[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Friendship Supported Living, Inc. v. Ohio Bur. of Workers’ Comp., Slip Opinion No. 

2023-Ohio-957.]

 

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2023-OHIO-957

THE STATE EX REL. FRIENDSHIP SUPPORTED LIVING, INC., APPELLEE, v. OHIO 

BUREAU OF WORKERS’ COMPENSATION, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Friendship Supported Living, Inc. v. Ohio Bur. of 

Workers’ Comp., Slip Opinion No. 2023-Ohio-957.]

Workers’ compensation—Premium audit—Employment relationship—Factors for 

determining whether a person is an independent contractor or employee for 

workers’ compensation purposes—Right-to-control test—Court of appeals’ 

judgment reversed—Limited writ granted ordering Bureau of Workers’ 

Compensation to issue an amended order that accounts for the factors being 

considered by furnishing reasons that are briefly explained and statements 

that are fact-specific.

(No. 2022-0142—Submitted January 10, 2023—Decided March 28, 2023.)

APPEAL from the Court of Appeals for Franklin County, No. 19AP-882,

2021-Ohio-4490.

__________________
SUPREME COURT OF OHIO

2

Per Curiam.

{¶ 1} Appellant, the Ohio Bureau of Workers’ Compensation, appeals the 

Tenth District Court of Appeals’ decision determining that the bureau abused its 

discretion by issuing an order classifying the in-home direct-care workers of 

appellee, Friendship Supported Living, Inc., as employees rather than independent 

contractors. The court of appeals granted a writ of mandamus ordering the bureau 

to vacate its order and return to Friendship any premiums imposed or received as a 

result of that order. We conclude that the bureau abused its discretion in adopting 

its order by failing to sufficiently account for the relevant factors bearing on the 

work relationship between Friendship and its direct-care workers. We accordingly 

reverse the court of appeals’ judgment and grant a limited writ of mandamus 

directing the bureau to issue an amended order.

I. BACKGROUND

A. Friendship’s operations

{¶ 2} Friendship provides in-home direct-care services to developmentally

disabled persons known as “consumers” under a program administered by the Ohio 

Department of Developmental Disabilities (“DDD”). The services are provided 

according to “individual service plan[s]” that prescribe the duration and frequency 

of the services to be provided to each consumer. At issue here is Friendship’s

classification of the workers that it assigns to provide these in-home direct-care

services as independent contractors.

{¶ 3} The workers’ classification has been evaluated at least twice 

previously. In a 2008 premium audit, the bureau determined that these workers 

were independent contractors. And in reviewing a determination by the 

Unemployment Compensation Review Commission (“UCRC”) in 2016, the 

Franklin County Court of Common Pleas determined that one of these workers was 

an independent contractor. See Friendship Supported Living, Inc. v. Dir., Ohio 

Dept. of Job & Family Servs., Franklin C.P. No. 15CVF-8721 (Mar. 7, 2016). The 
January Term, 2023

3

bureau’s final order also refers to a 2006 premium audit. But the record before us 

does not include an audit report from 2006.

{¶ 4} This case involves the bureau’s 2017 premium audit of Friendship for

the period July 1, 2014, to June 30, 2015. Based on information supplied during 

the audit by Florence Hein, Friendship’s owner, the bureau’s auditor determined 

that the direct-care workers are employees, not independent contractors. The 

auditor reported the following findings:

[The workers are] [p]aid hourly;

The [Internal Revenue Service (“IRS”) Form] W-2 staff also 

visits the same clients as the contractors to perform other related 

services * * *;

Typically, the workers are interviewed, hired and paid set 

wages;

They have their work assigned and scheduled (i.e., they are 

expected to be [at] the client’s between specific hours);

The home health worker does not make decisions about the 

care or medication, exercise, etc.; they follow a plan developed by a 

healthcare provider and are overseen by a case manager or RN;

The contract states that after 24 months they can apply to be 

an employee of [F]riendship;

Industry standards have some supervisor [sic] of the work 

that is performed by the home health aides [(“HHA”)];

The contractors do not call to schedule any visits to the 

clients they serve. The company performs all scheduling of days 

and times when the contractor is to work;

Worker’s activities are monitored for compliance and 

quality;
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A worker could not hire someone to fill in—the services 

have to be performed by him/her personally;

Timesheets are submitted and [IRS Form] 1099 recipients do 

not invoice for their services. They are paid hourly, not by visit;

The HHA cannot contract to another party to provide the 

services—he/she must perform the services personally;

Liability insurance is carried by the employer; [and]

Services are integrated into the functioning of the employer 

who is in the business to provide home health[care] * * *.

