Preview
E1259 - O56
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
Brian Frederic Griffin, M.D.
3655 Ridge Mill Drive
Columbus, Ohio 43026,
Appellant,
Case No. 1 1CVF8-10389
v.
Judge D. Hogan
Ohio Bureau of Workers' Compensation
30 West Spring Street
Columbus, Ohio 43215,
Appellee.
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MOTION FOR STAY PENDING APPEAL
Pursuant to R.C. 119.12, Appellant, Brian F. Griffin, M.D., moves this Court for an Order
staying the effect of the Order issued by the Administrator of the Ohio Bureau of Workers'
Memorandum in Support is attached hereto.
Compensation dated August 3, 2011, and mailed tojAppcllant Griffin on August 9, 2011. A
Thomas W. Hess (#0025149)
Dinsmore & SHOHL, LLP
191 W. Nationwide Boulevard, Suite 300
Columbus, Ohio 43215-8120
Telephone: (614) 221-8448
Facsimile: (614) 221-8590
thess@dinslaw.com
Attorneys for Brian Frederic Griffin, M.D.
Ig
610818¥) 49517-9
is
oadE1259 - O57
MEMORANDUM IN SUPPORT
1. FACTUAL AND PROCEDURAL HISTORY
This case involves an administrative appeal from an Order issued by the Administrator of
the Ohio Bureau of Workers’ Compensation ("BWC"). The Order states, in part, the
“Application for certification of Brian A. (sic) Griffin, M.D., to participate in the Health
Partnership Program ("HPP") as a BWC Certified Provider be DENIED." A copy of the Order is
attached as Exhibit A. If the Order is permitted to go into effect, Dr. Griffin will be prohibited
from providing necessary healthcare services to patients eligible for workers’ compensation
coverage.
On January 29, 1993, in the Hamilton County Court of Common Pleas, Dr. Griffin pled
guilty to Deception to Obtain a Dangerous Drug, and was granted Treatment in Lieu of
Conviction. On March 17, 1993, in the Franklin County Court of Common Pleas, Dr. Griffin
pled guilty to Deception to Obtain a Dangerous Drug, and was granted Treatment in Lieu of
Conviction. Approximately onc ycar later, both convictions were expunged.
On February 16, 1996, the BWC adopted O.A.C. 4123-6-02.2(B)(5). This administrative
tules states, in part, "The provider shall not have a treatment in lieu of conviction pursuant to
Section 3951.04] of the Revised Code."
In December 1998, the BWC and Dr. Griffin entered into a provider agreement, which
allowed him to participate in the BWC/HPP. Dr. Griffin remained a provider in good standing
until August 3, 2011.
On April 30, 2010, Appellant Griffin received a letter from the BWC. The letter stated,
in part, that the BWC proposed to revokc his certification as a certified provider in thc HPP. The
alleged reasons for the proposed revocation were based upon the expunged January and March
G10818v1 49517-9E1259 - 058
1993 treatment in lieu of convictions. The appropriateness or the quality of care provided was
not an issue. An administrative hearing challenging the proposed action was held on October 20,
2010. On March 7, 2011, the administrative hearing officer issued a report and recommendation,
recommending that Dr. Griffin's participation in HPP be denied. The BWC administrator
adopted the recommendation on August 3, 2011, which was mailed to the parties on August 9,
2011.
Il. ARGUMENT
The filing of an administrative appeal by Dr. Griffin does not automatically stay the
BWC's Order pending judicial review. R.C. 119.12, in pertinent part, provides:
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 the
termination of the appeal, the court may grant a suspension and fix its terms.
The Court should suspend the Order while this appeal is pending because: 1) Dr. Griffin will
suffer unusual hardship if the Order is permitted to go into effect, and 2) the health, safety and
welfare of the public will not be threatened by suspension of the Order. See, Exhibit B.
Courts have found "unusual hardship" where a decision not to suspend an order would
effectively deprive an appellant of any meaningful judicial review. This principal was
articulated in Hays v. State Medical Board of Ohio, Franklin County Common Pleas No.
99CVF03-2007 (attached as Exhibit C), where the court adopted the magistrate's decision that
found that the stay of an order of an agency was appropriate. In its reaching its decision, the
Hays quoted the decision in Ohio Veterinary Med. Licensing Bd. y. Harrison, Franklin County
Common Pleas No. 98CVF 10-7820, which found:
We normally do not execute prisoners in criminal cases before providing an
opportunity for appeal. It may well be that appellant will be unsuccessful in his
G10818v1 49517.9E1259 - O59
appeal from the order below. However, the court is satisfied that appellant has
met his burden to demonstrate "that unusual hardship" will occur if the
administrative revocation order is enforced before the [court] can review the
proceedings of the agency.
Another court followed the same analysis in Smith v. State Medical Board of
Ohio, Franklin County Common Pleas Number 99C VF07-5481 (attached as Exhibit D)
that the stay of an order of the agency was appropriate because the appellant would serve
at least part of his suspension before the matter was fully briefed and ready for review by
the Court. Sec, also, Progorelec v. Ohio Bureau of Workers' Compensation, Franklin
County Common Pleas Number 00CVF07-6192 (attached as Exhibit E), which involved
the same agency and administrative rule which is before this Court.
As will be more fully described in his brief, Appellant submits the Order is not in
accordance with law. O.A.C. 4123-6-02.2(B)(5), as applied in this instance, violates
Ohio Constitution II Section 28 and R.C. § 1.48. In addition, the Order violates R.C. §
2953.31 e1 seq. And, finally, BWC's Order violates Dr. Griffin's due process rights. The
proposed action is based upon events which allegedly occurred in 1993, with the attempt
to remove Appellant from HPP 18 years later.
Ill. CONCLUSION
In light of the foregoing reasons, Appellant Brian F. Griffin, M.D., respectfully requests
an Order from this Court staying BWC's Order pending resolution of this appeal and allowing
him to continue to provide services to workers’ compensation patients and be reimbursed for
services provided.
610818v1 49517-9E1259 - 060
Thomas W. Hes¥ (#0025149)
Dinsmore & SHOHL, LLP
191 W. Nationwide Boulevard, Suite 300
Columbus, Ohio 43215-8120
Telephone: (614) 221-8448
Facsimile: (614) 221-8590
thess@dinslaw.com
Attorneys for Brian Frederic Griffin, M.D.
CERTIFICATE OF SERVICE
Thereby certify that on augue, 2011, a true and accurate copy of the foregoing
Notice of Appeal was served via hand“delivery upon the following:
Stephen Buehrer, Administrator
Ohio Bureau of Workers' Compensation
30 West Spring Street
Columbus, Ohio 4315
and a copy hand-delivered to:
Gerry Waterman
Assistant Attorney General
Workers’ Compensation Scction
150 E. Gay Street, 22" Floor
Columbus, Ohio 43215
lay
Thomas W. Hess NJ
610818v1 49517-9° EL fo pSesegte @ coreror sre rene
Compensation Administrator/CEO Stephen Buehrer
30 W. Spring St. ohiobwe.com
Columbus. OH 43215-2256 1-800-OHIOBWC
VIA CERTIFIED MAIL
Brian A. Griffin, M.D.
