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Burroughs v. Ohio Department of Administrative Services

Court of Appeals of Ohio, Tenth District

July 25, 2013

Jeffrey Burroughs, Appellant-Appellant,
v.
Ohio Department of Administrative Services, Appellee-Appellee.

APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 11CVF-05-5950)

Law Offices of Tony C. Merry, LLC, and Tony C. Merry, for appellant.

Michael DeWine, Attorney General, and James M. Evans, for appellee.

DECISION

CONNOR, J.

{¶ 1} Appellant, Jeffrey Burroughs, appeals from a judgment of the Franklin County Court of Common Pleas, affirming the denial of his application for disability benefits by appellee, Ohio Department of Administrative Services ("DAS").

I. Facts and Procedural History

{¶ 2} In 1997, the Ohio State Highway Patrol hired appellant as a trooper. In 2004, while employed full time as a trooper, appellant received permission from his supervisor to begin teaching classes on a part-time basis at Delaware Area Career Center ("Career Center"). In 2006, appellant received permission to engage in additional part- time employment as an instructor at Columbus State Community College ("Columbus State"). Although appellant's employment as a trooper remained his full-time occupation, he continued to work for both Columbus State and the Career Center on a part-time intermittent basis.

{¶ 3} In early June 2010, appellant reported to his supervisor that he was experiencing neck and arm pain while performing his duties as a trooper, and that he had been suffering from these symptoms for some time. On June 11, 2010, his supervisor became concerned about appellant's symptoms and he sent appellant home with instructions to seek treatment. Appellant was subsequently diagnosed with "riducular paresthesies with cervical pain and headaches with multilevel stenosis most relevant at C3-4, C4-5, C5-6, and C6-7 with degenerative disc osteophytes." (R. 105.) On June 29, 2010, appellant applied to DAS for disability benefits. During the application process, appellant completed a written health questionnaire wherein he was asked: "Have you engaged in any occupation for wage or profit since the onset of your disability?" Appellant answered: "No." (R. 102.)

{¶ 4} Although appellant was no longer working as a trooper, he continued to work at the Career Center on a part-time basis. According to appellant, a fellow employee at the Career Center suggested that appellant investigate whether DAS rules permitted him to continue working at another position while his disability application was pending. Appellant contacted DAS by telephone and he was told that DAS rules prohibited him from working for another employer while his disability application was pending. Appellant did not work either for the Career Center or Columbus State subsequent to July 28, 2010.

{¶ 5} On August 6, 2010, DAS approved appellant's application for disability benefits. Appellant's application for an extension of benefits was approved on October 12, 2010.

{¶ 6} On January 21, 2011, DAS issued a letter pursuant to Ohio Adm.Code 123:1-33-11(A)(2) and (3) "correcting and superseding the previous decision" wherein DAS informed appellant that it intended to deny his claim in accordance with Ohio Adm.Code 123:1-33-11(A)(2) and (3). The letter states "[a]n employee's benefits will be terminated if the employee engages in any occupation for wage or profit except as provided in rule 123[:]1-33-07[.] And employee's benefits will be terminated if the employee engages in any act of fraud or misrepresentation involving the disability claim. Administrative Rule 123[:]1-33-05 (I)[.] The director shall initiate all necessary steps to recover disability benefits paid in error."

{¶ 7} Appellant appealed the denial of his claim and requested a hearing. On February 6, 2011, a hearing officer conducted an evidentiary hearing on the matter. Thereafter, on March 17, 2011, the hearing officer issued a report wherein he recommended the denial of the appeal based upon the following: (1) appellant engaged in an occupation for wage or profit subsequent to the onset of disability in violation of Ohio Adm.Code 123:1-33-11(A)(2), and (2) appellant committed fraud in violation of Ohio Adm.Code 123:1-33-11(A)(3), when he failed to disclose his part-time employment. The director, on April 29, 2011, adopted the hearing officer's report and recommendation and remanded the case to the "Disability Services Unit for appropriate action."

{¶ 8} Appellant appealed the decision of the director to the Franklin County Court of Common Pleas pursuant to R.C. 119.12. The court subsequently continued the proceedings on the appeal for a period of time due to appellant's pending bankruptcy. However, on May 24, 2012, the court reversed the decision of the director as to fraud, but affirmed the decision to deny benefits based upon on the fact that appellant had engaged in an occupation for wage or profit subsequent to the onset of disability. In his decision, the judge made the following observation: "the result is unfair, but this Court must apply the law and the rule as written. Any change in the law to lead to a more just result must come from either a rule change or a statutory change." (Footnote omitted.) (Trial court's Decision and Judgment Entry and Notice of Final Appealable Order, 7.)

II. Assignments of Error

{¶ 9} Appellant appeals from the judgment of the trial court asserting the following six assignments of error:

[I.] The trial court erred as a matter of law in deferring to the Director's interpretation of OAC § 123:1-33-11(A)(2) because there is no interpretation to which any court can reasonably defer.
[II.] The trial court erred as a matter of law by failing to construe OAC § 123:1-33-11(A)(2) in accord with Ohio's rules of statutory construction and with the common law.
[III.] The trial court erred as a matter of law in failing to consider the temporal requirement in the regulation that prohibited engaging in an occupation only while receiving disability benefits.
[IV.] The trial court erred as a matter of law in placing the burden of proof on Appellant to establish that he did no work for Columbus State after June 11, 2010.
[V.] The trial court abused its discretion in holding that the hearing officer's conclusion that Burroughs performed work for Columbus State after June 11, 2010 was supported by substantial, reliable and probative evidence.
[VI.] The trial court erred as a matter o flaw in concluding that the Director was entitled to recoup from Burroughs $27, 500 in disability benefits previously paid.

III. Standard of Review

{¶ 10} In an administrative appeal, pursuant to R.C. 119.12, the trial court reviews the agency's order to determine whether it is supported by reliable, probative and substantial evidence and is in accordance with the law. To some extent, this standard of review permits the court of common pleas to substitute its judgment for that of the administrative agency. The court must, however, "give due deference to the administrative resolution of evidentiary conflicts." Univ. of Cincinnati v. Conrad, 63 Ohio St.2d 108, 111 (1980).

{¶ 11} On appeal to this court, the standard of review is more limited. Unlike the court of common pleas, a court of appeals does not determine the weight of the evidence. Rossford Exempted Village School Dist Bd. of Edn. v. State Bd. of Edn., 63 Ohio St.3d 705, 707 (1992). In reviewing the court of common pleas' determination that the agency's order is or is not supported by the requisite quantum of evidence, the appellate court's role is limited to determining whether the court of common pleas abused its discretion. Hartzog v. Ohio State Univ., 27 Ohio App.3d 214, 216 (10th Dist.1985). "The term 'abuse of discretion' connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980).

{¶ 12} However, when the question is whether the administrative agency's order was in accordance with the law, the court of appeals' review is plenary. Univ. Hosp., Univ. of Cincinnati College of ...


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