Ohio Officials Allow Injustice at Industrial Commission

Introduction

The Ohio Industrial Commission is a state agency that hears appeals of decisions made on workers’ compensation claims. The decisions appealed are usually those of the Ohio Bureau of Workers’ Compensation (BWC), which makes initial decisions on claims and awards compensation and medical benefits to injured workers.

The Commission is headed by three members appointed by the governor to six-year terms. One of the members represents the interests of employers, another represents the interests of employees, and the third is supposed to represent the interests of the public.

Those three members set policy for the Commission’s hearing officers to follow in deciding appeals of BWC’s decisions. The appeals can be filed by injured workers or employers. The hearing officers’ decisions can also be appealed by BWC.

District hearing offices (DHOs) hear the first level of appeals. Their decisions can be appealed to staff hearing officers (SHOs).

The Commission members have discretion to hear appeals of SHOs’ decisions. This is one of the ways the members establish policy for the agency. Their decisions on appeals set precedent for all hearing officers to follow in deciding claims involving the same issue.

Thus, if one of the Commission members has a conflict of interest in deciding a claim, the result can be an injustice not only in that claim but in many others involving the same issue. Because this situation now exists at the Commission, employers and injured workers who file appeals there should be very concerned.

A bad appointment to the Commission

Shortly after the media exposed a major scandal at BWC in 2005, then-Gov. Bob Taft made the unbelievable decision of nominating Kevin R. Abrams to be the public’s representative on the Commission.

Abrams was an assistant law director at BWC for the previous 17 years. In that capacity, he advised BWC on many policies for handling injured workers’ requests for compensation and medical benefits.

He also had a history of abusing BWC employees. For example, the June 1995 issue of The Ohio Observer magazine reported that he helped his boss punish two whistleblowers for exposing wrongdoing in the BWC legal department.

Moreover, the October 1996 issue of The Ohio Observer ran an article about his harassment of an injured worker who had complained about BWC. Maybe that’s why the ethically challenged Taft thought Abrams was the right choice for the Commission.

On the Commission, Abrams decides appeals of decisions made by his former employer and client, BWC. Although Abrams’ background is obviously more suited to representing BWC than the public, criticism of the appointment was brushed off by Taft and the Republicans in the Ohio Senate, which was supposed to decide whether to confirm the nomination.

Taft and the Republican senators apparently felt so strongly about the appointment that they ignored a number of laws to make it happen. (For more on that, see the appendixes to this article.) Their scofflaw tactics enabled them to avoid having the nomination considered in what they must have feared would be an embarrassing debate in the Senate.

Instead of putting a true representative of the public on the Commission, they seemed determined to appoint someone likely to uphold BWC’s decisions on claims. A longtime BWC bureaucrat and company man fit the bill.

Critics of the appointment were eventually proved right when Abrams’ actions on a claim became public. As a Commission member, he denied an injured worker’s request for compensation by upholding a policy he had advised BWC to adopt when he was an attorney there. The conflict of interest was egregious, causing a huge injustice to the injured worker.

And there is a potential for many more injustices, because state officials are ignoring the problem.

The issue in the claim

The issue was whether an injured worker receiving statutory permanent-total-disability compensation can also receive working-wage-loss compensation in the same claim.

An injured worker who has lost two body parts from a work-related injury is automatically entitled to permanent-total-disability compensation under Ohio Revised Code 4123.58(C). Such an injured worker can return to work and continue receiving those “statutory PTD” benefits.

Working-wage-loss compensation is paid under O.R.C. 4123.56(B) to an injured worker who returns to work but suffers reduced wages due to the injury.

At the hearing on the claim, the Industrial Commission voted 2-1, with Abrams in the majority, to uphold BWC’s policy of denying working-wage-loss compensation to injured workers who are receiving statutory PTD compensation in the same claim.

In view of his background at BWC, Abrams was legally and ethically ineligible to participate in that decision. But he did anyway, and it’s anyone’s guess how many times he has done the same in other claims.

As a BWC assistant law director in 2004, Abrams advised BWC on the issue in an appeal

In 2004 a BWC claims worker asked a BWC attorney to appeal a DHO’s order that awarded working-wage-loss compensation to an injured worker who was receiving statutory PTD compensation in the same claim. The attorney sent an email to BWC’s Legal Department seeking advice on what to argue in the appeal.

