[Cite as State ex rel. Repic v. Indus. Comm., 2016-Ohio-7666.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

The State ex rel. Maryann Repic,                        :

                 Relator,                               :

v.                                                      :                 No. 15AP-627

Industrial Commission of Ohio                           :            (REGULAR CALENDAR)
and
Geauga Mechanical Co. Inc.,                             :

                 Respondents.                           :


                                            D E C I S I O N

                                    Rendered on November 8, 2016


                 Burkes Law, LLC, and John F. Burke, III, for relator.

                 Michael DeWine, Attorney General, and Kevin J. Reis, for
                 respondent Industrial Commission of Ohio.


                                    IN MANDAMUS
                     ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.

        {¶ 1} Maryann Repic filed this action in mandamus seeking a writ to compel the
Industrial Commission of Ohio ("commission") to overturn its order declaring an
overpayment of living maintenance wage loss ("LMWL") compensation and a finding that
the compensation was fraudulently obtained.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated
the pertinent evidence and filed briefs.               The magistrate then issued a magistrate's
decision, appended hereto, which contains detailed findings of fact and conclusions of
No. 15AP-627                                                                            2


law. The magistrate's decision includes a recommendation that we deny the request for a
writ of mandamus.
       {¶ 3} Counsel for Maryann Repic has filed objections to the magistrate's decision.
Counsel for the commission has filed a memorandum in response. The case is now before
the court for a full, independent review.
       {¶ 4} As noted in the magistrate's decision, Repic claimed that she was employed
by a business called Pet Paws, LLC. She presented to the Ohio Bureau of Workers'
Compensation ("BWC") paperwork to support LMWL. Included in the paperwork were
copies of what appeared to be payroll checks from Pet Paws, LLC, but an investigation
revealed that some of the payroll checks were never deposited or processed through a
bank. Instead, Repic was paid cash for some of the time periods. Repic later claimed that
Pet Paws, LLC had trouble with its checking account and had bounced several checks to
her. Therefore, she started returning the checks to Pet Paws, LLC in return for cash. She
claimed that she always told BWC the correct amount she was paid.
       {¶ 5} The record before us demonstrates that Repic was working as a pipefitter
when she was seriously injured. Since she could no longer work as a pipefitter, she
pursued training for a new job and became a pet groomer. Since pet grooming does not
provide the kind of income she earned before her injuries, Repic applied for LMWL.
       {¶ 6} Repic received LMWL for a few years and then someone submitted an
allegation to the BWC's Safety Investigation Unit, commonly referred to as SIU, that
Repic had "submitted false payroll checks associated with her employment with Pet
Paws." The allegation could imply that Repic had not worked the hours she claimed or
ever worked for Pet Paws at all. The allegation also implied that the amount she claimed
she received as compensation was inaccurate.
       {¶ 7} SIU investigated the allegation and found that 29 of the 129 checks
submitted to the BWC were not negotiated at the banks upon which they were drawn.
       {¶ 8} SIU interviewed a former owner of Pet Paws at an assisted living facility and
was told the business closed in November 2013.
       {¶ 9} SIU interviewed Repic in July 2014 and was told by her that she was still
working for Pet Paws, but at a new set of locations. Repic stated that she stopped
presenting checks to the bank in November 2013 and agreed with the current owner of
No. 15AP-627                                                                             3


Pet Paws to be paid in cash. She told SIU that she had no records to support the claimed
agreement or to verify the alleged payment.
      {¶ 10} SIU also interviewed the person who then was the owner of Pet Paws, who
claimed Pet Paws went bankrupt in November 2013 and no longer existed. As a result,
Repic could not have worked for Pet Paws after November 2013.
      {¶ 11} Repic countered the above with a claim that she started work for Pet Paws
in January 2012. Her affidavit itemized several dates she said checks from Pet Paws
bounced, including two checks the business supposedly issued in the month it went
bankrupt.
       {¶ 12} In review, the commission clearly had a valid basis for finding fraud and
overpayment from November 2013 up until July 2014. Repic claimed payment from a
business which the then owner and a former owner claimed no longer existed. At least
"some evidence" supported the claim of overpayment from November 2013 on.
       {¶ 13} The evidence as to the single week in January of 2013 for which
overpayment is alleged is less clear, but we cannot find no evidence supported the
commission's findings.
       {¶ 14} The objections to the magistrate's decision are overruled. We adopt the
findings of fact and conclusions of law contained in the magistrate's decision and deny the
request for a writ of mandamus.
                                                       Objections overruled; writ denied.

