[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Evert v. Indus. Comm., Slip Opinion No. 2015-Ohio-120.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2015-OHIO-120
 THE STATE EX REL. EVERT, APPELLEE, v. INDUSTRIAL COMMISSION OF OHIO
                                 ET AL., APPELLANTS.

  [Until this opinion appears in the Ohio Official Reports advance sheets, it
               may be cited as State ex rel. Evert v. Indus. Comm.,
                         Slip Opinion No. 2015-Ohio-120.]
Workers’ compensation—Court of appeals’ judgment reversed on the authority of
        State ex rel. Sigler v. Lubrizol Corp.—Commissioner not required to
        attend hearing in order to vote on matter being heard—Cause remanded
        for review of the merits.
   (No. 2012-1178—Submitted January 14, 2015—Decided January 20, 2015.)
              APPEAL from the Court of Appeals for Franklin County,
                           No. 11AP-465, 2012-Ohio-2404.
                             _______________________
        Per Curiam.
        {¶ 1} The Industrial Commission of Ohio and the administrator of the
Bureau of Workers’ Compensation appeal the judgment of the Tenth District
Court of Appeals granting a limited writ of mandamus ordering the commission to
hold another hearing on the relator’s request for reconsideration with all three
                                SUPREME COURT OF OHIO




commissioners present or to hold a hearing at which the testimony given is either
transcribed or recorded in the event a commissioner is absent. In issuing its order,
the court of appeals relied on its earlier decision in State ex rel. Sigler v. Lubrizol
Corp., 10th Dist. Franklin No. 10AP-255, 2011-Ohio-4917.
        {¶ 2} The parties agree that because this court in State ex rel. Sigler v.
Lubrizol Corp., 136 Ohio St.3d 298, 2013-Ohio-3686, 995 N.E.2d 204,
subsequently reversed the Tenth District’s decision that was found dispositive in
this case, the judgment of the court of appeals here should be reversed. We agree
and accordingly reverse the judgment of the court of appeals and remand the
cause to that court for additional consideration.
        {¶ 3} Charles W. Evert died on May 28, 2006, as a result of
complications from surgery related to an industrial injury that he had sustained in
2004. On July 10, 2007, appellant Industrial Commission allowed the claim of
appellee Donna Evert, his surviving spouse, for death benefits under R.C.
4123.59.
        {¶ 4} On July 19, 2007, Donna Evert filed a motion with the Bureau of
Workers’ Compensation requesting an award for the decedent’s loss of use of his
arms and legs prior to his death. Upon the bureau’s referral to the commission, a
staff hearing officer denied the motion because it had not been filed within one
year of the date of death as required by R.C. 4123.60. The commission refused
further appeal of the issue in early 2008.
        {¶ 5} More than a year later, on April 21, 2009, Evert filed a motion
asking the commission to exercise continuing jurisdiction to rehear the issue
based on new and changed circumstances and an alleged mistake of law regarding
the limitation period for filing a scheduled-loss claim.1 On March 13, 2010, a
staff hearing officer denied the motion.

1
 R.C. 4123.52 provides the Industrial Commission with continuing jurisdiction over each case to
modify or change former findings or orders “as, in its opinion is justified.”




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                               January Term, 2015




       {¶ 6} Evert asked the commission to reconsider the March 13, 2010
decision. The commission held a hearing on the matter on October 5, 2010, with
two of the three commissioners attending.         By a vote of two-to-one, the
commission determined that Evert had failed to demonstrate that sufficient
grounds existed to justify the commission’s exercise of continuing jurisdiction,
and it denied reconsideration. On the order, above the signature of Commissioner
Jodie M. Taylor, who did not attend the hearing, the following statement appears:


               On 10/25/2010, I discussed this matter with Alan Miller,
       Staff Hearing Officer, who was present at the 10/05/2010 hearing.
       Alan Miller summarized the testimony and arguments presented by
       the    Spouse/Dependent’s       representative,     the   Employer’s
       representative and the Bureau of Workers’ Compensation’s
       representative at hearing. After this discussion and review of all
       the evidence contained within the claim file, I vote to deny the
       Spouse/Dependent’s request for reconsideration as I find that there
       is no persuasive evidence to support a finding of a requisite reason
       to invoke continuing jurisdiction in this matter.


