Court of Appeals of Ohio, Third District, Defiance
ANDREA L. CLINE, ET AL., APPELLEES,
DEFIANCE THERAPEUTIC MASSAGE & WELLNESS CENTER, LLC, APPELLANT.
from Defiance County Common Pleas Court Trial Court No.
S. Barnes for Appellant
A. Baum for Appellees
Appellant, Defiance Therapeutic Massage & Wellness
Center, L.L.C. ("Defiance Therapeutic"), appeals
the judgment of the Defiance County Court of Common Pleas
affirming the Unemployment Compensation Review
Commission's ("Commission") determination
allowing claimant-appellee's, Andrea L. Cline
("Cline"), application for unemployment
compensation benefits. For the reasons that follow, we
Cline's employment as an acupuncturist with Defiance
Therapeutic was terminated on September 27, 2015. (Doc. No.
1, Ex. B). After her employment was terminated, Cline filed
an application for unemployment compensation benefits. (Doc.
On November 20, 2015, appellee, the Ohio Department of Job
& Family Services ("ODJFS"), approved
Cline's application for unemployment compensation
benefits. (Id.). On December 10, 2015, Defiance
Therapeutic appealed ODJFS's decision approving
Cline's application for unemployment compensation
benefits. (Id.). On January 4, 2016, ODJFS issued
its redetermination affirming its November 20, 2015
determination. (Id.). Defiance Therapeutic appealed
ODJFS's redetermination on January 25, 2016.
On January 27, 2016, Defiance Therapeutic's appeal was
transferred to the Commission. (Id.). After
telephone hearings on February 12 and March 17, 2016, the
Commission issued its decision on May 2, 2016 affirming
ODJFS's determination. (Id.). On May 23, 2016,
Defiance Therapeutic requested that the Commission review its
May 2, 2016 decision. (Id.). On June 8, 2016, the
Commission denied Defiance Therapeutic's request for
On July 6, 2016, Defiance Therapeutic appealed to the
Defiance County Court of Common Pleas the Commission's
denial of its request for review of its May 2, 2016 decision
affirming ODJFS's determination allowing Cline's
application for unemployment compensation benefits.
Defiance Therapeutic filed the administrative file on August
18, 2016. (Doc. No. 4). Defiance Therapeutic filed its brief
on October 17, 2016. (Doc. No. 10). ODJFS filed its response
to Defiance Therapeutic's brief on January 18, 2017.
(Doc. No. 19). On February 27, 2017, Defiance Therapeutic
filed its reply to ODJFS's response. (Doc. No. 24).
On October 25, 2017, the trial court denied Defiance
Therapeutic's appeal and affirmed the May 2, 2016
decision of the Commission. (Doc. No. 25).
Defiance Therapeutic filed its notice of appeal on November
22, 2017. (Doc. No. 26). It raises one assignment of error
for our review.
Trial Court Erred in Affirming the Decision of the Review
Commission that Appellee Andrea L. Cline was an Employee of
Defiance Therapeutic, as Said Decision is Unlawful,
Unreasonable, and Against the Manifest Weight of the
In its assignment of error, Defiance Therapeutic argues that
the trial court erred by affirming the Commission's
decision approving Cline's application for unemployment
compensation benefits because the "Commission's
finding [that Cline] worked in covered employment at Defiance
Therapeutic Wellness Center under R.C. 4141.01(B)(1) is
unlawful, unreasonable, and against the manifest weight of
the evidence." (Appellant's Brief at 21). That is,
Defiance Therapeutic challenges the Commission's
conclusion that Cline was not an independent contractor of
"An applicant seeking unemployment compensation benefits
submits to ODJFS an application for such benefits along with
information in support of his or her claim."
Henderson v. Ohio Dept. of Job & Family Servs.,
10th Dist. Franklin No. 12AP-154, 2012-Ohio-5382, ¶ 5,
citing McGee v. Ohio Dept. of Job & Family
Servs., 10th Dist. Franklin No. 09AP-680, 2010-Ohio-673,
¶ 9. "Initially, ODJFS makes findings of fact and
conclusions of law as to whether the applicant is entitled to
unemployment compensation benefits." Id.,
citing McGee at ¶ 9, citing R.C. 4141.28(B).
"Such decision is subject to an appeal to the commission
for a de novo hearing." Id., citing
McGee at ¶ 9, citing R.C. 4141.281(C)(1) and
"A party dissatisfied with the commission's final
determination may appeal to the appropriate court of common
pleas, which shall hear the appeal on the record certified by
the commission." Id. at ¶ 6, citing
McGee at ¶ 10, citing R.C. 4141.282(H).
Pursuant to R.C. 4141.282(H), "[i]f the court [of common
pleas] finds that the decision of the commission was
unlawful, unreasonable, or against the manifest weight of the
evidence, it shall reverse, vacate, or modify the decision,
or remand the matter to the commission. Otherwise, the court
shall affirm the decision of the commission."
Id., quoting McGee at ¶ 10.
"This standard of review applies to all levels of
appellate review in unemployment compensation cases."
Id. at ¶ 7, citing Tzangas, Plakas &
Mannos v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694,
696-97 (1995). "Applying the same standard of review at
both the common pleas and appellate court levels does not
result in a de novo review standard." Id.,
citing Tzangas at 697. "In reviewing commission
decisions, a court may not make factual findings or determine
witness credibility." Id., citing
Tzangas at 696, citing Irvine v. State Unemp.
