[Cite as State ex rel. Sigler v. Lubrizol Corp., 136 Ohio St.3d 298, 2013-Ohio-3686.]




  THE STATE EX REL. SIGLER, APPELLEE, v. LUBRIZOL CORPORATION ET AL.,
                                         APPELLANTS.
        [Cite as State ex rel. Sigler v. Lubrizol Corp., 136 Ohio St.3d 298,
                                     2013-Ohio-3686.]
Workers’       compensation—Mandamus—Hearing                   before      commission—Due
        process—Commissioner not required to attend hearing in order to vote on
        matter being heard—Commissioner required only to make meaningful
        review of evidence from hearing—Due process not violated when voting
        commissioner was apprised of evidence and arguments by commission
        employee who attended hearing and referred to handwritten notes taken
        during hearing—Writ denied.
      (No. 2011-1902—Submitted June 4, 2013—Decided August 29, 2013.)
      APPEAL from the Court of Appeals for Franklin County, No. 10AP-255,
                                        2011-Ohio-4917.
                                 ____________________
        Per Curiam.
        {¶ 1} Appellants,         the    Industrial    Commission       and     the     Lubrizol
Corporation, appeal the judgment of the court of appeals granting the request of
appellee, Terry Sigler, for a writ of mandamus requiring the commission to vacate
its order that overturned a staff hearing officer’s award of permanent-total-
disability compensation.
        {¶ 2} Appellants object to the court of appeals’ determination that the
commission’s hearing did not comport with the due-process standards set forth in
State ex rel. Ormet Corp. v. Indus. Comm., 54 Ohio St.3d 102, 561 N.E.2d 920
(1990). The court so held because one of the two commissioners voting to
overturn had not attended the hearing, but had relied on an oral summary of the
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evidence from a commission hearing officer who had attended the hearing and
taken handwritten notes.
       {¶ 3} We agree with the dissenting opinion from the appellate court that
Sigler failed to demonstrate that the commission’s voting procedures violated due
process. We reverse the judgment of the court of appeals and deny the writ.
       {¶ 4} Terry Sigler was employed by Lubrizol as a maintenance mechanic
when he was injured on September 21, 2001. His workers’ compensation claim
was allowed for acute myofascial strain lumbar, bulging discs, and radiculopathy.
       {¶ 5} On April 13, 2006, Sigler applied for permanent-total-disability
compensation. A staff hearing officer approved the award, but the court of
appeals ordered the commission to reconsider Sigler’s application. State ex rel.
Lubrizol v. Indus. Comm., 10th Dist. Franklin No. 07AP-204, 2008-Ohio-463.
After a hearing on November 5, 2008, a staff hearing officer again awarded Sigler
permanent-total-disability compensation.
       {¶ 6} Lubrizol filed a motion for reconsideration before the three-
member commission. Following a hearing, the commission issued an order dated
August 12, 2009, in which it granted the motion for reconsideration to correct “a
clear mistake of law,” vacated the award, and denied Sigler’s application.
Commissioner Kevin R. Abrams did not attend the hearing. On the order, above
the signature of Commissioner Abrams, the order states:


              On 08/12/2009, I discussed this matter with Bob Cromley,
       who was present at the 07/28/09 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, I vote to find jurisdiction
       and grant the Employer’s request for reconsideration, filed
       12/26/2008. I further vote to vacate the Staff Hearing Officer




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       order issued 11/20/2008, and to deny the Injured Worker’s IC-2
       Application for Permanent Total Disability.


       {¶ 7} Sigler filed a complaint for a writ of mandamus in the Tenth
District Court of Appeals, alleging that the commission 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.


       {¶ 8} A magistrate permitted the parties to file affidavits to clarify what
had occurred at the hearing. The commission submitted the affidavit of Bob
Cromley, who attested that he has been employed by the commission as a hearing
officer since 1985 and that at times, he assisted the commissioners at hearings.
Cromley further attested that he attended the hearing on July 28, 2009, took
handwritten notes, and used those notes as a reference when he later met with
Commissioner Abrams on August 12, 2009, to discuss the case. Cromley stated
that he “summarized the testimony, evidence and arguments from the hearing,”
including the testimony of Sigler.
       {¶ 9} Glen Richardson, Sigler’s attorney, submitted an affidavit in which
he stated 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.”




