[Cite as Knapp v. Defiance Therapeutic Massage & Wellness Ctr., 2018-Ohio-1890.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY




ALISSA M. KNAPP, ET AL.,

       APPELLEES,                                                 CASE NO. 4-17-20

       v.

DEFIANCE THERAPEUTIC MASSAGE
& WELLNESS CENTER, LLC,                                           OPINION

       APPELLANT.




                Appeal from Defiance County Common Pleas Court
                          Trial Court No. 16-CV-43656

                                    Judgment Affirmed

                             Date of Decision: May 14, 2018




APPEARANCES:

        Mark S. Barnes for Appellant

        Eric A. Baum for Appellees
Case No. 4-17-20


PRESTON, J.

       {¶1} Appellant, Defiance Therapeutic Massage & Wellness Center, L.L.C.

(“Defiance Therapeutic”), appeals the judgment of the Defiance County Court of

Common Pleas affirming the Unemployment Compensation Review Commission’s

(“Commission”) determination allowing claimant-appellee’s, Alissa M. Knapp

(“Knapp”), application for unemployment compensation benefits. For the reasons

that follow, we affirm.

       {¶2} Knapp’s employment as a massage therapist with Defiance Therapeutic

was terminated on September 25, 2015. (Doc. No. 1, Ex. B). After her employment

was terminated, Knapp filed an application for unemployment compensation

benefits. (Doc. No. 4).

       {¶3} On November 20, 2015, appellee, the Ohio Department of Job &

Family Services (“ODJFS”), approved Knapp’s application for unemployment

compensation benefits.    (Id.).    On December 10, 2015, Defiance Therapeutic

appealed ODJFS’s decision approving Knapp’s application for unemployment

compensation benefits.     (Id.).    On December 30, 2015, ODJFS issued its

redetermination reversing its initial determination allowing Knapp’s application for

unemployment compensation. benefits (Id.). On January 5, 2016, ODJFS issued an

order vacating its December 30, 2015 redetermination. (Id.). That same day, it

issued a redetermination allowing Knapp’s application for unemployment


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compensation benefits.      (Id.).   Defiance Therapeutic appealed ODJFS’s

redetermination on January 26, 2016. (Id.).

      {¶4} On January 28, 2016, Defiance Therapeutic’s appeal was transferred to

the Commission. (Id.). After telephone hearings on February 22 and April 13, 2016,

the Commission issued its decision on May 2, 2016 affirming ODJFS’s

determination. (Id.). On May 23, 2016, Defiance Therapeutic requested that the

Commission review its May 2, 2016 decision.        (Id.).   On June 8, 2016, the

Commission denied Defiance Therapeutic’s request for review. (Id.).

      {¶5} On July 6, 2016, Defiance Therapeutic appealed to the Defiance County

Court of Common Pleas the Commission’s denial of its request for review of its

May 2, 2016 decision affirming ODJFS’s determination allowing Knapp’s

application for unemployment compensation benefits. (Doc. No. 1).

      {¶6} Defiance Therapeutic filed the administrative file on August 18, 2016.

(Doc. No. 4). Defiance Therapeutic filed its brief on October 31, 2016. (Doc. No.

10). ODJFS filed its response to Defiance Therapeutic’s brief on March 13, 2017.

(Doc. No. 19). On April 18, 2017, Defiance Therapeutic filed its reply to ODJFS’s

response. (Doc. No. 22).

      {¶7} On October 31, 2017, the trial court denied Defiance Therapeutic’s

appeal and affirmed the May 2, 2016 decision of the Commission. (Doc. No. 23).




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       {¶8} Defiance Therapeutic filed its notice of appeal on November 27, 2017.

(Doc. No. 24). It raises one assignment of error for our review.

                               Assignment of Error

       The Trial Court Erred in Affirming the Decision of the Review
       Commission that Appellee Alissa M. Knapp was an Employee of
       Defiance Therapeutic, as Said Decision is Unlawful,
       Unreasonable, and Against the Manifest Weight of the Evidence.

       {¶9} In its assignment of error, Defiance Therapeutic argues that the trial

court erred by affirming the Commission’s decision approving Knapp’s application

for unemployment compensation benefits because the “Commission’s decision

finding [that Knapp] worked in covered employment at Defiance Therapeutic

Wellness Center under R.C. 4141.01(B)(1) is unlawful, unreasonable, and against

the manifest weight of the evidence.” (Appellant’s Brief at 22). That is, Defiance

Therapeutic challenges the Commission’s conclusion that Knapp was not an

independent contractor of Defiance Therapeutic.

       {¶10} “An applicant seeking unemployment compensation benefits submits

to ODJFS an application for such benefits along with information in support of his

or her claim.” Henderson v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin

No. 12AP-154, 2012-Ohio-5382, ¶ 5, citing McGee v. Ohio Dept. of Job & Family

Servs., 10th Dist. Franklin No. 09AP-680, 2010-Ohio-673, ¶ 9. “Initially, ODJFS

makes findings of fact and conclusions of law as to whether the applicant is entitled

to   unemployment      compensation     benefits.”   Id.,   citing   McGee     at   ¶

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9, citing R.C. 4141.28(B). “Such decision is subject to an appeal to the commission

for a de novo hearing.” Id., citing McGee at ¶ 9, citing R.C. 4141.281(C)(1) and

(3).

       {¶11} “A party dissatisfied with the commission’s final determination may

appeal to the appropriate court of common pleas, which shall hear the appeal on the

record certified by the commission.” Id. at ¶ 6, citing McGee at ¶ 10, citing R.C.

4141.282(H).

       Pursuant to R.C. 4141.282(H), “[i]f the court [of common pleas] finds

       that the decision of the commission was unlawful, unreasonable, or

       against the manifest weight of the evidence, it shall reverse, vacate, or

       modify the decision, or remand the matter to the commission.

       Otherwise, the court shall affirm the decision of the commission.”

Id., quoting McGee at ¶ 10.

       {¶12} “This standard of review applies to all levels of appellate review in

unemployment compensation cases.” Id. at ¶ 7, citing Tzangas, Plakas & Mannos

v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 696-97 (1995). “Applying the same

standard of review at both the common pleas and appellate court levels does not

result in a de novo review standard.” Id., citing Tzangas at 697. “In reviewing

commission decisions, a court may not make factual findings or determine witness

credibility.” Id., citing Tzangas at 696, citing Irvine v. State Unemp. Comp. Bd. of


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Rev., 19 Ohio St.3d 15, 18 (1985). “Factual questions remain solely within the

province of the commission.” Id., citing Tzangas at 697. “Similarly, a court may

not substitute its judgment for that of the commission.” Id., citing McCarthy v.

