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E1415 - E65
IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO
BRIAN FREDERIC GRIFFIN, M.D.
Appellant.
Case No. 11 CVF8-10389
v.
OHIO BLREAU OF WORKERS’
JUDGE HOGAN
COMPENSATION, x
Q no
: m Be
Appellee. : 2 28
f-3
=r
mm
s
ain, 4 KI
0
Bu Oa,
. INTRODUCTION
e-2 Wd ae AON 1102
Appellant Brian Frederic Griffin, M.D. ("Dr. Gritlin"), by and through undersigned
counscl, hereby submits his Memorandum in Opposition to the Motion for Relief from Judgment
filed by Appellee Ohio Bureau of Workers’ Compensation (“BWC"). This Court must deny the
BWC’'s Motion because (1) Civil Rule of Procedure 60(B) does not apply to this proceeding and
(2) the BWC failed to show substantial clYort to comply.
I. BACKGROUND AND FACTS
This case is before the Court on an administrative appcal, pursuant to R.C. 119.12, alter
the BWC denicd Dr. Griffin’s application for recertification to the Bureau's Health Partnership
Program. On August 19. 2011, Dr. Griffin filed his notice of appeal. ‘The BWC had thirty days
to certily a complete record. R. C. 119.12. The certified record was to be filed with this Court
by Scptember 19, 2011, as required by R.C. 119.12.
On September 19, 2011, the record was not filed. “Failure of an agency to comply within
the time allowed, upon motion. shall cause the Court to enter a finding in favor of the party
tA
gy)
h© ’
E1415
- E66
adversely affected.” R.C. 119.12 (emphasis added). Dr. Griffin motioned this Court to enter
judgment in favor of Appellant (“Motion for Judgment”), and the Court correctly entered an
Order Granting Judgment in favor of Dr. Griffin.
Last week Dr. Griffin learned the Record was filed, and that it was filed late. Upon
notice that the Court had properly granted judgment in favor of Dr. Griffin because the BWC
missed its filing deadline. the BWC filed its Motion of Appellee tor Relief from Judgment
pursuant to Civ. R. 60 on October 26, 2011.
Hi. ARGUMENT
A, Civ. R. 60(B) Docs Not Apply Because the Court of Common Pleas fs
Sitting as an Appellate Court to The Agency Decision.
The Ohio Rules of Civil Procedure (“Rules”) do not apply to this case because it is an
administrative appeal based upon R.C. 119.12.
The BWC moved the Court, pursuant to Civ. R. 60, to vacate this Court's Order Granting
Judgment in Favor of Appellant. Civ. R. 60(B) states that a court may, upon motion, relieve a
party from a final judgment, order or proceeding for mistake. inadvertence, surprise or excusable
neglect. However, Civ. R. 60 does not apply to this case. Therefore. the defenses of mistake and
excusable neglect are not available to the BWC in this case.
Civ. R. 1{C) details the situations where the Rules do not apply. Pursuant to Civ. R.
1(C)(1) and (7), the Rules are not appticable to the matter presently before this Court. Civ. R.
1(C)(1) states the Rules shall not apply to procedure upon appeal to review any judgment, order
or rujing, and Civ R. 1(C)(7) excludes all other special statutory proceedings. This Court is
reviewing the order of an administrative agency as un administrative appeal, and it involves R.C.
119.12, a special statutory proceeding. Therefore, the BWC’s Motion of Appellee for Relief« y
E1415
- E67
from Judgment lacks merit. Because Civ. R. 60 does not apply here, the Appellee’s Motion for
Relief from Judgment must be denied.
B. The BWC Failed To Show Substantial Effort to Comply.
The BWC failed to meet the deadline articulaicd in the Clerk’s Original Briefing
Schedule (“Schedule”), the thirty-day deadline statutorily imposed by R.C. 119.12, and the BWC
failed to timely file a motion for an extension of time in order to certify the Record in this case.
In the Motion of Appellee for Relief from Judgment, the BWC claims that it is entitled 10
additional time pursuant to the language appearing at the end of R.C. 119.12: “Additional time,
however. may be granted by the court, not to execed thirty days, when it is shown that the agency
has made substantial effort to comply.” Ilowever. the BWC has presented no evidence proving
that it made a substantial effort to comply. Instead. the BWC filed its Record on September 20,
2011, failing to comply with the Clerk's Schedule, failing to comply with the R.C. 119.12, and
finally, failing to ask the Court for a time extension. The Clerk's Schedule marked September
16, 2011 as the “latest time of occurrence” for the BWC’'s filing of record. See, Exhibit A.
Therefore, from the moment the Clerk published the Schedule, BWC was on notice that it would
need to file the certified Record on or about September 16. The BWC did not file by September
16, 2011.
The BWC also missed the statutorily mandated deadline of September 19, 2011. R.C.
