[Cite as Liebe v. Indus. Comm., 2014-Ohio-4082.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100649



                               KAREN LIEBE, ET AL.

                                                         RELATORS

                                                   vs.

           THE INDUSTRIAL COMMISSION OF OHIO,
                         ET AL.
                                                         RESPONDENTS




                                          JUDGMENT:
                                          WRIT DENIED


                                        Writ of Prohibition
                                  Motion Nos. 476745 and 476808
                                        Order No. 477981


        RELEASE DATE:              September 17, 2014
ATTORNEYS FOR RELATOR

For Karen Liebe

Michael H. Gruhin
Gruhin & Gruhin
24100 Chagrin Boulevard
Suite 250
Beachwood, Ohio 44122

Matthew A. Palnik
Shapiro, Marnecheck, Riemer & Palnik
425 Western Reserve Building
1468 West 9th Street
Cleveland, Ohio 44113

For Michael Gruhin

Martin T. Galvin
Reminger Company L.P.A.
1400 Midland Building
101 Prospect Avenue West
Cleveland, Ohio 44113


ATTORNEYS FOR RESPONDENTS

For Industrial Commission of Ohio
Administrator, Bureau of Workers’ Compensation

Michael DeWine
Ohio Attorney General
State Office Building, 11th Floor
615 West Superior Avenue
Cleveland, Ohio 44113




Thomas M. McCarty
Assistant Attorney General
State Office Building, 11th Floor
615 West Superior Avenue
Cleveland, Ohio 44113


For March Hodge Lamarch Cleveland, L.L.C.

Thomas R. Wyatt
David T. Andrews
Jerry P. Cline
Andrews & Wyatt L.L.C.
561 Boston Mills Road
Suite 700
Hudson, Ohio 44236




EILEEN A. GALLAGHER, J.:
       {¶1} On November 20, 2013, the relators, Karen Liebe and Michael Gruhin,

commenced this prohibition action against the respondents, the Industrial Commission of

Ohio and the Administrator of the Bureau of Workers’ Compensation (hereinafter

collectively referred to as the “Industrial Commission”).   The relators seek to prohibit

the respondents from conducting further administrative hearings relating to Liebe’s

September 26, 2011 injury claim and from enforcing the August 29, 2013 district hearing

officer’s decision.   The relators claimed that the respondents’ use of privileged work

product information exceeded the Industrial Commission’s judicial authority and deprived

it of jurisdiction to proceed.    On December 4, 2013, this court permitted Liebe’s

employer, March Hodge Lamarch Cleveland, L.L.C. (“March Hodge”) to intervene as a

respondent. Pursuant to court order, on June 16, 2014, the parties filed dispositive

motions and subsequently submitted briefs in opposition.

       {¶2} On July 11, 2014, Liebe voluntarily dismissed her prohibition claims as part

of a settlement of her workers’ compensation claims. Gruhin did not settle and his

claims for prohibition remain.     On July 15, 2014, March Hodge moved to dismiss

because the issues were moot and on July 17, 2014, the Industrial Commission similarly

moved. Because both motions relied on materials outside the pleadings, this court sua

sponte converted those to motions for summary judgment and granted the parties until

August 8, 2014, to respond pursuant to Civ.R. 56. Gruhin filed responses to these later

dispositive motions. Accordingly, this matter is ripe for disposition. For the following

reasons, this court grants the respondents’ motions for summary judgment, denies
Gruhin’s motion for summary judgment, and denies the application for a writ of

prohibition.

                            Factual and Procedural Background

       {¶3} On September 26, 2011, Liebe fell at work and immediately went to her

treating physician, Dr. Ryan Haely, who diagnosed five conditions: (1) low back

sprain/strain, (2) thoracic sprain/strain, (3) cervical sprain/strain, (4) right sacroiliac

sprain/strain and (5) right knee sprain/strain.   On September 29, 2011, the doctor filed a

C-9, Physician’s Request of Medical Service and the Bureau of Workers’ Compensation

(“the Bureau”) assigned claim number 11-352776 to Liebe’s claim.

       {¶4} On October 18, 2011, the Bureau allowed all of the claims.           However,

March Hodge appealed.          In November, Liebe retained Gruhin to represent her.

Following an early December 2011 hearing, the Industrial Commission allowed three of

Liebe’s claims but disallowed the other two. Both parties appealed. At this point,

March Hodge’s independent medical examiner, Dr. Paul Martin, examined Liebe and

opined that the allowed conditions were “flare ups” of pre-existing conditions and were

not new or separate injuries resulting from the September 26, 2011 fall.      On February

22, 2012, Dr. Haely submitted a report rebutting Dr. Martin’s opinions and specifically

stating that Liebe suffered new and distinct injuries from the September 2011 fall. On

February 23, 2012, the Industrial Commission heard the appeal and affirmed the previous

decision; three claims were allowed and two disallowed.