Connectronics Corp., 183 Ohio App.3d 248, 2009-Ohio-3392, ¶ 16 (6th Dist.),

citing Irvine at 18.    “The fact that reasonable minds might reach different

conclusions is not a basis for reversing the commission’s decision.” Id., citing

McGee at ¶ 11, citing Tzangas at 696. “Instead, a court must ‘determine whether

[the Commission’s] decision is supported by the evidence in the record.’” Id.,

quoting Tzangas at 696, citing Irvine at 18.      “Judgments supported by some

competent, credible evidence on the essential elements of the controversy may not

be reversed as being against the manifest weight of the evidence.” Id., citing Houser

v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin No. 10AP-116, 2011-

Ohio-1593, ¶ 7, citing Carter v. Univ. of Toledo, 6th Dist. Lucas No. L-07-1260,

2008-Ohio-1958, ¶ 12, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d

279 (1978), syllabus.

       {¶13} “This court’s focus is on the commission’s decision, rather than on

that of the common pleas court.” Id. at ¶ 8, citing Howard v. Electronic Classroom

of Tomorrow, 10th Dist. Franklin No. 11AP-159, 2011-Ohio-6059, ¶ 12,

citing Moore v. Comparison Mkt., Inc., 9th Dist. Summit No. 23255, 2006-Ohio-

6382, ¶ 8. “Thus, our task is to review the commission’s decision and determine


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whether it is supported by evidence in the certified record and is unlawful,

unreasonable or against the manifest weight of the evidence.” Id., citing McGee at

¶ 12.

        {¶14} Accordingly, the issue before us is whether the Commission’s

determination that Knapp worked in covered employment with Defiance

Therapeutic is against the manifest weight of the evidence because it is not

supported by some competent, credible evidence, or, conversely, whether it is

unlawful or unreasonable. See Clark v. Ohio Dept. of Job & Family Servs., 2d Dist.

Montgomery No. 25257, 2012-Ohio-5311, ¶ 7.

        {¶15} On May 6, 2016, the Commission issued a written decision, which

included the following pertinent findings of fact:

             [Knapp] began performing [massage therapy services for

        Defiance Therapeutic] with the understanding that she would be an

        independent contractor.    [Knapp] did not sign an independent

        contractor agreement with Carrie Radzik [(“Radzik”)], managing

        member[,] but rather agreed to pay a share of the revenue she brought

        in, excluding tips. [Knapp] was given access to the facility via a

        security code and was able to set her own hours. [Knapp] was

        responsible for providing her own liability insurance. [Knapp] never




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      discussed the prospect of performing work at another facility and had

      the flexibility to work the hours she chose.

           [Knapp] was asked to fill-in for the receptionist to answer the

      telephone or schedule appointments when the receptionist was not

      available. [Knapp] did not solely schedule appointments for herself

      when she filled in. [Knapp] was responsible for cleaning the linens

      she used and was asked to clean linens used by the other individuals

      who provided services. [Knapp] was informed as to a specific way to

      fold the linens. With respect to opening and closing, [Knapp] was

      informed of certain expectations which included opening and closing

      the blinds at or by certain times, turning on an outside light when

      leaving for the day and ensuring the back door is properly and

      completely shut.

           During the period that [Knapp] provided services she was asked

      to pay Worker’s [sic] Compensation premiums and was encouraged

      to attend regular staff meetings.       During the time she provided

      services the employer introduced a handbook which contained

      expectations with respect to reporting for work no later than thirty

      minutes prior to their first appointment, an approval process for

      changing schedules, a corrective access procedure, checking facility


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       voicemail, and backroom cleaning responsibilities. The backroom

       responsibilities included cleaning the back area, labeling food in the

       refrigerator, and specific laundry instructions which included when

       laundry should be started, how to best dry the laundry and specific

       folding instructions.

            [Knapp] brought some clients to the facility when she began

       performing services. She was required to complete documentation

       regarding the services which were placed in client charts. When

       [Knapp] was separated she was not permitted to remove client files,

       including information regarding the clients she brought to the facility

       in March, 2010.

(Doc. No. 1, Ex. B); (Doc. No. 4).

       {¶16} Based on those facts, the Commission concluded that an employer-

employee relationship existed between Defiance Therapeutic and Knapp within the

meaning of the statute. In particular, based on the application of the 20 factors under

Ohio Adm.Code 4141-3-05 (B), the Commission concluded that Defiance

Therapeutic “did have the right to control” Knapp. (Id.); (Id.). Regarding the

application of those 20 factors, the Commission reasoned:

       [Defiance Therapeutic] operates a spa and the acupuncture services

       [sic] performed by [Knapp] were essential to the profitability of the


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        company.     Those services were an integral part of the regular

        functions of the company. There were a number of examples of

        control that were not typical in a business to business relationship.

        [Knapp] answered the telephone when the receptionist was not

        present, scheduled others [sic] appointments, and performed filing as

        needed. She further cleaned and folded laundry not used by her and

        the client’s [sic] she serviced, and was not permitted to take her client

        files when the employment relationship was severed. [Knapp] did not

        have a written independent contractor agreement but rather was

        governed by a manual which set forth opening and closing procedures,

        refrigerator cleaning, and other subjects that are not typically covered

        in a typical business to business relationship. In addition, [Knapp]

        engaged in a continuing relationship, was paid regularly, was not

        permitted to bring substitutes and had to pay money towards Worker’s

        [sic] Compensation coverage.

(Id.); (Id.).

        {¶17} After reviewing the record, we conclude that the Commission’s

determination that Knapp worked in covered employment with Defiance

Therapeutic is not unlawful, unreasonable, or against the manifest weight of the

evidence. “R.C. 4141.01(B)(1) defines ‘employment’ as ‘service performed by an


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individual for remuneration under any contract of hire, written or oral, express or

implied, * * * unless it is shown to the satisfaction of the director that such

individual has been and will continue to be free from direction or control over the

performance of such service, both under a contract of service and in fact.’”

Henderson, 2012-Ohio-5382, at ¶ 11, quoting R.C. 4141.01(B)(1).

       {¶18} Consistent with the statutory definition of “employment” under R.C.

4141.01, Ohio Adm.Code 4141-3-05(A) provides, in relevant part:

       “[A] worker is in employment when an ‘employer-employee’

       relationship exists between the worker and the person for whom the

       individual performs services and the director determines that:

       (1) The person for whom services are performed has the right to

       direct or control the performance of such services; and

       (2) Remuneration is received by the worker for services performed.”

Evans v. Dir. Ohio Dept. Job & Family Servs., 10th Dist. Franklin No. 14AP-743,

2015-Ohio-3842, ¶ 15, quoting Ohio Adm.Code 4141-3-05(A).

