[Cite as Measles v. Indus. Comm. of Ohio, 2011-Ohio-7043.]



                                                       Court of Claims of Ohio
                                                                         The Ohio Judicial Center
                                                                 65 South Front Street, Third Floor
                                                                            Columbus, OH 43215
                                                                  614.387.9800 or 1.800.824.8263
                                                                             www.cco.state.oh.us



POWELL MEASLES, et al.

       Plaintiffs

       v.

INDUSTRIAL COMMISSION OF OHIO, et al.

       Defendants

Case No. 2011-06447

Judge Alan C. Travis

ENTRY GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

        {¶1} This case is sua sponte assigned to Judge Alan C. Travis to conduct all
proceedings necessary for decision in this matter.
        {¶2} On November 4, 2011, defendants filed a motion for summary judgment
pursuant to Civ.R. 56(B).          On November 18, 2011, plaintiffs filed a response; the
accompanying motion for leave to file a long brief pursuant to L.C.C.R. 4(E) is
GRANTED. On December 1, 2011, defendants filed a motion for leave to file a reply,
which is GRANTED instanter.
        {¶3} Civ.R. 56(C) states, in part, as follows:
        {¶4} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
Case No. 2011-06447                        -2-                                    ENTRY

minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party’s favor.” See also
Gilbert v. Summit Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
       {¶5} Plaintiffs, Powell Measles and Ann M. Pocaro, suffered permanent total
disability due to work-related injuries in 1981 and 1995, respectively, and consequently
became entitled to weekly benefits from defendants pursuant to R.C. 4123.58.
Thereafter, plaintiffs submitted applications to defendants requesting that part of their
benefits be commuted to lump sum payments pursuant to R.C. 4123.64(A); Measles did
so in 1986 and 1987, and Pocaro did so in 1995. The applications provide, in part, as
follows: “In the event this Lump Sum Payment is granted it will result in a permanent
reduction of weekly benefits which shall continue for the life of the claim.” Defendants
granted the applications, disbursed the lump sum payments, and implemented
corresponding reductions to the amount of plaintiffs’ weekly benefits.
       {¶6} According to plaintiffs, the lump sum payment agreements contemplated
that defendants would reduce plaintiffs’ benefits only until such time as the aggregate
value of the weekly reductions equaled the value of the lump sum payments. Plaintiffs
allege that defendants, having now recouped the value of the lump sum payments,
unlawfully continue to issue them reduced benefits. Plaintiffs seek a declaration that
defendants are obligated to restore their benefits to their original value, an injunction to
effect the restoration of such benefits, and restitution of any funds retained by
defendants that exceed the amount of the lump sum payments. Plaintiffs assert that
they represent a class of more than 1,000 similarly-situated individuals.
       {¶7} Plaintiffs’ claims, which are couched in terms of equity, were originally
brought in the Cuyahoga County Court of Common Pleas. However, the Supreme
Court of Ohio determined on appeal that such claims must be pursued in the Court of
Case No. 2011-06447                          -3-                                 ENTRY

