author: PRESTON, J.

text:
    Andrea L. CLINE, et al., Appellees, v. DEFIANCE THERAPEUTIC MASSAGE & WELLNESS CENTER, LLC, Appellant.
    NO. 4-17-19
    Court of Appeals of Ohio, Third District, Defiance County.
    Date of Decision: May 14, 2018
    Mark S. Barnes, Toledo, for Appellant
    Eric A. Baum, Toledo, for Appellees
   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, Andrea L. Cline ("Cline"), application for unemployment compensation benefits. For the reasons that follow, we affirm.

{¶ 2} Cline's employment as an acupuncturist with Defiance Therapeutic was terminated on September 27, 2015. (Doc. No. 1, Ex. B). After her employment was terminated, Cline 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 Cline's application for unemployment compensation benefits. (Id. ). On December 10, 2015, Defiance Therapeutic appealed ODJFS's decision approving Cline's application for unemployment compensation benefits. (Id. ). On January 4, 2016, ODJFS issued its redetermination affirming its November 20, 2015 determination. (Id. ). Defiance Therapeutic appealed ODJFS's redetermination on January 25, 2016. (Id. ).

{¶ 4} On January 27, 2016, Defiance Therapeutic's appeal was transferred to the Commission. (Id. ). After telephone hearings on February 12 and March 17, 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 Cline's application for unemployment compensation benefits. (Id. ).

{¶ 6} Defiance Therapeutic filed the administrative file on August 18, 2016. (Doc. No. 4). Defiance Therapeutic filed its brief on October 17, 2016. (Doc. No. 10). ODJFS filed its response to Defiance Therapeutic's brief on January 18, 2017. (Doc. No. 19).

On February 27, 2017, Defiance Therapeutic filed its reply to ODJFS's response. (Doc. No. 24).

{¶ 7} On October 25, 2017, the trial court denied Defiance Therapeutic's appeal and affirmed the May 2, 2016 decision of the Commission. (Doc. No. 25).

{¶ 8} Defiance Therapeutic filed its notice of appeal on November 22, 2017. (Doc. No. 26). 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 Andrea L. Cline 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 Cline's application for unemployment compensation benefits because the "Commission's finding [that Cline] 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 21). That is, Defiance Therapeutic challenges the Commission's conclusion that Cline 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, 2012 WL 5868888, ¶ 5, citing McGee v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin No. 09AP-680, 2010-Ohio-673, 2010 WL 661047, ¶ 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 ¶ 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, 653 N.E.2d 1207 (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, 653 N.E.2d 1207. "In reviewing commission decisions, a court may not make factual findings or determine witness credibility." Id. , citing Tzangas at 696, 653 N.E.2d 1207, citing Irvine v. State Unemp. Comp. Bd. of Rev., 19 Ohio St.3d 15, 18, 482 N.E.2d 587 (1985). "Factual questions remain solely within the province of the commission." Id. , citing Tzangas at 697, 653 N.E.2d 1207. "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, 916 N.E.2d 871, ¶ 16 (6th Dist.), citing Irvine at 18, 482 N.E.2d 587. "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, 653 N.E.2d 1207. "Instead, a court must 'determine whether [the Commission's] decision is supported by the evidence in the record.' " Id. , quoting Tzangas at 696, 653 N.E.2d 1207, citing Irvine at 18, 482 N.E.2d 587. "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, 2011 WL 1217586, ¶ 7, citing Carter v. Univ. of Toledo, 6th Dist. Lucas No. L-07-1260, 2008-Ohio-1958, 2008 WL 1837254, ¶ 12, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (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, 2011 WL 5878334, ¶ 12, citing Moore v. Comparison Mkt., Inc. , 9th Dist. No. 23255, 2006-Ohio-6382, 2006 WL 3498598, ¶ 8. "Thus, our task is to review the commission's decision and determine 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 Cline 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, 2012 WL 5830607, ¶ 7.

{¶ 15} On May 6, 2016, the Commission issued a written decision, which included the following pertinent findings of fact:

[Cline] began performing [acupuncture services for Defiance Therapeutic] with the understanding that she would be an independent contractor. [Cline] 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. [Cline] was given access to the facility and was able to set her own hours. [Cline] was responsible for providing her own liability insurance. [Cline] never discussed the prospect of performing work at another facility.
[Cline] was asked to fill-in for the receptionist to answer the telephone or schedule appointments when the receptionist was not available. [Cline] did not solely schedule appointments for herself when she filled in. [Cline] was responsible for cleaning the linens she used and was asked to clean linens used by the other individuals who provided services. [Cline] was informed as to a specific way to fold the linens. With respect to opening and closing, [Cline] 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 [Cline] 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 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. The manual also contains a provision for rescheduling appointments if a provider is absent and does not state that providers can bring in a substitute if they are not available.
[Cline] 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 [Cline] was separated she was not permitted to remove client files including information regarding the clients she brought to the facility in April, 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 Cline 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" Cline. (Id. ); (Id. ). Regarding the application of those 20 factors, the Commission reasoned:

[Defiance Therapeutic] operates a spa and the acupuncture services performed by [Cline] were essential to the profitability of the company. Those services were an integral part of the regular functions of the company. [Cline] answered the telephone and performed filing as needed. She further cleaned and folded laundry not used by her and the client's she serviced and was not permitted to take her client files when the relationship was severed. [Cline] 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 business to business relationship. The manual exemplifies a level of detail and control beyond what is found in a typical independent contractor agreement. In addition, [Cline] 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 Commission's determination that Cline 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 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, 2015 WL 5555132, ¶ 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:
(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;
(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;
(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, 2017 WL 3485051, ¶ 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).

{¶ 21} Cline testified at the February 12, 2016 telephone hearing. (Feb. 12, 2016 Tr. at 13). On examination by the hearing officer, she testified that she informed her existing clients that she would be performing acupuncture at Defiance Therapeutic beginning in April 2010. (Id. at 14). Although Cline did not sign an independent contractor agreement with Defiance Therapeutic, she "thought that we were going to be independent contractors. That we would * * * control what we could and couldn't do * * * and that although [Radzik] would supply all my supplies * * *, that was my nature of my understanding when I began work there." (Id. ).

{¶ 22} Cline testified that her employment with Defiance Therapeutic transformed from an independent contractor to an employer-employee relationship because "in the beginning it was assumed that * * * [Cline] would have control over [her] hours, * * * how much [she] worked[,] advertising, things of that nature and as time progressed that became less * * * an ability for" her because "[e]verything had to be approved through Ms. Radzik." (Id. at 19-20). More specifically,

if [Cline] wanted to do advertising it had to have [Defiance Therapeutic's] logo. It had to have all of [Defiance Therapeutic's] contact information on it * * * and we had to submit it, like if we were going to do some kind of advertising we would have to give it to [Radzik] first and she would then approve it. * * * [W]e had mandatory meetings that would take place after [Cline's] hours. [That is,] typically when [she] would be done working then we'd have a mandatory meeting that we had to attend. * * * [W]e had some mandatory events, not all, sometimes we were allowed to choose if we wanted to them [sic] but in the beginning there were a lot of mandatory outings and by those I mean like marketing opportunities. * * * [W]e had the chambers [sic] golf outing that we had to go to * * * and we had to wear our [Defiance Therapeutic] polos, so we had to wear [Defiance Therapeutic's] advertising while we were there * * *.