At the time, Abrams was a BWC assistant law director. He emailed the attorney and several managing attorneys in the department: “It may be worthwhile to mention that Section 4123.58 authorizes receipt of scheduled loss benefits, but no other compensation in addition to the PTD.”

BWC’s director of Legal Operations responded to Abrams: “Great. What is that maxim, ‘expressio unius est exclusio alterius.’ (The expression of one thing is the exclusion of another.)”

The SHO who heard the appeal rejected BWC’s argument and ruled that the injured worker was entitled to working-wage-loss compensation. BWC appealed that decision to the Commission members. Two deputies, acting on behalf of the members, reviewed the appeal and declined to have them hear it.

As a BWC assistant law director in 2005, Abrams advised BWC on its policy on the issue

In 2005 a worker in BWC’s policy department sent Abrams an email asking: “Can an injured worker receive statutory PTD and [working-wage-loss compensation] concurrently for the same claim.” [sic]

The next day, BWC’s director of Legal Operations sent an email to Abrams asking for advice on the issue. Abrams responded in an email dated April 18, 2005, which was less than three-and-a-half months before he went on the Commission.

Abrams wrote to the director: “. . . I would argue [that working-wage-loss compensation] and Statutory PTD are not payable concurrently in the same claim, based on the following. . . . Section 4123.58(C) specifically authorizes payment of scheduled loss benefits in addition to the statutory PTD benefits. The inclusion of the scheduled loss benefits, and the exclusion of [working-wage-loss compensation] weighs against concurrent payment. . . .”

Abrams’ advice was followed. BWC continued its policy of denying working-wage-loss compensation to injured workers who are receiving statutory PTD compensation in the same claim.

As an Industrial Commission member in 2006, Abrams heard BWC’s appeal on the same issue!

In 2006 Abrams was acting as the Commission member who represents the public. Also that year, a DHO rejected BWC’s policy and awarded working-wage-loss compensation to another injured worker who was receiving statutory PTD compensation in the same claim.

BWC appealed the decision to an SHO, who upheld the DHO’s award of compensation. BWC then appealed to the Commission members. And what happened next was what critics of the Abrams appointment feared.

In an order issued on July 20, 2006, all three Commission members voted to hear BWC’s appeal on the issue. Abrams’ participation in that decision occurred less than a year after he left BWC.

The Commission’s hearing was on August 17, 2006, and all three members heard the appeal.

As an Industrial Commission member in 2007, Abrams voted to uphold the policy he had advised BWC to adopt!

The Commission’s decision on BWC’s appeal was issued in January 2007. The Commission members voted 2-1, with Abrams in the majority, to uphold BWC’s policy, reverse the decisions of the SHO and DHO, and deny working-wage-loss compensation to the injured worker. The Commission member who was the representative of injured workers dissented to the denial.

As the rationale for the majority’s decision, the order states: “The Commission finds the rule of statutory construction ‘expressio unius est exclusio alterius’ – the inclusion of one means the exclusion of the other – applies here.

“The Commission finds that if the Ohio Legislature intended that a person receiving statutory permanent total disability benefits could also receive wage loss benefits, it would have included such a provision in the statute. The Legislature specifically identified the additional benefits payable under R.C. 4123.58(C), and those benefits do not include wage loss compensation.”

That is the exact rationale Abrams used in advising the BWC attorney in 2004 and advising BWC on its policy in 2005! The rationale had been rejected by at least six Commission hearing officers – and the employees’ representative on the Commission makes seven.

The Commission’s decision did not discuss or even acknowledge the cases the hearing officers had relied on in awarding the compensation. The order just parrots the advice Abrams gave to BWC on at least two occasions as an assistant law director there.

And the order doesn’t affect only the injured worker whose claim was decided. It sets a precedent that SHOs and DHOs are to follow in deciding the same issue in claims involving other injured workers.

By voting to uphold BWC’s policy, Abrams violated Ohio Administrative Code 4121-15-10 and basic standards of fairness

Chapter 4121-15 in the Ohio Administrative Code contains the Industrial Commission’s Code of Ethics. Rule 4121-15-10 requires Industrial Commission members and hearing officers to recuse themselves from deciding appeals in certain circumstances.

