[Cite as State ex rel. Ohio Valley Selective Harvesting, L.L.C. v. Buehrer, 2017-Ohio-369.]




                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

The State ex rel.                                        :
Ohio Valley Selective Harvesting, L.L.C.
and                                                      :
Peggy A. Lansing,
                                                         :
                 Relators,                                                      No. 16AP-5
                                                         :
v.                                                                       (REGULAR CALENDAR)
                                                         :
Stephen Buehrer, Administrator of the
Ohio Bureau of Workers' Compensation,                    :

                  Respondent.                            :

                  ___________________________________________

                                               DECISION

                             Rendered on January 31, 2017
                  ___________________________________________

                 Anthony A. Moralja, for relators.

                 Michael DeWine, Attorney General, and John R. Smart, for
                 respondent.
                  ___________________________________________
                                              IN MANDAMUS
BRUNNER, J.

        {¶ 1} Relators Ohio Valley Selective Harvesting, L.L.C. ("OVSH") and Peggy A.
Lansing have filed an original action requesting this Court issue a writ of mandamus
ordering respondent, Stephen Buehrer, Administrator of the Ohio Bureau of Workers'
Compensation ("BWC"), to vacate BWC's final order issued on November 30, 2015 finding
that OVSH had underreported its payroll by not reporting its workers as employees, but
claiming that they were independent contractors, and ordering BWC to issue a new order
finding that OVSH's workers were independent contractors for purposes of reporting
payroll.
                                                                                          2
No. 16AP-5
       {¶ 2} We referred this matter to a magistrate of this Court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
Court deny relators' request for a writ of mandamus.
       {¶ 3} No objections have been filed to the magistrate's decision.
       {¶ 4} Having conducted an independent review of the record in this matter and
finding no error of law or other defect on the face of the magistrate's decision, this Court
adopts the magistrate's decision as our own, including the findings of fact and conclusions
of law contained therein. In accordance with the magistrate's decision, we deny the
requested writ of mandamus.
                                                               Writ of mandamus denied.

                           BROWN and SADLER, JJ., concur.

                                    _____________
                                                                                        3
No. 16AP-5
                                       APPENDIX


                          IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

The State ex rel.                           :
Ohio Valley Selective Harvesting, L.L.C.
and                                         :
Peggy A. Lansing,
                                            :
              Relators,                                        No. 16AP-5
                                            :
v.                                                       (REGULAR CALENDAR)
                                            :
Stephen Buehrer, Administrator of the
Ohio Bureau of Workers' Compensation,       :

               Respondent.                  :


                          MAGISTRATE'S DECISION

                              Rendered on August 17, 2016


              Anthony A. Moraleja, for relators.

              Michael DeWine, Attorney General, and John R. Smart, for
              respondent.


                                     IN MANDAMUS

       {¶ 5} Relators, Ohio Valley Selective Harvesting, L.L.C. ("OVSH") and Peggy A.
Lansing ("Lansing"), filed this original action requesting that this court issue a writ of
mandamus ordering respondent, Ohio Bureau of Workers' Compensation ("BWC"), to
vacate its order finding that OVSH had underreported its payroll by not reporting its
workers as employees but claiming that they were independent contractors, and ordering
the BWC to issue a new order finding that OVSH's workers were independent contractors
for purposes of reporting payroll.
                                                                                        4
No. 16AP-5