                      KLATT and LUPER SCHUSTER, JJ., concur.
No. 15AP-627                                                                           4



                                   APPENDIX
                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

The State ex rel. Maryann Repic,            :

             Relator,                       :

v.                                          :                    No. 15AP-627

Industrial Commission of Ohio               :               (REGULAR CALENDAR)
and
Geauga Mechanical Co. Inc.,                 :

             Respondents.                   :


                        MAGISTRATE'S DECISION

                                Rendered on July 28, 2016


             Burkes Law, LLC, and John F. Burke, III, for relator.

             Michael DeWine, Attorney General, and Kevin J. Reis, for
             respondent Industrial Commission of Ohio.


                                    IN MANDAMUS


      {¶ 15} In this original action, relator, Maryann Repic, requests a writ of mandamus
ordering respondent, Industrial Commission of Ohio ("commission"), to vacate the
February 3, 2015 order of its staff hearing officer ("SHO") that grants the September 2,
2014 motion of the administrator of the Ohio Bureau of Workers' Compensation
("bureau") for a declaration of an overpayment of living maintenance wage loss
("LMWL") compensation, and a finding that the compensation was fraudulently obtained,
and to enter an order denying the bureau's motion.
No. 15AP-627                                                                             5


Findings of Fact:
       {¶ 16} 1. On June 8, 2005, relator sustained serious injury to her right foot and
lower extremity while employed as a pipefitter for respondent, Geauga Mechanical Co.,
Inc., a state-fund employer. The industrial claim (No. 05-352970) is also allowed for
psychiatric conditions.
       {¶ 17} 2. In September 2011, a vocational counselor employed by the MetroHealth
System issued a report, stating:
              BACKGROUND INFORMATION

              Maryann Repic is a 53 year old single female who was
              referred for career counseling by her case manager. She is
              not able to return to her previous position of Pipefitter due to
              her physical limitations. She suffered a work-related injury
              on 06/08/2005. * * *

              Current limitations are being modified to include working as
              a Dog Groomer. A Medco-14 dated 08/08/2011 limits her
              work to part time 4 to 6 hours per day. Her [sic] reports pain
              at 3 on a 10 point scale.

              ***

              RECOMMENDATIONS

              It is recommended that Ms. Repic participate in formalized
              training in pet grooming. Upon completion of the above, be
              assisted with developing tools for a formal job search[.]
              provided assistance with job lead sourcing and placement
              support.

              TARGETED POSITIONS:
              Pet Groomer DOT 418.674-010

       {¶ 18} 3. On June 11, 2014, the bureau's Safety Investigations Unit ("SIU")
received an allegation that relator had "submitted false payroll checks associated with her
employment with Pet Paws."
       {¶ 19} 4. On August 28, 2014, following an investigation, SIU issued a report
recommending that all LMWL payments paid to relator from January 6 through
January 12, 2013 and from November 17, 2013 through July 26, 2014 be declared as an
No. 15AP-627                                                                           6