{¶ 5} Friendship protested the audit findings and requested a hearing before 

the bureau’s adjudicating committee. See R.C. 4123.291(A) and (B)(5) 

(empowering an adjudicating committee to hear an employer’s protest relating to 

an audit finding). Friendship supported its protest with records, including a 

transcript of Hein’s testimony from the 2015 UCRC hearing and an affidavit from 

Hein attesting that her UCRC testimony “is still a truthful and accurate statement 

of Friendship Supported Living’s business and relationship with the direct care 

providers.”

{¶ 6} In her UCRC testimony, Hein stated that Friendship pays the directcare workers an hourly rate based on their submission of invoices for hours worked 

and that Friendship provides the workers with Form 1099, but she testified that 

Friendship does not train or supervise the workers. The workers choose how 

frequently they are paid (i.e., weekly or biweekly), and they sign contracts with 

Friendship designating them as “independent contractors.” Friendship assigns the 

direct-care workers to a consumer, but the workers can decline the assignment and, 

within limits, “decide from day to day when they * * * work with their assigned 

[consumer].” They “work[] off of the [individual service] plan and [do] the day to 

day operations of that plan” but are unsupervised in this work. If a consumer has a 
January Term, 2023

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concern about one of the direct-care workers, the consumer reports the concern to 

a Friendship employee or to Hein rather than to the direct-care worker. Hein 

testified that unlike the direct-care workers that are considered subcontractors, 

Friendship’s employees are on-call and that they do things for the consumers such 

as attend medical appointments and coordinate medications, check their homes for 

safety, and provide them with skills training (e.g., riding the bus) as required by the 

individual service plans.

{¶ 7} Hein testified that the state also provides in-home direct-care services 

to consumers and that the state classifies its workers who provide these services as 

“independent contractors.” Friendship permits its direct-care workers to work for

its competitors, including for the state, but it forbids them from subcontracting their 

consumer assignment to someone else. And Friendship does not reimburse the 

workers for expenses except for certain mileage expenses.

B. Procedural history

{¶ 8} The adjudicating committee denied Friendship’s audit protest, 

determining that Friendship’s in-home direct-care workers are employees rather 

than independent contractors. Citing Gillum v. Indus. Comm., 141 Ohio St. 373, 

48 N.E.2d 234 (1943), and Bostic v. Connor, 37 Ohio St.3d 144, 524 N.E.2d 881 

(1988), the committee determined that Friendship has the right to control the 

workers. The committee further determined that neither of the bureau’s earlier 

audits from 2006 and 2008 nor the common pleas court’s decision in Friendship, 

Franklin C.P. No. 15CVF-8721 (Mar. 7, 2016), support a different result.

{¶ 9} Friendship appealed the adjudicating committee’s decision to the 

administrator’s designee. See R.C. 4123.291(B) (“An employer who is adversely 

affected by a decision of an adjudicating committee appointed by the administrator 

may appeal the decision of the committee to the administrator or the administrator’s 

designee”). The designee affirmed, reasoning “that there is sufficient control by 
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Friendship over the activities of the workers to conclude that the workers are 

employees of Friendship.”

{¶ 10} In December 2019, Friendship filed a complaint for a writ of 

mandamus in the Tenth District, seeking an order directing the bureau to classify 

its in-home direct-care workers as independent contractors and reimburse 

Friendship for the premiums it incurred as a result of the bureau’s classification. A 

magistrate determined that the bureau had not abused its discretion in concluding 

that the workers are Friendship’s employees and recommended that the court of 

appeals deny the writ. 2021-Ohio-4490, ¶ 64. Friendship filed objections to the 

magistrate’s order, which the court of appeals sustained in part. The court of 

appeals granted a writ of mandamus, ordering the bureau to vacate its order 

classifying Friendship’s direct-care workers as employees and ordering the bureau 

to return any premium payments that Friendship had made based on the order of 

the administrator’s designee. Id. at ¶ 35. The bureau appealed.