3655 Ridge Mill Drive
Columbus, OH 43026
RE: BWC Provider Numbers 283523490-00 and 861081403-00
Final Order —- Revocation of BWC Provider Certification
As Administrator of the Ohio Bureau of Workers' Compensation ("the Bureau” or “BWC’), | hereby order,
pursuant to Ohio Administrative Code 4123-6-17 and the adjudication hearing conducted in this matter
by Referee Richard Blake on October 20, 2010, that the application for certification of Brian A. Griffin,
N.D., to participate in the Health Partnership Program (“HPP”) as a BWC Certified Provider be DENIED.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In issuing this Order, | adopt the findings of fact and conclusions of law of the Referee relating to Brian
A. Griffin, M.D., as contained in the Referee’s report and recommendation mailed to all the parties on
March 7, 2011, as follows (A copy of the Referee’s report and recommendation is attached to this Order
as Appendix A):
1. Dr. Griffin was charged with felonies in two different Common Pleas Courts, the Hamilton County
Court of Common Pleas, and the Franklin County Court of Common Pleas.
2. In 1993, both the Hamilton County Court of Common Pleas, and the Franklin County Court of
Common Pleas ordered that the records related to Dr. Griffin's treatment in lieu be sealed.
3. An Ohio Court may direct state agencies or officials to seal records in their possession. State v.
Shirley M. (8" Dist. 2000), 136 Ohio App.3d 753, 756.
4, BWC was not named in the order sealing Dr. Griffin's treatment in lieu.
5. Ohio Revised Code 2953.53(D) provides “Upon receiving a copy of an order to seal official records
pursuant to division (A) or (B) of this section or upon otherwise becoming aware of an applicable
order to seal official records issued pursuant to section 2952 of the Revised Code a public office or
agency shail comply with the order. . .”
6. Ohio Revised Code 2953.33(B) provides “In any application for employment, license, or other right
or privilege, any appearance as a witness, or any other inquiry, except as provided in division (E) of
section 2953.32 and in section 3319.292 of the Revised Code, a person may be questioned only
with respect to convictions not sealed . . . unless the question bears a direct and substantial
relationship to the position for which the person is being considered.”
7. Certification as an HPP provider is a privilege for the purposes of Ohio Revised Cade 2953.33(B).
Kistler v. Ohio Bur. Of Workers’ Comp., 2006-Ohio-3308, at 38.
8. In Szep v. Ohio Board of Pharmacy (10" Dist 1995), 103 Ohio App. 3d 621, 625 the court ruled:
oT AEIVED
AUG 1 9 REED ‘
Reece th*
E1259 Fc. 9 8.33(8) simply @ 2: that when a person files an D sion for a license, a
state board may question that person concerning a sealed conviction if the questions are
relevant to the issue of whether the license should be granted. When considered in the
context of the entire statute it does not appear that the general Assembly intended for the
teference to “questioning” the person to be construed as a definitive statement as to what a
board could consider in relation to the sealed conviction. Instead, it would appear that the
reference was merely made to indicate that the general issue of the sealed conviction could
be raised and considered as part of the determination conceming the license.
9. A board’s consideration of sealed records may even extend to third party testimony regarding the
facts upon which the conviction was based. /d.
10. The use of, and reference to, a plea agreement, treatment in fieu, or conviction during a
decertification hearing fall within the “questioning” permissible under Ohio Revised Code 2953.33(B).
Therefore, Dr. Griffin's Motion to Dismiss is denied. Likewise, Or. Griffin's objections to BWC’s
Exhibits are not well taken and the Exhibits shall be admitted into evidence.
11. The Bureau notified Dr. Griffin of its intent to revoke certification for Or. Griffin for the HPP on April
30, 2010. The cited reason for its intent to decertify was Dr. Griffin's treatment in lieu of felony
convictions.
12. BWC did not consider the circumstances surrounding Dr. Griffin's criminal charges. Its decision to
deny his application was based solely on the existence of treatment in lieu of felony convictions.
13. Ohio Administrative Code 4123-6-02.2 authorizes the Bureau to credential and certify a provider who
wishes to participate in the HPP.
14. Ohio Administrative Code 4123-6-02.2 “bears a rational relationship to legitimate state interests and
is not arbitrary, capricious, discriminatory, or unconscionable. Accordingly, the rule does not violate
constitutional guarantees of substantive due process or equal protection.” Kistler v. Ohio Bur. Of
Workers’ Comp., 2006-Ohio-3308, at 721.
15. BWC may base the denial of HPP certification on a sealed record when that conviction bears a
direct and substantial relationship to certification as an HPP provider. /d. at 41.
16. In the decision Gralewski v. Bur. of Workers' Comp., 167 Ohio App. 3d 468, 2006-Ohio-1529, at 20,
the court found that “[t]he language of Ohio Adm. Code 4123-6-02.2(B)(5) is clear and unambiguous.
That section prescribes that, as part of the ‘minimum credentials for a provider,’ the provider ‘shall .
. . [nJot have a history of a felony conviction in any jurisdiction . . .”. The court went on to state,
“evidence of mitigation is irrelevant to the basic issue of whether the administrator had the legal
authority to decertify Dr. Gralewski.” /d. at 922. Finally, the court noted that “the convictions
themselves rendered Dr. Gralewski legally ineligible to be certified as a provider in the HPP; thus,
details of the facts surrounding the convictions were of no import to Dr. Gralewski's defense.” /d. at
38. In all, Gralewski clearly addresses the argument concerning discretion and mitigating
circumstances, and directs that the Bureau may not exercise discretion when interpreting the
requirements of Ohio Administrative Code 4123-6-02.2(B)(5).
17. Because BWC has no discretion, all treatment in lieu of felony convictions disqualify a provider from
participation in HPP, and therefore, bears a “direct and substantial” relationship to HPP certification.
18. Under Ohio Revised Code 2953.33(B) and the Szep decision, BWC was permitted to consider Dr.
Griffin's sealed criminal records and treatment in lieu in determining whether Dr. Griffin qualified for
HPP certification.~
"1259 -.063 e@ : @
ANALYSIS
| hereby adopt the analysis of the Referee, contained in the RECOMMENDATION section of the report
and recommendation as follows:
Ohio Administrative Code 4123-6-02.2(B)(5) provides that a provider shall not have treatment in lieu of
conviction for a felony. Dr. Griffin has had treatment in fieu of conviction for felonies in the Common
Pleas Court of Hamilton County, Ohio, and Franklin County, Ohio. The Bureau has no discretion when
applying this requirement. Therefore, | find the decision denying Dr. Griffin's renewal application to
participate in the HPP is proper.