Findings of Fact:
       {¶ 6} 1. OVSH is involved in the business of cutting trees and hauling away the
cut logs.
       {¶ 7} 2. On May 8, 2012, Peggy A. Cooper (kna Peggy Lansing), doing business as
OVSH, signed an application for workers' compensation coverage. In that application,
Lansing identified herself as the owner of the company, indicated that the machinery,
equipment, and tools necessary included a skidder, loader, and chain saws, that the
operation type for purposes of payroll was cutting timber. As a sole proprietor, Lansing
did not elect coverage for herself and further claimed she had no employees, and no
payroll. Coverage was effective May 9, 2012.
       {¶ 8} 3. In April 2014, Kelly Smith filed a First Report of an Injury, Occupational
Disease or Death ("FROI"), asserting that, while employed by OVSH, he sustained a work-
related injury when a tree he was cutting down fell on his leg. In his application, Smith
indicated that he was hired July 28, 2010.
       {¶ 9} 4. In a memorandum dated May 16, 2014, Jason Price of the BWC's Special
Investigations Unit ("SIU") summarized his review of Smith's claim.        Price's memo
provides, in pertinent part:
              The attorney for the EOR, Tony Moraleja contacted SMITH'S
              assigned Claim Service Specialist (CSS) and notified BWC
              that SMITH was terminated from Employment on April 22,
              2014, the day before the alleged industrial injury.

              A review of SMITH'S claim 14-819572 revealed a First
              Report of Injury (FROI signed and dated by Smith on
              April 25, 2014, when SMITH was cutting down a tree that fell
              on him. The date of injury and the last date worked are both
              listed as April 23, 2014. * * *

              On May 14, 2014, Special Agent Jason Price (Agent Price)
              conducted an interview with Ohio Valley Selective
              Harvesting business owner, Peggy Lansing (Lansing).
              Lansing advised that on April 22, 2014, SMITH arrived to
              work and demanded her husband, Brad Lansing (Brad) drive
              SMITH to a trailer park so he could obtain a pain pill, which
              Brad refused. During lunch that same day, SMITH again
              requested Brad drive him into town so he could obtain a pain
                                                                                      5
No. 16AP-5
               pill. Brad refused again, and notified Lansing of the events.
               At the end of the work day, Lansing met SMITH and the
               other employees at the business * * *. Lansing advised she
               terminated SMITH'S employment with several witnesses in
               the area.

               Lansing further stated that on April 23, 2014, SMITH
               showed up to a job site without permission. SMITH took a
               chain saw from his nephew, Jake Smith, proceeded down
               into the brush, and began alleging that a tree fell on him and
               he was hurt. Lansing was notified of the events and
               proceeded to the job site. When Lansing arrived on site,
               SMITH was walking around. Lansing stated she informed
               SMITH that she was there to take him to the hospital.
               SMITH denied being in any pain and refused to go to the
               hospital. Lansing advised she dropped SMITH off at his
               mother's residence.

(Emphasis sic.)

      {¶ 10} 5. Following Smith's claim, the BWC initiated an audit of OVSH's business
and requested specific documentation from Lansing. Among the documents provided
was the 2013 tax return for OVSH indicating wages of $67,612, specific business expenses
which included work clothes, employee fines, cell phones and supplies, employee drug
tests, and membership fees to the BWC. Lansing also provided a blank unsigned copy of a
contractor and subcontractor agreement and a certain amount of worker payment
information.
      {¶ 11} 6. The auditor made the following findings:
               The risk issued 1099's for all individuals that worked for the
               employer. In 2012 they did have two that worked as drivers
               however the[y] also worked performing the other functions
               as well (cutting trees, operating skidders & loaders). There
               was no segregation. The risk did provide a[n] unsigned
               contract. However it does not address terms of work. The
               risk owns all equipment the contractors use. The employer
               made verbal agreements on what they would pay individuals
               to perform any work. There is [sic] no invoices or any other
               document to support independence. Per tax return showed
               the employer was [sic] expenses for work clothes, license
               tags, cell phone & supplies, employees fines & drug test.
               These are the actual titles on the tax return deductions
               section.
                                                                                      6
No. 16AP-5


