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State ex rel. Henegar v. Trinity Home Builders, Inc.

Court of Appeals of Ohio, Tenth District

July 30, 2013

State ex rel. Michael Henegar, Relator,
Trinity Home Builders, Inc. and Industrial Commission of Ohio, Respondents.

Michael J. Muldoon, for relator.

Michael DeWine, Attorney General, and Kevin J. Reis, for respondent Industrial Commission of Ohio.




{¶ 1} Michael Henegar filed this action in mandamus, seeking a writ to overturn the order of the Industrial Commission of Ohio ("commission") finding him to have engaged in fraud when he received temporary total disability ("TTD") payments while employed.

{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case was referred to a magistrate to conduct appropriate proceedings. The parties stipulated the pertinent evidence and filed briefs. The magistrate then issued a magistrate's decision, appended hereto, which contains detailed findings of fact and conclusions of law. The magistrate's decision includes a recommendation that we deny the request for a writ of mandamus.

{¶ 3} Counsel for Michael Henegar has filed objections to the magistrate's decision. Counsel for the commission has filed a memorandum in response. The case is now before the court for a full, independent review.

{¶ 4} The Special Investigation Unit ("SIU") of the Ohio Bureau of Workers' Compensation ("BWC") received an allegation that Henegar was working while receiving TTD compensation. Upon investigating, the SIU received records indicating that as early as mid-January 2011, Henegar went to work for Kroger as a part-time cashier. Upon being interviewed, Henegar lied to SIU about when he returned to work, claiming that he had not started working again until March 7, 2011.

{¶ 5} Henegar also lied to a physician who was conducting an independent medical examination ("IME") and to a physician who was conducting a psychological examination.

{¶ 6} Henegar argued that his statement to SIU was just an innocent mistake. The fact that he supposedly made a similar "innocent mistake" during the IME and psychological examination resulted in his credibility being suspect when the issue was heard before a district hearing officer ("DHO").

{¶ 7} On administrative appeal, a staff hearing officer ("SHO") agreed with the DHO that Henegar had been overpaid TTD compensation, but disagreed with the DHO's conclusion that fraud occurred.

{¶ 8} On further administrative appeal, the commission agreed with the findings of the DHO and reinstated the fraud finding. In addressing the merits of the appeal, the commission found it could exercise continuing jurisdiction because a clear mistake of fact found by the SHO resulted in a faulty analysis of the pertinent law. The issue of the exercise of continuing jurisdiction was the primary issue before our magistrate.

{¶ 9} Two SHOs had reviewed the fraud issue and no fraud had been found. The commission decided to hear the case based upon an allegation that the SHOs' decisions included "a clear mistake of law." In fact, the SHOs applied the correct law, but made a mistake as to the facts which demonstrated Henegar's intent to deceive the BWC. Counsel for Henegar argues that continuing jurisdiction could not be exercised, so the decisions of the SHOs should stand.

{¶ 10} A finding of fraud is a finding which frequently involves both issues of law and issues of fact. However, the critical issue in Henegar's case was whether he simply made a series of mistakes when he returned to work in mid-January 2011 and then gave inaccurate information about his return to work on at least three occasions. Intent is a factual issue. Although we may have decided differently than the SHOs on its factual finding that Henegar did not intent to deceive the BWC, the decision was and is a factual finding in Henegar's case, not a clear mistake of law. The commission could not review the intent finding via continuing jurisdiction.

{¶ 11} The objections are sustained. We adopt the findings of fact in the magistrate's decision, but not the conclusions of law. We substitute our legal analysis set forth above and grant a writ of mandamus returning this case to the commission to enter a finding that it cannot exercise continuing jurisdiction in this case based upon an allegation by the BWC of a clear mistake of fact.

Objections sustained; writ of mandamus granted.

SADLER and DORRIAN, JJ., concur.


Rendered on April 17, 2013




{¶ 12} Relator, Michael Henegar, has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order finding that he was overpaid temporary total disability ("TTD") compensation and he engaged in fraud, and ordering the commission to reinstate the order of its staff hearing officer ("SHO") who found an over payment because relator was employed while receiving TTD compensation but found that fraud had not been established.

Findings of Fact:

{¶ 13} 1. Relator sustained a work-related injury on November 16, 2001 and his workers' compensation claim has been allowed for the following conditions:

Sprain lumbar; herniated disc L5-S1; anxiety disorder with features of depression; post laminectomy syndrome lumbar.

{¶ 14} 2. Relator underwent a laminectomy at L5-S1 in 2003; a lumbar laminectomy and interbody fusion at L5-S1 in February 2009; removal of hardware and an exploration of the fusion mass with findings of pseudoarthrosis at the L5-S1 level and a repeat posterolateral fusion without instrumentation at the L5-S1 level in July 2010.

{¶ 15} 3. Relator received TTD compensation for significant periods of time between ...

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