II. ANALYSIS

{¶ 11} We must determine whether the bureau abused its discretion in 

determining that Friendship’s in-home direct-care workers are employees. See 

State ex rel. Daily Servs., L.L.C. v. Morrison, 154 Ohio St.3d 498, 2018-Ohio-2151, 

116 N.E.3d 112, ¶ 17. To make this determination, we examine whether the 

bureau’s order is “adequately explain[ed],” State ex rel. Craftsmen Basement 

Finishing Sys., Inc. v. Ryan, 121 Ohio St.3d 492, 2009-Ohio-1676, 905 N.E.2d 639, 

¶ 15, and is supported with “ ‘some evidence in the record,’ ” State ex rel. Ugicom 

Ents., Inc. v. Morrison, 169 Ohio St.3d 244, 2022-Ohio-1689, 203 N.E.3d 683, 

¶ 14, quoting State ex rel. Digiacinto v. Indus. Comm., 159 Ohio St.3d 346, 2020-

Ohio-707, 150 N.E.3d 933, ¶ 13. We review the judgment of a court of appeals in 

a mandamus action as if it had been filed originally in this court. State ex rel. 

Armatas v. Plain Twp. Bd. of Trustees, 163 Ohio St.3d 304, 2021-Ohio-1176, 170 

N.E.3d 19, ¶ 12.
January Term, 2023

7

{¶ 12} Relevant here are the common-law factors for deciding whether a 

person is an employee or independent contractor for workers’ compensation 

purposes. “Whether someone is an employee or an independent contractor is 

ordinarily an issue to be decided by the trier of fact. The key factual determination 

is who had the right to control the manner or means of doing the work.” Bostic, 37 

Ohio St.3d at 145-146, 524 N.E.2d 881.

{¶ 13} “The right-to-control test is not marked by a bright-line rule but 

rather a set of nonexhaustive factors.” Ugicom at ¶ 16. In Gillum, this court

recognized the following factors as indicative, though not dispositive, of the 

existence of an independent-contractor relationship:

“the existence of a contract for the performance by a person of a 

certain piece or kind of work at a fixed price, the independent nature 

of his business or his distinct calling, his employment of assistants 

with the right to supervise their activities, his obligation to furnish 

necessary tools, supplies, and materials, his right to control the 

progress of the work except as to final results, the time for which the 

workman is employed, the method of payment, whether by time or 

by job, and whether the work is part of the regular business of the 

employer.”

Id. at 375, 48 N.E.2d 234, quoting 27 American Jurisprudence, Indicia of 

Relationship, Section 5, at 485; see also Bostic at 146 (other factors may include

“who controls the details and quality of the work; who controls the hours worked; 

who selects the materials, tools and personnel used; who selects the routes travelled; 

the length of employment; the type of business; the method of payment; and any 

pertinent agreements or contracts”).
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{¶ 14} The bureau’s main argument on appeal is that the Tenth District

reweighed the evidence when it concluded that the bureau had abused its discretion 

in determining that Friendship’s direct-care workers are employees. In the bureau’s 

view, its order rests on reasoning that is fully explained and on findings that are 

grounded in some evidence in the record.

1

 Before examining whether the bureau 

is correct, we note two things: First, although the bureau’s order does not clearly 

identify the particular factors of the right-to-control test it considered or specify 

how certain aspects of the relationship between Friendship and the direct-care 

workers relate to a particular factor,2 we arrange our analysis under headings that 

correspond best with the findings addressed in the bureau’s order. Second, because 

this appeal tests the sufficiency of the evidence supporting the bureau’s order, we 

do not analyze factors that the bureau itself did not analyze in making its decision. 

See State ex rel. Yellow Freight Sys., Inc. v. Indus. Comm., 71 Ohio St.3d 139, 142, 

642 N.E.2d 378 (1994) (“evidentiary review is limited to the evidence and 

reasoning identified in the order” [emphasis sic]).

A. Analyzing the factors of the right-to-control test

1. DDD’s regulation of Friendship

{¶ 15} The bureau found it significant that at the time of the 2017 audit,

DDD characterized Friendship as an “agency provider,” meaning “an entity that 

directly employs at least one person in addition to the chief executive officer for 

the purpose of providing services for which the entity must be certified in 

accordance with rule 5123:2-2-01 of the Administrative Code.” Former Ohio 

1. The bureau also suggests that the court of appeals invoked collateral estoppel to prevent it from 

litigating whether the direct-care workers are employees or independent contractors. The bureau is 

mistaken. The court of appeals plainly held that Friendship, Franklin C.P. No. 15CVF-8721 (Mar. 