       {¶ 12} The auditor also noted that he was still awaiting additional information
from OVSH including 1099s, the 2012 Federal Tax Return, and all signed contracts for the
1099s issued in 2012 and 2013.
       {¶ 13} 7. The BWC found that OVSH had failed to report its payroll and failed to
pay workers' compensation premiums from May 2012 to December 2013 and noted that
the determination was based on the limited information provided by Lansing.
       {¶ 14} 8. OVSH was sent an invoice dated December 15, 2014 in the amount of
$67,688.07.
       {¶ 15} 9. In a letter dated January 8, 2015, OVSH disputed the audit findings,
stating:
              This notice to inform the Bureau of Worker's [sic]
              Compensation that my office represents Peggy Cooper, aka
              Peggy Lansing, and Ohio Valley Selective Harvesting
              regarding the invoice she received on December 15, 2014.
              Ohio Valley Selective Harvesting pays subcontractors with a
              1099, they do not have a payroll of employees. The company
              is a lumbering business with sporadic/seasonal work and
              therefore can only hire on a job-by-job basis. Depending on
              the extent of each individual timbering contract, the
              company decides on the number of subcontractors
              necessary. The number varies from job to job. My client
              would like to dispute the invoice that she received and have
              this matter further reviewed. Please advise my office of the
              next course of action would be [sic].

       {¶ 16} 10. In a letter dated January 22, 2015, the BWC notified OVSH that its
protest had been denied, stating:
              Your complaint received on 1/15/15 protesting audit findings
              for the period covering 5/9/12 — 12/31/13 has undergone a
              departmental review. Regrettably, the BWC has denied your
              request and the audit findings have been affirmed.

              The requirements for being an independent contractor are
              found in Ohio Revised Code Section 4123.01. BWC uses a
              factor test to determine employee/employer relationships.
              Because the following conditions apply: There was no
              information to support that the individuals were true
              independent contractors. We have determined that there was
                                                                                  7
No. 16AP-5
             an employee/employer relationship with all 1099's that were
             issued by the company for 2012 & 2013.

             You may appeal BWC's decision pursuant to Ohio Revised
             Code Section 4123.291 and Ohio Administrative Code
             Section 4123-14-06. If you have any questions regarding this
             matter, please call me.

      {¶ 17} 11. Lansing requested a hearing before the BWC adjudicating committee
and that hearing was held on May 5, 2015. Within the findings of fact section of the
adjudicating committee's order are the following facts which related to the claim
submitted by Smith in April 2014:
             [Five] On May 16, 2014, Jason Price, BWC Special
             investigations Unit (SIU), submitted a memorandum in
             claim 14-819572, which contains certain relevant
             information as follows:

             a. The attorney for the employer, Tony Moraleja contacted
             Smith's CSS and told BWC "that SMITH was terminated
             from employment on April 22, 2014, the day before the
             alleged industrial industry."

             b. An Interview Statement signed by Peggy Lansing on
             May 14, 2014, wherein she states that after Mr. Smith asked
             her husband to take him into town to get a pain pill, she
             "fired Smith on the spot and wrote him his final paycheck on
             the 22nd." (Reference is to April 22, 2014.)

             [Six] The claim filed by Kelly Smith was denied by BWC on
             May 20, 2014. The order reflects that the claim was being
             denied based upon the lack of an employer/employee
             relationship because the worker was terminated on April 22,
             2014. Similarly, on June 26, 2014, the DHO denied the claim
             based upon the documentation submitted by SIU. The SHO
             also denied the claim stating that the decision was based
             upon SIU records and written statements from Peggy
             Lansing, Brad Lansing, and Jacob Smith, "all of whom agree
             the applicant was not employed with the named
             employer on the alleged date of injury." [Emphasis
             added.]

             [Seven] On September 18, 2014, BWC Auditor Joe Maurizi
             conducted an audit of the employer's business for the
             periods set forth above. The audit resulted in significant
                                                                                    8
No. 16AP-5
             findings based upon payments picked up for various workers
             that the employer considered to be independent contractors.
             Specific Description of Operations and Findings &
             Comments from the audit, are as follows:

             THE RISK IS A CONTRACTOR THAT CUTS DOWN TREES.
             THE RISK USES A NON MECHANIZED PROCESS (HAND
             CHAIN SAWS ) TO CUT DOWN TREES. THEY OPERATE A
             SKIDDER TO HAUL THE TREES TO AN OPEN AREA, IN
             WHICH A LOADER LOADS THE TREES ON THE TRUCK
             TO BE DELIVERED TO THE SAWMILL. THE RISK OWNS
             ALL EQUIPMENT USED. ALL OF WHICH ARE
             REPORTABLE TO MANUAL 2701.