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       {¶ 10} Michael J. Spisak, Lubrizol’s counsel, attested that “the testimony
offered by Mr. Sigler on July 28, 2009, was consistent with, and was substantially
similar to, the testimony he offered” at previous hearings.
       {¶ 11} 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 the writ.
       {¶ 12} Sigler filed objections to the magistrate’s report. A divided court
of appeals concluded that Abrams was unable to evaluate the credibility of
Sigler’s testimony in the absence of a complete record of the testimony presented.
The court sustained Sigler’s objections, granted the writ of mandamus, and
ordered the commission to rehear Sigler’s application. State ex rel. Sigler v.
Lubrizol Corp., 10th Dist. Franklin No. 10AP-255, 2011-Ohio-4917.
       {¶ 13} This cause is now before the court on an appeal as of right.
       {¶ 14} A commissioner is not required to attend a permanent-total-
disability hearing in order to participate in the decision. State ex rel. Dayton
Walther Corp. v. Indus. Comm., 71 Ohio St.3d 105, 107, 642 N.E.2d 349 (1994).
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. State ex rel. Youghiogheny & Ohio Coal Co. v. Indus. Comm., 65 Ohio
St.3d 351, 353, 603 N.E.2d 1026 (1992). However, 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. State ex rel. Ormet Corp. v. Indus. Comm., 54 Ohio St.3d at 107,
561 N.E.2d 920.
       {¶ 15} In Ormet, we held 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. Id. The method of




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review is secondary. Id. at 104-105. For instance, we approved the use of
subordinates to analyze the evidence and prepare a summary for the absent voting
member to use to consider and appraise the evidence presented. Id. at 105-106.
In State ex rel. Ohio Bell Tel. Co. v. Indus. Comm., 68 Ohio St.3d 329, 626
N.E.2d 678 (1994), we held that there was no due process violation when the
absent commissioner had an audiotape of the hearing, a summary of the hearing
prepared by a legal advisor, and additional discussion with the other
commissioners who were present at the hearing.
       {¶ 16} Here, Abrams stated that he had reviewed the claim file and talked
with Cromley, a longtime commission hearing officer, who summarized the
hearing testimony, evidence, and arguments for him.              Cromley’s affidavit
supported Abrams’s statement that Cromley orally summarized the proceeding,
using as a reference the handwritten notes he took during the hearing.
       {¶ 17} The affidavits from counsel indicated that Sigler’s testimony was
not extensive or complicated. The claim file contained transcripts from earlier
hearings in which Sigler had testified. Sigler presented no evidence to contradict
these statements, but merely questioned the lack of a hearing transcript or written
summary of the evidence.
       {¶ 18} The court of appeals cited Ormet and Ohio Bell as controlling
authority, yet the court did not discuss what Abrams had done and whether his
review met the Ormet standard.       Rather, the appellate court 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.



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2011-Ohio-4917, ¶ 13.
        {¶ 19} The dissent acknowledged that the best practice may be for a
voting commissioner to either attend the hearing or to review a transcript or other
verbatim recording of the proceeding; however, that practice is not required by
law. Id. at ¶ 15 (Sadler, J., dissenting). Instead, the dissent noted,


        The record indicates that Commissioner Abrams considered the
        “testimony, evidence and arguments” from the hearing through
        Cromley’s post-hearing summary; however, the majority failed to
        explain how that summary did not constitute “meaningful” review
        under Ormet. * * *
                Because relator has presented no evidence to contradict the
        statements of Commissioner Abrams and Cromley, I find that
        relator failed to sustain his burden of showing that the
        commission’s voting procedure violated due process under the
        standard articulated in Ormet.


Id. at ¶ 22- 23 (Sadler, J., dissenting).
        {¶ 20} There is a presumption of regularity that attaches to commission
hearings. State ex rel. Ohio Bell Tel. Co., 68 Ohio St.3d at 333, 626 N.E.2d 678;
State ex rel. Ohio Bldg. Restoration, Inc. v. Indus. Comm., 64 Ohio St.3d 188,
189, 593 N.E.2d 1388 (1992).          Sigler challenged that presumption when he
challenged the regularity of the voting procedure, raising due process concerns.
Under these circumstances, the burden was on Sigler to prove noncompliance
with Ormet. Ohio Bell at 333.
        {¶ 21} We agree with the dissenting opinion that Sigler failed to prove
that he was deprived of due process when Abrams reviewed the claim file,




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including Sigler’s testimony from prior hearings, 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.
          {¶ 22} Consequently, we reverse the judgment of the court of appeals and
deny the writ.
                                                                  Judgment reversed
                                                                    and writ denied.
          O’CONNOR, C.J., and PFEIFER, KENNEDY, FRENCH, and O’NEILL, JJ.,
concur.
          O’DONNELL and LANZINGER, JJ., dissent and would affirm the judgment of
the court of appeals.
                              ____________________
          Bentoff & Duber Co., L.P.A., and Glen Richardson, for appellee.
          Michael DeWine, Attorney General, and Colleen C. Erdman and Patsy A.
Thomas, Assistant Attorneys General, for appellant Industrial Commission.
          Weston Hurd, L.L.P., and Michael J. Spisak, for appellant Lubrizol
Corporation.
                            ________________________




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