overpayment. The SIU report also recommended a finding that the compensation was
fraudulently obtained.
         {¶ 20} 5. On September 2, 2014, citing its SIU report, the bureau moved the
commission to make the recommended findings regarding LMWL overpayment and
fraud.
         {¶ 21} 6. According to the SIU report, on July 1, 2014, Special Agent ("SA")
Boscarello obtained confirmation from Dollar Bank that 14 of the 23 checks dated
September 1, 2012 to June 14, 2014 and written to relator for wages earned at Pet Paws
were never "negotiated."
         {¶ 22} 7. According to the SIU report, on July 21, 2014, SA Boscarello obtained
confirmation from Huntington National bank that 15 of the 101 checks written to Repic
for wages earned at Pet Paws were never "negotiated."
         {¶ 23} 8. According to the SIU report, on July 30, 2014, SA Boscarello and Fraud
Analyst ("FA") Parfejewiec interviewed Gayle Schroll, former owner of Pet Paws, at an
assisted living facility where Gayle Schroll resides.   The SIU report summarizes the
interview:
               Gayle Schroll advised the business was turned over to her
               son, Luke Schroll, three to four years ago when she became
               ill. Gayle Schroll stated at that time REPIC was an unpaid
               student and learning animal grooming at the business. Gayle
               Schroll believed her son hired REPIC as a sub-contractor for
               the business but was unable to provide specifics. Gayle
               Schroll advised the business was closed in November of 2013
               and any checks submitted after that, were fraudulent. Gayle
               Schroll reviewed the payroll checks REPIC submitted to
               BWC since 2011 and advised none of these were completed
               or signed by her.

(Emphasis sic.)

         {¶ 24} 9. According to the SIU report, on July 31, 2014, SA Boscarello and FA
Parfejewiec interviewed relator at her apartment.       The SIU report summarizes the
interview:
               REPIC stated she was still employed at Pet Paws; however,
               the business was operating out of "Pick of the Litter" in
               Strongsville, OH and "Fire Plug" in Parma Heights, OH.
No. 15AP-627                                                                     7


             REPIC advised she had stopped presenting checks in
             November of 2013 as same were bouncing and her account
             was assessed fees. REPIC and Luke Schroll agreed that she
             would be paid in cash but she would submit the non-
             negotiated checks as wages earned. REPIC stated she did
             not have any records confirming this agreement or how
             much cash she was paid.

(Emphasis sic.)

      {¶ 25} 10. According to the SIU report, on August 13, 2014, SA Boscarello
interviewed Luke Schroll by telephone. At that time, Luke Schroll was residing at a
treatment facility outside Ohio. The SIU report summarizes the interview:
             Luke Schroll stated REPIC was hired as an employee of Pet
             Paws in Fall of 2011 or Winter of 2011-2012. Luke Schroll
             confirmed he drafted and issued all payroll checks to
             REPIC. Luke Schroll stated in November of 2013, Pet Paws
             went bankrupt and no longer existed. Luke Schroll informed
             REPIC requested he still provide her with false payroll
             checks, which they agreed would not be negotiated, in order
             for her to submit to BWC. Luke Schroll advised REPIC has
             not worked for Pet Paws since November of 2013.

(Emphasis sic.)

      {¶ 26} 11. On November 10, 2014, the bureau's September 2, 2014 motion was
heard by a district hearing officer ("DHO"). The DHO issued an order granting the
bureau's motion. The DHO's order explains:
             It is the order of the District Hearing Officer that the Motion
             filed by the Bureau of Workers' Compensation on
             09/02/2014 is granted and the District Hearing Officer
             makes a specific finding of fraud.

             The District Hearing Officer relied on the Bureau of Workers'
             Compensation Special Investigations Unit report dated
             08/28/2014. The District Hearing Officer specifically finds
             that the Injured Worker submitted false payroll checks
             associated with her employment at Pet Paws to obtain living
             maintenance wage loss compensation benefits from
             01/06/2013 through 01/12/2013 and from 11/17/2013
             through 07/26/2014. The District Hearing Officer finds that
No. 15AP-627                                                                8


           these activities are inconsistent with the Injured Worker's
           entitlement to living maintenance wage loss.

           The specific evidence relied upon in this motion in support of
           the conclusion of an overpayment are attachments to the
           Bureau of Works' Compensation motion in an investigative
           report; namely Dollar Bank Financial Records/Letter,
           Huntington National Bank Financial Records letter, Gayle
           Schroll interview, Maryann Repic interview, Luke Schroll
           interview, the FROI-1, First Report of an Injury,
           Occupational Disease or Death Application, the RH-18
           Authorization for Living [M]aintenance Wage Loss
           Application, the Bureau of Workers' Compensation Warrant
           Report, and EFT application.

