Preview
E1278
054
IN THE COURT OF COMMON PLEAS nw
FRANKLIN COUNTY, OHIO 2 2 38
m =_ =
7m oR Sz
BRIAN FREDERIC GRIFFIN, M.D., : CASENO. 11CVF8-103895 S Re
: o YN
. n w 5,
Appellant, ; JUDGE HOGAN g Bee
vs. : > 2 G2
: a &- 5S
OHIO BUREAU OF WORKERS’ : MEM DU PPELLEE IN~
COMPENSATION, : OPPOSITION TO MOTION FOR
3 TAY PENDIN! PPEAL
Appellee. :
This matter has come before the Court as an administrative appeal, pursuant to
R.C. 119.12. Appellant appeals from an order of the Ohio Bureau of Workers’
Compensation, which denied Appellant’s application for renewal as a Health Partnership
Program (“HPP”) participant under Ohio Adm.Code Chapter 4123-6. Appellant has
asked this Court for a stay of the Bureau’s order, which the Bureau submits must be
denied.
RC. 119.12 states, in part, “The filing of a notice of appeal shall not
automatically operate as a suspension of the order of an agency. If it appears to the court
that an unusual hardship to the appellant will result from the execution of the agency's
order pending determination of the appeal, the court may grant a suspension and fix its
terms.” (Emphasis added). In this casc, Appellant has not identified any unusual
hardship that could justify a stay of the Bureau’s order.
In State Medical Board of Ohio v. H. Rudolph Alsleben, D.O., Summit County
Court of Common Pleas Case No. CV80-3-0614, unreported (attached as Appendix A),
the court noted:
\7 iE1278 - 055
There is a dearth of authority in Ohio defining what constitutes
“unusual hardship.” However, some reasonable analysis may be helpful.
The very term itself presupposes that the legislature foresaw that there
would be a hardship in practically every one of these types of cases.
Therefore, it must be concluded that the lawmakers meant just what they
said when the adjective “unusual” was included. That there will be a
hardship in this case is certainly true, as in every case. The question is
whether there has been an unusual one.
Although Alsleben had lost his license to practice, the court did not grant a stay. Scc
also, Williams v. Ohio Dept. of Insurance, Franklin County Court of Common Pieas Case
No. 93CVF08-5808, unreported (attached as Appendix B); and Dolce v. State Board of
Chiropractic Examiners, Franklin County Court of Common Pleas Case No. 92CVF11-
9231, unreported (attached as Appendix C).
As this court held in Griffin v. State Medical Board of Ohio, Franklin County
Court of Common Pleas Case No. 1OC VF05-7480, unreported (attached as Appendix D):
When asked to stay an administrative order, courts give significant
weight to the expertise of the administrative agency, as well as to the
public interest to be served by the proper operation of the regulatory
scheme. Sce Hamlin Testing Labs, Inc. v. United States Atomic Energy
Comm. (1964), 337 F.2d 221. To that end, R.C. 119.12 allows the Court
to grant a suspension of an agency order pending appeal if the Court
determines that “unusual hardship” will result to appellant.
There are several factors that the Court considers when
determining whether it is appropriate to stay an administrative order
pending judicial review. Bob Krihwan Pontiac-GMC Truck, inc. vy. GMC
(2001), 141 Ohio App.3d 777, 783. Those factors are (1) whether
appellant has shown a strong or substantial likelihood or probability of
success on the merits; (2) whether appellant has shown that it will suffer
irreparable injury; (3) whether the issuance of a stay will cause harm to
others; and (4) whether the public interest would be served by granting a
stay. Id ***.
Appellant's only argument regarding an “unusual hardship” is that, absent a stay,
he would be “deprived of any meaningful judicial review.” Appellant makes this
assertion without reference to any specific harm. This argument is without basis.E1278 - O56
Appellant relies upon case law which is not analogous. In the Hays case, the
Ohio State Medical Board had revoked Hays’ certificate to practice podiatry based upon
his failure to establish his fitness to sit for the Ohio bar examination, a matter the court
perceived as unrelated to the practice of podiatry. Because the Board’s order would
effectively put Hays out of business, the court found unusual hardship. A similar
situation occurred in the cited Harrison and Smith cases.
Although the Bureau submits that the loss of a license, by itself, does not
constitute an “unusual” hardship, Appellant will not even suffer such a loss. Appellant
will not be deprived of his ability to practice medicine. The decision of the Bureau only
affects Appellant’s participation in the Bureau’s HPP as a certified provider. It does not
impact his ability to treat patients or to charge those patients for such treatment.
Although Appellant cites to the case of Pogorelec v. Ohio Bureau of Workers’
Compensation, Franklin County Common Pleas No. 00CVFO7-6192, as involving the
same agency and issue, there is nothing in the cited order to indicate what unusual
hardship had been found. The mere fact that a stay had been granted in one case
involving a denial of certification as a provider in the HPP does not indicate that an
unusual hardship must therefore exist in all such cases. Indeed, such an argument would
vitiate the concept of “unusual hardship.”
The decision of the Bureau to deny Appellant’s application for certification to
participate in the HPP is based on Appellant's failure to comply with the statutes and
tules applicable to such certification, as Appellant has a history of treatment in lieu of
conviction of a felony from the Common Pleas Courts of Hamilton and Franklin
Counties, Ohio. Ohio Adm.Code 4123-6-02.2(B)(5). Such decision docs not affectE1278 - O57
Appellant’s ability to practice medicine or to treat and charge any patient. It gocs only to
the ability to directly bill the Bureau for treatment of patients who have workers’
compensation claims. Should Appellant prevail in this matter, Appetlant would then
have the ability to bill for already-provided treatment. To grant a stay, however, would
require the Bureau to pay a provider whose background contains treatment in lieu of
conviction of a felony, in contravention of law. No public interest would be served by
the granting of the requested stay.