             THE RISK ISSUED 1099'S FOR ALL INDIVIDUALS THAT
             WORKED FOR THE EMPLOYER. IN 2012 THEY DID
             HAVE TWO THAT WORKED AS DRIVERS HOWEVER
             THE[Y] ALSO WORKED PERFORMING THE OTHER
             FUNCTIONS AS WELL (CUTTING TREES, OPERATING
             SKIDDERS & LOADERS ). THERE WAS NO
             SEGREGATION. THE RISK DID PROVIDE A[N]
             UNSIGNED CONTRACT. HOWEVER IT DOES NOT
             ADDRESS TERMS OF WORK. THE RISK OWNS ALL
             EQUIPMENT THE CONTRACTORS USE. THE EMPLOYER
             MADE VERBAL AGREEMENTS ON WHAT THEY WOULD
             PAY INDIVIDUALS TO PERFORM ANY WORK. THERE IS
             [SIC] NO INVOICES OR ANY OTHER DOCUMENT TO
             SUPPORT INDEPENDENCE. PER TAX RETURN SHOWED
             THE EMPLOYER WAS [SIC] EXPENSES FOR WORK
             CLOTHES, LICENSE TAGS, CELL PHONE & SUPPLIES,
             EMPLOYEES FINES & DRUG TEST. THESE ARE THE
             ACTUAL TITLES ON THE TAX RETURN DEDUCTIONS
             SECTION.

(Emphasis sic.)

      {¶ 18} The adjudicating committee outlined the relevant case law for determining
whether someone is an employee or an independent contractor, stating:
             In Gillum v. Industrial Com., 141 Ohio St. 373, 48 N.E.2d
             234, 1943 Ohio LEXIS 427, 25 Ohio Op. 531 (Ohio 1943),
             paragraph 2, syllabus, the Supreme Court of Ohio set forth
             the test for determining whether a person is an independent
             contractor, as follows:
                                                                              9
No. 16AP-5
             Whether one is an independent contractor or in service
             depends upon the facts of each case. The principal test
             applied to determine the character of the arrangement is that
             if the employer reserves the rights to control the manner or
             means of doing the work, the relation created is that of
             master and servant, while if the manner or means of doing
             the work or job is left to one who is responsible to the
             employer only for the result, an independent contractor
             relationship is thereby created.

             In determining the amount of control exercised over the
             alleged employee in order to determine his status, the
             Supreme Court has set forth certain factors to be considered.
             These factors include such indicia as who controls the details
             and quality of the work; who controls the hours worked; who
             selects the materials, tools, and personnel used; who selects
             the routes traveled; the length of employment; the type of
             business; the method of payment; and any pertinent
             agreements or contracts. Bostic v. Connor, 37 Ohio
             St.3d 144, 146, 524 N.E.2d 881, 1988 Ohio LEXIS 164 (Ohio
             1988).

             Generally, independent contractors provide goods or services
             to another entity under terms specified in a contract or
             within a verbal agreement Unlike an employee, an
             independent contractor does not work regularly for an
             employer. Independent contractors usually perform a special
             service that is not in the normal course of business of the
             employer. Independent contractors often advertise, maintain
             a visible business location, and are available to work in a
             trade, or some other service. Contractors often work through
             a sole proprietorship, LLC, or franchise, which they
             themselves own. As a business owner, the independent
             contractor incurs its own expenses to provide the contracted
             service. Independent contractors also typically retain control
             over their schedule and number of hours worked, jobs
             accepted, and performance of their job. In addition, they
             may have a major investment in equipment, furnish all their
             own supplies, provide their own insurance and repairs, and
             cover all other expenses related to their business.