           Regarding the issue of fraud, the District Hearing Officer
           finds that based on information in the Bureau of Workers'
           Compensation Investigation Unit, the Injured Worker
           committed fraud due to the fact that all the elements were
           present. The District Hearing Officer finds that
           documentation listed above indicates that the Injured
           Worker intentionally submitted false payroll checks to the
           Bureau of Workers' Compensation in order to receive
           benefits which she would not be entitled to receive. The Staff
           Hearing Officer finds that all the prima facia elements of
           fraud are present:

           1) A representation, or when there is a duty to disclose,
           concealment of fact:

           The Injured Worker concealed the fact that the payroll
           checks she submitted to Bureau of Workers' Compensation
           in order to obtain living maintenance wage loss benefits for
           the above period were not negotiated. The payroll checks
           were issued from Michael or Gail Schroll (Pet Paws Owner)
           and Luke Schroll (Pet Paws Owner). The Injured Worker had
           failed to advise the Bureau of Workers' Compensation or her
           rehab counsellor [sic] that Pet Paws went out of business in
           November of 2013 and continued to submit false payroll
           checks to Bureau of Workers' Compensation indicating she
           was still working for Pet Paws. The Injured Worker
           additionally signed two RH-Authorizations for Living
           Maintenance Wage Loss Applications after the business had
           closed.
No. 15AP-627                                                                9


           Injured Worker also signed six RH-18 forms with the
           warning sign regarding fraud.

           The Injured Worker also signed electronic fund transfer
           application on 12/07/2007 with a similar fraud warning.

           2) Which is material to the transaction at hand:

           The Injured Worker had a duty to disclose to the Bureau of
           Workers' Compensation, Risk Employer and Rehab
           Personnel that she did not receive wages or suffer wage loss
           and she failed to do so. The Injured Worker had a duty to
           disclose to the Bureau of Workers' Compensation, Risk
           Employer and Rehab Personnel that the business in which
           she agreed to work in order to obtain living maintenance
           wage loss benefits went out of business in November of 2013
           and she failed to do so. The Injured Worker's concealment
           entitled her to receive benefits to which she was not entitled
           to.

           3) Made falsely with knowledge of its falsity, or with such
           utter disregard or recklessness as to whether it is true or
           false that the knowledge may be inferred:

           The Injured Worker's concealment of her improper conduct
           caused the Bureau of Workers' Compensation to pay
           compensation and/or benefits. But for the concealment of
           her improper conduct the Bureau of Workers' Compensation
           would not have made the improper payments.

           4) With the intent of misleading others into relying on it:

           After completion signing the RH-18 form, and completing
           and signing the electronic funds transfer application, Injured
           Worker intentionally submitted false payroll checks to
           Bureau of Workers' Compensation in order to obtain living
           maintenance wage loss benefits to which she was not entitled
           to from the above period of time.

           5) Justifiable reliance upon the presentation of concealment:

           The Bureau of Workers' Compensation justifiably relied on
           the representations of the Injured Worker because she
           concealed her activities that was inconsistent with receiving
           workers' compensation and/or benefits.
No. 15AP-627                                                                               10


              6) A resulting injury proximately caused by the reliance:

              The Bureau of Workers' Compensation suffered injury by
              paying compensation to the Injured Worker when she was
              not entitled to receive the compensation.

              Based on the Bureau of Workers' Compensation Special
              Investigation Report on file, the Hearing Officer finds an
              overpayment, breach of the living maintenance wage loss
              contract and an overpayment for the above period of time.
              The actions of the Injured Worker constitute administrative
              fraud.

        {¶ 27} 12. Relator administratively appealed the DHO's order of November 10,
2014.
        {¶ 28} 13. On February 3, 2015, relator's appeal was heard by an SHO. At the
hearing, relator submitted her affidavit executed February 3, 2015. The affidavit avers:
              [Two] I was injured on the job June 8, 2005. At that time I
              was employed by Geauga Mechanical Co., Inc.

              [Three] I was never able to return to my previous type of
              work due to its physical demands.

              ***


              [Five] On January 3, 2012 I began receiving working wage
              loss payments.