       {¶19} “Ohio Adm.Code 4141-3-05(B) sets forth 20 factors ‘[a]s an aid to

determining whether there is sufficient direction or control present’ to establish

employment.” Id. at ¶ 16, quoting Ohio Adm.Code 4141-3-05(B).

       Those factors, which “are designed only as guides” and “must be

       considered in totality,” include:


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      (1) The worker is required to comply with the instructions of the

      person for whom services are being performed, regarding when,

      where, and how the worker is to perform the services;

      (2) The person for whom services are being performed requires

      particular training for the worker performing services;

      (3) The services provided are part of the regular business of the

      person for whom services are being performed;

      (4) The person for whom services are being performed requires that

      services be provided by a particular worker;

      (5) The person for whom services are being performed hires,

      supervises or pays the wages of the worker performing services;

      (6) A continuing relationship exists between the person for whom

      services are being performed and the worker performing services that

      contemplates continuing or recurring work, even if not full time;

      (7) The person for whom services are being performed requires set

      hours during which services are to be performed;

      (8) The person for whom services are being performed requires the

      worker to devote himself or herself full time to the business of the

      person for whom services are being performed;




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      (9) The person for whom services are being performed requires that

      work be performed on its premises;

      (10) The person for whom services are being performed requires that

      the worker follow the order of work set by the person for whom

      services are being performed;

      (11) The person for whom services are being performed requires the

      worker to make oral or written progress reports;

      (12) The person for whom services are being performed pays the

      worker on a regular basis such as hourly, weekly or monthly;

      (13) The person for whom services are being performed pays

      expenses for the worker performing services;

      (14) The person for whom services are being performed furnishes

      tools, instrumentalities, and other materials for use by the worker in

      performing services;

      (15) There is a lack of investment by the worker in the facilities used

      to perform services;

      (16) There is a lack of profit or loss to the worker performing services

      as a result of the performance of such services;

      (17) The worker performing services is not performing services for a

      number of persons at the same time;


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       (18) The worker performing services does not make such services

       available to the general public;

       (19) The person for whom services are being performed has a right to

       discharge the worker performing services;

       (20) The worker performing services has the right to end the

       relationship with the person for whom services are being performed

       without incurring liability pursuant to an employment contract or

       agreement.

Id., quoting Ohio Adm.Code 4141-3-05(B).

       {¶20} “The director shall make a determination, based on the factors listed

in this rule, as to whether or not an employment relationship exists for purposes of

Chapter 4141. of the Revised Code.”              Hasch v. Vale, 5th Dist. Stark No.

2001CA00361, 2002 WL 1343262, *3 (June 17, 2002). “‘The burden of proving

entitlement to the independent contractor exemption is on the employer.’” BNA

Constr., Ltd. v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin No. 16AP-

317, 2017-Ohio-7227, ¶ 21, quoting Peter D. Hart Research Assocs., Inc. v. Admr.

Ohio Bur. of Emp. Servs., 10th Dist. Franklin No. 95APE06-736, 1995 WL 765202,

*3 (Dec. 28, 1995), citing McConnell v. Admr. Ohio Bur. of Emp. Servs., 10th Dist.

Franklin No. 95APE03-262, 1995 WL 584359, *3 (Oct. 5, 1995).




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       {¶21} Knapp testified at the February 22, 2016 telephone hearing. (Feb. 22,

2016 Tr. at 11). On examination by the hearing officer, she testified that she began

work for Defiance Therapeutic in 2010 but did not have a written contract with

Defiance Therapeutic. (Id. at 12). She assumed that she “was an independent

contractor.” (Id. at 13). As compensation, Knapp received 50 percent of the fees

that her clients were charged for her services. (Id. at 12). She renegotiated her rate

to 60 percent in July 2012. (Id. at 13). She testified that Radzik set the rate that she

could charge her massage clients based on what Radzik “wanted for the company.”

(Id. at 26). She did not provide massage services for any other business during the

time she worked for Defiance Therapeutic. (Id. at 12).

       {¶22} Regarding her schedule, Knapp was permitted to “get 60 hours that

[she] preferred and then [Radzik] would [schedule] accordingly as long as it fit with

everybody else’s schedule.” (Id. at 25). She was required to “call the office and let

the office manager know that [she] would not be making it in” on days that she

needed to miss work and the office manager would reschedule her appointments.

(Id. at 27). Knapp had to obtain Radzik’s approval to take vacation time off. (Id.).

       {¶23} Knapp was required to document “[c]harting” in the specific manner

that Radzik required, which was beyond what she was required to do by the State.

(Id. at 21). She further testified that “we would hand our charts to the office

managers and if not done right, the charts were given back to us to, to complete


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right.” (Id.). She testified that she was “pressured by Defiance [Therapeutic] to do

this certain continuing ed[udcation].” (Id. at 23). In particular, Knapp “would get

a raise if [she] took this class that which was taught by [Radzik].” (Id.).

       {¶24} According to Knapp, Defiance Therapeutic provided the materials that

she utilized for massage. (Id. at 14). She did not have her own work space; rather,

she “was bumped around to room to room [wherever] there was availability.” (Id.

at 14). Likewise, she was not permitted to decorate her work area. (Id. at 18). As

a uniform, Knapp wore dark-colored scrubs because that was what Radzik wanted

her to wear. (Id. at 16-17). She paid for her own liability insurance. (Id. at 38).

       {¶25} In addition to massage, Knapp testified that she was responsible for

providing ancillary services, including scheduling for other therapists, answering

the phone, laundering linens, and conducting opening and closing procedures. (Id.

at 15-16, 20). Knapp was required to attend staff meetings, which were held “during

[her] time off so [she] had to come in during [her] time off” to attend the meetings.

(Id. at 18). According to Knapp, she was disciplined for failing to attend those

meetings and for bringing her daughter to those meetings during the times she could

not find a babysitter. (Id. at 19). Knapp was also required to attend outside events,

where she was expected to “solicit people walking by the tables [by] giving the

information about the center as a whole.” (Id. at 26).




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       {¶26} Knapp testified that she received a standards of practice manual in

August 2015, which

       goes from the introduction to the history of the center, a classification

       of independent contractor to employment policies, * * * to standards

       of conduct, work scheduled, absent lateness [sic], how to take meals

       and breaks, * * * dress code, soliciting and distribution, * * * any

       outside employment, * * * independent contractor termination and

       resignation, * * * the responsibilities of an independent contractor

       such as charting, laundry responsibilities, backroom, opening,

       closing, events, * * * inventory, * * * and then it goes to independent

       contractor benefits where you talk about, * * * how would it cost for

       retail, professional discounts, what kind of discount we can give to

       our family, to keeping up with our vendors’ license, * * * that there

       are no benefits like holiday or how to take a vacation, who it has to be

       approved by, expenses, staff meetings, how events are supposed to

       happen, [and] how social media and advertising is supposed to happen

       * * *.