(Id. at 20). (See also id. at 32-34). According to Cline, she discussed multiple times with Radzik that she was treating her as an employee as opposed to an independent contractor. (Id. at 34-35). Cline testified that, in response, Radzik "would get very defensive and just kind of say well this is how I run things * * * and it's none of [Cline's] concern." (Id. at 35).

{¶ 23} As compensation, Cline retained 60 percent of "the profits that [she] brought in" and Defiance Therapeutic received 40 percent. (Id. at 15). She renegotiated her rate to 66 percent in 2013. (Id. ). Cline received a paycheck "every two weeks" and also received compensation from tips. (Id. at 31). Her maternity leave was unpaid and she was required to provide notice if she intended to take vacation time. (Id. at 39).

{¶ 24} Cline paid for her own liability insurance. (Id. at 27-28). Defiance Therapeutic deducted workers' compensation insurance from Cline's paycheck. (Id. at 28). According to Cline, Radzik stated that she was paying that money toward her individual workers' compensation insurance account. (Id. ). Cline contacted the Ohio Bureau of Workers' Compensation and was informed that "it was being paid into a * * * group fund for [Defiance Therapeutic] and that there was no record of * * * individuals having paid into Workers' Comp[ensation]." (Id. ). Further, Cline was required to purchase a Defiance Therapeutic polo shirt. (Id. at 20). Cline also paid for the software system used by Defiance Therapeutic. (Id. at 37). She testified that Radzik ordered business cards for Cline and that Cline was required to pay Radzik for them. (Id. at 21-22).

{¶ 25} When she began practicing at Defiance Therapeutic, Cline brought "an electric stem machine and heat lamp" as equipment with her. (Id. at 16). Defiance Therapeutic initially provided her supplies-namely, acupuncture needles ; however, after she renegotiated her compensation in 2013, she provided her own supplies. (Id. at 17). Cline was not permitted to decorate the room in which she provided acupuncture services. (Id. at 31-32). She testified that she was required to wear "gray or black" scrubs and "closed toed shoes" while working at Defiance Therapeutic. (Id. at 20).

{¶ 26} In addition to performing acupuncture, Cline testified that she was responsible for laundering linens-"we had a group pile of linens in the back and then you were just in charge of washing linens * * * when you had time you were supposed to put a load in and wash them and dry them for everybody." (Id. at 18). Cline further testified that she was required to provide receptionist-type work, including answering the phone, scheduling and cancelling appointments for other employees of Defiance Therapeutic, answering questions, selling products, "check[ing] somebody else's patient out for them," and preparing rooms for other employees, when a receptionist was not available. (Id. at 24). Cline was also required to clean the facility, including cleaning "the break room," the bathrooms and the washing machine, sweeping and mopping the rooms, and shoveling and salting sidewalks. (Id. at 24-25). She testified that she was required to follow procedures for opening and closing the office. (Id. at 30). She testified that she spent approximately eight hours each week providing these ancillary services. (Id. at 38). According to Cline, she assumed she would be fired for not attending the events of which her attendance was mandatory. (Id. at 21).

{¶ 27} On examination by counsel representing ODJFS, Cline testified that she received a standards of practice manual in August 2015 "that talked about opening, closing, * * * disciplinary procedures, charting * * * and then at the end [she] had to sign a paper that said [she] had * * * read through it." (Id. at 42-43). Cline did not receive any other document explaining her "relationship" with Defiance Therapeutic. (Id. at 44).

{¶ 28} Cline did not work for any other business while employed by Defiance Therapeutic and presumed that she would not be permitted to work for any other business. (Id. at 41). She testified that she was required to provide her work schedule to Radzik for approval. (Id. at 40).

{¶ 29} Cline further testified that "part of our understanding was that part of my, why the percentage was the way it was to pay for the receptionist * * *." (Id. at 54). According to Cline, Radzik did not require new employees to pay for the software system even though she required Cline to pay for it. (Id. at 49).

{¶ 30} After Cline was terminated from her employment with Defiance Therapeutic, Cline went to the office to retrieve her belongings; however, Radzik refused to provide to Cline a list of her clientele. (Id. at 51-53). Cline testified that she was never provided a list of her clientele or her clients' files. (Id. at 53).

{¶ 31} On examination by counsel representing Defiance Therapeutic, Cline testified that she directed how she provided acupuncture services for her clients. (Mar. 17, 2016 Tr., Vol. I, at 10, 13). She identified Exhibits F and H as documents that she created instructing other Defiance Therapeutic staff members as to how to schedule acupuncture patients. (Id. at 14-15).

{¶ 32} According to Cline, she interpreted her employment with Defiance Therapeutic as an employer-employee relationship because she was responsible for "cleaning the whole facility or cleaning the back room, answering phones, staff meetings, and there's a practice that [employees] were supposed to be held to, mandatory charting, mandatory meetings, mandatory events, it sounds like an employee." (Id. at 29). However, she testified that she filed her taxes from 2009 through 2014 as a sole proprietor. (Id. at 34-35).

{¶ 33} Cline is the owner of Acupuncture Zen, a limited liability company that she formed in 2009. (Id. at 32). (See also Employer Ex. A). Yet, Cline was not permitted to operate under Acupuncture Zen while she was employed with Defiance Therapeutic. (Mar. 17, 2016 Tr., Vol. I, at 33). Cline testified that she was permitted to donate her acupuncture services to charity. (Id. at 31). (See also Employer Ex. B).

{¶ 34} Next, Michael Goosey ("Goosey") testified that he is a supervisor in the compliance section of ODJFS. (Mar. 17, 2016 Tr., Vol. I, at 41). According to Goosey, an investigation regarding Defiance Therapeutic was initiated after Cline filed her application for unemployment compensation benefits because "no unemployment account ha[d] been established" by Defiance Therapeutic for Cline. (Id. at 42). In particular, ODJFS investigated whether Cline "should be deemed an employee and then covered employment." (Id. at 42-43). Goosey identified ODJFS Exhibits A and B as the initial unemployment compensation benefits rate determination letters regarding Defiance Therapeutic. (Id. at 44). (See also ODJFS Exs. C-O).