The Bureau submits that Appellant has not shown any unusual hardship from the
implcmentation of the Bureau’s decision. As such, the Bureau respectfully submits that
the motion for stay must be denied.
Respectfully submitted,
MIKE DEWINE
Ohio Attorney Gencral
a
t
CHERYZ J. WESTER (0013264) [APPH
Assistant Attorney General
Workers' Compensation Section
150 East Gay Street, 22™ Floor
Columbus, Ohio 43215-3130
614.466.6696
614.752.2538 — Fax
chery].nester@chioattomeygeneral.gov
Counsel for Appellee,
Ohio Bureau of Workers' CompensationE1278 - 058
CERTIFICATE OF SERVICE
1 hereby certify that a copy of the foregoing Memorandum in Opposition was sent
by U.S. Mail, postage prepaid, on this 29th day of August, 2011, to:
Thomas W. Hess
Dinsmore & Shohl
191 w. Nationwide Blvd., Suite 300
Columbus, Ohio 43215
CHERYY/J. KESTER (0013264)
Assistant Attorney GeneralE1278 - 059
Ee :
ee
—s
TN THEACOURT :9%: COM PLEAS
Gidhe kopiparg-pnr0
ofan ceuny
(STATE MEDICAL BOARD OF ORO” CPURTS CASE” WO. CVBO-3-0514
Appellee, ORDER
vs.
‘H. RUDOLPA ALSLEBEN, D.0.
Sewn
. Appellant.
_ This cause ceme on to be heard:'on the pleinti£f-appelie=:- °
Hotion for Suspension of Order, filed herein on Merch &, 1589.
The Court granted a temporary xestraining order chich is
effective through March 17, 1980.
The motion is ‘brought pursuant to Section 119.12, 0.R.C.,
fave
claiming to. the Court that en unusual hardship will’ be sufiez
by the plainti£r from’ the execution of the appellee's ordaz
pending the determination of the nerits of the eppeel hereiz.
There is = dearth of authority in OhLo defining what
constitutes "unusual hardship." However, some reescnable
evalysis may be helpful. . The very term itself presupposes
that the legislature foresaw that there would be a hardship
in practically every one of these types of cases, Therefore,
it oust be conéluded that ‘the lawnakers meant just what they
said whon the adjective “unusual” was included, That there
will be a hardship in-this case 43 certainly true, ag in
Aprendix AE1278 - O6
every case. The quescion is whether there hes been 2 showing
thet it is an unusual one.
The appellant argues that a hardship will resule to the
patients of the sppellant if the order is not stayed, A
reading of the statute shows this to be en invalid considera.
tion. Section 119.12, O:R.C. provides in pertinent parc:
"If it appears to the Court thet en tousual hardship
to the eppellant will xesulc~-! (Emphasis added).
Therefore, the statute fs not intexded to cover hardstirg
except to the eppellant.
In eddition, the staterents of counsel during exmment
reveal that the sppellant is associated with ae least one
other doctor whe can service any emergency needs of petiencs,
For non-emergency ceases, there are many other doctors evatledi
in the community for medical services.
The Court finds that there just has not been a concrete
showing of an uriusuel hardship. There is nothing on which ce
judge vhether the appellant will suffer a disastrous.finenctel
loss or Just undergo an economic end financial readjustzens.
For. exenple, there.is no knowledge of what his financial
excangezent way be with his associate. He may vary well be
entitled to some income from ‘thet arrangezent. The eppellant
ney have other sources of income which could sustain him with
some adjustment in lifascyle.
| , while it can hardly be denied that the lose of one's —E1278 - 061
Jdicense to practice his chosen profession constitutes e
herdship, At is equally cleez thet something more and unusua:
is required to satisfy the statute.
Accordingly, the motion is overruled. The 2ppellent's
corpanion motion fo pernit edditional evidence, argued also -
én March 14, 1980, is taken under advisement by,the Cource
until such tire as the hearing trenseript is filed and can
be reviewed by the Court. ,
The temporery-xestreining order issued by the Courc
origisielly on Merch 7, 1980, is hereby ordered dissolved.
“It is so ordered. :
me
Judge John W. Reece
Joseph C. Winner
ee:
Jeffrey Jurca
Gr regtay Savatoong MEPCATE DE, S0000, OveE1278 ~ o62
IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OH?
CIVIL DIVISION °
WILLIAM &. WILLIAMS,
Appellant,
vs. Case No. 93CVFO8-58: §
STATE OF OHIO DEPARTMENT OF “: dUDGE REECE
INSURANCE,
Appellee.
ERS on :
Rendered this } day of January, 1994.
This matter is before the Court upon Appellant's Motion
In response, ‘
REECE, J.
for Suspension of Order filed on September 2, 1993.
Appellee filed a Memorandum in Opposition to Appellant’s Request
for Suspension of Order on August 20, 1993.