CONCLUSION
Because | have concluded that Dr. Griffin has failed to comply with the workers’ compensation statutes
and rules governing providers in that Dr. Griffin has a history of treatment in lieu of conviction for a
felony from the Common Pleas Courts of Hamilton and Franklin Counties, Ohio, contrary to Ohio
Administrative Code 4123-6-02.2(B)(5), | hereby adopt the recommendation of the Referee and Order
that the application of Dr. Griffin for certification to participate in the HPP be DENIED, effective as of the
date of this Order. From this date forward, Dr. Griffin's eligibility to receive reimbursement for medical
services and supplies under the HPP shall continue to be governed by Ohio Administrative Code 4123-
6-12.
In preparing this Order, { have taken into consideration alt of the following: The transcript of the record
hearing conducted in this matter by Referee Richard Blake on October 20, 2010; BWC Exhibits A, B, C,
D, and E; Respondent's Exhibit 1; the report and recommendation of the Referee mailed to all the
parties on March 7, 2011; and Dr. Griffin's Objections to the Report and Recommendation of the
Referee, dated March 15, 2011.
RIGHT TO APPEAL
Ohio Administrative Code 4123-6-17(|) states that, should a provider be adversely affected by the Order
of the Administrator, the provider may file a notice of appeal with the Administrator at the above address
setting forth the Order appealed from and the grounds of the party's appeal, with a copy to the Franklin
County Court of Common Pleas, within fifteen (15) days from the date of mailing of this letter. A certified
copy of this Order has been mailed to all parties in this matter pursuant to Ohio Administrative Code
4123-6-17 and Ohio Administrative Cade Chapter 119.
ee
Administrator
Date ;
Enclosure
xc: Joseph Mastrangelo, Assistant Attorney General, Workers’ Compensation Section
BWC Provider Credentialing File (original)E1259 - 064°
FFIDAV, BRIAN FREDERI ‘FIN, M.D.
STATE OF OHIO :
COUNTY OF FRANKLIN :
I, Brian Frederic Griffin, M.D., after being first duly swom, hereby depose and state as
follows:
1. Iam of sound mind, of lawful age, and am fully competent to make this affidavit.
2. Tam licensed to practice medicine and surgery in the State of Ohio. I am the sole
owner of Interventional Pain Solutions, Inc., which is located at 3655 Ridge Mill Drive, Columbus,
Ohio 43026. Interventional Pain Solutions, Inc., employs a registered nurse, a medical assistance, a
front desk clerk, and an office manager.
3. Interventional Pain Solutions, Inc., is a practice devoted solely to the practice of
interventional pain medicine. Interventional Pain Solutions, Inc., has more than 1,200 charts on file,
many of which involve workers’ compensation patients. Interventional Pain Solutions, Inc.,
primarily serves patients from Franklin County and surrounding counties. Interventional pain
medicine is a unique practice, and Interventional Pain Solutions, Inc., is one of an extremely small
number of such practices in Ohio and neighboring states.
4, have participated in the Ohio Bureau of Workers' Compensation ("BWC") Health
Partnership Program ("HPP") since December 11, 1998.
5. In an April 30, 2010, letter addressed to me from BWC, I was informed | allegedly
violated O.A.C. 4123-6-02.2(B)(5), which became effective February 16, 1996. The allegations
concemed conduct which occurred in January and March 1993. The conduct described in the BWC
letter was expunged by court order approximately one year later.E1259 - 065
6. An administrative hearing involving the allegations against me was held on October
20, 2010. A hearing officer issued a report and recommendation on March 7, 2011. The BWC
Administrator issued his Order on August 3, 2011. All during the course of the administrative
hearing, I have been permitted to participate in the BWC/HPP.
7. If my ability to participate in the BWC/HPP is terminated during the pendency of this
appeal, I believe the termination will cause an extreme hardship to my patients who need to maintain
current interventional treatment programs.
8. The administrative action taken against me by BWC has nothing to do with my ability
to provide care or the quality of care provided. The administrative action involvcs an issue which
occurred several ycars prior to the adoption of the aforementioned administrative rule.
9. My medical and surgical practice is the sole source of my income, as well as the sole
source of income for the employees of Interventional Pain Solutions, Inc.
Further affiant saycth naught.
5166691
49517-171296H03
It THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO
GENERAL DIVISION
CASE NO. S9CVFO3-2007
MARK W. HAYES, DPM, }
Appellant, 1 JUDGE O’GRADY
vo. ] MAGISTRATE BROWNING
STATE MEDICAL BOARD OF OHIO, J
Appellee. J =
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MAQISTRATE’S DECISION GRANTING APPELLANT'S “MOTION FOR + 5 =~
IMMEDIATE SUSPENSION OF ORDER OF THE STATE MEDICAL® 42).
OF OHIO,” 10, 1999 3S = Per
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STRIKE BRIEF OF APPELLEE STATE MEDICAL BOARD OF © ©
OHIO,” FILED JUNE 30, 1999
Rendered this 1st day of Saptember 1999.
BROWSING, bi.
Pursuant to Civil Rule 53 and Local Rule 99, the court referred this case
to this magistrate to conduct a hearing on August 31, 1999, on all pending
motions. By agreement of the parties, the hearing was conducted by telephone
and the parties waived the presence of a court reporter.
Having considered the pending motions, the memoranda that have been
filed in support thereof and in opposition thereto, and the arguments of
counsel, this magistrate renders the following decision.
Medical Board of Obie,” Sled March 10, 1999 *
This case is a Revised Code 119.12 administrative ap-eal, by Mark W.
f the State
Hayes, DPM, from a} sbruary 10, 1999 order in which the State Meci al Board
Tia CcE1259 - O67
f
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of Ohio permanently revoked appellant’s certificate to practice podiatric
medicine and surgery in Ohio. When appellant appealed the board’s order to
thir. court, he also moved the court to suspend the board’s order pending the
court's determination of the appeal. The board has opposed appellant's motion
to suspend.
Revised Code 119.12 provides:
*** In the case of an appeal from the state medical board ***, the
court may grant a suspension and fix its terms 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 and the health, safety, and welfare of the public will not be
threatened by suspension of the order. *** (Emphasis added.)
Appellant contends that he will suffer an unusual hardship from the
execution of the board’s order because he is unable to earn an income from his
practice and he will sustain irreparable damage to his professional reputation.
In the words of his attorney, appellant is “professionally dead." The board
contends that appellant's hardship does not rise to the level of “unusual”
hardship. This magistrate respectfully disagrees.
The board’s revocation of appellant's certificate to practice podiatry was
based on his failure to establish his fitness to sit for the Ohio bar examination,
and not on any failure in his practice as a podiatrist. it appears to this
magistrate that, under such circumstances, eppeliant will suffer an unusuel
hardship from the execution of the board’s revocation order while the court
determines the appeal. it further appears to this magistrate that the health,
safety, and welfare of the public will not be threatened by suspension of that
order while the court dc ienmines the sppeal.