{¶ 35} Goosey identified ODJFS Exhibit P as a letter sent by Radzik's father to the Ohio State Representative that represented the district in which Defiance Therapeutic is located regarding Cline's application for unemployment compensation benefits. (Mar. 17, 2016 Tr., Vol. I, at 58-59). According to Goosey, the letter is replete with "evidence establishing [that an] employee-employer relationship" existed between Defiance Therapeutic and Cline. (Id. at 60-63). (See ODJFS Ex. P). In particular, Goosey testified that "when you apply the law correctly in those relationships, * * * you quickly determine that * * * there is an * * * employer-employee relationship and not a business-to-business relationship" because "the right to direct and control these * * * individuals was paramount throughout the entire relationship." (Mar. 17, 2016 Tr., Vol. I, at 63).

{¶ 36} Goosey addressed whether the 20 factors under Ohio Adm.Code 4141-3-05 indicate whether an employer-employee relationship existed between Defiance Therapeutic and Cline. (See id. at 64-78). Regarding the first factor, Goosey testified that Cline, based on the instructions contained in the "independent contractor manual" was given instruction on when, where, and how to perform services. (Id. at 65-70). Indeed, Goosey testified that the manual "really should read employee manual." (Id. at 70). According to Goosey, because an individual "has been given training as an acupuncturist" or has "a license" does not mean that the person is an independent contractor. (Id. ). Goosey testified that Cline could not "bring in anybody to replace her." (Id. at 71). He testified that Defiance Therapeutic hired Cline and paid Cline for her services "on a 1099 basis." (Id. ). According to Goosey, even though Defiance Therapeutic did not control how Cline performed her acupuncture services, Defiance Therapeutic hired Cline "to come in and perform [her] particular services and [she was] expected to perform those services under the direction and control of the employer who knew exactly what was going on and, * * * knew what clients were being scheduled, services received and performed by [Cline]." (Id. at 72-73). As to the sixth factor, Goosey testified that a continuing relationship existed between Cline and Defiance Therapeutic. (Id. at 73). Under the seventh factor, Goosey testified that although Cline "did not have set hours, she was able to inform her employer her hours of availability" and "if scheduled [sic] changed [sic] needed to be made, those scheduled changes had to be approved by the employer or the office manager." (Id. at 73). Goosey testified that, notwithstanding her attendance at outside functions, Cline primarily performed her services full-time at the Defiance Therapeutic offices. (Id. at 73-74). Defiance Therapeutic required Cline to generate case notes after providing a service for a client, those notes were reviewed by the office manager, and those case files "were deemed the property of the employer." (Id. at 74). Goosey testified that although Defiance Therapeutic paid "some of the basic overhead costs," "some of the expenses were being borne by the contractors." (Id. at 75). As to the fourteenth factor, Defiance Therapeutic provided a massage table and linens for all of its service providers to use. (Id. at 75-76). Cline paid for her licensure and insurance. (Id. at 75). Cline did not have any investment in the Defiance Therapeutic facility. (Id. at 76). Under the sixteenth factor, aside from her tax returns, Goosey could not specifically identify a profit or loss to Cline as a result of her acupuncture services. (Id. ). Goosey testified that "there is no way to know" whether Cline was performing the services for any other persons or entities as described by the seventeenth factor. (Id. at 77). He testified that "[o]ther than the * * * word of mouth," there is no way to know whether she was making her services available to the general public apart from her advertising through Defiance Therapeutic. (Id. ). Goosey testified that, under the manual, advertising had to be approved by Defiance Therapeutic. (Id. ). Goosey testified that Defiance Therapeutic had the right to discharge Cline and that Cline had the right to resign from her employment with Defiance Therapeutic without incurring liability "because there was no binding contractual relationship between the parties." (Id. at 77-78).

{¶ 37} On examination by counsel for Defiance Therapeutic, Goosey testified that he is not an attorney. (Id. at 79). He clarified that he established a conclusion regarding the relationship between Defiance Therapeutic and Cline based on those 20 factors because "as a compliance supervisor," he is required to review compliance determinations. (Id. at 106-107). He further clarified that he considers the requirement that employees attend staff meetings to be indicative of an employer-employee relationship because the manual indicates that there are consequences for failing to attend those meetings. (Id. at 90-91).

{¶ 38} Next, Melissa Constein ("Constein") testified that she was the office manager of Defiance Therapeutic from 2014 through 2015. (Mar. 17, 2016 Tr., Vol. II, at 7). On examination by the hearing officer, she testified that she prepared the payroll for Defiance Therapeutic and that Cline was paid every other Friday. (Id. at 8). According to Constein, Cline and the other therapists were required to answer the phone and check the voicemail when Constein was not in the office. (Id. ). Constein testified that, although the manual "was not put in place until August of 2015, there was * * * some procedures up in a gray binder [that] specifically went over how to answer the phone, how to take messages * * *." (Id. at 9). She further testified that the therapists were required to attend staff meetings and that there were repercussions for missing those meetings. (Id. at 17). Constein testified that the issue of whether Cline was an employee or independent contractor was exposed when Defiance Therapeutic "started incorporating the [new] software" system. (Id. at 11).

{¶ 39} On examination by counsel for ODJFS, Constein testified that the therapists were not permitted to have input on the manual. (Id. at 21). She testified that she was required to "micromanage[ ]" the therapists, including the time when they reported to work and whether they folded sheets correctly. (Id. at 24-26).

{¶ 40} On examination by counsel for Defiance Therapeutic, Constein testified that she was an employee of Defiance Therapeutic. (Id. at 31). As an employee, she did not have to pay for the software, did not pay 30 to 40 percent of her income to Defiance Therapeutic, and was issued a W2. (Id. at 31-32). She testified that, in her opinion, Radzik's control of the therapists exceeded the bounds of an independent contractor relationship. (Id. at 38-39). As an example, Constein cited Radzik's constant pressure to sell more products-that is, although the therapist "was an independent contractor but yet she was being controlled by how much money she needed to bring into the center." (Id. at 39). Regarding the manual, which Constein assisted Radzik in preparing, Constein testified that Radzik "googled employee handbook, downloaded one and changed everything to independent contractor." (Id. at 29).

{¶ 41} Radzik testified on behalf of Defiance Therapeutic. (Id. at 60-61). On examination by the hearing officer, she testified that she initially retained 40 percent of Cline's earnings but later agreed to retain 34 percent when Cline requested "to have more supply write off." (Id. at 61). Although she did not pay for Cline's liability insurance, Radzik required that Cline provide "copies of [her] insurance" "just to keep in [her] file * * *." (Id. at 67).

{¶ 42} Regarding the therapists' performance of receptionist duties, Radzik testified that she "expected that they pick up the phones, but they were never told that they had to * * *." (Id. at 62). She testified that she did not require Cline to maintain records beyond the medical documentation required by the State. (Id. at 63). Regarding the linens, Radzik testified that they "were generally put into one, one basket" and that Cline "did more laundry but she was also there more, so she would have more laundry to do." (Id. at 65). She further testified that she required that the linens be folded a certain way because there was limited storage space. (Id. ). She also required the therapists to follow certain opening and closing procedures, including snow removal because "[i]t was their responsibility to clean [the sidewalks]

off and if it got deeper, they would just have to call the snow guy again." (Id. at 66). According to Radzik, Cline did not "raise concerns * * * that she felt she was doing employee-type duties instead of independent contractor duties." (Id. ).