       {¶ 7} On May 20, 2011, Evert filed a complaint in mandamus alleging
that the commission abused its discretion when it refused to exercise continuing
jurisdiction and reconsider its denial of scheduled-loss benefits. In one of her
briefs, Evert further alleged that she had been denied due process of law when
Commissioner Taylor voted on the motion for reconsideration despite not
attending the hearing, citing as authority the Tenth District’s then-recent decision
in State ex rel. Sigler v. Lubrizol Corp., 10th Dist. Franklin No. 10AP-255, 2011-
Ohio-4917.




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       {¶ 8} The court of appeals agreed that Sigler was dispositive. The court
issued a limited writ of mandamus vacating the commission’s order and
compelling the commission to conduct a new hearing before all commission
members or a hearing at which a record is kept. Consequently, the court did not
review Evert’s arguments on the merits challenging the commission’s denial of a
scheduled-loss award.
       {¶ 9} Evert appealed as of right to this court. We referred the case to
mediation and stayed briefing. After mediation was unsuccessful, the case was
returned to the regular docket and briefing commenced.
       {¶ 10} The narrow issue before us is whether we must reverse the
judgment of the court of appeals in this case because the court relied on its
decision in Sigler that was subsequently reversed by this court in State ex rel.
Sigler v. Lubrizol Corp., 136 Ohio St.3d 298, 2013-Ohio-3686, 995 N.E.2d 204.
Our answer is yes, as advocated by both appellants and appellee.
       {¶ 11} Like Evert, Sigler alleged that he was deprived of due process
when one of the three voting commissioners did not attend the hearing that was
held on a motion for reconsideration. The court of appeals in Sigler determined
that the absent commissioner could not evaluate the credibility of witness
testimony in the absence of a complete record, and the court therefore ordered the
commission to rehear the matter and make a complete record that would be
available to an absent commissioner to review.
       {¶ 12} This court reversed. We stated 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.”
(Emphasis sic.) 136 Ohio St.3d 298, 2013-Ohio-3686, 995 N.E.2d 204, at ¶ 15,
citing State ex rel. Ormet Corp. v. Indus. Comm., 54 Ohio St.3d 102, 107, 561
N.E.2d 920 (1990).      We also stated that “[t]he method of the review is
secondary.” Id. In Sigler, the absent commissioner stated that he had reviewed




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                               January Term, 2015




the claim file and had talked with a longtime commission hearing officer who
summarized the testimony, evidence, and arguments for him.              Id. at ¶ 16.
Acknowledging that a presumption of regularity attaches to commission hearings,
State ex rel. Ohio Bell Tel. Co. v. Indus. Comm., 68 Ohio St.3d 329, 333, 626
N.E.2d 678 (1994), we held that Sigler failed to prove that he was deprived of due
process when that commissioner voted despite not attending the hearing. 136
Ohio St.3d 298, 2013-Ohio-3686, 995 N.E.2d 204, at ¶ 20-21.
       {¶ 13} In the present case, the commission and the bureau advocate that
this court’s opinion in Sigler is dispositive and supports reversal. Furthermore,
they maintain that this case involves a perceived mistake of law that is purely a
legal issue, unlike Sigler, in which the commissioners had to evaluate the
credibility of witness testimony.
       {¶ 14} Evert agrees that Sigler is dispositive and additionally maintains
that we should remand the case to the court of appeals for a final disposition on
the underlying merits of the action.
       {¶ 15} As had the absent commissioner in Sigler, Commissioner Taylor
stated that she had discussed the matter with an experienced staff hearing officer
who had been present at the hearing and who summarized the testimony and
arguments presented.     In addition, Commissioner Taylor stated that she had
reviewed the entire claim file. Thus, in accord with our opinion in Sigler, she
conducted a meaningful review of the matter sufficient to satisfy due-process
concerns.
       {¶ 16} We therefore reverse the judgment of the court of appeals and
remand with instructions to consider the merits of Evert’s complaint.
                                                               Judgment reversed
                                                             and cause remanded.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.



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                            SUPREME COURT OF OHIO




                             ___________________
       Donaldson Law Offices, L.P.A., John D. Donaldson, and Joshua A.
Dunkle, for appellee.
       Michael DeWine, Attorney General, and Colleen C. Erdman, Assistant
Attorney General, for appellants.
                             ___________________




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