              [Six] I was required to provide weekly information to the
              BWC as to any monies that I received for working.

              [Seven] I went to school to learn how to groom animals. The
              school was run by the Ohio Academy of Pet Styling which
              was owned and operated by Gayle Schroll.

              [Eight] After I finished my training I went to work on a part
              time basis for Pet Paws, LLC beginning approximately
              January 3, 2012.

              [Nine] The business was owned and operated by Gayle
              Schroll. Luke Schroll was working there.
No. 15AP-627                                                                11


           [Ten] Eventually the owners' son Luke Schroll took over the
           business.

           [Eleven] He had financial and substance abuse issues. He
           passed away on October 5, 2014 at the age of 23.

           [Twelve] In January 2013 after faxing a copy of my wages
           check from Pet Paws to the BWC Luke Schroll asked me if I
           had cashed my check yet. I indicated that I had not and he
           requested the check back and gave me cash.

           [Thirteen] The checks he wrote to me would not have
           sufficient funds in the account and would bounce. I was then
           charged fees by the bank because the checks were not
           honored.

           [Fourteen] This occurred on several occasions including
           March 21, 2012, July 25, 2013, October 4, 2013,
           November 18, 2013 and November 21, 2013.

           [Fifteen] This also happened to my co-workers, including
           Tina Boles and Jasmine.

           [Sixteen] These co-workers subsequently refused to be paid
           by check.

           [Seventeen] After this happened I demanded that I be paid
           with a check which he would exchange for cash after I had
           faxed a copy of the check to the BWC. My bank statements
           show the checks that Luke Schroll bounced to me. I have
           attached my bank statements from those months hereto as
           Exhibit 1.

           [Eighteen] I believed that I needed a check as proof of the
           wages I was earning per the BWC guidelines.

           [Nineteen] Although I did not deposit the checks they
           accurately reflected my earnings and I was given cash by
           Luke Schroll after I gave him back the check.

           [Twenty] At no time did I falsely report any income or fail to
           report any income to the BWC. All of the checks I faxed to
           the BWC accurately reflected the payments to me for my
           work at Pet Paws.
No. 15AP-627                                                                 12


           [Twenty-one] I had no knowledge that the BWC would view
           my not depositing my paycheck into my bank account as
           being improper.

           [Twenty-two] Due to Luke Schroll's mismanagement of the
           business he was forced to relocate the original location of Pet
           Paws in approximately January 2014.

           [Twenty-three] Luke Schroll had new business cards printed
           up in January 2014 containing both my name and Luke
           Schroll's name. A copy of the card is attached as Exhibit 2.

           [Twenty-four] The address on the card is * * * which is
           directly next door to the location of Fire Plug Dog & Cat
           Grooming in Parma Heights, Ohio.

           [Twenty-five] The card shows that Pet Paws did not close it
           merely changed location and operated out of Fire Plug Dog &
           Cat Grooming in Parma Heights, Ohio and Pick of the Litter
           in Strongsville, Ohio.

           [Twenty-six] Thereafter, he operated Pet Paws at Fire Plug
           Dog & Cat Grooming and Pick of the Litter several days a
           week.

           [Twenty-seven] I would groom and bathe the animals at
           these locations approximately 2-4 hours at Pick of the Litter
           on Mondays and Wednesdays from January 2014 until
           July 2014.

           [Twenty-eight] I would groom animals at Fire Plug Dog and
           Cat Grooming on Tuesdays, Fridays and Saturdays for 4-6
           hours from January until July 2014.

           [Twenty-nine] I continued to do such work for Pet Paws at
           these facilities.

           [Thirty] I ceased working at Pet Paws at the end of July 2014
           when Luke Scroll failed to return from vacation and in fact
           was in inpatient drug and alcohol rehabilitation.

           [Thirty-one] I reported all of the income that I received to
           the BWC as I was instructed to do.

           [Thirty-two] I never knew that the BWC required me to
           actually deposit my work checks into my bank account.
No. 15AP-627                                                                    13



             [Thirty-three] I was never aware that by having Luke Schroll
             provide me cash in exchange for the checks would be
             considered misleading the BWC.