119.12 allowed the BWC thirty days following Dr. Griffin's Notice of Appeal to file the certified
Record. Because Dr. Griffin filed his Notice of Appeal on August 19, 2011, it was mandatory
1 Buchler y. Ohio Dept. of Commerce, Div. Real Estate. (8" Dist. 1996), 110 Ohio App. 3d 20
(motion lor relief from judgment under Civ. R. 60(B) was found to be inconsistent with the
specific statutory provision of R.C. 119.12 because R.C. 119.42 docs not provide for a motion
for relief from judgment of a court on an administrative appeal. The Court held that Civ, R.
60(B) docs not apply to an administrative appeal under R.C. 119.12. and that a motion for relief
from judgment pursuant to Civ. R. 60(B) has no legal significance).E1415
- E68
that the BWC file the certified Record by September 19, 2011.
The BWC claims that the delay did not result in prejudice because it was a minimal
delay. R.C. 119.12 does not excuse minimal delays and there is no requirement that Dr. Griffin
show prejudice.” Rather, absent a substantial cltort to comply, judgment in favor of Dr. Griffin
is mandated. R.C. 119.12. The BWC could have checked the Clerk’s Schedule or reviewed the
docket to ensure a timely filing of the Record. If an obstacle arose that was so substantial that
BWC was unable to comply with the required rules, the BWC was [ree to seek an extension of
time during the period in which the administrative record had to be filed from the Court.
Iv. CONCLUSION
For the foregoing reasons, Dr. Griitif] respectfully requests that this Court deny the
BWC’s Motion of Appellee for Relief from Judgment.
Respectfullf submfited;
Thdémas W, Hess (8025149)
DINSMORE & SHOHL LLP
191 West Nationwide Blvd.. Suite 300
Columbus, Ohio 43215
(614) 227-4260/Fax (614) 628-6890
Counsel for Appellant
2 In re Troiana, (8" Dist. 1986) 33 Ohio App. 3d 316 (the court rejected the idea that prejudice
must be shown based upon The Ohio Supreme Count’s interpretation of R.C. 119.12. The Ohio
Supreme Court has stated that the “language of the statute is clear; if the agency fails to comply,
then the court must enter a finding in favor of the parly adversely affected." State, ex rel.
Crockett, v., Robinsort (1981), 67 Ohio St. 2d 363, 365. See also, Matash v. State (1964). 177
Ohio St. 55.)E1415 - E69
ERTIFICATE OF SERVICE
I hereby certify that on this,
U.S. mail, postage prepaid,
day of November, 2011. the foregoing was served via ordinary
in the following:
Cheryl J. Nester
Assistant Attorney Gencral
Workers” Compensation Section
150 East Gay Street. 22™ Floor
Columbus, Ohio 43215
Thomas W. Hess *
2X0!
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+ E1415 - E65 IN THE COURT OF COMMON PLEAS FRANKLIN COUNTY, OHIO BRIAN FREDERIC GRIFFIN, M.D. Appellant. Case No. 11 CVF8-10389 v. OHIO BLREAU OF WORKERS’ JUDGE HOGAN COMPENSATION, x Q no : m Be Appellee. : 2 28 f-3 =r mm s ain, 4 KI 0 Bu Oa, . INTRODUCTION e-2 Wd ae AON 1102 Appellant Brian Frederic Griffin, M.D. ("Dr. Gritlin"), by and through undersigned counscl, hereby submits his Memorandum in Opposition to the Motion for Relief from Judgment filed by Appellee Ohio Bureau of Workers’ Compensation (“BWC"). This Court must deny the BWC’'s Motion because (1) Civil Rule of Procedure 60(B) does not apply to this proceeding and (2) the BWC failed to show substantial clYort to comply. I. BACKGROUND AND FACTS This case is before the Court on an administrative appcal, pursuant to R.C. 119.12, alter the BWC denicd Dr. Griffin’s application for recertification to the Bureau's Health Partnership Program. On August 19. 2011, Dr. Griffin filed his notice of appeal. ‘The BWC had thirty days to certily a complete record. R. C. 119.12. The certified record was to be filed with this Court by Scptember 19, 2011, as required by R.C. 119.12. On September 19, 2011, the record was not filed. “Failure of an agency to comply within the time allowed, upon motion. shall cause the Court to enter a finding in favor of the party tA gy) h© ’ E1415 - E66 adversely affected.” R.C. 119.12 (emphasis added). Dr. Griffin motioned this Court to enter judgment in favor of Appellant (“Motion for Judgment”), and the Court correctly entered an Order Granting Judgment in favor of Dr. Griffin. Last week Dr. Griffin learned the Record was filed, and that it was filed late. Upon notice that the Court had properly granted judgment in favor of Dr. Griffin because the BWC missed its filing deadline. the BWC filed its Motion of Appellee tor Relief from Judgment pursuant to Civ. R. 60 on October 26, 2011. Hi. ARGUMENT A, Civ. R. 60(B) Docs Not Apply Because the Court of Common Pleas fs Sitting as an Appellate Court to The Agency Decision. The Ohio Rules of Civil Procedure (“Rules”) do not apply to this case because it is an administrative appeal based upon R.C. 119.12. The BWC moved the Court, pursuant to Civ. R. 60, to vacate this Court's Order Granting Judgment in Favor of Appellant. Civ. R. 60(B) states that a