             In denying OVSH's protest, the adjudicating committee stated:
             In this particular case, the employer's representative stated
             in the initial complaint and at hearing that the employer's
             need for workers is not regular and may be sporadic. The
             Committee believes that the record supports this statement.
                                                                             10
No. 16AP-5
             At the same time, employment status under RC 4123.01 and
             the Ohio common law is not limited to full time workers.
             Rather, workers' compensation coverage is still required for
             part time employees, as well as casual workers earning more
             than $160.00 per calendar quarter.

             In terms of the "right to control," the Committee was
             presented with credible testimony that the employer's
             husband is perceived as being the manager. Moreover, the
             report from BWC SIU referenced in paragraph 5 of the
             Findings of Fact, above, confirms Mr. Lansing's presence on
             the jobsite. At the hearing, the employer's representatives
             conceded that at least in some cases, the workers are
             transported from the employer's location to the worksite. In
             addition, with regard to Kelly Smith, Peggy Lansing provided
             a statement that after being contacted by her husband, she
             personally fired Mr. Smith.

             While perhaps less important than control over the workers,
             there     are   additional    factors   that   support     an
             employer/employee relationship with regard to the workers
             at issue. There was no evidence that any of the workers had
             their own businesses in the form of signed contracts with any
             individual business owners. The workers did not have any of
             their own expenses associated the work performed for Peggy
             Cooper/Select Harvesting. While some of the workers may
             have had their own hand tools, it is apparent that tools were
             made available by the employer and any larger equipment
             was provided by the employer. The employer's representative
             stated that the employer had no "continuing relationship"
             with the workers. However, the information obtained in the
             audit shows that there were continuing relationships with
             many of the workers. For example, Kelly Smith was paid
             almost $34,000 by the employer in 2012.

             The employer's representative stated that the workers are
             able to work for others. Given that there was or is not
             continuous work available, the Committee recognizes that
             many or all the workers may have performed work for
             others. While, they may not have had specific daily hours,
             the opportunities to work are at times specified by the
             employer. Finally, the firing of an individual worker is not
             consistent with independent contractor status.

(Emphasis sic.)
                                                                                      11
No. 16AP-5
      {¶ 19} 12. Relator requested a hearing before the administrator's designee and
that hearing occurred on September 10, 2015.        After setting out the basic test for
determining whether workers are employees or independent contractors is the amount of
control the employer exercises over the manner and means of the work, the
administrator's designee discussed the evidence presented by OVSH as follows:
             OVSH's representative stated that OVSH does not control
             the manner or means of the work. OVSH stated that the
             workers get to the job site by any means they chose and can
             stay overnight at their own expense. While OVSH prefers
             that the workers drive themselves to the work location,
             OVSH testified that there have been occasions, for logistical
             reasons, where workers meet at OVSH's main office and then
             travel together to the jobsite, following Brad Lansing, an
             OVSH employee. The main office is the home of the
             Lansings.
             OVSH's representative stated that OVSH does not control
             the hours worked. The workers do not arrive all at the same
             time. The days worked are determined by need and contract
             with the Lansings. The workers are contacted to see if they
             are available for the job once the need is established, and are
             only contacted for that specific job. Workers are paid by the
             terms of the contract. There are no regular wages.

             OVSH stated that Brad Lansing is not a supervisor; but as
             the general contractor, he is responsible for the work and
             makes sure the workers stay within the boundaries of the
             land that they are permitted to cut timber. OVSH's
             representative stated that Brad Lansing is not titled as a
             manager. Some workers do refer to him as such, but it is not
             his title. The workers do not issue progress reports. The
             workers will, and OVSH prefer; that they provide their own
             tools if they have them. However, OVSH does have
             equipment available and supplies it [to] the workers if
             needed in order to avoid a work stoppage. If a worker shows
             up and does not have a tool that he needs, OVSH does not
             want that to impact the work schedule.