Pursuant to R.C. § 119.12, Appellant moves this Court
for an order staying the State of Ohio Department of Insurance’s
order revoking all of the Appellant‘s licenses. Appellant asserts
that execution of the Appellee‘’s orders and suspension of his
insurance licenses pending the determination of this Appeal herein
would be ah unusual hardship. In contrast, the Appellee argues
against the suspension because it believes no unueual hardship
exists for Appellant.
. ‘ The authority for granting a suspension order pending
appeal. is found in R.C. § 119.32 which provides in pertinent part:
The filing of a notice of appeal shall not -
automatically operate.as a suspension of the
order of an agency. If it appears to the
1
N PPEN Diy B—
£1278 © 063
Court that an vypvsual_herdship to - the
Appellant will result from the execution of
the agency's order pending determination of
the appeal , the Court may grant a suspension
and fix its terms. (Emphasis added.)
As observed in the unreported opinion State dical
Board v. Aslehen (March 27, 1980), Summit County Common Pleas,-
Case No. CV80-3-0614, ‘there is very little case law or statutory
help concerning a definition of "unusual hardship.* However, sare
reasonable analysis may be helpful. The term itself presupposes
that the legislature foresaw that there would be a hardship in
practically every one of these types of cases. Therefore, it must
be concluded that the ‘lawmakers meant just what they said when the
adjective ‘unusual’ was included.
This Court intezprets that as meaning the legislature
intended 8 more unusval consequence in order to suspénd the order
of removal than simply not being able to sell insurance. That
there will be a hardship in this case is certainly true, as in
every case. The question is whether there has been a showing that
it is an unusual one. ; ,
The Appellant explains in his Motign he has only
\received seven .(7) complaints out ‘of the over 900 health and
laccident policies he has sold. He represents he was licensed with
american Service Life Insurance Company and left them in October
of 1991 because of the Company's inadequacy in serving its policy.
Now Appellant asserts that a regiona)-manager of that company was
very bitter over the Appellant ‘s resignation and that several of
, the persons who complained to the department were encouraged to do
2E1278.
“064°
so by competitors or by people who have a cross. to beax inst
Mx. Williams. In addition, Mr. Williams.contends that bh. arned
commissions in excess of $11,000.00 which sums are being (d by
-is a
the insurance company because the revocstion of his licen
breach of contract and as such permits the insurance com iny 'to
keep the commission once the license is revoked.
A review of the foregoing leaves the Court with oily one
query: Where is the unusual hardship?
jhe Court.finds that there just has not been a concrete
| showing of an unvgval hardship. There is nothing on which to
judge whether the Appellant will suffer a disastrous financial
loss or just undergo an economic and financial readjustment.
Regarding the holding of the $11,000.00 in earned commission,
Appellant fails to not only mention which insurance company he is
referring to, but also fails to clarify if whether a stey would
remedy his predicament.
Accordingly, based
consideration of the submitted memoranda,
relevant evidence, the Court finds the. Motion not well-taken and
all insbraree ‘licenses held by Appellant
hereby DENIES the same.
shall remain revoked during the pending of his Appeal,
I? I6 GO ORDERED. i
upon the foregoing review and
the law and other
REECE, 11, JUDGE
‘Feopies to: *
David McCreary, Esq.
Ava W. Serrano, Esq.E12a-065
IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO
Alfred J. Dolce, D.C., - -
Appellant, ‘
Case No. 92CVF-11-9231 enQalh
ve
vt _
State Board of Chiropractic Examiner,
Appellee. :
DECISION
Rendered this lo day of March, 1993. sheward, a
This matter 4s before the Court upon Appellant Alfred
tion to Stay proceedings; Appellee State Board of
¢ Examiners’ Memorandum in opposition to Appellant's
stay; and Appellants Reply Memorandum in Support of ©
Dolce's No
Chiropracti
Motion for
Motion for Stay-
Appellant's license
the State Board of Chiropractic on November 6, 1992. Lo
Appellant filed an appeal of said oxder in the .
Appellant f4led dts Motion to
1993, seeking an order from this
to practice chiropractic was revoked by.
subsequently+
fHuren County court of Appeals.
gtey Proceedings on January 31,
court to suspend the execution of the November 6, 1992, order
pending the determination of the merits of the appeal.
The motion is brought pursuant to R.C. 119.12 which states,
in pertinent parts
qn the case of an appeal from the state
medical board or chiropractic examining
. . poard, the court may grant 4 5US ension
1ix ite terms if it appears to
an unusual hardship to the appellant will
result from the execution of the agency's
order, pending determination of the appeal
and the health, safety, and wwelfare of the. 15!
public will not be threatened by suspension MAR
of the order. : yWEnLTH &
, \ gravices Sl
R.C.119 12 provides two specific factors. for the courts to
consider when determining whether to stay the execution of an ¢
a — Aevenbix CE1273*= O66
agency ‘5
of unusual
order. ‘The moving party has the
hardship. Galiia-Jackson-Yinton Joint Vocational School Board of ©
Gallia, 6-11-87). The
rt shall ascertain the existence
lent from compliance with the
perden of proving unusual
oxder, First, the cou
hardship to the appel
Education v- SERB, No. B6~CL-415 (CPy
jed that Appellant's claim of loss of
Court’ is not persuad
puilding, and equipment constitutes “unusual hardship"
‘practice,
as contenpiated in R.C. 119.12- see state Medical Board v:-
“aasdeben (arch 17,3980), Summit, ¢-P- No. 30614, whreported.
ghexefore, Upen consideration of the nemoranda submitted, the
court concludes that. Appellant has failed to meet his burden of
proving unusual hardship. vo :
e court concerns whether the
The
health, safety
nsion of the order. ‘The Cour’
suspe!
not be threatened by the susp
Board of
Appelian
accordingly,
well-take!
appel lan
hardship
Counsel for Appel
second factor examined by thi :
and welfare of the public wiJ1 be threatened by
4 does not find the public will
dision of the order of the State —
chiropractic Examiners given the grounds for which the
t's license was suspended.
the Court dees not find the Appellant's Motion ;
by OVERRULED. - Further,
nand the same 16 here
ing on the iseve of unusual
e's request for oral hear
46 DENIED. .
Jee shall prepare the appropri.