(Id. at 17).

       {¶27} On examination by counsel for ODJFS, Knapp testified that, prior to

receiving the manual, similar direction was provided to therapists through staff


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meetings. (Id. at 30). She clarified that the policies and procedures were in place

prior to the establishment of the manual; the manual codified those requirements.

(Id. at 36). However, she testified that the manual contained new disciplinary

procedures “for not charting” or “attending meetings.” (Id.).

       {¶28} Knapp testified that her employment with Defiance Therapeutic was

an employer-employee relationship because she

       was expected to be loyal to the place of work, [she] was being paid by

       a paycheck on a bi-weekly basis, [she] was being told what to do and

       how to do it. [She] was being controlled through the threat of

       dismissal, [she] was being required to go to training or mandatory

       meetings and [required to obtain] approval on pretty much anything

       [she] wanted to do.

(Id. at 37).

       {¶29} She testified that she was not compensated for providing the ancillary

services; however, she testified that she was compensated for her work as a

receptionist—which lasted approximately one year—at an hourly rate when she

began working at Defiance Therapeutic. (Id. at 30-31). The continuing education

that Knapp completed was not required for her massage license. (Id. at 31). When

Knapp completed the continuing education, she did not receive a raise of a set




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amount; rather, her percentage of commission was increased from 50 percent to 60

percent. (Id. at 32).

       {¶30} Knapp purchased the “face covers for chair massage” as supplies and

her uniform scrubs. (Id. at 32). She also purchased from Radzik a Defiance

Therapeutic polo shirt. (Id.). Regarding advertising, Knapp testified that “all

advertising design and pretty much what it said” “was done by” the office manager

and Radzik. (Id. at 32). According to Knapp, “one time [she] tried to do a postcard,

* * * but it was denied because it didn’t have * * * the right * * * logo on it and it

wasn’t through Defiance Therapeutic Massage & Wellness Vista Print account and

so it had to be done through that account for [her] to do it so [she] just gave up on it

and didn’t do it at all.” (Id. at 32-33).

       {¶31} Knapp testified that Defiance Therapeutic deducted workers’

compensation insurance premiums from her paycheck. (Id. at 34-35). She testified

that she did not obtain workers’ compensation coverage as an independent

contractor. (Id. at 35). She testified that she was told that she could not take time

off a few times that she wanted to take off because other therapists were off during

that time. (Id. at 35-36). Although she was not explicitly told that she could not

work anywhere else during the time she was employed with Defiance Therapeutic,

she assumed that she could not work elsewhere. (Id. at 33).




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       {¶32} Knapp went to Defiance Therapeutic after her termination to retrieve

her belongings; however, Radzik refused to provide to Knapp her clients’ files. (Id.

at 34). Knapp never received her clients’ files. (Id.).

       {¶33} On examination by counsel for Defiance Therapeutic, Knapp testified

that she typically determined the method that she would use in performing her

massages, “unless [she] was [massaging] Ms. Radzik’s clients, [Radzik] would tell

[Knapp], what was always done on that client and what problem was going on * *

*.” (Id. at 40). She testified that she was able to offer special massage pricing.

(Apr. 13, 2016 Tr., Vol. I, at 14). (See also ODJFS Ex. G). She could refuse to

treat any client, she could terminate her relationship with Defiance Therapeutic, and

Defiance Therapeutic could terminate its business relationship with her. (Apr. 13,

2016 Tr., Vol. I, at 15). She testified that she was not permitted to sell any other

products, such as Mary Kay, on the premises of Defiance Therapeutic. (Id. at 20).

She testified that she “got the cash [tips], like right away, * * * the check ones and

credit card ones were given to [her] altogether in [her] check that [she was] given

every two weeks.” (Id. at 23).

       {¶34} Knapp testified that she was free to donate her services to various

charities at her discretion. (Id. at 24). She testified that she filed income tax as a

sole proprietor from 2009 through 2014. (Id. at 25). She received her hourly

receptionist pay on a 1099 form as well as her massage-therapist pay. (Id. at 28).


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       {¶35} Next, Michael Goosey (“Goosey”) testified that he is a supervisor in

the compliance section of ODJFS. (Id. at 31). On examination by counsel for

ODJFS, Goosey testified that an investigation regarding Defiance Therapeutic was

initiated after Knapp filed her application for unemployment compensation benefits

because “Knapp was not reported” by Defiance Therapeutic as a person covered

under its account. (Id. at 32). In particular, ODJFS investigated whether Knapp’s

employment with Defiance Therapeutic constituted “covered” employment. (Id. at

33). Goosey identified ODJFS Exhibits A and B as the initial compensation-

benefits-rate-determination letters regarding Defiance Therapeutic. (Id. at 33-34).

He also identified ODJFS Exhibits C through M as the evidence that ODJFS relied

on in reaching its determination that Knapp’s employment with Defiance

Therapeutic constituted covered employment. (Id. at 34-50). He described the

sections of the manual that evidence an employer-employee relationship as opposed

to a business-to-business relationship. (See id. at 50-63).

       {¶36} On examination by counsel for Defiance Therapeutic, Goosey

clarified that the manual “is an employee handbook, an employee manual” based on

“the totality of th[e] document.” (Id. at 92). In particular, he testified, “It’s not an

independent contractor document and so when you look at all of the topics that are

discussed within the * * * whole document, * * * you can point out page after page




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that is clearly established direction and control implementation versus conveniences

that were being offered and made available to the recipients * * *.” (Id. at 92-93).

        {¶37} Next, Melissa Constein (“Constein”) testified that she was the office

manager of Defiance Therapeutic from December 2013 through September 2015.

(April 13, 2016 Tr., Vol. II, at 6). On examination by the hearing officer, she

testified that Radzik informed her that the therapists were independent contractors.

(Id. at 9).

        {¶38} She testified that it “was [the therapists’] duties to fill in for” her on

days that she was not at work. (Id. at 8). Those duties included, answering the

phone, pulling their own charts, listening to messages, returning phone calls to

schedule appointments for patients, and making reminder phone calls for the next

day. (Id.). According to Constein, Knapp was able to set her own schedule;

however, she was required to submit vacation requests to Constein for approval.

(Id. at 7). Constein reviewed charts to “make sure all of the paperwork was filled

out properly.”     (Id. at 8-9).    Constein testified that she prepared Defiance

Therapeutic’s payroll and that the therapists were paid every two weeks. (Id. at 13).

To prepare the payroll, Constein “would keep track of the patients, what the service

was, what the tip amount was, what [the therapist’s] commission was” and created

a “spreadsheet and then emailed that to [Radzik] for her to * * * review and print

payroll.” (Id.).