A provision of the rule states: “[A]n adjudicator formerly employed by a governmental agency . . . should disqualify himself or herself in a proceeding if there arises the appearance of impropriety or his or her impartiality might reasonably be questioned because of such association. . . .”

After Abrams had twice advised BWC to adopt the policy at issue in the injured worker’s claim, there was clearly an appearance of impropriety, and his impartially might reasonably be questioned, when he granted BWC’s appeal and upheld the same policy as an Industrial Commission member.

That problem became even clearer when the Commission’s order used the same rationale as Abrams had used in advising BWC. He therefore had a legal obligation to recuse himself from deciding the appeal.

His acts also likely violated the Ohio ethics laws and standards of conduct for attorneys.

And aside from those guidelines, any reasonable person would recognize that as a matter of basic fairness, Abrams should not have decided the issue after he had advised the appealing party, BWC, on what its position should be.

This view is supported by studies of human behavior showing that after a person has said “No” on an issue, it is much more difficult to win the person to the other side.

Dale Carnegie wrote: “A ‘No’ response, according to Professor Overstreet, is a most difficult handicap to overcome. When you have said ‘No,’ all your pride of personality demands that you remain consistent with yourself. You may later feel that the ‘No’ was ill-advised; nevertheless, there is your precious pride to consider! Once having said a thing, you feel you must stick to it. Hence it is of the very greatest importance that a person be started in the affirmative direction.”

John Jay, the first Chief Justice of the U.S. Supreme Court, similarly wrote in Federalist 3: “The pride of States as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting or repairing their errors and offenses.”

That fact about human nature is surely one of the reasons why James Madison wrote in Federalist 10: “No man is allowed to be a judge in his own cause. . . .” Likewise, Alexander Hamilton wrote in Federalist 80: “No man ought certainly to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias.”

Clearly, after Abrams as a BWC assistant law director had said “No” to a person’s ability to concurrently receive statutory PTD compensation and working-wage-loss compensation in the same claim, the injured worker was at a disadvantage in trying to convince him to take the opposite position as an Industrial Commission member. He was naturally disposed to justify his past acts and had an interest in doing so. Not surprisingly, then, he ultimately justified those acts by ruling that he had been correct.

If some legal, governmental, or educational experts really can’t see injustice here, they are examples of what Thomas Jefferson observed about people’s ability to decide ethical issues. “State a moral case to a ploughman and a professor,” he said. “The former will decide it as well, and often better than the latter, because he has not been led astray by artificial rules.”

Or possibly the professor has political interests that are inconsistent with reaching the correct result. In any event, every ploughman or other layperson applying common sense could see that what Abrams did was wrong.

State officials and others refuse to address the problem

Because Abrams was legally disqualified from deciding the issue in the claim, the injured worker is entitled to have the Commission’s decision revoked. The person should be granted a new hearing at which Abrams does not participate.

Moreover, steps should be taken to prevent Abrams from doing the same to other injured workers in the future. Such unfair behavior can cause them severe financial and emotional harm.

For similar reasons, an investigation should be undertaken to determine whether Abrams had any other conflicts of interest he did not disclose in deciding appeals. If so, the injured workers in those claims likely have rights to new hearings too.

Shockingly, however, state officials have chosen to ignore this problem at the Commission. They have done nothing to help the injured worker who was harmed by Abrams’ failure to recuse himself from deciding the appeal. And they have not prevented him from treating other injured workers the same way.

Abrams’ conflict of interest has been brought to the attention of Gov. Ted Strickland, the state inspector general, the Ohio Ethics Commission (including directly to chairperson Prof. Ann Marie Tracey and member Steven Dettelbach), the Ohio Supreme Court’s disciplinary counsel, the attorney general, the majority and minority leadership of the Ohio Senate, and other state officials and agencies.

But none of them have been willing to even address this patent injustice. And Dettelbach thinks he deserves an appointment to be a U.S. District Attorney, where he would be able to ignore the wrongdoing of public officials on an even wider scale.