’
COPIES TOs
patrick
Hurrey
Attorney fOr Appellant
Gregg 8. Tho
attorney for
rnton
Appellee&
E1278
'- O67
IN-THE COURT OF COMMON PLEAS; FRANKLIN COUNTY, OHIO
George D.J, Grfin, M.D. _ TOMAR 11 AM 8: 36
Appellant CLERK oi Guu 1S
v. Case No. 10CVF0S-7480 (Cocrof, J.)
State Medical Board of Ohio, .
Appellee.
DECISION AND E| . DENYING ELLANT'S- FOR SUSPENSIO!
F THE ING APPEAL,
D EI IG APP! FILI
: FEBRUARY 18, 2011
Rendered this {¥/day of March, 2011
COCROFT, t. ,
This matter i is before the Court upon 1 the motion for suspension of the order of of the
State Medical Board of Ohio pending appeal to the Tenth District Court of Appeals, filed
by the appellant, George Griffin I, MD, on February 9, 201 1. The appellee, State
Medical Board of Ohio, filed a memorandum contra on February 11, 2011. The
appellant filed a reply and a motion to strike on February 18, 2011. The appellee filed a
memorandum in opposition to the motion to strike on February 25, 2011. This matter i is
now ripe for decision. _ ,
On February 3, 2011, this Court rendered a decision and entry which upheld the
State Medical Board of Ohio's Order imposing a 120-day suspension of the appellant's
license to practice medicine, staying all but 30 days of the suspension. The appellant is
now requesting that this Court stay the. offect of its decision “and entry pending aF1278
- 068
resolution to the Tenth District Court of Appeals. (Motion ‘for Suspension, p. 1).
Conversely, the appellee contends that the appellant has failed to demonstrate undue
7
hardship that would result. (Memorandum In opposition, p. 1). Additionally, the appellee
-contends that the public interest Is served by denying the appellant's request for a stay
because of the appellant’s “very poor judgments in prescribing OxyContin.” (id, p. 5).
The filing of an administrative appeal does not automatically entitle a party to a
stay of execution Pending judicial review. Rather, the General Assembly has given trial
, courts broad discretion when making such determinations, legislating that: "if It appears
to the Court than an unusual hardship to the appellant will result from the execution of
the agency's order pending determination of the appeal, the Court may grant a
suspension and fix its terms." R.C. 119.12. As such, when reviewing whether a trial
court properly granted or denied a motion to stay an administrative order, the standard
of review employed Is an abuse of discretion. Carter Stee! & Fabricating Co. v. Danis ©
Bldg. Construction Co. (1998), 126 Ohio App. 3d 251, 254, 710 N.E.2d 209.
When asked to stay an administrative order, courts give significant weight to the
expertise of the administrative agency, as well as to the public interest served by the
proper operation of the regulatory. scheme. See Hamlin Testing Labs, Inc. v. United
Stafes Atomic Energy Comm. (1964), 337 F.2d 221. To that end, R.C. 119.12 allows
the Court to grant a suspension of an agency order pending appeal if the Court
determines that “unusual hardship" will result to appellant. .
There are several factors that the Court considers when determining whether it is
appropriate to stay an administrative order pending Judiclal review. Bob -Krihwan
Pontiac-GMC Truck, Inc, v. GMC (2001), 141 Ohlo App. 3d 777, 783. Those factorsE1278 - 069
are: (1) whether appellant has shown a strong or substantial likelihood or probability of
success on the merits; (2) whether appellant has shown that it will suffer irreparable
injury; (3) whether the issuance of a stay will cause harm to others; and (4) whether the
public interest would be served by granting a stay. /d; citing Hamiin, supra, Gurtzweiler
v. United States (1885), 801 F. Supp. 883; Holden v. Heckler (1984), 584 F. Supp. 463;
Up.dohn Company v. Finch (1969), 303 F. Supp. 241; Friendship Materials v. Michigan
Brick, Inc. (1982), 679 F.2d 100; and Virginia Petroleum Jobbers Assn. v. FPC (1958),
104 U.S. App. D.C. 106, 259 F.2d 921. ,
Upon review, the evidence indicates that an issuance of a stay may cause harm
to others and that the public interest would not be served by granting a stay. The record
indicates that the appellant "inappropriately and excessively” prescribed OxyContin to a
_patient with a criminal history including drug-related felonies when the appellant was put
on notice by a pharmacist that the patient was selling drugs. Additionally, public policy
dictates that this Court takes into consideration the dangers of OxyContin and the fact
that the evidence indicates that thie appellant would benefit from training and
supervision with regards to prescribing narcotics.
Furthermore, this Court finds that the appellant has failed to show. irreparable
harm. The record indicates that the appellant's suspension is 30 days. As the appellee
correctly points out, the appellant's license is not being revoked permanently and there
is no evidence that the 30-day suspension will be unduly burdensome to the appellant.