7, 2016), was not binding on the bureau. 2021-Ohio-4490 at ¶ 18.

2. Because the order of the administrator’s designee adopted the adjudicating committee’s statement 

of the facts and affirmed the “rationale set forth in the [committee’s] order,” we will review the 

analysis advanced in the orders of both the adjudicating committee and the administrator’s designee.
January Term, 2023

9

Adm.Code 5123:2-9-06(B)(1), 2016-2017 Ohio Monthly Record 2-2583, effective 

Apr. 1, 2017. Yet, DDD’s regulation of Friendship does not speak to whether 

Friendship exerts control over its work relationship with the direct-care workers. 

And former Ohio Adm.Code 5123:2-9-06(B)(1) says nothing about the factors for 

determining whether a worker providing direct care to consumers should be 

characterized as an employee or independent contractor for workers’ compensation 

purposes. We conclude that DDD’s regulation of Friendship is not evidence that 

supports the bureau’s classification of Friendship’s direct-care workers as 

employees.

2. Insurance

{¶ 16} The bureau stated that the “workers are required to have their own 

insurance, at their own expense, and Friendship only carries insurance on the 

business.” That statement alone does not specify what type of insurance Friendship 

requires the direct-care workers to carry, but the parties agree on appeal that 

Friendship requires its direct-care workers to have their own automobile insurance

per state-law requirements. Whether insurance coverage is provided and who 

provides the coverage is a relevant aspect of a work relationship. See Bostic, 37 

Ohio St.3d at 147, 524 N.E.2d 881 (observing that the worker’s failure to “fill out 

the health insurance forms required of [the company’s] employees” was evidence 

from which a fact-finder could reasonably conclude that the worker was an 

independent contractor). We conclude that Friendship does not exert control over 

a facet of the work relationship with its direct-care workers by requiring that the 

workers carry their own automobile insurance, because even if the direct-care 

workers were not involved with Friendship, they would still be required by law to 

maintain insurance coverage per state-law requirements.

3. Method of payment

{¶ 17} The bureau determined that Friendship’s direct-care workers are

paid hourly, a fact that is reflected in the 2017 audit report and that tends to support 
SUPREME COURT OF OHIO

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the existence of an employer-employee relationship.3 See Walker v. Lahoski, 9th 

Dist. Summit No. 19293, 1999 WL 548978, *2 (July 28, 1999) (“If the worker is 

paid on an hourly basis, this tends to indicate that the worker was an employee”). 

But the bureau also determined that the workers are issued Forms 1099 rather than 

Forms W-2, a fact that is reflected in the 2017 audit report and that tends to show 

the existence of an independent-contractor relationship. See Northeast Ohio 

College of Massotherapy v. Burek, 144 Ohio App.3d 196, 203-204, 759 N.E.2d 869 

(7th Dist.2001). Because the bureau’s analysis regarding these two aspects of how 

Friendship pays its direct-care workers is supported by some evidence in the record, 

we conclude that these findings effectively cancel each other out.

4. Part of Friendship’s regular business

{¶ 18} The bureau determined that the direct-care workers “provid[e] their 

personal labor in the normal course of Friendship Supported Living’s business 

pursuit.” The bureau argues that this is a relevant aspect of Friendship’s

relationship with its direct-care workers and one that is supported by some evidence

in the record. The bureau is correct. In analyzing a person’s work status, it matters 

“whether the work is part of the regular business of the employer.” Gillum, 141 

Ohio St. at 375, 48 N.E.2d 234, quoting 27 American Jurisprudence, Section 5, at 

485. And here, the bureau’s auditor found in 2017 that the direct-care workers’

“[s]ervices are integrated into the functioning of [Friendship, which] is in the 

business to provide home health [services].” Some evidence in the record, 

therefore, supports the bureau’s determination regarding this factor of the right-tocontrol test.

3. Friendship says that the DDD requires it to pay the direct-care workers on an hourly basis. But 

the UCRC transcript, which Friendship cites in support of this statement, is silent on this point.
January Term, 2023

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5. Arranging consumer coverage

{¶ 19} The bureau found it significant that when a direct-care worker is 

unavailable to provide services to a consumer, Friendship is then responsible for 

arranging for another direct-care worker to provide services for that consumer. 