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Case No. 4-17-20


       {¶39} She testified that she was involved with the codification of the manual.

(Id. at 9). According to Constein, Radzik downloaded a template from the internet

and “changed the wording to make it fit [Defiance Therapeutic].” (Id. at 10).

       {¶40} On examination by counsel for ODJFS, Constein testified that she and

Radzik “searched on the internet for employee handbooks, * * * employee

documents, * * * downloaded one that we felt fit best layout, [sic] * * * and changed

the wording from employee to independent contractor” when they were drafting the

manual. (Id. at 14). When the manual was provided to the therapists, they were

expected to abide by its provisions and “sign it.” (Id. at 15). According to Constein,

the majority of the manual simply codified current procedures employed by

Defiance Therapeutic—“the disciplinary actions were the only thing that * * * went

a step further.” (Id. at 16). Constein testified that the therapists “anticipate[d] being

fired if they didn’t meet [the manual’s] requirements.” (Id. at 17). She testified that

she was considered an employee of Defiance Therapeutic and, as such, was not

regulated by the manual; rather, her employment was governed by “a daily checklist

of items [she] needed to handle,” which was “just a couple of pages.” (Id. at 14).

       {¶41} On examination by counsel for Defiance Therapeutic, Constein

testified that, when Defiance Therapeutic instituted the new software system and

required the therapists to pay toward the cost of it, “it became that gray area of I’m

required to pay software [sic] that I cannot take with me if I would leave as an


                                          -23-
Case No. 4-17-20


independent contractor * * * so why am I paying for it.” (Id. at 20). She testified

that it was an inconvenience for the therapists to be required to answer the phone

and schedule appointments because when “a therapist was only there two to three

hours a week, but was to know all of the ins and outs” of the services provided by

other therapists, which was cumbersome. (Id. at 22). In particular, those therapists

were required to know how acupuncture “functioned” and what procedure the

acupuncturist utilized. (Id.). Likewise, those therapists were also required to know

how “to set up a waxing, how and the details of it.” (Id.).

       {¶42} Radzik testified on behalf of Defiance Therapeutic. (Id. at 54). On

examination by the hearing officer, Radzik testified that she did not have an

independent contractor agreement with Knapp; however, she testified that she

verbally informed Knapp that she was an independent contractor. (Id. at 55).

       {¶43} According to Radzik, prior to the manual, therapists were expected to

follow the policies and procedures contained in a “gray binder.” (Id. at 56-57). She

testified that she did not require the therapists to meet business quotas. (Id. at 58).

She further testified that she did not prohibit the therapists from working at other

establishments. (Id. at 59). Regarding cleaning the facility, she testified, “I knew

that I had no disciplinary action that I could do to them because they were

independent.” (Id. at 61). Likewise, she testified that she never disciplined anyone.

(Id.). She did not restrict the therapists from promoting their therapy services on


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Case No. 4-17-20


their own Facebook pages and allowed them to promote their services on the

Defiance Therapeutic Facebook page. (Id. at 62). Regarding the business cards,

she testified that she was not involved in the process of the therapists’ business-card

orders and the Defiance Therapeutic logo “was not to be on there.” (Id. at 63).

       {¶44} Radzik did not “have any say” as to Knapp’s business hours or whom

she accepted as a patient. (Id. at 70-71). She did not require Knapp to “get any

certain certifications.” (Id. at 70). Radzik testified that she did not prohibit Knapp

from decorating her room and provided storage space for her to maintain her

supplies in the office. (Id. at 67-68). She did not pay for Knapp’s liability insurance.

(Id. at 66).

       {¶45} On examination by counsel for Defiance Therapeutic, Radzik testified

that Knapp had “a lot of flexibility and freedom in her schedule.” (Id. at 76). She

described Knapp’s frequent schedule changes. (Id. at 76-77). According to Radzik,

if Knapp were an employee, she would not have permitted her to make so many

changes to her schedule. (Id. at 78). Radzik testified that she did not supervise

Knapp’s massage-therapy practice and did not review her client notes for accuracy.

(Id.). Although she did not discipline therapists for failing to complete patients’

charts, she expected the therapist to complete the documentation required by the

State. (Id. at 82).




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Case No. 4-17-20


       {¶46} In exchange for Knapp paying a portion of her earnings to Defiance

Therapeutic, Knapp received utilities, linens, supplies, a receptionist, and the use of

massage tables. (Id. at 69-70). Radzik asserted that attendance at the staff meetings

and outside events was not mandatory. (Id. at 78, 81-82). Indeed, she testified that

Knapp did not attend all of the outside events and was not disciplined for not

attending. (Id. at 82). She testified that she did not require therapists to receive her

approval before advertising their services. (Id.).

       {¶47} Radzik testified that the Ohio Bureau of Workers’ Compensation

(“BWC”) conducted its own review of Defiance Therapeutic to determine if its

therapists constituted employees or independent contractors, and the BWC

concluded that the therapists were independent contractors. (Id. at 88).

       {¶48} On examination by counsel for ODJFS, Radzik testified that, even

though the manual described progressive discipline for failing to attend meetings

and outside events, the progressive discipline was not enforced. (Id. at 99-100).

She clarified that she created the 40-page manual because some of the therapists

requested it. (Id. at 100-101). Notwithstanding her testimony that the therapists

could post on Defiance Therapeutic’s Facebook page, she agreed that the manual

states that “[i]ndependent contractors are required to submit their information” to

Radzik for review prior to posting it to the Facebook page. (Id. at 102). She testified




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Case No. 4-17-20


that the BWC did not review the manual as part of its review of Defiance

Therapeutic. (Id. at 105).

       {¶49} On appeal, Defiance Therapeutic advances five arguments challenging

the Commission’s determination. First, Defiance Therapeutic contends that the

Commission’s order is unlawful because it wrongly applied the statutory definition

of employment in its analysis to include the ancillary services provided by Knapp.

Second, Defiance Therapeutic argues that the Commission’s order is unlawful

“[b]ecause the hearing officer failed to articulate how he applied the 20 factors to

[Knapp’s] services as a massage therapist.” (Appellant’s Brief at 15). Third,

Defiance Therapeutic contends that the Commission’s decision that Knapp’s work

for Defiance Therapeutic constituted employment under R.C. 4141.01(B)(1) is

unreasonable and against the manifest weight of the evidence based on the

application of the factors under Ohio Adm.Code 4141-3-05(B). Fourth, Defiance

Therapeutic contends that the Commission’s decision is unreasonable and against

the manifest weight of the evidence because “a review of the hearing officer’s

decision shows the hearing officer based his reasoning on the work of an

acupuncturist, therapy services which [Knapp] did not perform.” (Id. at 21).