{¶ 43} Radzik admitted that she edited an employee-handbook template that she found on the internet to apply to an independent contractor. (Id. at 69-70). Specifically, she testified

that a lot of the verbiage that was in the paragraph under the employee manual, [she] would take that paragraph and understand the justification as to why that paragraph was in there, implement it if [she] felt it was necessary for an independent contractor, and [she] would re-write the entire paragraph. [She] wouldn't just take words out and delete it and enter it in.

(Id. ). She testified that she included language in the manual regarding a probationary period for new independent contractors because she was experiencing a lot of turnover. (Id. at 70).

{¶ 44} On examination by counsel for Defiance Therapeutic, Radzik testified that she did not direct Cline as to how to perform her acupuncture services and permitted her to establish her own work schedule. (Id. at 73-75). She did not supervise Cline's work or review Cline's notes for accuracy. (Id. at 76). Although Radzik did not require approval for Cline to take time off from work, she required Cline to notify Radzik "so that [she] could look at the schedule as a whole and make sure that the rooms weren't overbooked." (Id. at 75). Radzik conducted staff meetings but asserted that they were not mandatory. (Id. at 76).

{¶ 45} She testified that the manual was meant to set forth a standards of practice and not "a list of rules and regulations." (Id. at 79). Radzik did not terminate anyone for failing to follow the manual. (Id. ). According to Radzik, she "did not make anybody use the [Defiance Therapeutic] logo [for business cards] and if they wanted to go out to another company to get their own business cards, they could." (Id. at 81). Regarding the Defiance Therapeutic polo shirt, Radzik asserted that "some of the girls said, I want to have one of those too" after seeing Radzik wear it at an event. (Id. ). Regarding the software system, she testified that she "brought each individual therapist into [her] office and [she] asked them how much they would want to invest in a software system [and Cline] said that [she] would pay anywhere from $100.00 a month." (Id. at 82). She further testified that "[t]hey were happy to do this because it was a tax write off for them * * *." (Id. ).

{¶ 46} On examination by counsel for ODJFS, Radzik testified that she required all of the therapists to sign an acknowledgement form agreeing "to abide by those provisions" stated in the manual. (Id. at 96). Further, although Radzik testified that the staff meetings were not mandatory, she testified that the manual describes a progressive ladder of discipline for failing to attend those meetings. (Id. at 97-98). In addition, she agreed that the manual states that Defiance Therapeutic "has the right to terminate independent contractors who compete or interfere in any way with the sale of products or services that [Defiance Therapeutic] provides" and that the manual "references performance as salary review for independent contractors[.]" (Id. at 104).

{¶ 47} According to Radzik, after consulting the state medical board, she concluded that patient charts "are the property of the patient and the facility that they are in." (Id. at 100). She further testified that the manual explicitly states that "patient charts are the property of" Defiance Therapeutic. (Id. at 101).

{¶ 48} On appeal, Defiance Therapeutic advances three 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 Cline. 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 appellee's services as an acupuncturist." (Appellant's Brief at 15). Third, Defiance Therapeutic contends that the Commission's decision that Cline'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).

{¶ 49} 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, 56 N.E.3d 368, ¶ 47 (noting that statements are not to be judged in a vacuum, but must be based on the totality of the circumstances). Thus, although Cline and Radzik's testimony reflects that Cline's rate of pay was based on her provision of acupuncture services, it is clear from the totality of the testimony that Cline's ability to practice acupuncture at Defiance Therapeutic and receive her rate of pay was conditioned on her performance of ancillary services. Accordingly, Defiance Therapeutic's argument that Cline's performance of her acupuncture duties should be examined separately from her performance of the ancillary services is erroneous.

{¶ 50} 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 14). Although the Commission's 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, 2009 WL 5174067, ¶ 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").

{¶ 51} Turning to Defiance Therapeutic's argument that the Commission's determination that Defiance Therapeutic directed and controlled Cline'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 Cline performed in rendering its ultimate conclusion.

{¶ 52} 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, 2016 WL 6635692, ¶ 27, citing Hicks v. Ohio Dept. of Job & Family Servs. , 10th Dist. Franklin No. 13AP-902, 2014-Ohio-2735, 2014 WL 2895868, ¶ 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.

{¶ 53} 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 Cline 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 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, 482 N.E.2d 587, citing Charles Livingston & Sons, Inc. v. Constance , 115 Ohio App. 437, 185 N.E.2d 655 (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.").

{¶ 54} 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 Cline. 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 Cline. Moreover, there was significant testimony presented at the telephone hearings regarding the manual that Cline was expected to adhere to. The record reflects the manual existed in some form throughout Cline's tenure with Defiance Therapeutic. 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 acupuncture that Cline was expected to perform as part of her relationship with Defiance Therapeutic, including administrative activities for other therapists working at Defiance Therapeutic; community laundry, cleaning, and snow removal; and specific opening and closing procedures.

{¶ 55} Our review of the record also reveals that Defiance Therapeutic required that acupuncture be performed only by Cline because Cline was not permitted to have any other person substitute for her during the times in which she could not perform acupuncture services at Defiance Therapeutic. Moreover, Defiance Therapeutic required that Cline comply with the regulations imposed on acupuncturists. Compare Miracle Home Health Care, L.L.C. v. Ohio Dept. of Job & Family Servs. , 10th Dist. Franklin No. 12AP-318, 2012-Ohio-5669, 2012 WL 6043965, ¶ 25 ("Because federal and 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."). There was also testimony presented that Cline was required to receive Radzik's approval for her schedule, advertising, and outside work. 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, Cline was expected to attend regular staff meetings and hold herself out as a representative of Defiance Therapeutic.

{¶ 56} The record further reflects that Cline engaged in a continuing relationship with Defiance Therapeutic from 2010 through 2015. Cline received a paycheck from Defiance Therapeutic every two weeks. Group workers' compensation premiums were deducted from her paycheck. When her relationship with Defiance Therapeutic was terminated, Cline was not permitted to obtain her clients' files or obtain a list of her clients.

{¶ 57} For these reasons, there is some competent, credible evidence supporting the Commission's determination that Cline worked in covered employment with Defiance Therapeutic-namely, there is some competent, credible evidence that Defiance Therapeutic exercised direction and control over Cline. As such, the Commission's decision is not against the manifest weight of the evidence.

{¶ 58} For the foregoing reasons, 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.

{¶ 59} Defiance Therapeutic's assignment of error is overruled.

{¶ 60} 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.


source: Caselaw Access Project

author: WILLAMOWSKI, P.J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Brittany R. PILKINGTON, Defendant-Appellant.
    NO. 8-17-38
    Court of Appeals of Ohio, Third District, Logan County.
    Date of Decision: May 14, 2018
    Marc S. Triplett, Bellefontaine, Tina McFall and Kort Gatterdam, Columbus, for Appellant
    Eric C. Stewart, for Appellee
   WILLAMOWSKI, P.J.