             [Thirty-four] I had no knowledge of the business going into
             bankruptcy or being considered "closed" until the BWC
             Investigators mentioned it to me when they came to my
             house in July. In fact, the business did not close until the end
             of July 2014 when Luke Schroll went into an inpatient drug
             and alcohol rehabilitation center.

       {¶ 29} 14. Following the February 3, 2015 hearing, the SHO issued an order
stating:
             It is the order of the Staff Hearing Officer that the District
             Hearing Officer [sic], issued 11/19/2014, is modified. The
             Administrator's Motion filed 09/02/2014 requesting an
             overpayment of living maintenance wage loss benefits for the
             period commencing 01/06/2013 through 01/12/2013 and
             from 11/17/2013 through 07/26/2014 and a finding of fraud
             is granted.

             It is the order of the Staff Hearing Officer that the payment
             of living maintenance wage loss from 01/06/2013 through
             01/12/2013 and from 11/17/2013 through 07/26/2014 is
             declared overpaid. It is the finding of the Staff Hearing
             Officer that the Injured Worker for the above listed periods
             failed to accurately report her income to the Administrator
             and that the income represented to the Administrator as
             being an accurate representation is not verifiable as so.

             The Staff Hearing Officer finds that on 06/08/2005 the
             Injured Worker sustained an injury to her right foot wherein
             her right foot was struck by a ladder wheel causing her to fall
             approximately three feet.

             The Staff Hearing Officer finds that as a result of the above
             injury the Injured Worker was unable to return to work at
             her former position of employment as a result of restrictions
             emanating from the claim allowances. The Administrator, as
             a result, commenced payment of living maintenance wage
             loss from 01/06/2013 through 01/12/2013 and from
             11/27/2013 through 07/26/2014.
No. 15AP-627                                                                14


           The Bureau of Workers' Compensation's Special
           Investigative Unit began an investigation of Injured Worker
           Injured Worker on 06/11/2014 after receiving an allegation
           that Injured Worker had submitted false payroll checks in
           order to obtain living maintenance wage loss compensation.
           The findings of the investigation were that checks written to
           Injured Worker from her Employer Pet Paws, were never
           negotiated, endorsed, cashed or deposited. The Staff Hearing
           Officer further finds that the checks submitted to the
           Administrator as an accurate representation of her full
           income are not verifiable. The Staff Hearing Officer finds
           that there is a lack of evidence on file to support Injured
           Worker's actual income as there are no W-2s, 1099s,
           cancelled or returned checks and/or bank statements to
           corroborate the income reported to the Administrator via
           checks from Pet Paws in support of living maintenance wage
           loss. Thus the Staff Hearing Officer declares the above period
           of living maintenance wage loss overpaid.

           The Staff Hearing Officer finds that the above declared
           overpayment is the result of fraud and shall be collected
           pursuant to R.C. 4123.511(K).

           It is the finding of the Staff Hearing Officer that the
           Administrator has sustained their burden of proof in
           establishing that the Injured Worker knowingly used
           deception to obtain the overpayment of living maintenance
           wage loss in question by probative and substantial evidence
           pursuant to Ohio Industrial Commission Repayment Policy
           Memorandum F2, a finding of fraud must be supported by
           reliable, probative and substantial evidence. The evidence
           should demonstrate that the individual knowingly used
           deception to obtain the overpayment. The Staff Hearing
           Officer finds that the Injured Worker's actions constitute the
           prima facia elements of fraud in this case.

           The Staff Hearing Officer finds that the Injured Worker
           presented false payroll checks to the Administrator to secure
           living maintenance wage loss and that those checks were
           never negotiated, cashed, deposited or endorsed.

           The Authorization for Living Maintenance Wage Loss form
           contains the following warning:

           Injured Worker must repot all income to the Administrator
           for all labor or work performed while receiving living
No. 15AP-627                                                                 15


           maintenance wage loss. I understand that my failure to
           accurately report my income could result in my receiving
           living maintenance wage loss to which I am not entitled. I
           further understand that if I fail to accurately report my full
           income to the Bureau of Workers' Compensation, and in
           doing so I knowingly, make a false statement,
           misrepresentation or conceal a fact or perform any other
           action or act of fraud in order to obtain living maintenance
           wage loss, I may be subject to felony criminal prosecution.