There is some evidence in the record to support this finding because the 2017 audit 

report states that the workers could not hire someone to fill in for them. Although 

this finding by the bureau is not directly traceable to one of the common-law rightto-control factors listed above, that is not fatal to the bureau’s determination,

because those factors do not exhaust what the bureau may consider. See Ugicom, 

169 Ohio St.3d 244, 2022-Ohio-1689, 203 N.E.3d 683, at ¶ 16 (describing the rightto-control test as consisting of a “set of nonexhaustive factors”). Rather, as 

previously stated, “[t]he key factual determination is who had the right to control 

the manner or means of doing the work.” Bostic, 37 Ohio St.3d at 146, 524 N.E.2d 

881. By restricting the direct-care workers from arranging coverage for a consumer 

when they are unavailable to personally provide the required services, Friendship 

exerts control over how they do their work.

6. Friendship’s classification of the direct-care workers as independent 

contractors

{¶ 20} Friendship has its direct-care workers sign an agreement classifying

them as independent contractors. But the bureau rejected as irrelevant Friendship’s 

characterization of the work relationship with its direct-care workers, concluding 

that “[t]he underlying facts and true nature of the relationship speaks for itself.” 

We conclude that the bureau did not abuse its discretion in determining that this 

evidence is not probative of the work relationship. See Ugicom at ¶ 35 (bureau did 

not abuse its discretion in failing to credit the fact that an employer labeled its 

workers as independent contractors by entering into an independent-contractor 

agreement with them).
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7. The common pleas court’s decision and the prior audits

{¶ 21} The bureau determined that the common pleas court’s decision in 

Friendship, Franklin C.P. No. 15CVF-8721 (Mar. 7, 2016), is instructive on how 

to classify workers for unemployment-compensation purposes but not for workers’

compensation purposes. It also determined that its auditor’s findings from prior 

audits had no bearing on its analysis of the 2017 audit. Although Friendship asserts 

that the common pleas court’s findings in Friendship and the prior audit findings 

by the bureau bolster its argument that the direct-care workers are independent 

contractors, Friendship cites no authority in support of its contention that the bureau 

abuses its discretion when it fails either to follow a common pleas court’s decision 

regarding a worker’s classification for unemployment-compensation purposes or to 

assign probative weight to findings from one of its earlier audits. It follows that the 

bureau did not abuse its discretion in failing to factor the common pleas court’s 

decision in Friendship and its own prior audits into its analysis of the 2017 audit.

8. The direct-care workers’ freedom while interacting with the consumers

{¶ 22} The bureau noted that a direct-care worker and a consumer mutually 

decide what they will do while the worker is in the consumer’s home. It reasoned, 

however, that this has no bearing on whether Friendship controls the work 

relationship with the direct-care workers, because “autonomy and flexibility [are] 

common for employees in this field and many other types of work.” But the 

bureau’s order cites no evidence justifying this latter statement, and thus, the 

bureau’s note regarding the mutual decisions made by the direct-care workers and 

the consumers must be understood as a sign of Friendship’s lack of control over the 

workers while they are in the consumers’ homes.

9. Monitoring and compliance

{¶ 23} The bureau determined that Friendship supervises the direct-care

workers by “monitoring their activities for compliance and quality,” and the bureau 

echoes this point on appeal. In one sense, there is some evidence in the record to 
January Term, 2023

13

support this finding: the bureau’s 2017 audit found that each “[w]orker’s activities 

are monitored for compliance and quality.” But beyond this, the bureau’s order 

provides no specifics about what the “monitoring” consists of. It is not enough for 

the bureau to perfunctorily say that something is so. See Craftsmen Basement 

Finishing Sys., Inc., 121 Ohio St.3d 492, 2009-Ohio-1676, 905 N.E.2d 639, at ¶ 18

(rejecting the bureau’s position that “if the bureau says something is so, it is so, and 

that is explanation enough”). The bureau’s failure to specify the type and extent of 

Friendship’s monitoring activities of the direct-care workers frustrates our ability 

to discern whether some evidence in the record supports its conclusion concerning 

these activities.

