C.4123.52 are (1) new and changed circumstances, (2) fraud, (3) clear mistake offact, (4)clear mistake of law, or (5) error of an inferior tribunal. State ex rel. Nichols v. Indus.Comm. ( 1998), 81 Ohio St.3d 454.

The commission has continuing jurisdiction to modify or change former findings or

orders. R.C. 4123.52. Wise challenges the commission's refusal to exercise continuing

jurisdiction to set aside and vacate the settlement of his workers' compensation claim. As the

court of appeals noted, "there are some limits on the commission's ability to exercise continuing

jurisdiction. The requirements for the exercise of continuing jurisdiction are: (1) new and

changed circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5) error

of an inferior tribunal. State ex rel. Nichols v. Indus. Comm. (1998), 81 Ohio St.3d 454."

Decision at ¶11. Wise has not shown the commission abused its discretion when it declined to

exercise continuing jurisdiction.

The court of appeals properly noted that Wise "advances two arguments supporting his

claim that continuing jurisdiction can be invoked in this case. First, relator argues that the

settlement agreement was void because it failed to strictly comply with the requirements set forth

in R.C. 4123.65(A). That section provides, in relevant part, that an application for approval of a

worker's compensation claim must `clearly set forth the circumstances by reason of which the

proposed settlement is deemed desirable[.]' To help effectuate this requirement, the standard

form application for approval of settlement includes a section for the parties to provide this

information, but in this case, that portion of the form was left blank." Decision at ¶12.

Wise relies on State ex rel. Jones v. Conrad, 92 Ohio St.3d 389, 2001-Ohio-207 in

support of his assertion regarding R.C. 4123.65(A). Jones held that "R.C. 4123.65(C)

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unquestionably required the employer to notify Jones in writing of its intent to withdraw consent

from this settlement agreement. Absent such notice, the settlement agreement became valid

upon expiration of the cooling-off period, and Jones was entitled to enforce it." Jones at 392. In

this case, all of the parties signed the settlement and the commission approved the settlement.

Wise has not set forth an argument that the decision of the court of appeals contained an

error or was otherwise a flawed decision. The court of appeals found it "would not be

appropriate to establish a bright line rule holding the failure to include a specific statement

setting forth the circumstances making a particular settlement desirable results in the settlement

being either void or voidable by either party, even where other information in the record makes it

possible for the SHO to fulfill the duty set forth in R.C. 4123.65(D)." Decision at ¶16. The

commission submits the court of appeals properly analyzed this issue and reached the

appropriate decision.

Wise also argued the settlement agreement was voidable because Wise was not

competent to settle his workers' compensation claim. Wise also has not set forth an argument

that the decision of the court of appeals contained an error or was otherwise flawed for this

second issue. Instead, Wise repeats his argument that "the only evidence taken at the November

14, 2002 Industrial Commission hearing supported the conclusion that Mr. Wise did not have the

capacity to choose to settle his workers' compensation claim." (Wise Brief pg. 12). There is no

indication in the commission's order that Dr. Beal Lowe's report was "the only evidence taken"

at this hearing. The order indicates the arguments Wise set forth and that he failed to meet his

burden. Dr. Lowe's report was implicitly rejected.

It is well within the commission's discretion to reject a medical report submitted by the

claimant that is uncontradictcd by a report from another doctor as long as there is a basis for

8

doing so. State ex rel. Pavis v. Gen. Motors Corp., B.O.C. Group (1992), 65 Ohio St.3d 30.

Furthermore, "[a]n order that is supported by `some evidence' will be upheld. It is immaterial

whether other evidence, even if greater in quality and/or quantity, supports a decision contrary to

the commission's. State ex rel. Pass v. C.S.T. Extraction Co. (1996), 74 Ohio St.3d 373, 376.

The court of appeals properly found "it is clear that there was some evidence other than Dr. Beal

[Lowe's] report in the record." Decision at ¶19.

"First, there was the evidence relied upon by the DHO regarding relator's father's role in

reviewing the proposal, and the evidence that relator is not under a guardianship and graduated

from high school. In addition, the SHO pointed to evidence that relator has both checking and

savings accounts, and understands the difference between the two; and that relator has a driver's

license and has purchased motor vehicles." Decision at ¶19. There was some evidence

supporting the conclusion that Wise was competent to enter into the settlement agreement.

Wise also erroneously argues the commission abused its discretion in the order resulting

from the November 14, 2002 hearing because the order "inappropriately adopted the findings of

fact made by hearing officers at the District and Staff Hearing officer hearings, which took place

some weeks before." (Wise Brief at pg. 12). Wise argues the "hearing before the Commission

was required to be de novo" and that the commission "was permitted to consider only the

evidence then before it, which required the conclusion that Mr. Wise was not competent to settle

his claim and that the agreement was voidable." Id. Wise offers no legal authority for his

position.

The commissioners were not in any way limited to only consider Dr. Lowe's report. An

appeal from an SHO to the commission is governed by R.C. 4123.511(E). This statute states that

the "commission shall issue its order affirming, modifying, or reversing the order issued under

9

division (D) of this section." R.C. 4123.511(D) governs administrate appeals from a district

hearing officer to a staff hearing officer. The commission "affirmed" the SHO order and

specifically stated the SHO order "remains in full force and effect." (Supp. at 58, 59). At each

level of the administrative process the parties are given the opportunity to present their positions

with evidence and argument. The goveming statutes and administrative code do not restrict the

full commission in the manner Wise asserts.

CONCLUSION

The court of appeals decision denying Wise's petition for a writ of mandamus should be

affirmed. The court of appeals correctly decided the commission did not abuse its discretion

when it refused to exercise its continuing jurisdiction.

Respectfully submitted,

MARC DANNAttorney General of Ohio

DERRICK L.'KNAPP (0077649)Assistant Attorney GeneralWorkers' Compensation Section150 East Gay Street, 22nd FloorColumbus, Ohio 43215-3130614-466-6696614-728-9535 faxdknapp@ag. state.oh.us

Counsel for Appellees, Administrator,Bureau of Workers' Compensation andIndustrial Commission of Ohio

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CERTIFICATE OF SERVICE

It is hereby certified that a copy of the foregoing Merit Brief of Appellees, Industrial

Commission of Ohio and Administrator, Bureau of Workers' Compensation, was served by

regular U.S. mail, postage prepaid, this day of August, 2007, to the following:

Adam H. LeonattiThompson, Meier & Dersom929 Harrison Ave, Suite 205Columbus, Ohio 43215Counsel for Appellant,Robert D. Wise

DERRICK L. KNAPPAssistant Attorney General

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