           The Staff Hearing Officer finds that the Injured Worker
           signed and submitted the Authorization for Living
           Maintenance Wage Loss forms during the entire period of
           the declared overpayment.

           The Injured Worker had a duty to accurately report her
           income without making a false statement or
           misrepresentation, which she did not. The Injured Worker
           presented checks as a representation of her income for work
           done with Pet Paws as a basis for the payment of living
           maintenance wage loss compensation and those checks have
           not been shown to accurately document Injured Worker's
           income, which is Injured Worker's burden per the
           Authorization for Living Maintenance Wage Loss contract.

           The Injured Worker testified at today's hearing, and it is
           corroborated in her statement, Attachment 4 of the
           investigative packet, and in her affidavit submitted at today's
           hearing that she was aware that the checks she presented to
           the Administrator would not be cashed or deposited or
           negotiated and that the checks were used for the sole
           purpose of obtaining Living Maintenance Wage Loss.

           The Injured Worker in conjunction with signing the
           Authorization for Living Maintenance Wage Loss forms and
           signing a[nd] completing an Electronic Funds Transfer
           Application submitted false payroll and personal checks to
           the Administrator on which the Administrator relied upon to
           pay living maintenance wage loss compensation.

           The Staff Hearing Officer notes that the District Hearing
           Officer determined that the Injured Worker's Employer, Pet
           Paws ceased doing business in November of 2013. Further
           investigation by the Bureau of Workers' Compensation
           Special Investigative Unit indicates that is not the case.
           Specifically, statements filed 12/08/2014 that indicate Pet
No. 15AP-627                                                                             16


             Paws rented space at both Fire Plug Dog & Cat Grooming
             and Pick of the Litter and continued to apparently to [sic] do
             business beyond November of 2013.

             All documentation and evidence on file and presented at
             hearing was considered.

(Emphasis sic.)

      {¶ 30} 15. On March 11, 2015, another SHO mailed an order refusing relator's
administrative appeal of the SHO's order of February 3, 2015.
      {¶ 31} 16. On June 30, 2015, relator, Maryann Repic, filed this mandamus action.
Conclusions of Law:
      {¶ 32} The issue is whether the commission abused its discretion in declaring an
overpayment of LMWL compensation and finding that the overpayment was fraudulently
obtained.
      {¶ 33} Finding no abuse of discretion, it is the magistrate's decision that this court
deny relator's request for a writ of mandamus.
      {¶ 34} Ohio Adm.Code 4123-18-21(B)(2) currently provides:
             In claims with a date of injury on or after August 22, 1986,
             the bureau shall make living maintenance wage loss
             payments to injured workers who complete an approved
             comprehensive vocational rehabilitation plan or job
             retention plan, successfully return to work, and experience a
             wage loss while employed.

             (2) Injured workers requesting living maintenance wage loss
             payments shall be required to submit an application for
             living maintenance wage loss (on form RH-18 or equivalent)
             and medical documentation of the physical and/or
             psychiatric limitations as referenced in paragraph (A)(1) of
             this rule

      {¶ 35} Ohio Adm.Code 4123-18-21(B)(5) currently provides:

             To receive living maintenance wage loss payments under this
             rule after approval of these benefits by the bureau, an injured
             worker must provide proof of earnings at least every four
             weeks, or on a quarterly basis if the injured worker has a
             substantial variation in income, in the form of pay stubs,
No. 15AP-627                                                                       17


             payroll reports from the injured worker's current employer,
             or a wage statement on form RH-94(A) or equivalent.

       {¶ 36} Ohio Adm.Code 4123-18-21(C) currently provides:

             Payments shall be sixty-six and two-thirds per cent of the
             difference between the greater of the injured worker's full
             weekly wage or average weekly wage on the claim for which
             the injured worker underwent a rehabilitation plan and the
             weekly wage received while employed up to a maximum per
             week equal to the statewide average weekly wage.