{¶ 1} Defendant-appellant Brittany R. Pilkington ("Pilkington") brings this appeal from the judgment of the Court of Common Pleas of Logan County ordering her to submit to a psychological evaluation. Pilkington challenges the judgment on the grounds that it violates her constitutional rights. For the reasons set forth below, the judgment is affirmed.

{¶ 2} On August 25, 2015, the Logan County Grand Jury indicted Pilkington on three counts of aggravated murder, each with two death penalty specifications. Doc. 1. Pilkington filed a motion to suppress her prior statements on April 1, 2016. Doc. 201. A continuance of the suppression hearing was granted on July 19, 2016, with the hearing being set to occur in October of 2016. Doc. 238. On October 11, 2016, Pilkington filed a supplement to her motion to suppress raising additional arguments. Doc. 263. The hearing was held on October 18 and 19, 2016. Doc. 287. The State then filed it response on October 24, 2016 to the motion to suppress. Doc. 274. Pilkington filed her rebuttal to the State's response on October 28, 2016. Doc. 275. The trial court ruled on the motion to suppress on November 18, 2016. Doc. 287. The trial court found that in this case, "the interrogations were objectively coercive police activity. Id. at 3. The trial court based this upon the length of the interrogations, the way Pilkington was treated by the officers, and the fact that requests by Pilkington to speak to her mental health counselor were ignored. Id. However, the trial court determined that although there was hearsay testimony regarding Pilkington's limited mental abilities, there was no direct evidence that her will was overborn. Id. at 4-5. The trial court then denied the motion to suppress. Id. at 5.

{¶ 3} On July 10, 2017, Pilkington filed a motion to reopen the evidence and present a second supplement to the motion to suppress her statements given to the police. Doc. 343. The motion was based upon the opinions of experts after additional psychological and neuropsychological evaluations. Id. The State filed its response to the motion on July 31, 2017. Doc. 345. Pilkington's rebuttal to the State's response was filed on August 7, 2017. Doc. 346. On August 10, 2017, the trial court granted Pilkington's request. Doc. 347.

{¶ 4} On August 21, 2017, a status conference was held. Doc. 352. At that hearing, the parties discussed having Pilkington evaluated by the State's expert. Id. The trial court granted the State leave to file a motion. Id. On September 6, 2017, the State filed its motion to have Pilkington evaluated for her competency to waive her Miranda Rights, an IQ test, and any other evaluations deemed necessary. Doc. 353. Pilkington filed her memorandum in opposition to the State's motion on September 12, 2017. Doc. 354. On September 14, 2017, the trial court determined that since Pilkington's state of mind had been made an issue by the defense, the State was entitled to an independent evaluation. Doc. 356. However, the trial court ordered that the "evaluator shall not ask any questions regarding the facts and circumstances of the alleged offenses."Id. at 2. On September 27, 2017, the trial court ordered Pilkington to "submit to a psychological evaluation to address her competency to waive Miranda rights on August 18, 2015, the voluntariness of her statements to law enforcement on August 18, 2015, an IQ test (if necessary), and to review issues raised by the defense experts". Doc. 359. On October 2, 2017, Pilkington filed her notice of appeal from these judgments. Doc. 363. Pilkington raises the following assignment of error on appeal.

The trial court erred in granting the State's motion to have [Pilkington] psychologically evaluated and [Pilkington's]
compelled participation in the psychological evaluation will violate her rights guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

{¶ 5} The sole assignment of error questions whether the trial court erred by requiring Pilkington to submit to a psychological evaluation as requested by the State. Pilkington's argument is that the State's request that she submit to a psychological evaluation would be similar to compelling her to answer questions without counsel and would violate her Sixth Amendment right to counsel and her Fifth Amendment right not to be compelled to offer evidence against herself. Both sides admit that there is no statutory or case law that is directly on point for the facts before us. Thus, we are addressing an issue of first impression.

It is central to that principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial. The security of that right is as much the aim of the right to counsel as it is of the other guarantees of the Sixth Amendment-the right of the accused to a speedy and public trial by an impartial jury, his right to be informed of the nature and cause of the accusation, and his right to be confronted with the witnesses against him and to have compulsory process for obtaining witnesses in his favor. The presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused's interests will be protected consistently with our adversary theory of criminal prosecution.

U.S. v. Wade , 388 U.S. 218, 226-27, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (footnote of citations omitted). "A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding." Estelle v. Smith , 451 U.S. 454, 468, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). However, "if a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested." Buchanan v. Kentucky , 483 U.S. 402, 422-23, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987).

{¶ 6} In an analogous case, the Supreme Court of Ohio has held that when a defendant demonstrates an intention to use expert testimony from a psychiatric examination at trial, the trial court may compel the defendant to submit to an examination by the State's expert. State v. Goff , 128 Ohio St.3d 169, 2010-Ohio-6317, 942 N.E.2d 1075. In Goff , the defendant wished to establish an affirmative defense of self-defense by establishing that she suffered from battered-woman syndrome which caused her to be in fear of imminent danger. Id. The Court cited with approval to State v. Manning, 74 Ohio App.3d 19, 598 N.E.2d 25 (1991) ) in which the Ninth Appellate District held that "[w]hen a defendant introduces psychiatric evidence and places her state of mind directly at issue, as here, she can be compelled to submit to a[n] independent examination by a state psychiatrist." Manning at 24, 598 N.E.2d 25. After reviewing the case law from other jurisdictions, the Goff Court concluded that a court can compel a defendant who has demonstrated an intent to use expert testimony from a psychiatric examination to submit to another examination by an expert of the State's choosing. Goff at ¶ 58.

By putting her mental state directly at issue and introducing expert testimony based upon her own statements to the expert, the defendant opens the door to a limited examination by the state's expert concerning battered-woman syndrome and its effect on the defendant's behavior. Courts have the inherent authority to preserve fairness in the trial process, and allowing the defendant to present expert testimony on the specific effects of battered-woman syndrome on the defendant while denying the prosecution the ability to introduce such evidence would unfairly handicap the prosecution and prevent the trier of fact from making an informed decision.

Id. The Court did require that the evaluation would have to be carefully tailored to avoid excessive infringement on the defendant's rights. Id. at 59. The Court held that although the trial court could compel the examination, the State could not use any information gathered outside the strict limitations without violating the defendant's constitutional rights. Id. at ¶ 66. However, at trial, the expert for the State testified to more than what was allowed, and strayed into using the statements of the defendant to show that she was not truthful instead of only focusing on battered woman syndrome. Because the expert witness of the State did exceed the limitations, the Court held that the testimony violated the defendant's Fifth Amendment rights, reversed the judgment and remanded the matter for further proceedings. Id. at ¶ 67.