             OVSH's representatives stated that the nature of OVSH's
             business does not allow for them to have regular employees,
             as the need for workers changes with each job. Each worker
             is allowed to work for themselves and even work on the same
             day they work for OVSH. Most of the workers do other odd
             jobs. The job does not require special skills and the workers
                                                                                       12
No. 16AP-5
             are not trained by OVSH. OVSH does not have an ongoing
             relationship with the workers.

             There was some discussion about the Kelly Smith matter,
             whether Smith was "fired" by Brad Lansing, and whether
             that action indicated an employment relationship. The
             Administrator's Designee notes the discussion of this issue in
             the Adjudicating Committee order of May 5, 2015, and the
             testimony at the Administrator's Designee hearing.

             Thereafter, the administrator's designee set out the bureau's position:
             The Bureau's auditor stated that there were no written
             contracts available for the Bureau to review, nor were there
             any invoices from the alleged independent contractors to
             OVSH for the work performed. The Bureau auditor stated
             that there were no W-2 forms and that there were 1099
             forms. More significantly, the Bureau auditor stated that the
             OVSH tax returns show deductions for worker fines, work
             clothes, supplies, and drug tests. The Bureau auditor stated
             that the workers used OVSH equipment, loading timber with
             OVSH loaders and skidders. The Bureau representative
             claims that the Bureau's investigation establishes that Brad
             Lansing is the manager and foreman on the job site, and that
             all of the workers recognize him as such, proving that he is in
             a management position over the workers. The workers also
             do not retain their own insurance, which would be expected
             if the workers were self employed. Finally, the Bureau
             testified that the workers do not appear to be [in] a position
             of sustaining a profit or loss, an indication that they are not
             actually in a business, but are employees paid by the job.

      {¶ 20} In finding that OVSH exercised sufficient control over the manner and
means of performing the work, the administrator's designee made the following findings:
             The Administrator's Designee finds that the temporary or
             sporadic nature of the worker [sic] available for the workers
             is not a determining factor of whether the workers are
             employees or independent contractors. As noted by the
             Bureau auditor, workers who work occasionally are referred
             to as spot labor, but there is still an employer-employee
             relationship with spot labor. The May 5, 2015, order of the
             Adjudicating Committee also addressed this issue as follows:

                    In this particular case, the employer's
                    representative stated in the initial complaint
                    and at hearing that the employer's need for
                                                                         13
No. 16AP-5
                   workers is not regular and may be sporadic.
                   The Committee believes that the record
                   supports this statement. At the same time,
                   employment status under RC 4123.01 and the
                   Ohio common law is not limited to full time
                   workers. Rather, workers' compensation
                   coverage is still required for part time
                   employees, as well as casual workers earning
                   more than $160.00 per calendar quarter.
                   (emphasis added)

             The Administrator's Designee finds that OVSH exercises
             sufficient control over the manner and means of doing the
             work such that the workers are employees. The
             Administrator's Designee adopts the reasoning of the
             Adjudicating Committee in its May 5, 2015, [sic] order as
             follows:

                   In terms of the "right to control," the
                   Committee was presented with credible
                   testimony that the employer's husband is
                   perceived as being the manager. Moreover, the
                   report from BWC SIU referenced in
                   paragraph 5 of the Findings of Fact, above,
                   confirms Mr. Lansing's presence on the jobsite.
                   At the hearing, the employer's representatives
                   conceded that at least in some cases, the
                   workers are transported from the employer's
                   location to the worksite. In addition, with
                   regard to Kelly Smith, Peggy Lansing provided
                   a statement that after being contacted by her
                   husband, she personally fired Mr. Smith.