Case No. 9SCVPO3-2007 zp12go - 068
on 71296H0s
/
In Ohio Veterinary Med. Licensing Bd. v. Harrison, .ranklin C.P. No.
98CVF 10-7821, Judge Alan Travis observed:
We nomnally do not execute prisoners in criminal cases before
providing an opportunity for appeal. It may well be that appellant
will be unsuccessful in his appeal from the order below. However,
the court is satisfied that appellant has met his burden to
demonstrate that “unusue! hardship” will occu. if the
administrative revocation order is enforced before the [court] can
review the proceedings of tl.e agency.
This magistrate, likewise, is satisfied that appellant has met his burden.
Appellant’s “Motion for Immediate Suspension of Order of the State Medical
Hoard of Ohio,’ filed March 10, 1999, is hcreby GRANTED.
Appellant’s “Motion to ftrike Brief of Appeliee State Medical
Board of Ohio,” filed Juno 30, 1999
On June 30, 1999, appeilant moved the court to strike the board’s brief
on the grounds that the brief exceeds the fifteen-page limitation of Local Rule
12.01. The board has opposed appellant's motion to strike, arguing that Local
Rule 12.013 does not apply to administrative appeals.
Whether or not Local Rule 12.01 epplies to administrative appeals,
appellant has failed to demonstrate that he has been prejudiced by the board’s
three-page violation of the rule. The court’s rules “are to be interpreted to
achieve the prompt, efficient, and fair resolution of cases.” Local R. 107.01.
The board’s minor infraction of the rule has not deprived appellant of his rigl:t
to have his case decided promptly, efficiently, and fairly.
Appeliant’s “Motion to Strike Brief of Appellee State Medica! Beard of
Ohio,” filed June 30, 1999, is hereby DSHISD.
Cane No. Y9CVFO3-2007 3-’ Coples:to: !
AK'R. RECKER, Eeq., NANCY A. SCHELL, Eaq., Counsel for Appellant
. MIKE-KARN, Bailiff for Judge O'Oredy“£1259 - 070
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10769 J07
IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO
Leonard K. Smith, M.D.,
Plaintiff,
ve. : Case No. 998CVFO7-5481
State Medical Board of Ohio, : Judge Miches! H. VWwatson
WATSON, JUDGE =
S j
Before the Court is the July 2, 1999 Motion of Appellant Leonard K. Smith, iD. 2S
Qo 6 SE
{(rerainefter *Appeliant’) for Stay Pencing 4; pes! Appeliss State Medical Bodfd of
Ohio (hereinafter “Appetiee"} filed a Memorandum in Opposition on July 16, 1999.
Appellant seeks, pursuant io O.R.C. §115.12, a stay of Appetiee’s June 9, 1999
Order (hereinafter “Order”) suspending his madical license for one hundrad and twenty
(120) days. He contends an undus hardship wil! resutt if the Order is alicwed io take
effect. Specificaiy, ii a stay is not permitted, Appellant argues he will serve e'l, or most,
of his suspension, prior to this matter being fully briefed und ready for the Cocst's
feviev. Accordin, 'y, without a stay of the suspension pending review by this Court,
47g ant contends he will be deprived any effective judicia! review as he is unable to be
compensated for the herm he may suffer during ‘he suspension period. Finally,
Apps:'art maintains wat a stay of the Order will not threaten the heaith, welfare and
atety of the pubic.
J response, Appeiles srgues Aopr:.un: faita to set forih the requisite element of
ORC. §119.12. Appelles maintains Appstient has fated to dernonsirete that a denial
Exnair-Dte eeenee seers mean” OREN ERAERES Sree SY
70769508
of the stay will result in an unusua: hardship and that the public's heaith and safety will
be protected if a stay of the Order is allowed.
O.R.C. §119.12 states, in relevant part:
... In the cage of an appes! fom the state mechcal board or chiropractic
examining board, the court may rant a suspension and fix its tems if it appears
to the court that an unusual hardship to tra appellant will result from the
execution of the agency's order pending determination of the appeal and the
heaith, safety, and welfare of tha public will not be thraatened by suspension of
the order. This provision shall not be construed to limit the factors the court may
consider in determining whether to suspend an order of any other agency
Pending determination of an appeal...
Upon review, ihe Court concludes an unusual hardship will resuit if a stay of
Aprellee’s 0: de, is not permitted. First, Appellant is the elected Coroner of Hardin
County. While App silant may eventually serve the subje=t suspension, the Court is of
the opinion that en interruption of his service as Coroner prior to a fine! resolution of the
@ppee! imposes an undue hardship upon Appellant and te citizens of riardin County.
Second, the Court was informed that Appellant's wife is currently very it. Again, while
the suspension may ultimately be sarved, denial of a stay may result in an unnecessary
interruption of her medical treatment at a critica! stage. Finally, as argited by Appellant,
if a stay is not entered, ha will likely complete his entire suspension prior to a review of
the Order by the Court. Accordingly, the Court concludes Appellant will suffer an
unusual hardship if a stay of the Order is noi entered. Furthermore, public health.
sefety, and welfare will not be in jeopardy if a stay is granted as the practices which
have resulted in Appellant's suspension have not been committed in over three (3)
years.herepy SUSTAINED.
Copies to:
Joffrey J. Jurce
Alvin E. Mathews
Lane, Alton & Horst
175 South Third Street
Columbus, OH 43215
Attomeys for Appellant
Jemes M. McGovern
Assistant Attomey General
Health and Humen Services Section
30 Eas. Broad Street, 26” Floor
Columbus, OH 43215-2426
Attomay for Appsiles
70769309
Accordingly, the July 2, 1999 Motion of Appellant for Stay Pending Appeal is
/ATSON, JUDGE259 - 073
IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO
CIVIL DIVISION
EMIL E. POGORELEC, D.O.,
Case No. OOCVFO7-6192 B03BUD 42
Appellant, JUDGE J. BESSEY
vs.
OHIO BUREAU OF WORKERS’
COMPENSATION
Appellee.
ENTRY GRANTING STAY
This day this cause came on to be heard upon the motion of appellant for a stay of the
June 29, 2000, BWC Order denying Appellant's application to be certified as a provider in the
Health Partnership Program (“HPP”), and the Court, being duly advised and upon consideration
of the arguments of counsel, hereby FINDS that an unusual hardship will result upon the
Appellant during the pendency of this appeal by the execution of the BWC's Order and this
Court pursuant to R.C. § 119.12 hereby ORDERS that the BWC's Order denying Appellant's
applcation to be certified as a BWC Provider in the HPP be STAYED.
Copies to:
Ezic J. Plinke
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street
Columbus, Ohio 43215-6194
Jacob Dobres, Eq.