       The SIU report provides six RH-18 forms captioned "Authorization for Living
       Maintenance Wage Loss" that were signed by relator during the years 2012, 2013,
       and 2014. The RH-18 form contains the following warning:
             Warning: I realize I must report to BWC all income I
             receive for all labor or work I perform while receiving
             LMWL. I understand that my failure to accurately report my
             income could result in my receiving LMWL to which I am
             not entitled. I further understand that if I fail to accurately
             report my full income to BWC, and in doing so, I knowingly
             make a false statement, misrepresent or conceal a fact or
             perform any other act of fraud in order to obtain LMWL, I
             may be subject to felony prosecution and may, under
             appropriate criminal previsions be punished by a fine or
             imprisonment or both.

       {¶ 37} The November 10, 2014 order of the SHO correctly sets forth the six
elements of fraud. Those elements were taken from case law. In Gaines v. Preterm-
Cleveland, Inc., 33 Ohio St.3d 54, 55 (1987), the Supreme Court of Ohio states:
             The elements of an action in actual fraud are: (a) a
             representation or, where there is a duty to disclose,
             concealment of a fact, (b) which is material to the transaction
             at hand, (c) made falsely, with knowledge of its falsity, or
             with such utter disregard and recklessness as to whether it is
             true or false that knowledge may be inferred, (d) with the
             intent of misleading another into relying upon it, (e)
             justifiable reliance upon the representation or concealment,
             and (f) a resulting injury proximately caused by the reliance.

Id. at 55.
No. 15AP-627                                                                                   18


         {¶ 38} As earlier noted, in relator's affidavit at paragraphs 12, 13, 17, and 19, relater
avers:
                [Twelve] In January 2013 after faxing a copy of my wages
                check from Pet Paws to the BWC Luke Schroll asked me if I
                had cashed my check yet. I indicated that I had not and he
                requested the check back and gave me cash.

                [Thirteen] The checks he wrote to me would not have
                sufficient funds in the account and would bounce. I was then
                charged fees by the bank because the checks were not
                honored.

                ***

                [Seventeen] After this happened I demanded that I be paid
                with a check which he would exchange for cash after I had
                faxed a copy of the check to the BWC.

                ***

                [Nineteen] Although I did not deposit the checks they
                accurately reflected my earnings and I was given cash by
                Luke Schroll after I gave him back the check.

         {¶ 39} In the SHO's order of February 3, 2015, the SHO states:

                It is the finding of the Staff Hearing Officer that the
                Administrator has sustained their burden of proof in
                establishing that the Injured Worker knowingly used
                deception to obtain the overpayment of living maintenance
                wage loss in question by probative and substantial evidence
                pursuant to Ohio Industrial Commission Repayment Policy
                Memorandum F2, a finding of fraud must be supported by
                reliable, probative and substantial evidence. The evidence
                should demonstrate that the individual knowingly used
                deception to obtain the overpayment. The Staff Hearing
                Officer finds that the Injured Worker's actions constitute the
                prima facia elements of fraud in this case.

                The Staff Hearing Officer finds that the Injured Worker
                presented false payroll checks to the Administrator to secure
                living maintenance wage loss and that those checks were
                never negotiated, cashed, deposited or endorsed.
No. 15AP-627                                                                           19


       {¶ 40} Relator's affidavit itself makes clear that deception was involved. Relator
would fax to the bureau a Pet Paws check that relator never intended to deposit in a bank
account or otherwise negotiate. Rather, relator was paid in cash and returned the check
to Luke Schroll. Faxing the Pet Paws check to the bureau deceptively misrepresented that
the check was the instrument of a wage payment when it was not.                 Under the
circumstances, relator had the option under Ohio Adm.Code 4123-18-21(B)(5) to provide
the bureau a wage statement on form RH-94(A) or equivalent, but relator did not provide
the form or its equivalent.
       {¶ 41} Based upon the forgoing analysis, it is the magistrate's decision that this
court deny relator's request for a writ of mandamus.


                                             /S/ MAGISTRATE
                                             KENNETH W. MACKE


                              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
              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).