{¶ 7} Although the Goff case dealt with issues for trial, not a motion to suppress, the logic of the Supreme Court of Ohio is instructive in this case. Pilkington has raised the issue of her mental state and capabilities to show that her will was overborne by the coercive interviews. By doing so, Pilkington has placed her mental state at issue. The trial court then may, in the interest of fairness, allow the State to have its expert conduct a psychological examination of Pilkington. Any such examination would have to be extremely limited. The trial court clearly considered this requirement by including the limitations that the doctor could not ask any questions about the offenses during the examination. Thus, the trial court did not err in granting the limited examination.

{¶ 8} Pilkington also raises the issue of what the State can do with any voluntary admissions that might be made by Pilkington during the examination. The United States Supreme Court has recognized the issue with the use of statements from a compelled psychological examination. In Estelle, supra , the defendant was compelled to engage in a psychiatric examination to determine his competency to stand trial. During the interview, the defendant was not warned of his right to remain silent. The State of Texas then tried to use his statements against him during the penalty phase of the trial. The Court determined that the use of the statements violated the defendant's Fifth Amendment right against compelled testimony and his Sixth Amendment right to counsel and revoked the death sentence that had been imposed. The Court held as follows.

Because respondent did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to Dr. Grigson to establish his future dangerousness. If, upon being adequately warned, respondent had indicated that he would not answer Dr. Grigson's questions, the validly ordered competency examination nevertheless could have proceeded upon the condition that the results would be applied solely for that purpose. In such circumstances, the proper conduct and use of competency and sanity examinations are not frustrated, but the State must make its case on future dangerousness in some other way.

Id. at 468-469, 101 S.Ct. 1866. The Court also found that the use of the statements violated the Sixth Amendment rights of the defendant.

[R]espondent's Sixth Amendment right to counsel clearly had attached when Dr. Grigson examined him at the Dallas County Jail, and their interview proved to be a "critical stage" of the aggregate proceedings against respondent. * * * Defense counsel, however, were not notified in advance that the psychiatric examination would encompass the issue of their client's future dangerousness, and respondent was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed.
Because "[a] layman may not be aware of the precise scope, the nuances, and the boundaries of his Fifth Amendment privilege," the assertion of that right "often depends upon legal advise [sic] from someone who is trained and skilled in the subject matter." * * * As the Court of Appeals observed, the decision to be made regarding the proposed psychiatric evaluation is "literally a life or death matter" and is "difficult * * * even for an attorney" because it requires a knowledge of what other evidence is available, of the particular psychiatrist's biases and predilections, [and] of possible alternative strategies at the sentencing hearing." * * * It follows logically from our precedents that a defendant should not be forced to resolve such an important issue without "the guiding hand of counsel." * * *
Therefore, in addition to Fifth Amendment considerations, the death penalty was improperly imposed on respondent because the psychiatric examination on which Dr. Grigson testified at the penalty phase proceeded in violation of respondent's Sixth Amendment right to the assistance of counsel.

Id. at 470-71, 101 S.Ct. 1866 (citations omitted). The Estelle Court required that counsel be notified in advance of the examination as to what would be covered and be allowed to advise the client if the State wished to use the information for any purpose besides the determination of competency to stand trial.

{¶ 9} Later, the Supreme Court of the United States addressed whether the State's use of a compelled psychiatric report to rebut a mental status defense violated the defendant's Fifth or Sixth Amendment Rights. Buchanan, supra . In Buchanan , the defendant was accused of murder. Prior to trial, the State and counsel for defense jointly requested a psychiatric evaluation. During the trial, the defendant presented an affirmative defense of extreme emotional disturbance and presented excerpts from a prior psychological examination in support of the claim. The State then presented statements from the report from the jointly requested examination in rebuttal. No statements of the defendant were read to the jury. The Court determined that the "introduction of such a report for this limited rebuttal purpose does not constitute a Fifth Amendment violation." Id. at 423-24, 107 S.Ct. 2906. The Court also determined that since counsel for the defendant had participated in the request for the examination, counsel was on notice that it might be used in rebuttal. Id. at 425, 107 S.Ct. 2906. Because of this, the Court found that there was no Sixth Amendment violation. Id.

{¶ 10} As discussed above, the Supreme Court of Ohio has also addressed the issue of the use of a defendant's statements made during a compelled psychological examination. Goff , supra. In Goff , the Court held that use of the statements for anything outside of the strict limits of the evaluation was impermissible.

We conclude that although the trial court did not err in ordering a psychiatric examination of Goff, the examination and subsequent testimony established that Resnick exceeded the boundaries of what was necessary to provide a level playing field between the state and the defense as to expert testimony. Resnick went beyond determining whether Goff suffered from battered-woman syndrome; "his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting." * * * As in Estelle , "[t]he fifth Amendment privilege, therefore, is directly involved here because the State used as evidence against respondent the substance of [her] disclosures during the pretrial psychiatric examination," and "the results of that inquiry were used by the State for a much broader objective that was plainly adverse to respondent."

Id. at ¶ 66.

{¶ 11} Here, Pilkington raises questions about what could happen if she were to make any statements against her interests during the interview as she will not have counsel present to advise her. While this court appreciates the gravity of this possibility, the situation has not yet occurred. Given the guidance of the Supreme Court of the United States and the Supreme Court of Ohio, the issue might never be raised. Thus, at this point in time, there is nothing for this court to review. Any opinion we would release on this issue would merely be advisory. For that reason, we cannot address this issue at this time.

{¶ 12} Having found that the ordering of an independent psychological evaluation does not violate Pilkington's Fifth or Sixth Amendment rights, the sole assignment of error is overruled. The judgment of the Court of Common Pleas of Logan County is affirmed.

Judgment Affirmed

ZIMMERMAN and SHAW, J.J., concur.


author: LUPER SCHUSTER, J.

text:
    DUBLIN CITY SCHOOLS BOARD OF EDUCATION, Appellant-Appellant, v. FRANKLIN COUNTY BOARD OF REVISION et al., Appellees-Appellees.
    No. 17AP-684
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on May 22, 2018
    On brief: Rich & Gillis Law Group, LLC, Mark H. Gillis, Dublin, and Kelley A. Gorry, for appellant. Argued: Kelley A. Gorry.
    On brief: The Gibbs Firm, LPA, Ryan J. Gibbs, Cincinnati, and Geoffrey N. Byrne, for appellee Lowe's Home Centers, LLC. Argued: Geoffrey N. Byrne.
    DECISION
   LUPER SCHUSTER, J.

{¶ 1} Appellant, Dublin City Schools Board of Education ("BOE"), appeals from an Ohio Board of Tax Appeals ("BTA") decision that dismissed the BOE's appeal from a Franklin County Board of Revision ("BOR") decision valuing a property owned by Lowe's Home Centers, LLC ("Lowe's"). For the following reasons, we reverse the BTA's decision and remand for further proceedings.