Comp. Bd. of Rev., 19 Ohio St.3d 15, 18 (1985).
"Factual questions remain solely within the province of
the commission." Id., citing Tzangas
at 697. "Similarly, a court may not substitute its
judgment for that of the commission." Id.,
citing McCarthy v. Connectronics Corp., 183 Ohio
App.3d 248, 2009-Ohio-3392, ¶ 16 (6th Dist), citing
Irvine at 18. "The fact that reasonable minds
might reach different conclusions is not a basis for
reversing the commission's decision." Id.,
citing McGee at ¶ 11, citing Tzangas
at 696. "Instead, a court must 'determine whether
[the Commission's] decision is supported by the evidence
in the record.'" Id., quoting
Tzangas at 696, citing Irvine at 18.
"Judgments supported by some competent, credible
evidence on the essential elements of the controversy may not
be reversed as being against the manifest weight of the
evidence." Id., citing Houser v. Ohio Dept.
of Job & Family Servs., 10th Dist. Franklin No.
10AP-116, 2011-Ohio-1593, ¶ 7, citing Carter v.
Univ. of Toledo, 6th Dist. Lucas No. L-07-1260,
2008-Ohio-1958, ¶ 12, citing C.E. Morris Co. v.
Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus.
"This court's focus is on the commission's
decision, rather than on that of the common pleas
court." Id. at ¶ 8, citing Howard v.
Electronic Classroom of Tomorrow, 10th Dist. Franklin
No. 11AP-159, 2011-Ohio-6059, ¶ 12, citing Moore v.
Comparison Mkt, Inc., 9th Dist. No. 23255,
2006-Ohio-6382, ¶ 8. "Thus, our task is to review
the commission's decision and determine whether it is
supported by evidence in the certified record and is
unlawful, unreasonable or against the manifest weight of the
evidence." Id., citing McGee at ¶
Accordingly, the issue before us is whether the
Commission's determination that Cline worked in covered
employment with Defiance Therapeutic is against the manifest
weight of the evidence because it is not supported by some
competent, credible evidence, or, conversely, whether it is
unlawful or unreasonable. See Clark v. Ohio Dept. of Job
& Family Servs., 2d Dist. Montgomery No. 25257,
2012-Ohio-5311, ¶ 7.
On May 6, 2016, the Commission issued a written decision,
which included the following pertinent findings of fact:
[Cline] began performing [acupuncture services for Defiance
Therapeutic] with the understanding that she would be an
independent contractor. [Cline] did not sign an independent
contractor agreement with Carrie Radzik
[("Radzik")], managing member[, ] but rather agreed
to pay a share of the revenue she brought in, excluding tips.
[Cline] was given access to the facility and was able to set
her own hours. [Cline] was responsible for providing her own
liability insurance. [Cline] never discussed the prospect of
performing work at another facility.
[Cline] was asked to fill-in for the receptionist to answer
the telephone or schedule appointments when the receptionist
was not available. [Cline] did not solely schedule
appointments for herself when she filled in. [Cline] was
responsible for cleaning the linens she used and was asked to
clean linens used by the other individuals who provided
services. [Cline] was informed as to a specific way to fold
the linens. With respect to opening and closing, [Cline] was
informed of certain expectations which included opening and
closing the blinds at or by certain times, turning on an
outside light when leaving for the day and ensuring the back
door is properly and completely shut.
During the period that [Cline] provided services she was
asked to pay Worker's [sic] Compensation premiums and was
encouraged to attend regular staff meetings. During the time
she provided services the employer introduced a handbook
which contained expectations with respect to reporting for
work no later than thirty minutes prior to their first
appointment, an approval process for changing schedules, a
corrective access procedure, checking facility voicemail, and
backroom cleaning responsibilities. The backroom
responsibilities included cleaning the back area, labeling
food in the refrigerator, and specific laundry instructions
which included when laundry should be started, how to best
dry the laundry and specific folding instructions. The manual
also contains a provision for rescheduling appointments if a
provider is absent and does not state that providers can
bring in a substitute if they are not available.
[Cline] brought some clients to the facility when she began
performing services. She was required to complete
documentation regarding the services which were placed in
client charts. When [Cline] was separated she was not
permitted to remove client files including information
regarding the clients she brought to the facility in April,
(Doc. No. 1, Ex. B); (Doc. No. 4).
Based on those facts, the Commission concluded that an
employer-employee relationship existed between Defiance
Therapeutic and Cline within the meaning of the statute. In
particular, based on the application of the 20 factors under
Ohio Adm.Code 4141-3-05-(B), the Commission concluded that
Defiance Therapeutic "did have the right to
control" Cline. (Id.); (Id.).
Regarding the application of those 20 factors, the Commission
[Defiance Therapeutic] operates a spa and the acupuncture
services performed by [Cline] were essential to the
profitability of the company. Those services were an integral
part of the regular functions of the company. [Cline]
answered the telephone and performed filing as needed. She
further cleaned and folded laundry not used by her and the
client's she serviced and was not permitted to take her
client files when the relationship was severed. [Cline] did
not have a written independent contractor agreement but
rather was governed by a manual which set forth opening and
closing procedures, refrigerator cleaning, and other subjects
that are not typically covered in a business to business
relationship. The manual exemplifies a level of detail and
control beyond what is found in a typical independent