       {¶5} Liebe appealed the disallowances to the common pleas court, Liebe v. Admr.
Bur. of Workers’ Comp., Cuyahoga C.P. No. CV-12-781525. March Hodge did not

appeal, but defended the disallowances.           As part of discovery, March Hodge’s attorney

in April 2013 reviewed Dr. Haely’s medical records for Liebe.                      Among the papers

found were an initial draft of the report rebutting Dr. Martin’s opinions and a response

from Gruhin’s office suggesting proposed changes. Comparing the “proposed changes”

memo with the final report indicates that the doctor adopted the changes verbatim into the

final report.     However, Dr. Haely has maintained that discussions with Gruhin’s office

caused him to review Liebe’s x-rays and medical evidence and that caused him to clarify

his opinion and to employ more useful, accurate terminology.

        {¶6} The revelation that March Hodge’s attorney had possession of the “proposed

changes” memo caused Gruhin to invoke the work product privilege and demand the

return of the memo and the cessation of its use pursuant to Civ.R. 26(B)(6).1 In return,

March Hodge’s attorney accused Gruhin and his office of unethical behavior and

demanded that Liebe dismiss her litigation.

        {¶7} On April 18, 2013, March Hodge, pursuant to R.C. 4123.52, invoked the


1   Civ.R. 26(B)(6) provides: (b) Information Produced. If information is produced in discovery that is
subject to a claim of privilege or of protection as trial preparation material, the party making the claim
may notify any party that received the information of the claim and the basis for it. After being
notified, a receiving party must promptly return, sequester, or destroy the specified information and
any copies within the party’s possession, custody or control. A party may not use or disclose the
information until the claim is resolved. A receiving party may promptly present the information to the
court under seal for a determination of the claim of privilege or of protection as trial preparation
material. If the receiving party disclosed the information before being notified, it must take reasonable
steps to retrieve it. The producing party must preserve the information until the claim is resolved.
Civ.R. 40(D)(5), relating to subpoenas, contains nearly identical provisions.
Industrial Commission’s continuing jurisdiction by filing a C-86 motion on the basis of

new and changed circumstances of newly discovered evidence.                 A district hearing

officer conducted a hearing and, on August 29, 2013, in an eight-page decision

disallowed all of Liebe’s claims.        The hearing officer decided that the “proposed

changes” memo was not privileged information, that the Industrial Commission had

jurisdiction pursuant to R.C. 4123.52 and that because Dr. Haely’s report was no longer

credible, all of Liebe’s claims should be disallowed.

       {¶8} Liebe appealed this decision and a Staff Hearing Officer hearing was

scheduled for November 24, 2014. At that time, the relators filed this prohibition action

and this court issued an alternative writ directing that the respondents not conduct the

Staff Hearing Officer hearing until further order of this court.2

       {¶9} On July 11, 2014, Liebe, March Hodge and the Industrial Commission

reached a universal settlement as to Liebe’s claims.        In exchange for $14,000 and the

Industrial Commission’s waiver of repayment, Liebe dismissed Claim No. 11-352776; her

common pleas court appeal, Case No. CV-12-781525, and her claims in this prohibition

action. March Hodge and the Industrial Commission assert that these dismissals render


2 The litigation concerning Liebe’s claim and the work product privilege continued
in other forums not affected by this writ of prohibition. In Liebe’s common pleas
appeal, Liebe filed a motion in limine to prohibit the use of the “proposed changes”
memo because of the work product privilege, and March Hodge filed a motion in limine to exclude
the use of Dr. Haely’s report. The trial court summarily denied both. Liebe appealed these
decisions in Liebe v. Admr., Bur. of Workers’ Comp., 8th Dist. Cuyahoga No. 100230, but on May 1,
2014, this court dismissed the appeal for lack of a final, appealable order. Additionally, March
Hodge commenced suit against Dr. Haely for fraud in Cuyahoga C.P. No. CV-14-826567.
Gruhin’s claims for prohibition moot. Indeed, in its July 17, 2014 motion, the Industrial

Commission stated that “there will be no further OIC proceedings.” (Pg. 4.) In response,

Gruhin asserts that the issue of whether the “proposed changes” memo is privileged has

not been resolved, that the respondents must disgorge the privileged material pursuant to

Civ.R. 26(B)(6), that the Industrial Commission may institute a fraud investigation and

has not vacated the August 29, 2013 decision, that the issue of whether such work product

material is privileged is capable of repetition yet evading review, and that this prohibition

action is not moot.

                                    Discussion of Law

       {¶10} The principles governing prohibition are well established. Its requisites are

(1) the respondent against whom it is sought is about to exercise judicial power, (2) the

exercise of such power is unauthorized by law, and (3) there is no adequate remedy at

law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989).

Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the

cause that it is attempting to adjudicate or the court is about to exceed its jurisdiction.