Workers’ Comp. .2eation Section
Otto Attomry General
140 East Town Sureet, 9 Floor
Columbus, OH 43205
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E1259 - O56 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO Brian Frederic Griffin, M.D. 3655 Ridge Mill Drive Columbus, Ohio 43026, Appellant, Case No. 1 1CVF8-10389 v. Judge D. Hogan Ohio Bureau of Workers' Compensation 30 West Spring Street Columbus, Ohio 43215, Appellee. $!8NOI 40 WYIIN SurHHY 22 ONY 1102 ONO “09 RIAN Yd 1409 SV3Td NOWWOD MOTION FOR STAY PENDING APPEAL Pursuant to R.C. 119.12, Appellant, Brian F. Griffin, M.D., moves this Court for an Order staying the effect of the Order issued by the Administrator of the Ohio Bureau of Workers' Memorandum in Support is attached hereto. Compensation dated August 3, 2011, and mailed tojAppcllant Griffin on August 9, 2011. A Thomas W. Hess (#0025149) Dinsmore & SHOHL, LLP 191 W. Nationwide Boulevard, Suite 300 Columbus, Ohio 43215-8120 Telephone: (614) 221-8448 Facsimile: (614) 221-8590 thess@dinslaw.com Attorneys for Brian Frederic Griffin, M.D. Ig 610818¥) 49517-9 is oadE1259 - O57 MEMORANDUM IN SUPPORT 1. FACTUAL AND PROCEDURAL HISTORY This case involves an administrative appeal from an Order issued by the Administrator of the Ohio Bureau of Workers’ Compensation ("BWC"). The Order states, in part, the “Application for certification of Brian A. (sic) Griffin, M.D., to participate in the Health Partnership Program ("HPP") as a BWC Certified Provider be DENIED." A copy of the Order is attached as Exhibit A. If the Order is permitted to go into effect, Dr. Griffin will be prohibited from providing necessary healthcare services to patients eligible for workers’ compensation coverage. On January 29, 1993, in the Hamilton County Court of Common Pleas, Dr. Griffin pled guilty to Deception to Obtain a Dangerous Drug, and was granted Treatment in Lieu of Conviction. On March 17, 1993, in the Franklin County Court of Common Pleas, Dr. Griffin pled guilty to Deception to Obtain a Dangerous Drug, and was granted Treatment in Lieu of Conviction. Approximately onc ycar later, both convictions were expunged. On February 16, 1996, the BWC adopted O.A.C. 4123-6-02.2(B)(5). This administrative tules states, in part, "The provider shall not have a treatment in lieu of conviction pursuant to Section 3951.04] of the Revised Code." In December 1998, the BWC and Dr. Griffin entered into a provider agreement, which allowed him to participate in the BWC/HPP. Dr. Griffin remained a provider in good standing until August 3, 2011. On April 30, 2010, Appellant Griffin received a letter from the BWC. The letter stated, in part, that the BWC proposed to revokc his certification as a certified provider in thc HPP. The alleged reasons for the proposed revocation were based upon the expunged January and March G10818v1 49517-9E1259 - 058 1993 treatment in lieu of convictions. The appropriateness or the quality of care provided was not an issue. An administrative hearing challenging the proposed action was held on October 20, 2010. On March 7, 2011, the administrative hearing officer issued a report and recommendation, recommending that Dr. Griffin's participation in HPP be denied. The BWC administrator adopted the recommendation on August 3, 2011, which was mailed to the parties on August 9, 2011. Il. ARGUMENT The filing of an administrative appeal by Dr. Griffin does not automatically stay the BWC's Order pending judicial review. R.C. 119.12, in pertinent part, provides: 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 the termination of the appeal, the court may grant a suspension and fix its terms. The Court should suspend the Order while this appeal is pending because: 1) Dr. Griffin will suffer unusual hardship if the Order is permitted to go into effect, and 2) the health, safety and welfare of the public will not be threatened by suspension of the Order. See, Exhibit B. Courts have found "unusual hardship" where a decision not to suspend an order would effectively deprive an appellant of any meaningful judicial review. This principal was articulated in Hays v. State Medical Board of Ohio, Franklin County Common Pleas No. 99CVF03-2007 (attached as Exhibit C), where the court adopted the magistrate's decision that found that the stay of an order of an agency was appropriate. In its reaching its decision, the Hays quoted the decision in Ohio Veterinary Med. Licensing Bd. y. Harrison, Franklin County Common Pleas No. 98CVF 10-7820, which found: We normally do not execute prisoners in criminal cases before providing an opportunity for appeal. It may well be that appellant will be unsuccessful in his G10818v1 49517.9E1259 - O59 appeal from the order below. However, the court is satisfied that appellant has met his burden to demonstrate "that unusual hardship" will occur if the administrative revocation order is enforced before the [court] can review the proceedings of the agency. Another court followed the same analysis in Smith v. State Medical Board of Ohio, Franklin County Common Pleas Number 99C VF07-5481 (attached as Exhibit D) that the stay of an order of the agency was appropriate because the appellant would serve at least part of his suspension before the matter was fully briefed and ready for review by the Court. Sec, also, Progorelec v. Ohio Bureau of Workers' Compensation, Franklin County Common Pleas Number 00CVF07-6192 (attached as Exhibit E), which involved the same agency and administrative rule which is before this Court. As will be more fully described in his brief, Appellant submits the Order is not in accordance with law. O.A.C. 4123-6-02.2(B)(5), as applied in this instance, violates Ohio Constitution II Section 28 and R.C. § 1.48. In addition, the Order violates R.C. § 2953.31 e1 seq. And, finally, BWC's Order violates Dr. Griffin's due process rights. The proposed action is based upon events which allegedly occurred in 1993, with the attempt to remove Appellant from HPP 18 years later. Ill. CONCLUSION In light of the foregoing reasons, Appellant Brian F. Griffin, M.D., respectfully requests an Order from this Court staying BWC's Order pending resolution of this appeal and allowing him to continue to provide services to workers’ compensation patients and be reimbursed for services provided. 