As such, this Court finds that the appellant's arguments lack merit and, therefore, the
appellant's motion to suspend the State Medical Board of Ohlo’s Order and the‘E1278 - 070
appellant's motion to strike portions of the appellee's memorandum in opposition are not
_ well-taken and are hereby DENIED.
IT 1S SO ORDERED.
Copies to:
Eric Plinke *
Gregory Mathews’
Counsel for Appellant
Henry Appel
Counsel for Appellee
Preview
E1278 054 IN THE COURT OF COMMON PLEAS nw FRANKLIN COUNTY, OHIO 2 2 38 m =_ = 7m oR Sz BRIAN FREDERIC GRIFFIN, M.D., : CASENO. 11CVF8-103895 S Re : o YN . n w 5, Appellant, ; JUDGE HOGAN g Bee vs. : > 2 G2 : a &- 5S OHIO BUREAU OF WORKERS’ : MEM DU PPELLEE IN~ COMPENSATION, : OPPOSITION TO MOTION FOR 3 TAY PENDIN! PPEAL Appellee. : This matter has come before the Court as an administrative appeal, pursuant to R.C. 119.12. Appellant appeals from an order of the Ohio Bureau of Workers’ Compensation, which denied Appellant’s application for renewal as a Health Partnership Program (“HPP”) participant under Ohio Adm.Code Chapter 4123-6. Appellant has asked this Court for a stay of the Bureau’s order, which the Bureau submits must be denied. RC. 119.12 states, in part, “The filing of a notice of appeal shall not automatically operate as a suspension of the order of an agency. If it appears to the court that an unusual hardship to the appellant will result from the execution of the agency's order pending determination of the appeal, the court may grant a suspension and fix its terms.” (Emphasis added). In this casc, Appellant has not identified any unusual hardship that could justify a stay of the Bureau’s order. In State Medical Board of Ohio v. H. Rudolph Alsleben, D.O., Summit County Court of Common Pleas Case No. CV80-3-0614, unreported (attached as Appendix A), the court noted: \7 iE1278 - 055 There is a dearth of authority in Ohio defining what constitutes “unusual hardship.” However, some reasonable analysis may be helpful. The very term itself presupposes that the legislature foresaw that there would be a hardship in practically every one of these types of cases. Therefore, it must be concluded that the lawmakers meant just what they said when the adjective “unusual” was included. That there will be a hardship in this case is certainly true, as in every case. The question is whether there has been an unusual one. Although Alsleben had lost his license to practice, the court did not grant a stay. Scc also, Williams v. Ohio Dept. of Insurance, Franklin County Court of Common Pieas Case No. 93CVF08-5808, unreported (attached as Appendix B); and Dolce v. State Board of Chiropractic Examiners, Franklin County Court of Common Pleas Case No. 92CVF11- 9231, unreported (attached as Appendix C). As this court held in Griffin v. State Medical Board of Ohio, Franklin County Court of Common Pleas Case No. 1OC VF05-7480, unreported (attached as Appendix D): When asked to stay an administrative order, courts give significant weight to the expertise of the administrative agency, as well as to the public interest to be served by the proper operation of the regulatory scheme. Sce Hamlin Testing Labs, Inc. v. United States Atomic Energy Comm. (1964), 337 F.2d 221. To that end, R.C. 119.12 allows the Court to grant a suspension of an agency order pending appeal if the Court determines that “unusual hardship” will result to appellant. There are several factors that the Court considers when determining whether it is appropriate to stay an administrative order pending judicial review. Bob Krihwan Pontiac-GMC Truck, inc. vy. GMC (2001), 141 Ohio App.3d 777, 783. Those factors are (1) whether appellant has shown a strong or substantial likelihood or probability of success on the merits; (2) whether appellant has shown that it will suffer irreparable injury; (3) whether the issuance of a stay will cause harm to others; and (4) whether the public interest would be served by granting a stay. Id ***. Appellant's only argument regarding an “unusual hardship” is that, absent a stay, he would be “deprived of any meaningful judicial review.” Appellant makes this assertion without reference to any specific harm. This argument is without basis.E1278 - O56 Appellant relies upon case law which is not analogous. In the Hays case, the Ohio State Medical Board had revoked Hays’ certificate to practice podiatry based upon his failure to establish his fitness to sit for the Ohio bar examination, a matter the court perceived as unrelated to the practice of podiatry. Because the Board’s order would effectively put Hays out of business, the court found unusual hardship. A similar situation occurred in the cited Harrison and Smith cases. Although the Bureau submits that the loss of a license, by itself, does not constitute an “unusual” hardship, Appellant will not even suffer such a loss. Appellant will not be deprived of his ability to practice medicine. The decision of the Bureau only affects Appellant’s participation in the Bureau’s HPP as a certified provider. It does not impact his ability to treat patients or to charge those patients for such treatment. Although Appellant cites to the case of Pogorelec v. Ohio Bureau of Workers’ Compensation, Franklin County Common Pleas No. 00CVFO7-6192, as involving the same agency and issue, there is nothing in the cited order to indicate what unusual hardship had been found. The mere fact that a stay had been granted in one case involving a denial of certification as a provider in the HPP does not indicate that an unusual hardship must therefore exist in all such cases. Indeed, such an argument would vitiate the concept of “unusual hardship.” The decision of the Bureau to deny Appellant’s application for certification to participate in the HPP is based on