State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941), paragraph three of

the syllabus. “The writ will not issue to prevent an erroneous judgment, or to serve the

purpose of appeal, or to correct mistakes of the lower court in deciding questions within

its jurisdiction.” State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64,

65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution and not

issue in a doubtful case.   State ex rel. Merion v. Tuscarawas Cty. Court of Common
Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940); and Reiss v. Columbus Mun. Court, 76

Ohio Law Abs. 141, 145 N.E.2d 447 (10th Dist.1956). Nevertheless, when a court is

patently and unambiguously without jurisdiction to act whatsoever, the availability or

adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel.

Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988), and State ex rel. Csank v.

Jaffe, 107 Ohio App.3d 387, 668 N.E.2d 996 (8th Dist.1995). However, absent such a

patent and unambiguous lack of jurisdiction, a court having general jurisdiction of the

subject matter of an action has authority to determine its own jurisdiction. A party

challenging the court’s jurisdiction has an adequate remedy at law via an appeal from the

court’s holding that it has jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of

Edn. v. Portage Cty. Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365

(1997). Moreover, this court has discretion in issuing the writ of prohibition. State ex rel.

Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973).

       {¶11} This court concludes that Liebe’s settlement does render this prohibition

action moot because it precludes the fulfillment of the first element of prohibition, that

the respondent is about to exercise judicial or quasi-judicial power.        The Industrial

Commission will not conduct further proceedings relating to Liebe’s claims. It will not

be exercising judicial or quasi-judicial power.

       {¶12} Moreover, to the extent that Gruhin relied on the transfer of jurisdiction

principle for his prohibition claim, the settlement of the common pleas appeal removed

that jurisdictional impediment.     The court further notes that Gruhin did not cite
persuasive authority for the principle that the transfer of jurisdiction principle “trumps”

the statutorily granted continuing jurisdiction of the Industrial Commission under R.C.

4123.52. Thus, Gruhin failed in his burden of proof and persuasion. Cf. State ex rel.

City of Westlake v. Corrigan, 8th Dist. Cuyahoga No. 86575, 2006-Ohio-3323.3

       {¶13} Gruhin speculates that the Industrial Commission could commence fraud

proceedings against Dr. Haely arising out of Liebe’s claims.           However, he presented no

evidence that the Industrial Commission will do this and this court will not issue a writ of

prohibition on speculation.

       {¶14} This court is not convinced that the “capable of repetition yet evading

review” exception to mootness applies in the present case. The multiple opportunities

for review and appeal in workers’ compensation cases would allow the issue of work

product privilege to be resolved on its merits on a full record when and if this scenario

should ever arise again.

       {¶15} Gruhin’s primary premise that the respondents’ use of privileged work

product information exceeded the judicial authority of the Industrial Commission and

deprived it of jurisdiction to proceed is not well founded. Prohibition is not the remedy

to resolve issues of privilege or discovery.             R.C. 4123.08 and 4123.10 grant the

Industrial Commission the power to take testimony and hear evidence and to make


3  Because the underlying claim has been settled and the matter is moot and because Gruhin did not
cite authority on this issue, this court does not decide the issue of the Industrial Commission’s
continuing jurisdiction while all or part of the claim is on appeal to the courts. This court declines
to issue an advisory opinion.
investigations to ascertain the substantial rights of the parties and to carry out justly the

spirit of the workers’ compensation law.      These statutory grants of power necessarily

include the power to consider evidence, discovery, and privilege.     The Supreme Court of

Ohio has repeatedly ruled that “trial courts have the requisite jurisdiction to decide issues

of privilege; thus, extraordinary relief in prohibition will not lie to correct any errors in

decisions of these issues.”   State ex rel. Herdman v. Watson, 85 Ohio St.3d 537, 538,

700 N.E.2d 1270 (1998); State ex rel. Abner v. Elliot, 85 Ohio St.3d 11, 706 N.E.2d 765

(1999); and State ex rel. Mulholland v. Schweikert, 99 Ohio St.3d 291, 2003-Ohio-3650,

791 N.E.2d 1164.

       {¶16} Finally, it appears that the relief Gruhin really seeks is a declaration that the

“proposed changes” memo is protected work product and that he is entitled to have the

respondents return the memo to him and cease all use of the memo.        If the allegations in

a writ complaint indicate that the real object sought is a declaratory judgment, the

complaint does not state a cause of action for an extraordinary writ.          The court of

appeals does not have jurisdiction over claims for declaratory judgment. State ex rel.

Beane v. Dayton, 112 Ohio St.3d 553, 2007-Ohio-811, 862 N.E.2d 97, and State ex rel.

Ministerial Day Care Assn. v. Zelman, 100 Ohio St.3d 347, 2003-Ohio-6447, 800 N.E.2d

21.

       {¶17} Accordingly, this court grants the respondents’ motions for summary

judgment, denies Gruhin’s motion for summary judgment and denies the application for a

writ of prohibition. Relator Gruhin to pay costs. The court vacates its alternative writ
as moot. This court directs the clerk of courts to serve all parties notice of this judgment

and its date of entry upon the journal as required by Civ.R. 58(B).




Writ denied.



EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE JR., P.J., and
PATRICIA A. BLACKMON, J., CONCUR