610818v1 49517-9E1259 - 060 Thomas W. Hes¥ (#0025149) Dinsmore & SHOHL, LLP 191 W. Nationwide Boulevard, Suite 300 Columbus, Ohio 43215-8120 Telephone: (614) 221-8448 Facsimile: (614) 221-8590 thess@dinslaw.com Attorneys for Brian Frederic Griffin, M.D. CERTIFICATE OF SERVICE Thereby certify that on augue, 2011, a true and accurate copy of the foregoing Notice of Appeal was served via hand“delivery upon the following: Stephen Buehrer, Administrator Ohio Bureau of Workers' Compensation 30 West Spring Street Columbus, Ohio 4315 and a copy hand-delivered to: Gerry Waterman Assistant Attorney General Workers’ Compensation Scction 150 E. Gay Street, 22" Floor Columbus, Ohio 43215 lay Thomas W. Hess NJ 610818v1 49517-9° EL fo pSesegte @ coreror sre rene Compensation Administrator/CEO Stephen Buehrer 30 W. Spring St. ohiobwe.com Columbus. OH 43215-2256 1-800-OHIOBWC VIA CERTIFIED MAIL Brian A. Griffin, M.D. 3655 Ridge Mill Drive Columbus, OH 43026 RE: BWC Provider Numbers 283523490-00 and 861081403-00 Final Order —- Revocation of BWC Provider Certification As Administrator of the Ohio Bureau of Workers' Compensation ("the Bureau” or “BWC’), | hereby order, pursuant to Ohio Administrative Code 4123-6-17 and the adjudication hearing conducted in this matter by Referee Richard Blake on October 20, 2010, that the application for certification of Brian A. Griffin, N.D., to participate in the Health Partnership Program (“HPP”) as a BWC Certified Provider be DENIED. FINDINGS OF FACT AND CONCLUSIONS OF LAW In issuing this Order, | adopt the findings of fact and conclusions of law of the Referee relating to Brian A. Griffin, M.D., as contained in the Referee’s report and recommendation mailed to all the parties on March 7, 2011, as follows (A copy of the Referee’s report and recommendation is attached to this Order as Appendix A): 1. Dr. Griffin was charged with felonies in two different Common Pleas Courts, the Hamilton County Court of Common Pleas, and the Franklin County Court of Common Pleas. 2. In 1993, both the Hamilton County Court of Common Pleas, and the Franklin County Court of Common Pleas ordered that the records related to Dr. Griffin's treatment in lieu be sealed. 3. An Ohio Court may direct state agencies or officials to seal records in their possession. State v. Shirley M. (8" Dist. 2000), 136 Ohio App.3d 753, 756. 4, BWC was not named in the order sealing Dr. Griffin's treatment in lieu. 5. Ohio Revised Code 2953.53(D) provides “Upon receiving a copy of an order to seal official records pursuant to division (A) or (B) of this section or upon otherwise becoming aware of an applicable order to seal official records issued pursuant to section 2952 of the Revised Code a public office or agency shail comply with the order. . .” 6. Ohio Revised Code 2953.33(B) provides “In any application for employment, license, or other right or privilege, any appearance as a witness, or any other inquiry, except as provided in division (E) of section 2953.32 and in section 3319.292 of the Revised Code, a person may be questioned only with respect to convictions not sealed . . . unless the question bears a direct and substantial relationship to the position for which the person is being considered.” 7. Certification as an HPP provider is a privilege for the purposes of Ohio Revised Cade 2953.33(B). Kistler v. Ohio Bur. Of Workers’ Comp., 2006-Ohio-3308, at 38. 8. In Szep v. Ohio Board of Pharmacy (10" Dist 1995), 103 Ohio App. 3d 621, 625 the court ruled: oT AEIVED AUG 1 9 REED ‘ Reece th* E1259 Fc. 9 8.33(8) simply @ 2: that when a person files an D sion for a license, a state board may question that person concerning a sealed conviction if the questions are relevant to the issue of whether the license should be granted. When considered in the context of the entire statute it does not appear that the general Assembly intended for the teference to “questioning” the person to be construed as a definitive statement as to what a board could consider in relation to the sealed conviction. Instead, it would appear that the reference was merely made to indicate that the general issue of the sealed conviction could be raised and considered as part of the determination conceming the license. 9. A board’s consideration of sealed records may even extend to third party testimony regarding the facts upon which the conviction was based. /d. 10. The use of, and reference to, a plea agreement, treatment in fieu, or conviction during a decertification hearing fall within the “questioning” permissible under Ohio Revised Code 2953.33(B). Therefore, Dr. Griffin's Motion to Dismiss is denied. Likewise, Or. Griffin's objections to BWC’s Exhibits are not well taken and the Exhibits shall be admitted into evidence. 11. The Bureau notified Dr. Griffin of its intent to revoke certification for Or. Griffin for the HPP on April 30, 2010. The cited reason for its intent to decertify was Dr. Griffin's treatment in lieu of felony convictions. 12. BWC did not consider the circumstances surrounding Dr. Griffin's criminal charges. Its decision to deny his application was based solely on the existence of treatment in lieu of felony convictions. 13. Ohio Administrative Code 4123-6-02.2 authorizes the Bureau to credential and certify a provider who wishes to participate in the HPP. 14. Ohio Administrative Code 4123-6-02.2 “bears a rational relationship to legitimate state interests and is not arbitrary, capricious, discriminatory, or unconscionable. Accordingly, the rule does not violate constitutional guarantees of substantive due process or equal protection.” Kistler v. Ohio Bur. Of Workers’ Comp., 2006-Ohio-3308, at 721. 15. BWC may base the denial of HPP certification on a sealed record when that conviction bears a direct and substantial relationship to certification as an HPP provider. /d. at 41. 16. In the decision Gralewski v. Bur. of Workers' Comp., 167 Ohio App. 3d 468, 2006-Ohio-1529, at 20, the court found that “[t]he language of Ohio Adm. Code 4123-6-02.2(B)(5) is clear and unambiguous. That section prescribes that, as part of the ‘minimum credentials for a provider,’ the provider ‘shall . . . [nJot have a history of a felony conviction in any jurisdiction . . .”. The court went on to state, “evidence of mitigation is irrelevant to the basic issue of whether the administrator had the legal authority to decertify Dr. Gralewski.” /d. at 922. Finally, the court noted that “the convictions themselves rendered Dr. Gralewski legally ineligible to be certified as a provider in the HPP; thus, details of the facts surrounding the convictions were of no import to Dr. Gralewski's defense.” /d. at 38. In all, Gralewski clearly addresses the argument concerning discretion and mitigating circumstances, and directs that the Bureau may not exercise discretion when interpreting the requirements of Ohio Administrative Code 4123-6-02.2(B)(5). 17. Because BWC has no discretion, all treatment in lieu of felony convictions disqualify a provider from participation in HPP, and therefore, bears a “direct and substantial” relationship to HPP certification. 18. Under Ohio Revised Code 2953.33(B) and the Szep decision, BWC was permitted to consider Dr. Griffin's sealed criminal records and treatment in lieu in determining whether Dr. Griffin qualified for HPP certification.