Appellant's failure to comply with the statutes and tules applicable to such certification, as Appellant has a history of treatment in lieu of conviction of a felony from the Common Pleas Courts of Hamilton and Franklin Counties, Ohio. Ohio Adm.Code 4123-6-02.2(B)(5). Such decision docs not affectE1278 - O57 Appellant’s ability to practice medicine or to treat and charge any patient. It gocs only to the ability to directly bill the Bureau for treatment of patients who have workers’ compensation claims. Should Appellant prevail in this matter, Appetlant would then have the ability to bill for already-provided treatment. To grant a stay, however, would require the Bureau to pay a provider whose background contains treatment in lieu of conviction of a felony, in contravention of law. No public interest would be served by the granting of the requested stay. The Bureau submits that Appellant has not shown any unusual hardship from the implcmentation of the Bureau’s decision. As such, the Bureau respectfully submits that the motion for stay must be denied. Respectfully submitted, MIKE DEWINE Ohio Attorney Gencral a t CHERYZ J. WESTER (0013264) [APPH Assistant Attorney General Workers' Compensation Section 150 East Gay Street, 22™ Floor Columbus, Ohio 43215-3130 614.466.6696 614.752.2538 — Fax chery].nester@chioattomeygeneral.gov Counsel for Appellee, Ohio Bureau of Workers' CompensationE1278 - 058 CERTIFICATE OF SERVICE 1 hereby certify that a copy of the foregoing Memorandum in Opposition was sent by U.S. Mail, postage prepaid, on this 29th day of August, 2011, to: Thomas W. Hess Dinsmore & Shohl 191 w. Nationwide Blvd., Suite 300 Columbus, Ohio 43215 CHERYY/J. KESTER (0013264) Assistant Attorney GeneralE1278 - 059 Ee : ee —s TN THEACOURT :9%: COM PLEAS Gidhe kopiparg-pnr0 ofan ceuny (STATE MEDICAL BOARD OF ORO” CPURTS CASE” WO. CVBO-3-0514 Appellee, ORDER vs. ‘H. RUDOLPA ALSLEBEN, D.0. Sewn . Appellant. _ This cause ceme on to be heard:'on the pleinti£f-appelie=:- ° Hotion for Suspension of Order, filed herein on Merch &, 1589. The Court granted a temporary xestraining order chich is effective through March 17, 1980. The motion is ‘brought pursuant to Section 119.12, 0.R.C., fave claiming to. the Court that en unusual hardship will’ be sufiez by the plainti£r from’ the execution of the appellee's ordaz pending the determination of the nerits of the eppeel hereiz. There is = dearth of authority in OhLo defining what constitutes "unusual hardship." However, some reescnable evalysis may be helpful. . The very term itself presupposes that the legislature foresaw that there would be a hardship in practically every one of these types of cases, Therefore, it oust be conéluded that ‘the lawnakers meant just what they said whon the adjective “unusual” was included, That there will be a hardship in-this case 43 certainly true, ag in Aprendix AE1278 - O6 every case. The quescion is whether there hes been 2 showing thet it is an unusual one. The appellant argues that a hardship will resule to the patients of the sppellant if the order is not stayed, A reading of the statute shows this to be en invalid considera. tion. Section 119.12, O:R.C. provides in pertinent parc: "If it appears to the Court thet en tousual hardship to the eppellant will xesulc~-! (Emphasis added). Therefore, the statute fs not intexded to cover hardstirg except to the eppellant. In eddition, the staterents of counsel during exmment reveal that the sppellant is associated with ae least one other doctor whe can service any emergency needs of petiencs, For non-emergency ceases, there are many other doctors evatledi in the community for medical services. The Court finds that there just has not been a concrete showing of an uriusuel hardship. There is nothing on which ce judge vhether the appellant will suffer a disastrous.finenctel loss or Just undergo an economic end financial readjustzens. For. exenple, there.is no knowledge of what his financial excangezent way be with his associate. He may vary well be entitled to some income from ‘thet arrangezent. The eppellant ney have other sources of income which could sustain him with some adjustment in lifascyle. | , while it can hardly be denied that the lose of one's —E1278 - 061 Jdicense to practice his chosen profession constitutes e herdship, At is equally cleez thet something more and unusua: is required to satisfy the statute. Accordingly, the motion is overruled. The 2ppellent's corpanion motion fo pernit edditional evidence, argued also - én March 14, 1980, is taken under advisement by,the Cource until such tire as the hearing trenseript is filed and can be reviewed by the Court. , The temporery-xestreining order issued by the Courc origisielly on Merch 7, 1980, is hereby ordered dissolved. “It is so ordered. : me Judge John W. Reece Joseph C. Winner ee: Jeffrey Jurca Gr regtay Savatoong MEPCATE DE, S0000, OveE1278 ~ o62 IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OH? CIVIL DIVISION ° WILLIAM &. WILLIAMS, Appellant, vs. Case No. 93CVFO8-58: § STATE OF OHIO DEPARTMENT OF “: dUDGE REECE INSURANCE, Appellee. ERS on : Rendered this } day of January, 1994. This matter is before the Court upon Appellant's Motion In response, ‘ REECE, J. for Suspension of Order filed on September 2, 1993. Appellee filed a Memorandum in Opposition to Appellant’s Request for Suspension of Order on August 20, 1993. Pursuant to R.C. § 119.12, Appellant moves this Court for an order staying the State of Ohio Department of Insurance’s order revoking all of the Appellant‘s licenses. Appellant asserts that execution of the Appellee‘’s orders and suspension of his insurance licenses pending the determination of this Appeal herein would be ah unusual hardship. In contrast, the Appellee argues against the suspension because it believes no unueual hardship exists for Appellant. . ‘ The authority for granting a suspension order pending appeal. is found in R.C. § 119.32 which provides in pertinent part: The filing of a notice of appeal shall not - automatically operate.as a suspension of the order of an agency. If it appears to the 1 N PPEN Diy B— £1278 © 063 Court that an vypvsual_herdship to - the Appellant will result from the execution of the agency's order pending determination of the appeal , the Court may grant a suspension and fix its terms. (Emphasis added.) As observed in the unreported opinion State dical Board v. Aslehen (March 27, 1980), Summit County Common Pleas,- Case No. CV80-3-0614, ‘there is very little case law or statutory help concerning a definition of "unusual hardship.