[Cite as State ex rel. Lynch v. Indus. Comm., 116 Ohio St.3d 342, 2007-Ohio-6668.]




              THE STATE EX REL. LYNCH, APPELLANT, v. INDUSTRIAL
                      COMMISSION OF OHIO, APPELLEE, ET AL.
                    [Cite as State ex rel. Lynch v. Indus. Comm.,
                        116 Ohio St.3d 342, 2007-Ohio-6668.]
Exchanging labor for pay on a sustained basis constitutes sustained remunerative
        employment       sufficient    to   terminate      permanent      total      disability
        compensation, even when the labor is the illegal selling of drugs.
 (No. 2007-0423 — Submitted October 9, 2007 — Decided December 19, 2007.)
               APPEAL from the Court of Appeals for Franklin County,
                           No. 05AP-1233, 2007-Ohio-292.
                                  __________________
        Per Curiam.
        {¶ 1} In this direct appeal, we review appellee Industrial Commission of
Ohio’s determination that appellant Henry Lynch’s ongoing crack-cocaine
enterprise constituted sustained remunerative employment sufficient to terminate
permanent total disability compensation.           Lynch was injured in an industrial
accident in 1967 and was subsequently awarded permanent total disability
compensation. In 1997, Lynch was indicted by a federal grand jury on multiple
charges relating to the possession, sale, and distribution of crack cocaine. The
criminal complaint and supporting affidavit alleged that from approximately
January 1, 1994, through July 17, 1997, Lynch was selling crack from his home.
Lynch also supplied others with crack for resale. Lynch’s income from the
enterprise was estimated at $300 to $500 a week.
        {¶ 2} Lynch pleaded guilty in federal court to conspiracy to possess
cocaine with intent to distribute. See United States v. Lynch (C.A.6, 1999), 181
F.3d 105 (Table), 1999 WL 282692.              Lynch was then incarcerated, and the
                             SUPREME COURT OF OHIO




Bureau of Workers’ Compensation moved to terminate Lynch’s permanent total
disability compensation and to have all the compensation paid to Lynch on or
after January 31, 1994, declared an overpayment. A notice of the hearing on that
motion was sent to Lynch’s home.
         {¶ 3} On March 10, 1998, the commission held the hearing, and on
March 19, 1998, it found that Lynch’s “criminal activities for profit * * *
constitute[d] sustained remunerative employment.” Permanent total disability
compensation was terminated retroactive to January 31, 1994. That order became
final.
         {¶ 4} In June 2004, Lynch filed a motion with the commission alleging
that he had not received notice of the March 10, 1998 disability-termination
hearing or the actual termination order. He asked the commission to either reopen
the issue by exercising its R.C. 4123.52 continuing jurisdiction or permit him to
file a belated motion for reconsideration pursuant to R.C. 4123.522.           The
commission granted the latter.
         {¶ 5} Lynch then filed his belated motion for reconsideration of the
March 19, 1998 order, alleging that the commission had committed a clear
mistake of law in terminating his compensation. The commission found that a
clear error of law had not occurred, and hence it had no continuing jurisdiction to
reopen the March 19, 1998 order and reexamine the merits of Lynch’s entitlement
to permanent total disability.
         {¶ 6} Lynch turned to the Court of Appeals for Franklin County. That
court denied the requested writ of mandamus, prompting Lynch’s appeal to this
court as of right.
         {¶ 7} Lynch first argues that the March 19, 1998 order terminating his
permanent total disability did not satisfy the procedural requirements of State ex
rel. Nicholls v. Indus. Comm. (1998), 81 Ohio St.3d 454, 692 N.E.2d 188, State ex
rel. Foster v. Indus. Comm. (1999), 85 Ohio St.3d 320, 707 N.E.2d 1122, and




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                                    January Term, 2007




State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-Ohio-5990, 817
N.E.2d 398. These cases held that commission orders must indicate which of five
identified prerequisites1 is the basis for the exercise of continuing jurisdiction.
Lynch’s position, however, overlooks a critical point —- these three cases were
decided after the termination order in his case. Lynch’s proposition accordingly
lacks merit.
        {¶ 8} Lynch also claims that the commission cannot consider the activity
he engaged in to be sustained remunerative employment, because the activity was
illegal. We disagree. Lynch cannot use the illegality of his pursuits as a shield.
Lynch exchanged labor for pay on a sustained basis. This constitutes sustained
remunerative employment for purposes of permanent total disability. State ex rel.
Lawson v. Mondie Forge, 104 Ohio St.3d 39, 2004-Ohio-6086, 817 N.E.2d 880, ¶
19.
        {¶ 9} The judgment of the court of appeals is affirmed.
                                                                         Judgment affirmed.
        MOYER,       C.J.,   and    PFEIFER,       LUNDBERG      STRATTON,        O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
                                       __________________
        Ward, Kaps, Bainbridge, Maurer & Melvin, L.L.C., and Paul F. Ward, for
appellant.
        Marc Dann, Attorney General, and Douglas R. Unver, Assistant Attorney
General, for appellee.
                                    ______________________




1. The five prerequisites are fraud, new and changed circumstances, clear mistake of fact, clear
mistake of law, and error by an inferior tribunal. See Nicholls at 458-459, 692 N.E.2d 188.




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