January 29, 2014
Workers' Compensation & Due Process

by Justice Paul E. Pfeifer

This case began years ago and involved a man named Terry Sigler. Sigler was employed by the Lubrizol Corporation as a maintenance mechanic when he was injured on September 21, 2001. He filed a workers’ compensation claim that was allowed for back injuries.

In April 2006, Sigler applied for permanent-total-disability compensation. A staff hearing officer with the Industrial Commission of Ohio, which handles such claims, approved the award. But Lubrizol challenged the award in court, and the court of appeals ordered the Commission to reconsider Sigler’s application.

After another hearing – in November 2008 – a staff hearing officer again awarded Sigler permanent-total-disability compensation. In response, Lubrizol filed a motion for reconsideration before the three-member Commission.  Following a hearing, the Commission issued an order in August, 2009, in which it granted the motion for reconsideration to correct “a clear mistake of law.” The order vacated the award of compensation and denied Sigler’s application.

There was, however, a potential problem. One of the three commissioners, Kevin R. Abrams, did not attend the hearing. On the order, above the signature of Commissioner Abrams, the order states: “I discussed this matter with Bob Cromley, who was present at the ... hearing. Mr. Cromley summarized the testimony, evidence and arguments presented at the hearing.”

After this discussion and a review of all the evidence contained within the claim file, Abrams voted to vacate the Staff Hearing Officer order issued in November 2008, and to deny Sigler’s application for permanent-total-disability compensation.

Sigler then filed a complaint with the court of appeals alleging that the Commission had denied him due process and had abused its discretion when it issued the reconsideration order because “the decision was made by a Commissioner who was not present at the hearing, who did not hear the evidence, and who relied upon a recitation of the evidence by an individual who was present, but who did not record the proceedings nor was a court reporter present to transcribe the arguments or the testimony.”

A magistrate permitted the parties to file affidavits to clarify what occurred at the hearing. The Commission submitted the affidavit of Bob Cromley, a longtime Commission employee who, at times, assisted the Commission at hearings.  Cromley attested that he attended Sigler’s hearing, took handwritten notes, and used those notes as a reference when he later met with Abrams to discuss the case.

Sigler’s attorney submitted an affidavit stating that Sigler’s testimony “included a recitation of his complaints and symptoms, his efforts at attempting to go through vocational rehabilitation and his anticipated second surgical procedure on his back.”

The magistrate concluded that Sigler had failed to prove that he was deprived of due process when Abrams reviewed the claim file and was orally apprised of the evidence and testimony by Cromley, who used his handwritten notes as a reference. The magistrate recommended that the court deny Sigler’s complaint.

But the court of appeals reached a different conclusion. By a two-to-one vote, it concluded that Abrams was unable to evaluate the credibility of Sigler’s testimony in the absence of a complete record of the testimony presented.  Thus, the court ordered the Commission to rehear Sigler’s application. After that, his case came before us – the Ohio Supreme Court.

In prior cases we have established that a commissioner is not required to attend a permanent-total-disability hearing in order to participate in the decision. In addition, reviewing a transcript is not the only method by which an absentee commissioner can review the evidence in order to satisfy a party’s due process rights.

But our court also established – in a case from 1990 – that a commissioner’s failure to consider any evidence from the hearing destroys the presumption of regularity that attaches to the administrative proceeding and violates the claimant’s due process rights.

In that 1990 case, we concluded that the due process requirement of a full and fair hearing means that the decisionmaker must, in some meaningful manner, consider and appraise all the evidence to justify the decision. The method of review is secondary.

For instance, in that 1990 case we approved the use of subordinates to analyze the evidence and prepare a summary for the absent voting member. In another case, we held that there was no due process violation when the absent commissioner had an audiotape of the hearing, a summary prepared by a legal advisor, and additional discussion with the other commissioners who were present.

In this case, Abrams stated that he had reviewed the claim file and talked with Cromley, who summarized the hearing testimony, evidence, and arguments for him. Cromley’s affidavit supported Abrams’s statement.

The other affidavits indicated that Sigler’s testimony was not extensive or complicated. Sigler presented no evidence to contradict these statements, but merely questioned the lack of a hearing transcript or written summary of the evidence.

In making its decision, the court of appeals did not discuss what Abrams had done and whether his review met the standard that we had set in the 1990 case. Instead, it offered what it believed was the better practice for the Commission to follow: “With today’s technological capabilities, there is no reason the Commission cannot have a complete record, even a video record, of the testimony before it. An absent commissioner could then make the appropriate decision without risking a violation of Due Process of Law.”

As previously mentioned, there is a presumption of regularity that attaches to Commission hearings. Sigler challenged that presumption when he challenged the regularity of the voting procedure, raising due process concerns. But under these circumstances, the burden was on Sigler to prove that the Commission had violated due process.

Sigler failed to prove that he was deprived due process when Abrams reviewed the claim file, and was orally apprised of the evidence by Cromley, who had attended the hearing and who used his handwritten notes as a reference in his discussion with Abrams. Consequently, by a five-to-two vote, we reversed the judgment of the court of appeals and denied Sigler’s application.

EDITOR'S NOTE: The case referred to is State ex rel. Sigler v. Lubrizol Corp., 136 Ohio St.3d 298, 2013-Ohio-3686. Case No. 2011-1902. Decided August 29, 2013. Opinion Per Curiam.