* However, sare reasonable analysis may be helpful. The term itself presupposes that the legislature foresaw that there would be a hardship in practically every one of these types of cases. Therefore, it must be concluded that the ‘lawmakers meant just what they said when the adjective ‘unusual’ was included. This Court intezprets that as meaning the legislature intended 8 more unusval consequence in order to suspénd the order of removal than simply not being able to sell insurance. That there will be a hardship in this case is certainly true, as in every case. The question is whether there has been a showing that it is an unusual one. ; , The Appellant explains in his Motign he has only \received seven .(7) complaints out ‘of the over 900 health and laccident policies he has sold. He represents he was licensed with american Service Life Insurance Company and left them in October of 1991 because of the Company's inadequacy in serving its policy. Now Appellant asserts that a regiona)-manager of that company was very bitter over the Appellant ‘s resignation and that several of , the persons who complained to the department were encouraged to do 2E1278. “064° so by competitors or by people who have a cross. to beax inst Mx. Williams. In addition, Mr. Williams.contends that bh. arned commissions in excess of $11,000.00 which sums are being (d by -is a the insurance company because the revocstion of his licen breach of contract and as such permits the insurance com iny 'to keep the commission once the license is revoked. A review of the foregoing leaves the Court with oily one query: Where is the unusual hardship? jhe Court.finds that there just has not been a concrete | showing of an unvgval hardship. There is nothing on which to judge whether the Appellant will suffer a disastrous financial loss or just undergo an economic and financial readjustment. Regarding the holding of the $11,000.00 in earned commission, Appellant fails to not only mention which insurance company he is referring to, but also fails to clarify if whether a stey would remedy his predicament. Accordingly, based consideration of the submitted memoranda, relevant evidence, the Court finds the. Motion not well-taken and all insbraree ‘licenses held by Appellant hereby DENIES the same. shall remain revoked during the pending of his Appeal, I? I6 GO ORDERED. i upon the foregoing review and the law and other REECE, 11, JUDGE ‘Feopies to: * David McCreary, Esq. Ava W. Serrano, Esq.E12a-065 IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO Alfred J. Dolce, D.C., - - Appellant, ‘ Case No. 92CVF-11-9231 enQalh ve vt _ State Board of Chiropractic Examiner, Appellee. : DECISION Rendered this lo day of March, 1993. sheward, a This matter 4s before the Court upon Appellant Alfred tion to Stay proceedings; Appellee State Board of ¢ Examiners’ Memorandum in opposition to Appellant's stay; and Appellants Reply Memorandum in Support of © Dolce's No Chiropracti Motion for Motion for Stay- Appellant's license the State Board of Chiropractic on November 6, 1992. Lo Appellant filed an appeal of said oxder in the . Appellant f4led dts Motion to 1993, seeking an order from this to practice chiropractic was revoked by. subsequently+ fHuren County court of Appeals. gtey Proceedings on January 31, court to suspend the execution of the November 6, 1992, order pending the determination of the merits of the appeal. The motion is brought pursuant to R.C. 119.12 which states, in pertinent parts qn the case of an appeal from the state medical board or chiropractic examining . . poard, the court may grant 4 5US ension 1ix ite terms if it appears to an unusual hardship to the appellant will result from the execution of the agency's order, pending determination of the appeal and the health, safety, and wwelfare of the. 15! public will not be threatened by suspension MAR of the order. : yWEnLTH & , \ gravices Sl R.C.119 12 provides two specific factors. for the courts to consider when determining whether to stay the execution of an ¢ a — Aevenbix CE1273*= O66 agency ‘5 of unusual order. ‘The moving party has the hardship. Galiia-Jackson-Yinton Joint Vocational School Board of © Gallia, 6-11-87). The rt shall ascertain the existence lent from compliance with the perden of proving unusual oxder, First, the cou hardship to the appel Education v- SERB, No. B6~CL-415 (CPy jed that Appellant's claim of loss of Court’ is not persuad puilding, and equipment constitutes “unusual hardship" ‘practice, as contenpiated in R.C. 119.12- see state Medical Board v:- “aasdeben (arch 17,3980), Summit, ¢-P- No. 30614, whreported. ghexefore, Upen consideration of the nemoranda submitted, the court concludes that. Appellant has failed to meet his burden of proving unusual hardship. vo : e court concerns whether the The health, safety nsion of the order. ‘The Cour’ suspe! not be threatened by the susp Board of Appelian accordingly, well-take! appel lan hardship Counsel for Appel