By remaining silent, state officials have given Abrams a green light to continue the same unjust and unlawful conduct. This is so even though Ohioans in 2006 elected a Democratic governor and other Democratic statewide officials in large part because of major scandals in the workers’ compensation system.

Strickland and the rest of the Democratic leaders promised during the campaign to clean up the system. But their silence on this matter imperils the rights of injured workers to justice. It also reinforces the reputation that Ohio acquired under the Republicans as having the most corrupt state government in the nation.

Although some private workers’ compensation attorneys have expressed dismay over the Abrams problem, none of them have been willing to publicly complain. They fear that if they do, the Commission will retaliate against them and their clients in future appeals. The attitude of these attorneys, who are very familiar with the Commission’s operations, raises further questions about the fairness of decisions being made at the agency.

Famed prosecutor and author Vincent Bugliosi might say about such attorneys: they are physiological marvels who are somehow able to stand erect at the Industrial Commission without a spine.

Conclusion

This flagrant conflict of interest, along with the decision of state officials to ignore it despite the oath they took to uphold the law, casts a cloud over the ability of employers and injured workers to obtain justice at the Commission.

In any appeal of a BWC decision to the Commission, the parties can justifiably be concerned that Abrams may have previously advised BWC to make the same decision – as he did in the claim described above.

With that background on the issue, he obviously is not an independent decider or a true representative of the public. Moreover, he would be legally and morally prohibited from deciding the issue.

But he has been willing to ignore the legal and moral prohibitions. And state officials are letting him get away with it. They have chosen to stonewall on “Abramsgate.”

Because the resulting unfairness and harm to employers and injured workers can be enormous, those officials are displaying a shameful callousness, disrespect for the law, and willingness to tolerate injustice.

Not just employers and injured workers – but all Ohioans – should be very concerned that such an attitude is apparently widespread in the highest levels of their state government.

[Update: In 2011, newly elected Governor John Kasich declined to reappoint Abrams to the Industrial Commission when his term expired that year.]

Appendix A: Letter of Common Cause/Ohio protesting legal violations in the appointment of Kevin Abrams to the Industrial Commission

In response to the following letter, the Ohio inspector general said his office saw insufficient cause to investigate. The legislative inspector general said he has no jurisdiction over the subject.

March 23, 2006

Thomas P. Charles
Ohio Inspector General
30 East Broad Street, Suite 1829
Columbus, Ohio 43215-3414

Tony W. Bledsoe
Ohio Legislative Inspector General
50 West Broad Street, Suite 1308
Columbus, Ohio 43215

Re: Industrial Commission Appointment Violations

Dear Messrs. Charles and Bledsoe:

Common Cause/Ohio is a nonprofit and nonpartisan citizen organization concerned with governmental accountability. We have become aware of legal violations involved in the appointment of the public’s representative to the Ohio Industrial Commission. The violations occurred in both the executive and legislative branches of state government, and are a breach of one of the nation’s most sacred governmental principles – the separation of powers. Consequently, we ask that your offices conduct a joint investigation to find the causes and hold the appropriate state officials accountable. We also ask that you take all necessary steps to prevent similar violations in the future.

Most of the violations are described in detail in the attached letter, dated February 2, 2006, to Senate President Bill M. Harris. We have received no response to the letter. The violations can be summarized as follows.

Executive Branch

R.C. 4121.02 sets forth the procedure for appointing members of the Industrial Commission. State officials in the executive branch violated several of its provisions.

(1) Under division (E) of the statute, Gov. Taft was required to provide the name of the nominee to the Senate “by no later than the first day of June” 2005, which was approximately a month before the Senate adjourned for the summer. But he waited until July 27 – well after the Senate had adjourned – to name the nominee.

(2) Under division (D), the Industrial Commission Nominating Council is given deadlines within which the names of possible nominees must be provided to the Governor. The Governor is required to select a nominee from the slates of names submitted. The Nominating Council violated the statutory deadlines for providing names to the Governor.

(3) Under divisions (B) and (C), the Industrial Commission member who was replaced had a term of office ending on June 30, 2005. But she stayed in office until August 1. Her delay in leaving probably facilitated both the late submission of the slates of possible nominees by the Nominating Council and the late selection of the nominee by the Governor. Moreover, questions have been raised about the legally of the salary she received, and the decisions she made, during July 2005.