Claims inasmuch as plaintiffs seek legal relief for money due under the lump sum
agreements; consequently, plaintiffs re-filed their claims in the instant case.       See
Measles v. Indus. Comm. of Ohio, 128 Ohio St.3d 458, 2011-Ohio-1523, ¶13 (“When an
injured worker contracts to receive a lump-sum advancement in lieu of part of an
income stream of benefits for permanent total disability and later seeks to recover funds
allegedly wrongfully withheld from that income stream as having been commuted to the
lump sum, that claim is for money due under a contract and must be pursued in the
Ohio Court of Claims.        Because [plaintiffs] dispute the effect of their lump-sum-
advancement agreements, the court of common pleas has no jurisdiction to hear their
claims.”).
       {¶8} Plaintiffs’ claim for restitution thus sounds in contract. “Generally, a breach
of contract occurs when a party demonstrates the existence of a binding contract or
agreement; the non-breaching party performed its contractual obligations; the other
party failed to fulfill its contractual obligations without legal excuse; and the non-
breaching party suffered damages as a result of the breach.” Garofalo v. Chicago Title
Ins. Co. (1995), 104 Ohio App.3d 95, 108.
       {¶9} The lump sum payment agreements provide, in part, that plaintiffs each
asserted a workers’ compensation claim with defendants which resulted in an award of
weekly benefits for permanent total disabilities; that plaintiffs requested for defendants
to commute part of their benefits to one-time lump sum payments; and that the issuance
of the lump sum payments “will result in a permanent reduction of weekly benefits which
shall continue for the life of the claim.”
       {¶10} At all times relevant, defendants were conferred with statutory authority to
make such agreements. See, e.g., R.C. 4123.64 (“The administrator * * * may commute
payments of compensation or benefits to one or more lump-sum payments.”); see also
State ex rel. Shively v. Murphy Motor Freight, 71 Ohio St.3d 114, 1994-Ohio-124.
Contrary to plaintiffs’ assertions, under the terms of their lump sum payment
agreements, defendants are “not required to restore the amount of weekly
Case No. 2011-06447                           -4-                                  ENTRY

compensation to its previous level” after recouping the amount of the lump sum
payment. Shively, supra, at 116; see also State ex rel. Funtash v. Indus. Comm. of
Ohio (1951), 154 Ohio St. 497, paragraph four of the syllabus (“Incidental to making a
partial lump sum payment of compensation, [defendants] thereafter may continue to
make weekly payments in a reduced amount.”).               While plaintiffs characterize the
lump sum payment agreements as “loans” which they have since repaid, the Supreme
Court of Ohio has specifically rejected this argument, holding that defendants are
conferred with statutory or constitutional authority to “commute payments of
compensation or benefits to one or more lump sum payments,” but that defendants are
without “authority to make a loan to a claimant for compensation.” Funtash, supra, at
paragraph two of the syllabus and 499.
       {¶11} Plaintiffs also argue that they are entitled to the desired relief pursuant to
an amendment that was made to Ohio Adm.Code 4123-3-37 in 2004. As a result of that
amendment, lump sum payment agreements now result in a reduction of weekly
benefits only until such time as defendants have recouped the amount of the lump sum
payment, and the agreement must specify the duration of the benefit reduction.
However, plaintiffs’ lump sum payment agreements pre-date the amendment to Ohio
Adm.Code 4123-3-37, and the Supreme Court of Ohio has determined that the
amendment, “which operates prospectively, does not apply to the agreements at issue *
* *.” Measles, supra, fn.1.
       {¶12} Upon review, the only reasonable conclusion to be drawn is that plaintiffs
cannot establish that the permanent reduction of their weekly benefits constitutes a
breach of the lump sum payment agreements. Likewise, plaintiffs cannot show, based
upon their lump sum payment agreements or otherwise, that they are entitled to a
declaration that the permanent reduction of benefits is unlawful, nor that they are
entitled to an injunction to restore their benefits to their original value.
Case No. 2011-06447                          -5-                                  ENTRY

          {¶13} For the foregoing reasons, the court finds that there are no genuine issues
of material fact and that defendants are entitled to judgment as a matter of law.
Accordingly, defendants’ motion for summary judgment is GRANTED and judgment is
rendered in favor of defendants. All other pending motions are DENIED as moot. Court
costs are assessed against plaintiffs. The clerk shall serve upon all parties notice of this
judgment and its date of entry upon the journal.




                                           _____________________________________
                                           ALAN C. TRAVIS
                                           Judge

cc:


Alexander E. Goetsch                           Christopher P. Conomy
Max E. Dehn                                    Randall W. Knutti
Ronald D. Holman II                            Assistant Attorneys General
Special Counsel to Attorney General            150 East Gay Street, 18th Floor
1300 East Ninth Street, 20th Floor             Columbus, Ohio 43215-3130
Cleveland, Ohio 44114

Jonathan T. Stender
Patrick J. Perotti
60 South Park Place
Painesville, Ohio 44077

RCV/dms
Filed December 30, 2011
To S.C. reporter March 20, 2012