I. Facts and Procedural History

{¶ 2} In March 2015, Lowe's filed a complaint with the BOR seeking a reduction in value for certain real property it owns located at 6555 Dublin Center Drive, Dublin, Ohio ("the property"). In May 2015, the BOE filed a counter-complaint in support of the county auditor's valuation of the property.

{¶ 3} On March 1, 2016, the BOR held a hearing regarding the matter. The next day, the BOR mailed a letter indicating it was granting a reduction in value as to the property (the "March 2, 2016 decision letter"). The March 2, 2016 decision letter identified "LBUBS 2007-C1 COMPLEX 2740 LLC" as the owner of the property, even though Lowe's is in fact the property's owner. The BOR sent this letter to LBUBS 2007-C1 COMPLEX 2740 LLC in care of Lowe's counsel. The letter indicates that a copy was also sent to the BOE's counsel, but BOE asserts that the record does not conclusively show that it received the March 2, 2016 decision letter.

{¶ 4} On April 1, 2016, Lowe's filed a notice of appeal with the BTA. Also on April 1, 2016, the BOR sent a "corrected letter" regarding the property to both Lowe's counsel and the BOE's counsel (the "April 1, 2016 decision letter"). The April 1, 2016 decision letter is identical to the March 2, 2016 decision letter, except that it correctly identified Lowe's as the property's owner.

{¶ 5} On April 8, 2016, the BOE filed an appeal with the BTA from the BOR's April 1, 2016 decision letter. On April 13, 2016, the BTA consolidated the parties' appeals. On November 1, 2016, Lowe's moved to dismiss the BOE's appeal as untimely. Lowe's argued that the BOE did not comply with R.C. 5717.01 because it filed its appeal more than 30 days after the BOR's decision was certified on March 2, 2016. The BOE argued that its appeal was timely because there was no evidence it received the March 2, 2016 decision letter, because the letter itself was not sufficient to give it notice of the decision as required by statute, and because the sending of the April 1, 2016 decision letter began a new 30-day appeal period. On November 2, 2016, Lowe's voluntarily dismissed its appeal. On the same day, the BTA held a hearing regarding the merits of the BOE's appeal, deferring a decision on Lowe's jurisdictional motion.

{¶ 6} In August 2017, the BTA issued a decision dismissing the BOE's appeal as untimely. The BTA rejected the BOE's assertion that it did not receive a copy of the March 2, 2016 decision letter. The BTA based this rejection on the following: the letter itself indicates a copy was sent to the BOE's counsel, a certified mail green card in the record indicating receipt by the BOE's counsel shows a partial BOR case number consistent with the BOR case number associated with the property, and public boards are presumed to properly perform their duties in the absence of evidence to the contrary. The BTA also was unconvinced by the BOE's argument that the March 2, 2016 decision letter was not reasonably calculated to provide it notice. The BTA found that, even though the March 2, 2016 decision letter incorrectly named the owner of the property, the remaining pertinent information on the letter was correct "and more than sufficient to provide the BOE notice that it was deciding the value of the property owned by Lowe's." (Aug. 31, 2017 BTA Decision at 2.) Lastly, the BTA disagreed with the BOE's contention that the April 1, 2016 decision letter extended the time period during which the BOE could timely file an appeal. The BTA explained that the April 1, 2016 decision letter was a "corrected letter" that did not change the substance of the earlier certified decision and that "there is no indication that the BOR voted to or intended to vacate its March 2, 2016 decision letter." (BTA Decision at 3.) Accordingly, the BTA declined to find that "the April 1, 2016 letter was a newly certified letter that would serve to begin a new thirty day period in which the BOE could timely file an appeal." (BTA Decision at 3.) For these reasons, the BTA dismissed the BOE's appeal as untimely.

{¶ 7} The BOE timely appeals to this court from the BTA's decision.

II. Assignments of Error

{¶ 8} The BOE assigns the following errors for our review:

1. The BTA erred by holding that the appeal to the BTA was not timely filed.
2. The BTA erred in determining that a newly issued corrected decision issued and sent to the parties within the 30-day appeal period does not cause the start of a new 30-day appeal period.
3. The BTA erred in holding that there must be some indication that the Board of Revision voted to or intended to vacate its March 2, 2016 decision when the Board of Revision can only speak through its journal entries, and as such, the issuance of the April 1, 2016 decision was sufficient to vacate the March 2, 2016 decision and begin a new appeal 30-day appeal period.
4. The BTA erred in [not] holding that "the April 1, 2016 letter was a newly certified letter that would serve to begin a new thirty day appeal period in which the BOE could timely file an appeal" when in fact the April 1, 2016 decision letter was certified to all parties in this matter in the same form and fashion as the March 2, 2016 decision letter.
5. The BTA erred in deeming that the March 2, 2016 decision letter was properly mailed when it also found that "the green card included in the transcript does not definitely prove that the decision for BOR number 14-1022 was mailed on March 2, 2016 due to a smudge."

III. Discussion

{¶ 9} The BOE's first assignment of error alleges the BTA erred in dismissing the BOE's appeal as untimely. The BOE argues in part that because the BOR's March 2, 2016 decision letter did not sufficiently notify the BOE of its decision as required under R.C. 5715.20, the BOE's appeal period did not begin until the April 1, 2016 decision was certified to it. We agree.

{¶ 10} The BTA has jurisdiction over appeals from final determinations of the BOR. R.C. 5717.01. An appellate court may reverse a BTA decision only "when it affirmatively appears from the record that such decision is unreasonable or unlawful." Witt Co. v. Hamilton Cty. Bd. of Revision , 61 Ohio St.3d 155, 157, 573 N.E.2d 661 (1991). Thus, legal conclusions are reviewed de novo. Terraza 8, L.L.C. v. Franklin Cty. Bd. of Revision , 150 Ohio St.3d 527, 2017-Ohio-4415, 83 N.E.3d 916, ¶ 7 ; see Gahanna-Jefferson Local School Dist. Bd. of Edn. v. Zaino , 93 Ohio St.3d 231, 232, 754 N.E.2d 789 (2001) ("[W]e will not hesitate to reverse a BTA decision that is based on an incorrect legal conclusion."). As to factual findings, an appellate court may not substitute its judgment for that of the BTA. Bethesda Healthcare, Inc. v. Wilkins , 101 Ohio St.3d 420, 2004-Ohio-1749, 806 N.E.2d 142, ¶ 18. However, facts determined by the BTA must be supported by sufficient probative evidence. First Baptist Church of Milford, Inc. v. Wilkins , 110 Ohio St.3d 496, 2006-Ohio-4966, 854 N.E.2d 494, ¶ 9.