(4) Under divisions (A) and (E), the nominee is required to be “an individual who, on account of the individual’s previous vocation, employment, or affiliations, can be classed as a representative of the public.” It is highly questionable whether the Nominating Council and the Governor took this requirement seriously. The nominee is a career lawyer from the Bureau of Workers’ Compensation. As the public’s representative on the Industrial Commission, he will decide challenges to the legality of decisions made by the Bureau in workers’ compensation claims. The challenges could be to policies, procedures, and legal interpretations he advised the Bureau on as a lawyer and assistant law director for the agency between 1982 and 2005. According to his biography posted on the Industrial Commission’s website, he “provided legal advice to BWC in virtually all areas of workers’ compensation.” This situation appears to be a conflict of interest.

(5) Under divisions (A) and (E), the nominee is not to take office until confirmed by the Senate. But he began acting as an Industrial Commission member on August 2, which was only five days after being nominated by the Governor.

Legislative Branch

In accordance with the checks and balances provided for in Article III, Section 21 of the Ohio Constitution, R.C. 4121.02 requires the Senate to advise the Governor on the choice of the nominee and consent to it. The procedure for Senate review is contained in division (E). The following provisions of that division appear to have been violated.

(1) The division states that for “all appointments,” the Senate “shall” refer the matter to an appropriate standing committee for consideration of the appointment. This did not happen.

(2) The division says the committee “shall” hold a public hearing to consider the appointment. This did not happen either.

(3) The division provides that the committee “shall” make a recommendation to the full Senate on whether to confirm the nominee. This was another nonoccurrence.

(4) In requiring a committee recommendation to the full Senate, the division indicates the Senate will consider the nomination. But the Senate did not.

(5) The division requires that the nominee will either be confirmed or rejected by the Senate. Because the statutory procedure for selecting the nominee was not followed, we believe that neither occurred.

Under Ohio law, the word “shall” is interpreted as mandatory. Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, 271 N.E.2d 834. Despite the use of “shall” in division (E), the Senate did not treat the procedure as mandatory.

Conclusion

The selection of the public’s representative to the Industrial Commission involved multiple legal violations in the executive and legislative branches of state government. As a result, the person acting as the public’s representative has a background that many believe does not meet the statutory requirements for holding the position. His background appears more consistent with being a representative of the Bureau than a representative of the public, resulting in a conflict of interest.

Violations of law by public officials – who have sworn to uphold the law – cannot be condoned. We therefore believe that the executive and legislative officials responsible for these violations should be held accountable. We further believe that steps must be taken to ensure such violations do not reoccur in future nominations to the Industrial Commission or other state agencies. For these reasons, we ask your offices to conduct a joint investigation of the statutory violations and take all necessary corrective actions.

If you have any questions, please contact our office.

Appendix B: Letter of Common Cause/Ohio to Ohio Senate President Bill Harris about the Senate’s failure to follow statutory requirements in the appointment of Kevin Abrams to the Industrial Commission

Common Cause/Ohio received no response to the following letter.

February 2, 2006

Hon. Bill M. Harris
President of the Ohio Senate
Statehouse, Room 201
Columbus, OH 43215

Re: Industrial Commission Appointment

Dear President Harris:

Common Cause/Ohio is a nonprofit and nonpartisan citizen organization concerned with governmental accountability. We have recently been alarmed by media reports about the method used to place the public’s representative on the Ohio Industrial Commission. We ask you to examine this matter and take corrective action.

Under O.R.C. 4121.02(E), Governor Taft was required to notify the Senate of his choice of the public’s representative “by no later than the first day of June of the year that the term is to expire.” For the term that expired June 30, 2005, the Governor did not notify the Senate of his choice until July 27, 2005. A spokesperson for the Governor recently defended the delay by saying it was caused by the Governor’s rejection of the first three names he was given by a nominating committee. The statute, however, requires the choice to be submitted to the Senate by June 1 regardless of whether the first three names were rejected. The Governor clearly violated the statute.

O.R.C. 4121.02(E) contains additional requirements for selecting the public’s representative on the Industrial Commission. It states that for all appointments, the Senate “shall refer the matter to an appropriate standing committee for consideration of the appointments.” The statute says the Committee “shall hold a public hearing to consider the appointments.” After the hearing, the Committee “shall make its recommendation” to the full Senate. Further, the statute indicates the nominee will not take office until confirmed by the Senate.