B. Deficiencies in the bureau’s order require that we grant a limited writ

{¶ 24} Ordinarily at this point, we would determine whether “the bureau’s 

conclusions under the factors [are] rooted in some evidence in the record.” Ugicom, 

169 Ohio St.3d 244, 2022-Ohio-1689, 203 N.E.3d 683, at ¶ 44. But we are able to 

do so only if the bureau has weighed the individual facts of the case against the 

relevant factors of the right-to-control test, which is something that must be done 

in this type of analysis. See Bostic, 37 Ohio St.3d at 146, 524 N.E.2d 881. We 

agree with Friendship that the bureau failed to consider the totality of the 

circumstances in light of the relevant factors espoused in the caselaw, but we 

disagree that this failure compels affirmance of the Tenth District’s decision.

1. Deficiencies in the bureau’s order

{¶ 25} The bureau’s order is marred by three deficiencies. First, as noted, 

the bureau found it significant that Friendship monitors the direct-care workers for 

“compliance and quality,” but it did not specify what these monitoring activities 

consist of. This is significant not just because Friendship denies that it supervises 

the direct-care workers. If Friendship’s monitoring consists of no more than 

checking that the direct-care workers are carrying out their job duties pursuant to 

the agreement for hire, then that would not be “ ‘an assumption by the employer of 
SUPREME COURT OF OHIO

14

the right to control the person employed as to the details or method of doing the 

work.’ ” Gillum, 141 Ohio St. at 382, 48 N.E.2d 234, quoting 27 American 

Jurisprudence, Section 7, at 488. The reference to worker oversight by a case 

manager or a nurse in the bureau’s 2017 audit report does not alter this conclusion,

because it is not obvious from the report that the case managers and nurses that 

perform the oversight function are affiliated with Friendship. If they are not so 

affiliated, their oversight would not be a mark of Friendship’s control over the 

direct-care workers. See Ugicom at ¶ 40. Nor is it sufficient for the bureau to rely 

on the fact that the home-health industry in general relies on supervisors to monitor 

the activities of in-home health workers, because the “individual facts of each case” 

must drive the analysis, Bostic at 146.

{¶ 26} Second, despite acknowledging that a person’s engagement in an 

independent business is a factor of prime importance, see Ugicom at ¶ 18, the 

bureau glossed over an important component of this factor, namely, one’s freedom 

to work for others, see Gillum at 379 (evidence supported that worker was an 

independent contractor who “was exercising an independent employment—that of 

hauling for others in his own truck and with his own help”); Ehrhardt v. Chatlain 

Ents., Inc., 5th Dist. Richland No. 10CA123, 2011-Ohio-3223, ¶ 34, 37 (truck 

driver was free to haul loads for those other than his purported employer). Even 

though Friendship points to evidence suggesting that its direct-care workers can

(and do) work for others and that the bureau’s 2017 audit report found nothing to 

the contrary, the bureau did not address this aspect of the work relationship.

{¶ 27} Third, Friendship correctly points out that the bureau ignored the 

routes-travelled and length-of-employment factors. As to the latter, in its 2017 

audit report, the bureau noted that the direct-care workers could apply to become 

Friendship employees after 24 months. But this does not speak to how long the 

direct-care workers actually work for Friendship or whether the work is general or 

continuous. See Gillum at 379 (observing that the worker “was not employed 
January Term, 2023

15

generally or continuously”). Notable here is that Friendship points to evidence in 

the record that its direct-care workers had latitude over the length of their work 

relationship with Friendship.

{¶ 28} Friendship overreaches, however, in asserting that there are other 

deficiencies in the bureau’s order. Although it is true that the bureau did not analyze 

who controls the direct-care workers’ hours and consumer assignments with the 

same level of depth that it analyzed other aspects of the work relationship between 

the workers and Friendship, the bureau nevertheless quoted the 2017 audit findings

stating that Friendship “performs all scheduling of days and times when the 

[worker] is to work,” citing the relevant factors of the right-to-control test from the 

caselaw, and concluding that the audit findings should be upheld. Although thin, 

the bureau’s reasoning is discernable.

2. Limited writ

{¶ 29} In arguing for affirmance of the Tenth District’s decision, Friendship 

points to State ex rel. Gassman v. Indus. Comm., 41 Ohio St.2d 64, 65, 322 N.E.2d 

660 (1975), in which this court observed that “[a] mandatory writ may issue against 

the Industrial Commission if the commission has incorrectly interpreted Ohio law.” 