Finally, Defiance Therapeutic argues that the Commission’s order is unreasonable

and against the manifest weight of the evidence because the hearing officer relied




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Case No. 4-17-20


on hearsay evidence to conclude that Knapp “‘was not permitted to bring

substitutes.’” (Id. at 21-22, quoting Doc. No. 1, Ex. B).

       {¶50} Defiance    Therapeutic’s    first   argument   is   meritless.     R.C.

4141.01(B)(1) cannot be examined in a vacuum. See, e.g., Gress v. Gress, 9th Dist.

Wayne No. 95CA0069, 1996 WL 285373, *1 (May 29, 1996) (noting that the

application of the division-of-marital-property statute cannot be examined in a

vacuum, but must be considered under the totality of the circumstances); Sabino v.

WOIO, L.L.C., 8th Dist. Cuyahoga No. 102571, 2016-Ohio-491, ¶ 47 (noting that

statements are not to be judged in a vacuum, but must be based on the totality of the

circumstances). Thus, although the evidence in the record reflects that Knapp’s rate

of pay was based on her provision of massage-therapy services, it is clear from the

totality of the testimony that Knapp’s ability to practice massage therapy at Defiance

Therapeutic and receive her rate of pay was conditioned on her performance of

ancillary services. Accordingly, Defiance Therapeutic’s argument that Knapp’s

performance of her massage-therapy duties should be examined separately from her

performance of the ancillary services is erroneous.

       {¶51} Also erroneous is Defiance Therapeutic’s argument that the

Commission’s order is unlawful because “the hearing officer failed to set forth

which, if any, of [the Ohio Adm.Code 4141-3-05(B) factors] compelled the Review

Commission’s decision.” (Appellant’s Brief at 15). Although the Commission’s


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Case No. 4-17-20


order does not explicitly state which factors the hearing officer relied on, the

Commission’s order generally references the Ohio Adm.Code 4141-3-05(B)

factors, and it is apparent from the analysis contained in the order that the hearing

officer applied those factors to the testimony presented at the telephone hearings.

Stated another way, it is clear that the hearing officer considered the Ohio

Adm.Code 4141-3-05(B) factors because the order explicitly sets forth facts

relevant to several of the factors. See Misleh v. Badwan, 9th Dist. Summit No.

24693, 2009-Ohio-6949, ¶ 9 (concluding that it was “clear” that the trial court

considered the statutory factors “as it explicitly provided facts relevant to several of

the factors”). Compare Evans, 2015-Ohio-3842, at ¶ 17 (discussing the facts that

the trial court relied on in concluding that the 20 Ohio Adm.Code 4141-3-05(B)

factors “established that Evans did not have the right to direct or control the

drivers”).

       {¶52} Turning to Defiance Therapeutic’s argument that the Commission’s

determination that Defiance Therapeutic directed and controlled Knapp’s work is

unreasonable and against the manifest weight of the evidence, we reject Defiance

Therapeutic’s argument. First, based on our conclusion above, the Commission’s

order is not unreasonable for analyzing the totality of the services Knapp performed

in rendering its ultimate conclusion.




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Case No. 4-17-20


       {¶53} Second, there is some competent, credible evidence supporting the

Commission’s decision. On appeal, in challenging the weight of the evidence

supporting the Commission’s conclusion, Defiance Therapeutic essentially requests

that this court conduct a de novo review of the Commission’s application of the

Ohio Adm.Code 4141-3-05(B) factors. In other words, Defiance Therapeutic

contends that this court should reweigh the facts in a light more favorable to it. “[I]t

is not the function of this court to reweigh the evidence.” Cassaro v. Ohio Dept. of

Job & Family Servs., 3d Dist. Crawford No. 3-16-08, 2016-Ohio-7643, ¶ 27, citing

Hicks v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin No. 13AP-902,

2014-Ohio-2735, ¶ 13. “The fact that reasonable minds might reach different

conclusions is not a basis for reversing the commission’s decision.” Henderson,

2012-Ohio-5382, at ¶ 29, citing McGee, 2010-Ohio-673, at ¶ 11. Indeed, this court

is not permitted to substitute its judgment for that of the Commission; rather, this

court is required to determine whether there is some competent, credible evidence

supporting the Commission’s conclusion. See Cassaro at ¶ 27.

       {¶54} Although no individual factor or combination of factors under Ohio

Adm.Code 4141-3-05 controls, the Commission’s findings supporting its

conclusion that Defiance Therapeutic directed and controlled Knapp are within the

province of the Commission. Compare Hasch, 2002 WL 1343262, at *3 (“Although

no individual factor in [Ohio Adm.Code] 4141-3-05 controls, the specific findings


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Case No. 4-17-20


of the Review Commission hearing officer that Vale was told to work 9AM to 5PM

hours and directed where to report to work were within the province of said finder

of fact.”); Henderson at ¶ 29 (“Although no individual factor or combination of

factors in R.C. 4141.01(B)(2)(k) controls, the specific findings of the commission

that appellant declined Mid-Ohio’s offer to be placed on the company’s payroll, that

Mid-Ohio did not set appellant’s hours, and that appellant was free to perform

outside work without penalty, were within the province of the commission.”). “On

close questions, ‘[w]here the [commission] might reasonably decide either way, the

courts have no authority to upset the [commission’s] decision.’” Henderson at ¶ 29,

quoting Irvine, 19 Ohio St.3d at 18, citing Charles Livingston & Sons, Inc. v.

Constance, 116 Ohio App. 437 (7th Dist.1961). Because the specific facts and

circumstances of this case constitute a close question in which the commission

might reasonably decide either way, we have no authority to upset the

Commission’s decision, and Defiance Therapeutic has not directed us to any

authority permitting us to overturn the Commission’s decision. See Edan Farms,

Inc. v. Toth, 7th Dist. Mahoning No. 99-CA-185, 2000 WL 1809050, *3 (Dec. 5,

2000) (“These factors set out in Ohio Adm.Code 4141-3-05(B) are to be used by the

[commission], but they are not necessarily the factors utilized by courts in

determining whether reasonable minds could find that a claimant was or was not

subject to direction and control over the performance of his services.”).


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      {¶55} After reviewing the record, we conclude that there is some competent,

credible evidence supporting the Commission’s conclusion that an employer-

employee relationship existed between Defiance Therapeutic and Knapp. First, the

record reflects that the compliance division of ODJFS independently determined

under Ohio Adm.Code 4141-3-05(B) that an employer-employee relationship

existed between Defiance Therapeutic and Knapp. Moreover, there was significant

testimony presented at the telephone hearings regarding the manual that Knapp was

expected to adhere to. Although the manual was implemented in mid-2015, the

record reflects that a document that was substantially similar to the manual was in

existence prior to the creation of the manual. Radzik eventually updated the manual

by editing an “employee” manual template that she found on the internet. The

manual directs when, where, and how duties are to be performed. The record

reflects the duties beyond massage therapy that Knapp was expected to perform as

part of her relationship with Defiance Therapeutic, including administrative

activities for other therapists working at Defiance Therapeutic; community laundry;

and specific opening and closing procedures.