second factor examined by thi : and welfare of the public wiJ1 be threatened by 4 does not find the public will dision of the order of the State — chiropractic Examiners given the grounds for which the t's license was suspended. the Court dees not find the Appellant's Motion ; by OVERRULED. - Further, nand the same 16 here ing on the iseve of unusual e's request for oral hear 46 DENIED. . Jee shall prepare the appropri. ’ COPIES TOs patrick Hurrey Attorney fOr Appellant Gregg 8. Tho attorney for rnton Appellee& E1278 '- O67 IN-THE COURT OF COMMON PLEAS; FRANKLIN COUNTY, OHIO George D.J, Grfin, M.D. _ TOMAR 11 AM 8: 36 Appellant CLERK oi Guu 1S v. Case No. 10CVF0S-7480 (Cocrof, J.) State Medical Board of Ohio, . Appellee. DECISION AND E| . DENYING ELLANT'S- FOR SUSPENSIO! F THE ING APPEAL, D EI IG APP! FILI : FEBRUARY 18, 2011 Rendered this {¥/day of March, 2011 COCROFT, t. , This matter i is before the Court upon 1 the motion for suspension of the order of of the State Medical Board of Ohio pending appeal to the Tenth District Court of Appeals, filed by the appellant, George Griffin I, MD, on February 9, 201 1. The appellee, State Medical Board of Ohio, filed a memorandum contra on February 11, 2011. The appellant filed a reply and a motion to strike on February 18, 2011. The appellee filed a memorandum in opposition to the motion to strike on February 25, 2011. This matter i is now ripe for decision. _ , On February 3, 2011, this Court rendered a decision and entry which upheld the State Medical Board of Ohio's Order imposing a 120-day suspension of the appellant's license to practice medicine, staying all but 30 days of the suspension. The appellant is now requesting that this Court stay the. offect of its decision “and entry pending aF1278 - 068 resolution to the Tenth District Court of Appeals. (Motion ‘for Suspension, p. 1). Conversely, the appellee contends that the appellant has failed to demonstrate undue 7 hardship that would result. (Memorandum In opposition, p. 1). Additionally, the appellee -contends that the public interest Is served by denying the appellant's request for a stay because of the appellant’s “very poor judgments in prescribing OxyContin.” (id, p. 5). The filing of an administrative appeal does not automatically entitle a party to a stay of execution Pending judicial review. Rather, the General Assembly has given trial , courts broad discretion when making such determinations, legislating that: "if It appears to the Court than an unusual hardship to the appellant will result from the execution of the agency's order pending determination of the appeal, the Court may grant a suspension and fix its terms." R.C. 119.12. As such, when reviewing whether a trial court properly granted or denied a motion to stay an administrative order, the standard of review employed Is an abuse of discretion. Carter Stee! & Fabricating Co. v. Danis © Bldg. Construction Co. (1998), 126 Ohio App. 3d 251, 254, 710 N.E.2d 209. When asked to stay an administrative order, courts give significant weight to the expertise of the administrative agency, as well as to the public interest served by the proper operation of the regulatory. scheme. See Hamlin Testing Labs, Inc. v. United Stafes Atomic Energy Comm. (1964), 337 F.2d 221. To that end, R.C. 119.12 allows the Court to grant a suspension of an agency order pending appeal if the Court determines that “unusual hardship" will result to appellant. . There are several factors that the Court considers when determining whether it is appropriate to stay an administrative order pending Judiclal review. Bob -Krihwan Pontiac-GMC Truck, Inc, v. GMC (2001), 141 Ohlo App. 3d 777, 783. Those factorsE1278 - 069 are: (1) whether appellant has shown a strong or substantial likelihood or probability of success on the merits; (2) whether appellant has shown that it will suffer irreparable injury; (3) whether the issuance of a stay will cause harm to others; and (4) whether the public interest would be served by granting a stay. /d; citing Hamiin, supra, Gurtzweiler v. United States (1885), 801 F. Supp. 883; Holden v. Heckler (1984), 584 F. Supp. 463; Up.dohn Company v. Finch (1969), 303 F. Supp. 241; Friendship Materials v. Michigan Brick, Inc. (1982), 679 F.2d 100; and Virginia Petroleum Jobbers Assn. v. FPC (1958), 104 U.S. App. D.C. 106, 259 F.2d 921. , Upon review, the evidence indicates that an issuance of a stay may cause harm to others and that the public interest would not be served by granting a stay. The record indicates that the appellant "inappropriately and excessively” prescribed OxyContin to a _patient with a criminal history including drug-related felonies when the appellant was put on notice by a pharmacist that the patient was selling drugs. Additionally, public policy dictates that this Court takes into consideration the dangers of OxyContin and the fact that the evidence indicates that thie appellant would benefit from training and supervision with regards to prescribing narcotics. Furthermore, this Court finds that the appellant has failed to show. irreparable harm. The record indicates that the appellant's suspension is 30 days. As the appellee correctly points out, the appellant's license is not being revoked permanently and there is no evidence that the 30-day suspension will be unduly burdensome to the appellant. As such, this Court finds that the appellant's arguments lack merit and, therefore, the appellant's motion to suspend the State Medical Board of Ohlo’s Order and the‘E1278 - 070 appellant's motion to strike portions of the appellee's memorandum in opposition are not _ well-taken and are hereby DENIED. IT 1S SO ORDERED. Copies to: Eric Plinke * Gregory Mathews’ Counsel for Appellant Henry Appel Counsel for Appellee