{¶ 11} The primary issue before this court is whether the BOE's appeal was timely. A party seeking to appeal to the BTA from a board of revision decision must file its appeal within 30 days of the certified mailing of that decision. R.C. 5717.01 ; see R.C. 5715.20(A) (a person's time to file an appeal under R.C. 5717.01"commences with the mailing of notice of the decision to that person as provided" in R.C. 5715.20 ). R.C. 5715.20 states that when a board of revision "renders a decision on a complaint filed under section 5715.19 of the Revised Code," it must "certify its action by certified mail to the person in whose name the property is listed" and to the complainant, if the complainant "is not the person in whose name the property is listed." "[A] board of revision properly certifies its decision under R.C. 5715.20 when it mails the decision by certified mail to an address that is reasonably calculated to give notice of the decision to the owner." Meadows Dev., L.L.C. v. Champaign Cty. Bd. of Revision , 124 Ohio St.3d 349, 2010-Ohio-249, 922 N.E.2d 209, ¶ 18. In Meadows , the Supreme Court of Ohio found that the sending of the board of revision's decision to the party's attorney was "reasonably calculated" to give the party notice of the decision. Id. at ¶ 21.

{¶ 12} Here, the BTA determined that the BOR's March 2, 2016 decision letter was reasonably calculated to give notice to the BOE of its decision regarding the property. In addressing this issue, the BTA noted that the referenced BOR case number in the letter was the case number assigned to Lowe's valuation complaint and the BOE's counter-complaint, and the referenced parcel numbers in the letter correctly match those of the property. The BTA also noted that the BOR's valuation of the property was consistent with the valuation offered by Lowe's to the BOR. While the BTA acknowledged that the owner of the property was incorrectly identified on the March 2, 2016 decision letter, it reasoned that the remaining pertinent information on the letter was correct and therefore sufficient to notify the BOE of the BOR's decision regarding the valuation of the property.

{¶ 13} Lowe's asserts that the BTA reached the correct conclusion because an error relating to an ownership name does not affect jurisdiction because it does not implicate the "core of procedural efficiency." In support of this assertion, Lowe's cites Shinkle v. Ashtabula Cty. Bd. of Revision , 135 Ohio St.3d 227, 2013-Ohio-397, 985 N.E.2d 1243, Hilltop Commons, LLC v. Mingo , 10th Dist. No. 11AP-1089, 2012-Ohio-5661, 2012 WL 6033797, Simon DeBartolo Group, L.P. v. Cuyahoga Cty. Bd. of Revision , 8th Dist. No. 85052, 2005-Ohio-2621, 2005 WL 1245621, and Groveport Madison Local Schools Bd. of Edn. v. Franklin Cty. Bd. of Revision , 137 Ohio St.3d 266, 2013-Ohio-4627, 998 N.E.2d 1132. Lowe's reliance on these cases, however, is misplaced.

{¶ 14} The cases Lowe's cites all involved disputes as to the jurisdictional sufficiency of a valuation complaint filed with a board of revision pursuant to R.C. 5715.19, not whether a party was sufficiently notified of a board's decision for the purpose of R.C. 5717.01's 30-day appeal requirement. In Shinkle , the dispute centered on whether the property owner had invoked the jurisdiction of a county board of revision when the property owner's complaint failed to specify an amount of value for the property. Shinkle at ¶ 22. As to that issue, the Supreme Court of Ohio held that, because R.C. 5715.19's "requirement to state the amount of value runs to the core of procedural efficiency," it is jurisdictional. Id. at ¶ 22. Similarly, in Hilltop , this court concluded that the county board of revision lacked jurisdiction over the matter because omitted information regarding valuation in the property owner's complaint "runs to the core of procedural efficiency." Hilltop at ¶ 15, 41. In Simon DeBartolo Group , the Eighth District Court of Appeals held that the property owner's use of one complaint for two parcels of land in separate taxing districts did not affect the core of procedural efficiency and therefore the county board of revision had jurisdiction. Simon DeBartolo Group at ¶ 21. Lastly, in Groveport , the Supreme Court of Ohio was faced with the issue of whether the valuation complaint at issue was jurisdictionally deficient because the complainant did not correctly name the property owner. Groveport at ¶ 6, 8. In resolving that issue, the Supreme Court concluded that "[b]ecause there is no statutory requirement that a valuation complaint accurately identify the legal owner of the subject property, identification of the owner is not a jurisdictional prerequisite." Id. at ¶ 32. Thus, the cited cases are legally and factually distinguishable from the case at bar.

{¶ 15} We find the BTA wrongly minimized the significance of the error on the BOR's March 2, 2016 decision letter. The error was not a misspelling or other obvious typographical error. The named owner on the letter, LBUBS 2007-C1 COMPLEX 2740 LLC, also had a valuation dispute pending before the BOR, and the BOE's counsel was involved in that dispute. Even though the substance of the letter indicated the BOR apparently had decided the matter as to the property owned by Lowe's, the misidentification of the owner as LBUBS 2007-C1 COMPLEX 2740 LLC created the real possibility of a misunderstanding as it related to both the BOR's intent in issuing the letter and the administrative processing of mail delivered at BOE's counsel's office. Given the potential for confusion created by the mistake, the BOR acted reasonably in sending the corrected letter on April 1, 2016.

{¶ 16} For these reasons, we find that, even assuming the BOE received the March 2, 2016 decision letter, the letter did not sufficiently notify the BOE of the BOR's decision for the purpose of R.C. 5717.01's 30-day appeal requirement. Therefore, considering the particular circumstances of this case, we conclude that the BOR did not validly certify its decision to the BOE pursuant to R.C. 5715.20 until it sent its April 1, 2016 decision letter to the BOE. Thus, the BOE's 30-day window to appeal the decision began on April 1, 2016. Because the BOE filed its appeal on April 8, 2016, the appeal was timely. Accordingly, we sustain the BOE's first assignment of error.

{¶ 17} In the BOE's second assignment of error, it contends that, even assuming the March 2, 2016 decision letter started a 30-day appeal period, the BTA erred in determining that the April 1, 2016 decision letter did not restart the 30-day appeal period. The BOE's third assignment of error asserts that the BTA erred in not finding that the April 1, 2016 decision letter operated to vacate the March 2, 2016 decision letter. The BOE's fourth assignment of error alleges that, even assuming the March 2, 2016 decision letter started a 30-day appeal period, the BTA erred in not finding that the April 1, 2016 decision letter began a new 30-day appeal period because it was sent to all parties in the same manner as the March 2, 2016 decision letter. And in its fifth assignment of error, the BOE asserts that the BTA erred in finding that the BOR's March 2, 2016 decision letter was actually mailed and delivered to the BOE. Based on our disposition of the BOE's first assignment of error, the particular issues raised by these remaining assignments of error are rendered moot.

IV. Disposition

{¶ 18} Having sustained the BOE's first assignment of error, rendering moot the BOE's second, third, fourth, and fifth assignments of error, we reverse the decision of the BTA and remand this matter for further proceedings consistent with law and this decision.

Decision reversed; cause remanded.

TYACK and DORRIAN, JJ., concur.