                   While perhaps less important than control over
                   the workers, there are additional factors that
                   support an employer/employee relationship
                   with regard to the workers at issue. There was
                   no evidence that any of the workers had their
                   own businesses in the form of signed contracts
                   with any individual business owners. The
                   workers did not have any of their own expenses
                   associated the work performed for [OVSH].
                   While some of the workers may have had their
                   own hand tools, it is apparent that tools were
                   made available by the employer and any larger
                   equipment was provided by the employer. The
                                                                                           14
No. 16AP-5
                      employer's representative stated that the
                      employer had no "continuing relationship"
                      with the workers. However, the information
                      obtained in the audit shows that there were
                      continuing relationships with many of the
                      workers. For example, Kelly Smith was paid
                      almost $34,000 by the employer in 2012.

              The Administrator's Designee also finds that the Bureau's
              determination of independent contractor status is for the
              purpose of reporting Ohio workers' compensation payroll
              and premiums only, and this determination is not conclusive
              or binding on OVSH for other payroll reporting obligations,
              such as to the Internal Revenue Service for taxes or to the
              Ohio Department of Job and Family Services for
              unemployment compensation.

(Emphasis sic.)

       {¶ 21} 13. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 22} For the reasons that follow, it is this magistrate's decision that relator has
failed to demonstrate that the BWC abused its discretion in finding that OVSH's workers
were employees and, as such, OVSH owed premiums to the BWC, and this court should
deny relator's request for a writ of mandamus.
       {¶ 23} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 24} Ohio employers are required to report their payroll to the BWC and are
required to keep those records available for inspection by the BWC.              Specifically,
R.C. 4123.24 provides:
              Every employer amenable to this chapter shall keep,
              preserve, and maintain complete records showing in detail
              all expenditures for payroll and the division of such
              expenditures into the various divisions and classifications of
              the employer's business. The records shall be preserved for
                                                                                      15
No. 16AP-5
             at least five years after the respective times of the
             transactions upon which the records are based.

             All books, records, papers, and documents reflecting upon
             the amount and the classifications of the payroll
             expenditures of an employer shall be kept available for
             inspection at any time by the bureau of workers'
             compensation or any of its assistants, agents,
             representatives, or employees. If an employer fails to keep,
             preserve, and maintain the records and other information
             reflecting upon payroll expenditures, fails to make the
             records and information available for inspection, or fails to
             furnish to the bureau or any of its assistants, agents,
             representatives, or employees, full and complete information
             in reference to expenditures for payroll when the
             information is requested, the bureau may determine the
             amount of premium due from the employer upon such
             information as is available to it, and its findings are prima-
             facie evidence of the amount of premium due from the
             employer.

      {¶ 25} In the present case, OVSH came under scrutiny by the BWC after Kelly
Smith filed a workers' compensation claim asserting that he was injured during the course
of his employment with OVSH. As the stipulated evidence reveals, OVSH argued that
Smith was not entitled to workers' compensation benefits for his alleged injury because
Smith had been terminated the day before he allegedly was injured. Specifically, in the
addendum to memorandum to claim file, Jason Price of the Portsmouth Special
Investigations Unit, noted in the June 23, 2014 addendum:
             On May 14, 2014, Fraud Analyst Rita Johnson (Analyst
             Johnson) received a notification that Kelly Smith (SMITH)
             filed a claim. SMITH had previously filed a false claim in
             2010 against a company he was never employed by. On
             December 16, 2011, SMITH pled no contest to Attempted
             Workers' Compensation Fraud, was fined $250, and
             received 1 year of community control, and 35 hours of
             community service.

             On June 2, 2014, Agent Price conducted an interview with
             Brad Lansing (B. Lansing), Manager/Foreman for Ohio
             Valley Selective Harvesting. B. Lansing confirmed that
             SMITH was an employee of the business for approximately 2
             years. When SMITH presented to work on April 22, 2014,
             SMITH requested B. Lansing drive him into town so he could
                                                                                 16
No. 16AP-5
             obtain a pain pill. B. Lansing refused, and all employees
             proceeded to the job site. Around lunch time, SMITH again
             requested B. Lansing to take him to get a pain pill so he
             wouldn't be sick, and B. Lansing again refused. B. Lansing
             notified his wife and business owner Peggy Lansing
             (Lansing) of the events. B. Lansing and the rest of the
             employees arrived at the office at the end of the day
             between 3:00 and 4:00 pm. Lansing met SMITH outside,
             handed him his final paycheck, and terminated his
             employment.

