The ability of hundreds of local governments to reclaim alleged overpayments of workers’ compensation premiums will be tested when the Ohio Supreme Court considers Cleveland’s $4.5 million judgment it won from the state.

The Ohio Bureau of Workers’ Compensation (BWC) is appealing two lower court decisions that awarded the refund to Cleveland, and ruled that from 1997 to 2009 the city was overcharged premiums under a rate plan that auditors repeatedly criticized the bureau for using. The Supreme Court will hear oral arguments next week on BWC’s claims that the city filed its lawsuit in the wrong court, and made legal claims it can’t support.

The city notes that while it individually sued the BWC for refunds, another pending case in Cuyahoga County involves a class-action lawsuit filed by about 2,100 local government bodies, which claim to be similarly impacted by the rating plan.

Group Rating Plan under Fire
State lawmakers approved the use of “group rating” programs by the BWC in the late 1980s, and they were implemented in the early 1990s. Auditors found for nearly two decades the programs underbilled the group-rated employers and overbilled public and private employers that chose not to be in the group programs.

The non-group rated employers sued the BWC, which resulted in a 2012 trial court verdict awarding these employers $859 million. Rather than appeal, the bureau settled the matter (San Allen v. Buehrer) in 2014 for $420 million. That settlement applied to more than 270,000 Ohio employers. Public employers were excluded from the settlement.

Cleveland then sued and received a $4.5 million judgment from the Cuyahoga County Common Pleas Court. The Eighth District Court of Appeals affirmed the decision, and the bureau appealed to the Supreme Court.

The parties in Cleveland v. Ohio Bureau of Workers’ Compensation note that more than 2,100 local governments are making the same claim as Cleveland in another pending case, City of Parma v. Ohio Bureau of Workers’ Compensation. The trial court placed that case on hold in part because the Supreme Court’s resolution of this case will impact the other local governments. Several items of evidence used in the Cleveland case were produced during the proceedings in San Allen and Parma.

Oral Argument Details
Along with Cleveland, the Court will hear four other cases during its Tuesday, Sept. 10 session, and four cases on Wednesday, Sept. 11. Oral arguments begin at 9 a.m. at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on The Ohio Channel.

Case Previews Published
In addition to the information provided in this article, the Supreme Court’s Office of Public Information today released in-depth previews of the cases.

Tuesday, Sept. 10
Rival sales agencies in the commercial lighting business engaged in a protracted lawsuit regarding unfair competition in Northeast Ohio. A jury found mostly for one company and awarded a nearly $9.5 million judgment. Because of the actions of the losing company, the trial judge awarded attorney fees. Using the “lodestar” method for calculating the numbers of hours worked and the rate charged, the winning law firm demonstrated it should be paid $1.9 million for the 9,000 hours it billed. Citing the complexity of the case, the attorneys successfully argued that figure should be doubled, and a trial court awarded $3.9 million. In Phoenix Lighting. v. Genlyte Thomas Group, the Court will consider whether the lodestar method provided a reasonable fee or if it is permissible to adjust the rates.

The value of a Franklin County apartment complex for tax purposes is the issue in Columbus City Schools Board of Education vs. Franklin County Board of Revision et al. The owner sold the 264-unit complex in June 2015 as part of a business transfer. The auditor valued the property that year at $16 million, while the school board argues the value is $34.5 million based on the sale price. The new owner maintains that the company’s sale price reflects more than the property’s value. The school board counters that the sale of the company was designed solely to transfer the property.

A Lorain County lawyer, who was also a pharmacist, was suspended from practicing law in 2016 after a felony conviction. The attorney appealed his conviction, and his disciplinary proceedings were stayed until his legal challenge ended in 2018. The Board of Professional Conduct started the disciplinary proceedings in 2018 and recommends that the Supreme Court impose a two-year suspension with one year stayed with conditions. In Lorain County Bar Association v. Lindon, the attorney argues that he deserves credit for time served under the interim suspension during his appeal. If not, he maintains, his two-year suspension is effectively a four-year suspension.

A Summit County attorney admits he broke the rules of professional conduct when he engaged in a long-term sexual relationship with a client, but argues a proposed one-year suspension with six months stayed is unreasonable based on sanctions imposed on other attorneys accused of the same misconduct. In Akron Bar Association v. Fortado, the lawyer proposes a one-year fully stayed suspension for violating the rule prohibiting Ohio lawyers from having sex with their clients unless there was a consensual sexual relationship prior to the attorney-client relationship. The attorney and the Akron Bar Association entered into a “consent to discipline” agreement in which a fully stayed suspension was proposed, and both parties ask the Supreme Court to adopt their position.

Wednesday, Sept 11
An East Cleveland man convicted in 2016 of the murders of three women and sentenced to death raises 20 issues in his automatic death-penalty appeal to the Supreme Court. In State v. Madison, the man asserts that the trial court prevented him from amply questioning potential jurors about their views on whether they could consider sentences other than death. The trial court also refused to seat jurors who opposed the death penalty but who said they would consider aggravating and mitigating circumstances, he maintains. His brief also raises issues about his expert witness' testimony, the admission of statements he made about Cleveland serial killer Anthony Sowell, and the introduction of unredacted versions of his multi-day interrogation.

A woman obtained auto insurance, and about a year later, the woman’s sister – who lived with the woman and didn’t have a driver’s license – was driving the woman’s car and struck and killed a pedestrian. The insurer in Nationwide Mutual Fire Insurance Company v. Pusser et al. contends that because the woman didn’t disclose all the drivers in the household, the policy could be voided back to its start date and the insurer didn’t have to provide liability coverage for the accident. Along with rejecting the assertion that the woman made a misstatement that voided the policy, the estate of the man who was killed also counters that the policy language didn’t clearly state that the policy would be voided back to its beginning for certain misstatements.

A Logan County lawyer is contesting a claim that she was motivated by financial gain when she asked a woman charged with murdering her husband if she could represent the wife in the high-profile case. The attorney argues a proposed six-month, fully stayed suspension is unreasonable because she didn’t violate any of the rules governing the conduct of Ohio lawyers when she visited the woman she didn’t know in jail. In Columbus Bar Association v. Bahan, the bar association maintains the attorney didn’t simply advise the accused woman of her rights, but also attempted to get hired as part of the wife’s legal team so the attorney could gain legal experience and attention.

The aunt and uncle of twins obtained permanent custody of the children through proceedings in Delaware County Juvenile Court. In 2018, the aunt and uncle made a formal request in the county probate court to adopt the twins. The children’s mother asked for an attorney, but the court denied her request. In re Y.E.F. and In re M.M.F. involve the constitutional challenges to the denial of counsel. Noting there’s a right to counsel in juvenile court, the mother argues the lack of that right in probate court for cases involving the termination of parental rights violates equal protection under the law. She also maintains that the risk of losing her children outweighs the cost to the government for providing an attorney to a parent in probate court.