court may, upon motion, relieve a party from a final judgment, order or proceeding for mistake. inadvertence, surprise or excusable neglect. However, Civ. R. 60 does not apply to this case. Therefore. the defenses of mistake and excusable neglect are not available to the BWC in this case. Civ. R. 1{C) details the situations where the Rules do not apply. Pursuant to Civ. R. 1(C)(1) and (7), the Rules are not appticable to the matter presently before this Court. Civ. R. 1(C)(1) states the Rules shall not apply to procedure upon appeal to review any judgment, order or rujing, and Civ R. 1(C)(7) excludes all other special statutory proceedings. This Court is reviewing the order of an administrative agency as un administrative appeal, and it involves R.C. 119.12, a special statutory proceeding. Therefore, the BWC’s Motion of Appellee for Relief« y E1415 - E67 from Judgment lacks merit. Because Civ. R. 60 does not apply here, the Appellee’s Motion for Relief from Judgment must be denied. B. The BWC Failed To Show Substantial Effort to Comply. The BWC failed to meet the deadline articulaicd in the Clerk’s Original Briefing Schedule (“Schedule”), the thirty-day deadline statutorily imposed by R.C. 119.12, and the BWC failed to timely file a motion for an extension of time in order to certify the Record in this case. In the Motion of Appellee for Relief from Judgment, the BWC claims that it is entitled 10 additional time pursuant to the language appearing at the end of R.C. 119.12: “Additional time, however. may be granted by the court, not to execed thirty days, when it is shown that the agency has made substantial effort to comply.” Ilowever. the BWC has presented no evidence proving that it made a substantial effort to comply. Instead. the BWC filed its Record on September 20, 2011, failing to comply with the Clerk's Schedule, failing to comply with the R.C. 119.12, and finally, failing to ask the Court for a time extension. The Clerk's Schedule marked September 16, 2011 as the “latest time of occurrence” for the BWC’'s filing of record. See, Exhibit A. Therefore, from the moment the Clerk published the Schedule, BWC was on notice that it would need to file the certified Record on or about September 16. The BWC did not file by September 16, 2011. The BWC also missed the statutorily mandated deadline of September 19, 2011. R.C. 119.12 allowed the BWC thirty days following Dr. Griffin's Notice of Appeal to file the certified Record. Because Dr. Griffin filed his Notice of Appeal on August 19, 2011, it was mandatory 1 Buchler y. Ohio Dept. of Commerce, Div. Real Estate. (8" Dist. 1996), 110 Ohio App. 3d 20 (motion lor relief from judgment under Civ. R. 60(B) was found to be inconsistent with the specific statutory provision of R.C. 119.12 because R.C. 119.42 docs not provide for a motion for relief from judgment of a court on an administrative appeal. The Court held that Civ, R. 60(B) docs not apply to an administrative appeal under R.C. 119.12. and that a motion for relief from judgment pursuant to Civ. R. 60(B) has no legal significance).E1415 - E68 that the BWC file the certified Record by September 19, 2011. The BWC claims that the delay did not result in prejudice because it was a minimal delay. R.C. 119.12 does not excuse minimal delays and there is no requirement that Dr. Griffin show prejudice.” Rather, absent a substantial cltort to comply, judgment in favor of Dr. Griffin is mandated. R.C. 119.12. The BWC could have checked the Clerk’s Schedule or reviewed the docket to ensure a timely filing of the Record. If an obstacle arose that was so substantial that BWC was unable to comply with the required rules, the BWC was [ree to seek an extension of time during the period in which the administrative record had to be filed from the Court. Iv. CONCLUSION For the foregoing reasons, Dr. Griitif] respectfully requests that this Court deny the BWC’s Motion of Appellee for Relief from Judgment. Respectfullf submfited; Thdémas W, Hess (8025149) DINSMORE & SHOHL LLP 191 West Nationwide Blvd.. Suite 300 Columbus, Ohio 43215 (614) 227-4260/Fax (614) 628-6890 Counsel for Appellant 2 In re Troiana, (8" Dist. 1986) 33 Ohio App. 3d 316 (the court rejected the idea that prejudice must be shown based upon The Ohio Supreme Count’s interpretation of R.C. 119.12. The Ohio Supreme Court has stated that the “language of the statute is clear; if the agency fails to comply, then the court must enter a finding in favor of the parly adversely affected." State, ex rel. Crockett, v., Robinsort (1981), 67 Ohio St. 2d 363, 365. See also, Matash v. State (1964). 177 Ohio St. 55.)E1415 - E69 ERTIFICATE OF SERVICE I hereby certify that on this, U.S. mail, postage prepaid, day of November, 2011. the foregoing was served via ordinary in the following: Cheryl J. Nester Assistant Attorney Gencral Workers” Compensation Section 150 East Gay Street. 22™ Floor Columbus, Ohio 43215 Thomas W. Hess * 2X0!