~ "1259 -.063 e@ : @ ANALYSIS | hereby adopt the analysis of the Referee, contained in the RECOMMENDATION section of the report and recommendation as follows: Ohio Administrative Code 4123-6-02.2(B)(5) provides that a provider shall not have treatment in lieu of conviction for a felony. Dr. Griffin has had treatment in fieu of conviction for felonies in the Common Pleas Court of Hamilton County, Ohio, and Franklin County, Ohio. The Bureau has no discretion when applying this requirement. Therefore, | find the decision denying Dr. Griffin's renewal application to participate in the HPP is proper. CONCLUSION Because | have concluded that Dr. Griffin has failed to comply with the workers’ compensation statutes and rules governing providers in that Dr. Griffin has a history of treatment in lieu of conviction for a felony from the Common Pleas Courts of Hamilton and Franklin Counties, Ohio, contrary to Ohio Administrative Code 4123-6-02.2(B)(5), | hereby adopt the recommendation of the Referee and Order that the application of Dr. Griffin for certification to participate in the HPP be DENIED, effective as of the date of this Order. From this date forward, Dr. Griffin's eligibility to receive reimbursement for medical services and supplies under the HPP shall continue to be governed by Ohio Administrative Code 4123- 6-12. In preparing this Order, { have taken into consideration alt of the following: The transcript of the record hearing conducted in this matter by Referee Richard Blake on October 20, 2010; BWC Exhibits A, B, C, D, and E; Respondent's Exhibit 1; the report and recommendation of the Referee mailed to all the parties on March 7, 2011; and Dr. Griffin's Objections to the Report and Recommendation of the Referee, dated March 15, 2011. RIGHT TO APPEAL Ohio Administrative Code 4123-6-17(|) states that, should a provider be adversely affected by the Order of the Administrator, the provider may file a notice of appeal with the Administrator at the above address setting forth the Order appealed from and the grounds of the party's appeal, with a copy to the Franklin County Court of Common Pleas, within fifteen (15) days from the date of mailing of this letter. A certified copy of this Order has been mailed to all parties in this matter pursuant to Ohio Administrative Code 4123-6-17 and Ohio Administrative Cade Chapter 119. ee Administrator Date ; Enclosure xc: Joseph Mastrangelo, Assistant Attorney General, Workers’ Compensation Section BWC Provider Credentialing File (original)E1259 - 064° FFIDAV, BRIAN FREDERI ‘FIN, M.D. STATE OF OHIO : COUNTY OF FRANKLIN : I, Brian Frederic Griffin, M.D., after being first duly swom, hereby depose and state as follows: 1. Iam of sound mind, of lawful age, and am fully competent to make this affidavit. 2. Tam licensed to practice medicine and surgery in the State of Ohio. I am the sole owner of Interventional Pain Solutions, Inc., which is located at 3655 Ridge Mill Drive, Columbus, Ohio 43026. Interventional Pain Solutions, Inc., employs a registered nurse, a medical assistance, a front desk clerk, and an office manager. 3. Interventional Pain Solutions, Inc., is a practice devoted solely to the practice of interventional pain medicine. Interventional Pain Solutions, Inc., has more than 1,200 charts on file, many of which involve workers’ compensation patients. Interventional Pain Solutions, Inc., primarily serves patients from Franklin County and surrounding counties. Interventional pain medicine is a unique practice, and Interventional Pain Solutions, Inc., is one of an extremely small number of such practices in Ohio and neighboring states. 4, have participated in the Ohio Bureau of Workers' Compensation ("BWC") Health Partnership Program ("HPP") since December 11, 1998. 5. In an April 30, 2010, letter addressed to me from BWC, I was informed | allegedly violated O.A.C. 4123-6-02.2(B)(5), which became effective February 16, 1996. The allegations concemed conduct which occurred in January and March 1993. The conduct described in the BWC letter was expunged by court order approximately one year later.E1259 - 065 6. An administrative hearing involving the allegations against me was held on October 20, 2010. A hearing officer issued a report and recommendation on March 7, 2011. The BWC Administrator issued his Order on August 3, 2011. All during the course of the administrative hearing, I have been permitted to participate in the BWC/HPP. 7. If my ability to participate in the BWC/HPP is terminated during the pendency of this appeal, I believe the termination will cause an extreme hardship to my patients who need to maintain current interventional treatment programs. 8. The administrative action taken against me by BWC has nothing to do with my ability to provide care or the quality of care provided. The administrative action involvcs an issue which occurred several ycars prior to the adoption of the aforementioned administrative rule. 9. My medical and surgical practice is the sole source of my income, as well as the sole source of income for the employees of Interventional Pain Solutions, Inc. Further affiant saycth naught. 5166691 49517-171296H03 It THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO GENERAL DIVISION CASE NO. S9CVFO3-2007 MARK W. HAYES, DPM, } Appellant, 1 JUDGE O’GRADY vo. ] MAGISTRATE BROWNING STATE MEDICAL BOARD OF OHIO, J Appellee. J = oO 3 ma 38 2 Oo £5 = OU ae MAQISTRATE’S DECISION GRANTING APPELLANT'S “MOTION FOR + 5 =~ IMMEDIATE SUSPENSION OF ORDER OF THE STATE MEDICAL® 42). OF OHIO,” 10, 1999 3S = Per cS Pa za P AC Tes iG "8 it — SF STRIKE BRIEF OF APPELLEE STATE MEDICAL BOARD OF © © OHIO,” FILED JUNE 30, 1999 Rendered this 1st day of Saptember 1999. BROWSING, bi. Pursuant to Civil Rule 53 and Local Rule 99, the court referred this case to this magistrate to conduct a hearing on August 31, 1999, on all pending motions. By agreement of the parties, the hearing was conducted by telephone and the parties waived the presence of a court reporter. Having considered the pending motions, the memoranda that have been filed in support thereof and in opposition thereto, and the arguments of counsel, this magistrate renders the following decision. Medical Board of Obie,” Sled March 10, 1999 * This case is a Revised Code 119.12 administrative ap-eal, by Mark W. f the State Hayes, DPM, from a} sbruary 10, 1999 order in which the State Meci al Board Tia CcE1259 - O67 f 7TI296HOn of Ohio permanently revoked appellant’s certificate to practice podiatric medicine and surgery in Ohio. When appellant appealed the board’s order to thir. court, he also moved the court to suspend the board’s order pending the court's determination of the appeal. The board has opposed appellant's motion to suspend. Revised Code 119.12 provides: *** In the case of an appeal from the state medical board ***, the court may grant a suspension and fix its terms 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 and the health, safety, and welfare of the public will not be threatened by suspension of the order. *** (Emphasis added.) Appellant contends that he will suffer an unusual hardship from the execution of the board’s order because he is unable to earn an income from his practice and he will sustain irreparable damage to his professional reputation. In the words of his attorney, appellant is “professionally dead." The board contends that appellant's hardship does not rise to the level of “unusual” hardship. This magistrate respectfully disagrees. The board’s revocation of appellant's certificate to practice podiatry was based on his failure to establish his fitness to sit for the Ohio bar examination, and not on any failure in his practice as a podiatrist. it appears to this magistrate that, under such