In regard to the recent selection of the public’s representative, none of those statutory requirements were complied with. The nomination was not considered by a Senate Committee, no public hearing was held, no Committee recommendation was made to the full Senate, the full Senate did not consider the nomination, and the nominee took office on August 2, 2005 without Senate confirmation.

The nomination was scheduled to be examined by the Senate’s Insurance, Commerce, and Labor Committee on January 10, 2006. On that date, however, the Committee Chairman took the nomination off the agenda. He based his action on another provision in O.R.C. 4121.02(E). This one states that if the full Senate “fails to take a final vote on an appointment within thirty days after the governor submits the names to the senate under this division, the individual’s appointment is deemed confirmed by the senate and the individual shall take the office of commission member. . . .” The Chairman reasoned that because the Senate did not vote on the nomination within 30 days of the Governor’s submission of the name to the Senate, the appointment was automatically confirmed and there was no need to consider it. We strenuously object to his rationale for at least two reasons.

In the first place, if a statute has to be violated, it is more consistent with the public interest to violate a single provision containing an arbitrary time deadline rather than violate a string of substantive provisions intended to uphold the constitutional principle of checks and balances. The Committee Chairman, though, chose to strictly enforce the portion of the statute containing the time deadline. (This was done despite the Governor’s violation of another time deadline in the statute.) The Chairman chose not to follow the important provisions requiring the Committee to consider the nomination, to hold a public hearing, and to make a recommendation to the full Senate. He was quite selective in deciding which statutory provisions would be followed and which would be violated. We think his selections betrayed an inappropriate priority to procedure over substance.

More importantly, we believe that the statutory deadline does not apply in this case. O.R.C. 4121.02(E) specifies that the deadline applies “after the governor submits the names to the senate under this division . . .” (emphasis added). As stated above, the Governor did not submit the name in accordance with division (E) but instead used a procedure inconsistent with the division. And by not submitting the name to the Senate until July 27, which was after the General Assembly had adjourned until October, the Governor caused the other violations of division (E). Those violations would not have occurred if he had complied with the June 1 deadline, thereby allowing the Senate to consider the nomination while still in session. Thus, rather than being made under division (E), the appointment resulted from a procedure entirely contrary to it. As a result, we believe the appointment is void.

Additionally, the handling of this nomination raises broader concerns relating to Ohio’s state government. In 2005, the Governor was convicted of four criminal violations of the ethics laws. Also last year, the public learned of several major scandals at the Bureau of Workers’ Compensation. These occurrences bolstered a widespread public perception of a “culture of corruption” at the leadership levels of state government.

That perception has been strengthened by the circumstances surrounding this nomination. As his nominee to be the public’s representative on the Industrial Commission, the Governor chose a career lawyer from the Bureau of Workers’ Compensation at a time when the Bureau has been engulfed in scandals. The Industrial Commission decides appeals of orders issued by the Bureau. The Governor’s selection therefore presents a situation where a person – after working many years as a lawyer representing and being paid by the Bureau – is suddenly made the public’s representative in deciding appeals of Bureau orders.

Not surprisingly, many have raised strong concerns about whether a career Bureau lawyer is an appropriate person to represent the public on the Industrial Commission – particularly at this time. According to O.R.C. 4121.02(A) and (E), the public representative’s background must be such that he or she can be said to be a representative of the public, not a representative of the Bureau. The need for the Senate to thoroughly and publicly examine the nomination is obvious. The law directs that such examinations will occur for all nominations to the Industrial Commission. But several statutory requirements were violated, causing the Senate to forgo its statutory duties to examine, advise, and consent. This is not the way to restore confidence in state government.

Because the nomination was done contrary to law and is void, we ask that the Governor and Senate redo the nomination by following the procedure required by O.R.C. 4121.02. To prevent similar legal violations in the future, an investigation of how these violations occurred should also be made. Those found responsible should be held accountable.

Please provide a written response to this request at your earliest opportunity. If the Senate does not promptly act to correct these statutory violations, our legal committee will consider other possible options to pursue.