      {¶56} Our review of the record also reveals that Defiance Therapeutic

required that Knapp comply with the regulations imposed on massage therapists.

Compare Miracle Home Health Care, L.L.C. v. Ohio Dept. of Job & Family Servs.,

10th Dist. Franklin No. 12AP-318, 2012-Ohio-5669, ¶ 25 (“Because federal and


                                       -32-
Case No. 4-17-20


state law mandates particular training and documentation, Miracle imposes those

requirements on its home caregivers. The fact that federal and state law motivated

Miracle to adopt the requirements at issue does not negate the control and direction

that Miracle exercises in enforcing the requirements.”). Moreover, the record

reflects that Knapp was required to complete a specific continuing-education course

to qualify for a raise.

       {¶57} There was testimony presented that Knapp was required to receive

Radzik’s approval for her schedule, vacation, and advertising. See Edan Farms,

2000 WL 1809050, at *5 (Donofrio, J., concurring) (concluding that the

determination that Toth was an employee rather than an independent contractor was

supported by some competent, credible evidence because, in part, the record

reflected that Edan Farms, Inc. “exercised significant control over Toth’s work

schedule”). Further, Knapp was expected to attend regular staff meetings, which

occurred on her days off, and Knapp was disciplined for failing to attend and for

bringing her daughter to those meetings. She was expected to wear specific attire

and to hold herself out as a representative of Defiance Therapeutic.

       {¶58} The record further reflects that Knapp engaged in a continuing

relationship with Defiance Therapeutic from 2010 through 2015. Knapp received a

paycheck from Defiance Therapeutic every two weeks. Although she immediately

received cash tips, tips paid by check or credit card were included in the paycheck


                                       -33-
Case No. 4-17-20


that she received from Defiance Therapeutic.            Further, group workers’

compensation premiums were deducted from her paycheck. When her relationship

with Defiance Therapeutic was terminated, Knapp was not permitted to obtain her

client’s files.

        {¶59} For these reasons, there is some competent, credible evidence

supporting the Commission’s determination that Knapp worked in covered

employment with Defiance Therapeutic—namely, there is some competent,

credible evidence that Defiance Therapeutic exercised direction and control over

Knapp. As such, the Commission’s decision is not against the manifest weight of

the evidence.

        {¶60} Although we disapprove of the apparent carelessness of the

Commission’s order, Defiance Therapeutic’s fourth argument does not warrant

reversal of the Commission’s decision. See Orr v. State Med. Bd. of Ohio, 10th

Dist. Franklin No. 97APE09-1170, 1998 WL 151122, *3 (Mar. 31, 1998)

(concluding that “a simple misstatement of the law that does not affect the outcome

of the case does not necessitate a remand to an administrative agency”). Knapp’s

application for unemployment compensation is one of two applications for

unemployment compensation concerning Defiance Therapeutic.              The other

application for unemployment compensation concerned an acupuncturist, Andrea

Cline (“Cline”). The particular hearing officer that determined Knapp’s application


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Case No. 4-17-20


also determined Cline’s application. Under his “reasoning” section, it appears that

the hearing officer carelessly copied the reasoning section of the order pertaining to

Cline. In particular, as we referenced in part above, the reasoning section of the

order regarding Knapp states, in relevant part, that Defiance Therapeutic “did have

the right to control the claimant performing acupuncture” and “the acupuncture

services performed by the claimant were essential to the profitability of the

company.” (Doc. No. 1, Ex. B); (Doc. No. 4).

       {¶61} Those misstatements amount to harmless error. Compare State ex rel.

Brown v. Indus. Comm., 10th Dist. Franklin No. 13AP-763, 2014-Ohio-3044, ¶ 13

(concluding that the commission’s misstatement “amounted to harmless error and

would not support mandamus relief”), citing State ex rel. Little v. Indus. Comm.,

10th Dist. Franklin No. 11AP-1110, 2013-Ohio-282, ¶ 6 (concluding that a

“typographical error” was “an inadvertent and harmless misstatement” and “not

grounds for mandamus relief”); Talarek v. Walls, 9th Dist. Lorain No.

17CA011158, 2018-Ohio-1174, ¶ 10 (concluding that the trial court’s misstatement

was harmless because there was “no violation of a substantial right as a result” since

the trial court correctly analyzed the “tax foreclosure action”). See Civ.R. 61; Giles

v. F & P Am. Mfg., Inc., 2d Dist. Miami No. 2004-CA-36, 2005-Ohio-4833, ¶ 36

(applying harmless-error analysis to an unemployment-compensation case).

Notwithstanding the hearing officer’s misstatements, it is clear from the totality of


                                        -35-
Case No. 4-17-20


the order that the hearing officer reviewed Knapp’s employment. See State ex rel.

Brown at ¶ 13 (concluding that “despite the commission’s misstatement,” it was

“apparent” from the totality of the order that the commission “was not revisiting the

employer’s request for reconsideration, but rather was sua sponte invoking its

continuing jurisdiction”).

       {¶62} Moreover, as we concluded above, Defiance Therapeutic failed to

prove that the Commission’s order is not supported by some competent, credible

evidence. In other words, even severing the hearing officer’s misstatements from

the order does not render the Commission’s ultimate conclusion against the manifest

weight of the evidence. See State ex rel. Barnett v. Indus. Comm., 10th Dist.

Franklin No. 14AP-628, 2015-Ohio-3898, ¶ 11-12 (concluding that the hearing

officer’s “incorrect statement” was severable from the rest of the order). Therefore,

although the hearing officer’s misstatements constitute error, the error did not

prejudice Defiance Therapeutic. See Durgan v. Ohio Bur. of Emp. Serv., 110 Ohio

App.3d 545, 553, (9th Dist.1996) (“To constitute reversible error, it is necessary

that the error affects the substantial rights of the complainant. Prejudice has not

been shown in this case.”), citing Civ.R. 61; Giles at ¶ 36 (“Therefore, we find that

even if it were error to allow the introduction of the letters during the second hearing,

this error was not prejudicial to Giles.”).