circumstances, eppeliant will suffer an unusuel hardship from the execution of the board’s revocation order while the court determines the appeal. it further appears to this magistrate that the health, safety, and welfare of the public will not be threatened by suspension of that order while the court dc ienmines the sppeal. Case No. 9SCVPO3-2007 zp12go - 068 on 71296H0s / In Ohio Veterinary Med. Licensing Bd. v. Harrison, .ranklin C.P. No. 98CVF 10-7821, Judge Alan Travis observed: We nomnally do not execute prisoners in criminal cases before providing an opportunity for appeal. It may well be that appellant will be unsuccessful in his appeal from the order below. However, the court is satisfied that appellant has met his burden to demonstrate that “unusue! hardship” will occu. if the administrative revocation order is enforced before the [court] can review the proceedings of tl.e agency. This magistrate, likewise, is satisfied that appellant has met his burden. Appellant’s “Motion for Immediate Suspension of Order of the State Medical Hoard of Ohio,’ filed March 10, 1999, is hcreby GRANTED. Appellant’s “Motion to ftrike Brief of Appeliee State Medical Board of Ohio,” filed Juno 30, 1999 On June 30, 1999, appeilant moved the court to strike the board’s brief on the grounds that the brief exceeds the fifteen-page limitation of Local Rule 12.01. The board has opposed appellant's motion to strike, arguing that Local Rule 12.013 does not apply to administrative appeals. Whether or not Local Rule 12.01 epplies to administrative appeals, appellant has failed to demonstrate that he has been prejudiced by the board’s three-page violation of the rule. The court’s rules “are to be interpreted to achieve the prompt, efficient, and fair resolution of cases.” Local R. 107.01. The board’s minor infraction of the rule has not deprived appellant of his rigl:t to have his case decided promptly, efficiently, and fairly. Appeliant’s “Motion to Strike Brief of Appellee State Medica! Beard of Ohio,” filed June 30, 1999, is hereby DSHISD. Cane No. Y9CVFO3-2007 3-’ Coples:to: ! AK'R. RECKER, Eeq., NANCY A. SCHELL, Eaq., Counsel for Appellant . MIKE-KARN, Bailiff for Judge O'Oredy“£1259 - 070 a 10769 J07 IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, OHIO Leonard K. Smith, M.D., Plaintiff, ve. : Case No. 998CVFO7-5481 State Medical Board of Ohio, : Judge Miches! H. VWwatson WATSON, JUDGE = S j Before the Court is the July 2, 1999 Motion of Appellant Leonard K. Smith, iD. 2S Qo 6 SE {(rerainefter *Appeliant’) for Stay Pencing 4; pes! Appeliss State Medical Bodfd of Ohio (hereinafter “Appetiee"} filed a Memorandum in Opposition on July 16, 1999. Appellant seeks, pursuant io O.R.C. §115.12, a stay of Appetiee’s June 9, 1999 Order (hereinafter “Order”) suspending his madical license for one hundrad and twenty (120) days. He contends an undus hardship wil! resutt if the Order is alicwed io take effect. Specificaiy, ii a stay is not permitted, Appellant argues he will serve e'l, or most, of his suspension, prior to this matter being fully briefed und ready for the Cocst's feviev. Accordin, 'y, without a stay of the suspension pending review by this Court, 47g ant contends he will be deprived any effective judicia! review as he is unable to be compensated for the herm he may suffer during ‘he suspension period. Finally, Apps:'art maintains wat a stay of the Order will not threaten the heaith, welfare and atety of the pubic. J response, Appeiles srgues Aopr:.un: faita to set forih the requisite element of ORC. §119.12. Appelles maintains Appstient has fated to dernonsirete that a denial Exnair-Dte eeenee seers mean” OREN ERAERES Sree SY 70769508 of the stay will result in an unusua: hardship and that the public's heaith and safety will be protected if a stay of the Order is allowed. O.R.C. §119.12 states, in relevant part: ... In the cage of an appes! fom the state mechcal board or chiropractic examining board, the court may rant a suspension and fix its tems if it appears to the court that an unusual hardship to tra appellant will result from the execution of the agency's order pending determination of the appeal and the heaith, safety, and welfare of tha public will not be thraatened by suspension of the order. This provision shall not be construed to limit the factors the court may consider in determining whether to suspend an order of any other agency Pending determination of an appeal... Upon review, ihe Court concludes an unusual hardship will resuit if a stay of Aprellee’s 0: de, is not permitted. First, Appellant is the elected Coroner of Hardin County. While App silant may eventually serve the subje=t suspension, the Court is of the opinion that en interruption of his service as Coroner prior to a fine! resolution of the @ppee! imposes an undue hardship upon Appellant and te citizens of riardin County. Second, the Court was informed that Appellant's wife is currently very it. Again, while the suspension may ultimately be sarved, denial of a stay may result in an unnecessary interruption of her medical treatment at a critica! stage. Finally, as argited by Appellant, if a stay is not entered, ha will likely complete his entire suspension prior to a review of the Order by the Court. Accordingly, the Court concludes Appellant will suffer an unusual hardship if a stay of the Order is noi entered. Furthermore, public health. sefety, and welfare will not be in jeopardy if a stay is granted as the practices which have resulted in Appellant's suspension have not been committed in over three (3) years.herepy SUSTAINED. Copies to: Joffrey J. Jurce Alvin E. Mathews Lane, Alton & Horst 175 South Third Street Columbus, OH 43215 Attomeys for Appellant Jemes M. McGovern Assistant Attomey General Health and Humen Services Section 30 Eas. Broad Street, 26” Floor Columbus, OH 43215-2426 Attomay for Appsiles 70769309 Accordingly, the July 2, 1999 Motion of Appellant for Stay Pending Appeal is /ATSON, JUDGE259 - 073 IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO CIVIL DIVISION EMIL E. POGORELEC, D.O., Case No. OOCVFO7-6192 B03BUD 42 Appellant, JUDGE J. BESSEY vs. OHIO BUREAU OF WORKERS’ COMPENSATION Appellee. ENTRY GRANTING STAY This day this cause came on to be heard upon the motion of appellant for a stay of the June 29, 2000, BWC Order denying Appellant's application to be certified as a provider in the Health Partnership Program (“HPP”), and the Court, being duly advised and upon consideration of the arguments of counsel, hereby FINDS that an unusual hardship will result upon the Appellant during the pendency of this appeal by the execution of the BWC's Order and this Court pursuant to R.C. § 119.12 hereby ORDERS that the BWC's Order denying Appellant's applcation to be certified as a BWC Provider in the HPP be STAYED. Copies to: Ezic J. Plinke PORTER, WRIGHT, MORRIS & ARTHUR 41 South High Street Columbus, Ohio 43215-6194 Jacob Dobres, Eq. Workers’ Comp. .2eation Section Otto Attomry General 140 East Town Sureet, 9 Floor Columbus, OH 43205 IDGE BESS! gad | NOHO OW coyp, Ng OIHO “99 Ny Yy a $14N09 40 WY379 O1:8 HY 91 Bay ro02 LUNOD Sy; Exurar F