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Hulbert v. Buehrer

Court of Appeals of Ohio, Tenth District

March 9, 2017

Vickie Hulbert, Plaintiff-Appellant,
v.
Steve Buehrer, Administrator Ohio Bureau of Workers' Compensation et al., Defendants-Appellees.

         APPEAL from the Franklin County Court of Common Pleas (C.P.C. No. 15CV-4661)

         On brief:

          Livorno and Arnett Co., LPA, and Henry A. Arnett, for appellant.

          Michael DeWine, Attorney General, and Cheryl J. Nester, for appellees. Argued: Cheryl J. Nester.

          DECISION

          DORRIAN, J.

         {¶ 1} Plaintiff-appellant, Vickie Hulbert, appeals the May 24, 2016 decision and entry of the Franklin County Court of Common Pleas granting summary judgment in favor of defendants-appellees, Steve Buehrer, Administrator of the Ohio Bureau of Workers' Compensation, and the Ohio Bureau of Workers' Compensation ("the bureau") (and collectively "the bureau appellees"). For the following reasons, we reverse.

         I. Facts and Procedural History

         {¶ 2} As the instant matter is related to several prior decisions of this court, we shall briefly detail the history of such related matters. As a result of an industrial injury, Peggy Hodge was rendered a quadriplegic. Appellant, a licensed practical nurse ("LPN"), has been caring for Hodge for many years. In 1993, the Industrial Commission of Ohio ("the commission") set appellant's hourly rate of pay for Hodge's care at $18.75, which was the maximum amount permitted under the guidelines for an LPN, absent special circumstances. The commission authorized reimbursement at that rate for 16 hours per day. See State ex rel. Hodge v. Indus. Comm., 10th Dist. No. 94APD05-643 (June 29, 1995) (memorandum decision). In 1995, the bureau attempted to reduce the reimbursement to 8 hours per day. This court, however, granted Hodge's request for a writ of mandamus to compel the bureau to continue reimbursement for 16 hours per day. We noted then that if the bureau wished to change its reimbursement, it must "appl[y] to the commission for a modification of its responsibilit[y] and * * * establish[] a change of circumstances in regard to Ms. Hodge's need for care." State ex rel. Hodge v. Pfeiffer, 10th Dist. No. 95APD05-561 (Mar. 28, 1996) (memorandum decision).

         {¶ 3} On May 18, 2007, Hodge filed a request with the commission to increase appellant's hourly rate of pay to $30. Following a December 26, 2007 hearing, a district hearing officer ("DHO") issued an order dismissing the May 18, 2007 motion on jurisdictional grounds. On January 29, 2008, a staff hearing officer ("SHO") affirmed the DHO's order, holding that the commission lacked jurisdiction to increase appellant's pay because amendments to the Ohio Administrative Code had transferred nursing-service oversight to the bureau. The SHO specifically noted that nursing fees are established by the bureau "[i]n accordance with Ohio Administrative Code 4123-7-25(B)." State ex rel. Hodge v. Ryan, 10th Dist. No. 09AP-412 (Aug. 17, 2010) (memorandum decision). Hodge never appealed this order.

         {¶ 4} On May 21, 2008, Hodge again moved the commission to increase appellant's hourly rate of pay. A DHO issued an order dismissing the motion on jurisdictional grounds, citing the January 29, 2008 SHO's order. On September 16, 2008, an SHO affirmed the DHO's order. Hodge did not appeal the September 16, 2008 order.

         {¶ 5} On April 24, 2009, Hodge filed with this court a request for a writ of mandamus against the bureau. This court denied the writ after finding, among other things, that Hodge's failure to appeal the January 29 and September 16, 2008 SHO orders constituted a failure to exhaust her available administrative remedies. Ryan. We noted, at that time, "[i]t would seem that relator's complaint is with the commission rather than the bureau but, again, relator has failed to administratively appeal two commission orders and instead brings this action against the bureau." (Emphasis added.) On appeal, the Supreme Court of Ohio affirmed our denial of the writ based on appellant's failure to appeal the 2008 SHO orders. State ex rel. Hodge v. Ryan, 131 Ohio St.3d 357, 2012-Ohio-999. Referring specifically to the January 29, 2008 SHO order, the Supreme Court stated in dicta, "[w]e also do not find any evidence that Hodge ever formally moved the bureau for an increase, particularly after the January 29, 2008 order specifically stated that it was the bureau, not the commission, that had jurisdiction over the matter." Ryan, 2012-Ohio-999, at ¶ 6.[1]

         {¶ 6} In April 2013, appellant filed a complaint against the bureau in the Court of Claims of Ohio. The bureau filed a motion for summary judgment, arguing res judicata precluded appellant's claims and that the Court of Claims lacked jurisdiction over appellant's claims. The Court of Claims dismissed appellant's complaint because it lacked appellate jurisdiction over administrative decisions and appellant's complaint sought only equitable relief. On appeal, we noted that the Court of Claims was correct that it generally lacks appellate jurisdiction over administrative decisions. Because appellant failed to challenge this finding on appeal, we affirmed the judgment of the Court of Claims. Hulbert v. Ohio Bur. of Workers' Comp., 10th Dist. No. 14AP-374, 2014-Ohio-3937.

         {¶ 7} On June 2, 2015, appellant filed a complaint against the bureau appellees in the Franklin County Court of Common Pleas alleging (1) with regard to nursing services previously rendered, the bureau is obligated to pay the difference between her current hourly rate and the hourly rate for nursing services; and (2) the bureau appellees are obligated to pay the hourly rate for nursing services for all future services rendered by appellant. On July 1, 2015, the bureau filed an answer to the complaint.

         {¶ 8} On March 15, 2016, the bureau appellees filed a motion for summary judgment pursuant to Civ.R. 56(C). On April 5, 2016, appellant filed a memorandum in opposition to the bureau appellees' motion for summary judgment. On April 27, 2016, the bureau appellees filed a reply. On May 24, 2016, the trial court filed a decision and entry granting summary judgment in favor of ...


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