                                          -36-
Case No. 4-17-20


       {¶63} In addition, based on our review of the record, it is arguable that

Defiance Therapeutic invited the error. See Miller v. Defiance Regional Med. Ctr.,

6th Dist. Lucas No. L-06-1111, 2007-Ohio-7101, ¶ 37 (noting that, under the

invited-error doctrine, “a party may not take advantage of an alleged error that the

party induced or invited the trial court to make” and that “[i]nvited error occurs

when trial counsel is ‘actively responsible’ for the trial court’s error”), citing State

ex rel. The V Cos. v. Marshall, 81 Ohio St.3d 467, 471 (1998) and State v. Woodruff,

10 Ohio App.3d 326, 327 (2d Dist.1983), and quoting State v. Campbell, 90 Ohio

St.3d 320, 324 (2000). At least twice during the telephone hearings, counsel

representing Defiance Therapeutic asked questions relative to Cline’s employment

as an acupuncturist. (See Apr. 13, 2016 Tr., Vol. I, at 77, 90). That is, counsel for

Defiance Therapeutic questioned Goosey regarding Defiance Therapeutic’s

website’s promotion of acupuncture and questioned Goosey about whether he found

“anything in that independent contractor manual specific to the provision of

acupuncture services.” (Id.).

       {¶64} Finally, we reject Defiance Therapeutic’s argument that the hearing

officer erroneously relied on hearsay evidence in the form of Knapp’s handwritten

answers to a ODJFS questionnaire regarding the details of Knapp’s employment.

(See ODJFS Ex. G). “As a general rule, administrative agencies are not bound by

the strict rules of evidence applied in court.” MNH Truck Leasing Co., LLC v. Dir.,


                                         -37-
Case No. 4-17-20


Ohio Dept. of Job & Family Servs., 10th Dist. Franklin Nos. 16AP-301, 16AP-302,

and 16AP-303, 2017-Ohio-442, ¶ 12, citing H.K. Trading Ctr., Inc. v. Liquor

Control Comm., 10th Dist. Franklin No. 09AP-293, 2010-Ohio-913, ¶ 41. “For

example, ‘[s]tatements or evidence that would be excluded as hearsay elsewhere are

admissible in an administrative proceeding where they are not inherently unreliable

and are sufficient to constitute substantial, reliable, and probative evidence.’” Id.,

quoting Harr v. Jackson Twp., 10th Dist. Franklin No. 10AP-1060, 2012-Ohio-

2030, ¶ 24, fn. 1, and citing Rudd v. Ohio Dept. of Job & Family Servs., 2d Dist.

Miami No. 2015-CA-9, 2015-Ohio-3796, ¶ 14.

       {¶65} Notwithstanding the general rule, Defiance Therapeutic argues that it

was unreasonable for the hearing officer “to rely on the hearsay questionnaire where

there are live witnesses to elucidate the issue by way of testimony * * *.”

(Appellant’s Brief at 22).     In support of its argument, Defiance Therapeutic

contends,

       “[W]here the sworn testimony of a witness is contradicted only by

       hearsay evidence, to give credibility to the hearsay statement and to

       deny credibility to the [individual] testifying in person is

       unreasonable. * * * Thus, any weight to be given the * * * hearsay is

       clearly outweighed by * * * sworn testimony at the hearing before the

       [hearing officer].”


                                        -38-
Case No. 4-17-20


Tomlinson v. Ohio Dept. of Job & Family Servs., 3d Dist. Allen No. 1-09-02, 2009-

Ohio-3414, ¶ 7, quoting Taylor v. Bd. of Rev., 20 Ohio App.3d 297, 299 (8th

Dist.1984). Defiance Therapeutic’s argument is meritless—that is, the hearing

officer did not rely on the questionnaire over testimony presented during the

telephone hearings. Indeed, Defiance Therapeutic points us to no testimony, and

we see none, contradicting the hearing officer’s conclusion that Knapp was not

permitted to bring substitutes.

       {¶66} Likewise, the hearing officer did not err in relying on the questionnaire

because it is not inherently unreliable. “When evidence is admitted despite being

hearsay, the trier of fact must consider whether the evidence is reliable enough to

be considered substantial and probative.” Rudd at ¶ 14, citing In re Petition for

Annexation of 162.631 Acres, 52 Ohio App.3d 8, 15 (10th Dist.1988). “Evidence is

reliable if it ‘can be confidently trusted’ and there is ‘a reasonable probability that

the evidence is true.’” Id., quoting Beachland Ents. Inc. v. Cleveland Bd. of Rev.,

8th Dist. Cuyahoga No. 99770, 2013-Ohio-5585, ¶ 63-34. “The reliability of

evidence goes to its weight, not its admissibility.” Id., citing Farran v. Cleveland

Civ. Serv. Comm., 8th Dist. Cuyahoga No. 99851, 2014-Ohio-823, ¶ 5.

       {¶67} Because Knapp testified during the telephone hearings, she was

subject to examination by the hearing officer, counsel for ODJFS, and counsel for

Defiance Therapeutic. As such, the hearing officer was in the best position to judge


                                         -39-
Case No. 4-17-20


her credibility. See In re Green Village Skilled Nursing Ctr., 10th Dist. Franklin

No. 12AP-91, 2012-Ohio-3769, ¶ 24 (noting that an appellate court may not

substitute its judgment for that of an administrative agency as to the credibility of

witnesses and the weight to be given to the testimony). Moreover, neither party

objected to the admission of the questionnaire into evidence. (See Apr. 13, 2016

Tr., Vol. II, at 119-120). Accordingly, the reliability of the questionnaire that Knapp

completed was within the province of the hearing officer. Therefore, we conclude

that the hearing officer did not err in relying on the questionnaire.

       {¶68} Further, the questionnaire is not dispositive of the Commission’s

decision because it supports only one fact—that Knapp was not permitted to bring

substitutes. As such, even if that fact is removed from consideration, as we

discussed above, the Commission’s ultimate decision is supported by some

competent, credible evidence. Compare MNH Truck Leasing Co., 2017-Ohio-442

at ¶ 15 (“Even if the testimony of the attorney is removed from consideration here,

the exhibits, affidavits, and Petrlich’s own testimony support the decision of the

[Commission].”). For these reasons, the Commission’s decision is not unreasonable

or against the manifest weight of the evidence in this respect. Compare Binger v.

Whirlpool Corp., 110 Ohio App.3d 583, 589 (6th Dist.1996) (noting that findings

of the Commission that rely on evidence that might constitute hearsay evidence

under the Rules of Evidence are “lawful so long as such evidence is given its proper


                                         -40-
Case No. 4-17-20


weight”), citing Campion v. Ohio Bur. of Emp. Servs., 62 Ohio App.3d 897 (8th

Dist.1990).

       {¶69} We conclude that the Commission’s order is not unlawful,

unreasonable, or against the manifest weight of the evidence. Therefore, the trial

court did not err by affirming the Commission’s decision.

       {¶70} Defiance Therapeutic’s assignment of error is overruled.

       {¶71} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




                                        -41-