             B. Lansing stated that on April 23, 2014, SMITH presented
             to the job site without permission. SMITH took a chainsaw
             from an employee, and proceeded down in the brush.
             SMITH then began asserting a tree fell on his leg, and he
             injured himself. B. Lansing then remained in view of SMITH
             while waiting for Lansing to arrive and transport SMITH to
             the hospital. B. Lansing advised SMITH indicated he was
             fine, and requested to operate a loader the rest of the day.
             Lansing then arrived and transported SMITH off the job site.
             ***

             On June 2, 2014, Agent Price conducted an interview with
             Jake Smith (J. Smith), identified employee of Ohio Valley
             Selective Harvesting, and nephew of SMITH. J. Smith stated
             that near the end of the work day on April 22, 2014, SMITH
             came up to him and requested he drive him to a location to
             obtain a pain pill, and J. Smith refused. J. Smith advised all
             the employees returned to the office that day between 3:00
             and 4:00 pm. J. Smith confirmed Lansing met SMITH
             outside the office, handed him a paycheck, and terminated
             him on the spot. J. Smith stated on April 23, 2014, he was
             notified by another employee, Cody Lansing that SMITH was
             present and saying a tree fell on him and injured his leg.
             When J. Smith arrived to where the alleged injury occurred,
             SMITH was sitting on a tree stump, and there were no trees
             that had fallen on his leg. J. Smith stated SMITH then began
             walking around the job site unassisted, and saying his leg
             was injured. Lansing then arrived to the job site and
             transported SMITH off the premises.

(Emphasis sic.)

      {¶ 26} When the BWC conducted its investigation of OVSH concerning payroll and
the payment of premiums, OVSH made statements which contradicted the statements
                                                                                       17
No. 16AP-5
made when they challenged Smith's workers' compensation claim. OVSH told the BWC
investigators that they had no employees, that everyone who did work for them was an
independent contractor, that Brad Lansing was not a manager even if some people
thought he was, and that the statement made to Smith, "you're fired," was simply a poor
choice of words.
      {¶ 27} There was and still is contradictory evidence in the record and the BWC
evaluated that evidence and ultimately concluded that OVSH does, in fact, have
employees, failed to report payroll, and owed premiums. As this court explained in State
ex rel. Labor Works of Dayton LLC v. Ohio Bur. of Workers' Comp., 10th Dist. No. 10AP-
22, 2010-Ohio-6299, ¶ 6:
             Pursuant to R.C. 4123.24, employers are required to
             "maintain complete records" that "detail all expenditures for
             payroll," including "the division of such expenditures into
             the various divisions of the employer's business." On an
             employer's failure to keep such records, "the bureau may
             determine upon such information as is available to it the
             amount of premium due from the employer and its findings
             shall constitute prima facie evidence of the amount of
             premium due from the employer." Ohio Adm.Code 4123-17-
             17. When the bureau conducted an audit of relator, relator
             failed to provide the information that was requested. As a
             result, the bureau estimated the premium due.

      {¶ 28} Based on a review of the stipulation of evidence, the magistrate finds that
relator has failed to establish that the BWC abused its discretion when it determined that
OVSH has employees, failed to report payroll as required by law, and owed premiums,
and this court should deny relator's request for a writ of mandamus.

                                             /S/ MAGISTRATE
                                             STEPHANIE BISCA




                             NOTICE TO THE PARTIES

             Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
             as error on appeal the court's adoption of any factual finding
                                                                               18
No. 16AP-5
             or legal conclusion, whether or not specifically designated as
             a finding of fact or conclusion of law under Civ.R.
             53(D)(3)(a)(ii), unless the party timely and specifically
             objects to that factual finding or legal conclusion as required
             by Civ.R. 53(D)(3)(b).