But that case concerned the proper interpretation of a statute; here, in contrast, we 

are concerned with the application of factors of the right-to-control test that are 

drawn from the caselaw.

{¶ 30} Although there does not appear to be a case directly on point, an 

analogy can be drawn to what we have done after concluding that the Industrial 

Commission has failed to sufficiently account for the factors announced in the 

caselaw for determining the scope of a person’s eligibility for permanent-totaldisability compensation. See State ex rel. Nicholson v. Copperweld Steel Co., 77 

Ohio St.3d 193, 198-200, 672 N.E.2d 657 (1996) (holding that the commission’s 

failure to consider a claimant’s age, work experience, education, and other relevant 

nonmedical or vocational characteristics as required by State ex rel. Stephenson v. 
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16

Indus. Comm., 31 Ohio St.3d 167, 509 N.E.2d 946 (1987), when considering a 

claimant’s application for permanent-total-disability compensation constituted an 

abuse of discretion for which mandamus was the remedy). In that type of case, the 

proper remedy is to grant a limited writ of mandamus ordering the commission to 

issue an amended order that accounts for the factors to be considered by furnishing 

reasons that are briefly explained and statements that are fact-specific. Id. at 198, 

citing State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203, 206, 567 N.E.2d 245 

(1991) (“meaningful review can be accomplished only if the commission prepares 

orders on a case-by-case basis which are fact-specific and which contain reasons 

explaining its decisions”).

{¶ 31} Extending that logic here, we conclude that the proper remedy is to 

reverse the judgment of the court of appeals and grant a limited writ of mandamus 

ordering the bureau to issue an amended order that sufficiently accounts for the 

deficiencies identified above with reasons that are briefly explained and statements 

that are fact-specific. See State ex rel. Ochs v. Indus. Comm., 85 Ohio St.3d 674, 

675-676, 710 N.E.2d 1126 (1999) (determining that the explanation requirement

applicable to the Industrial Commission’s decisions as set forth in Noll likewise 

applies to the bureau’s orders).

III. CONCLUSION

{¶ 32} For the foregoing reasons, we reverse the judgment of the Tenth 

District Court of Appeals and grant a limited writ of mandamus ordering the bureau 

to issue an amended order.

Judgment reversed

and limited writ granted.

FISCHER, DONNELLY, STEWART, and BRUNNER, JJ., concur.

KENNEDY, C.J., dissents, with an opinion joined by DEWINE and DETERS, 

JJ.

_________________
January Term, 2023

17

KENNEDY, C.J., dissenting.

{¶ 33} Because the order of appellant, the Ohio Bureau of Workers’ 

Compensation (“BWC”), finding that appellee, Friendship Supported Living, Inc., 

misclassified its in-home care providers as independent contractors is not supported 

by sufficient evidence in the record, I would affirm the judgment of the Tenth 

District Court of Appeals granting a writ of mandamus to compel the BWC to 

vacate its decision. The majority does otherwise, and I therefore dissent.

The Issue Presented

{¶ 34} At issue in this case is whether Friendship improperly classified its 

in-home care providers as independent contractors rather than employees for whom 

it must pay workers’ compensation premiums. “Because an independent contractor 

is not an employee for purposes of workers’ compensation law,” resolving whether 

a person is an independent contractor or an employee “determines the employer’s 

obligation to contribute to * * * the State Insurance Fund.” Bostic v. Connor, 37 

Ohio St.3d 144, 145, 524 N.E.2d 881 (1988).

{¶ 35} In deciding whether a worker is an employee or an independent 

contractor, “[t]he key factual determination is who had the right to control the 

manner or means of doing the work.” Id. at 146. “If the employer has this right to 

control, the worker is his employee. However, if the employer is merely interested 

in the result and does not retain the right to direct the manner in which the work is 

completed, the relationship is that of employer and independent contractor.” 

Marshall v. Aaron, 15 Ohio St.3d 48, 49, 472 N.E.2d 335 (1984).

{¶ 36} Although “[t]he determination of who has the right to control must 

be made by examining the individual facts of each case,” Bostic at 146, “where the 

evidence is not in conflict or the facts are admitted, the question of whether a person 

is an employee or an independent contractor is a matter of law,” id. “Unlike 

determinations of fact which are given great deference, questions of law are 

reviewed by a court de novo.” Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 
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73 Ohio St.3d 107, 108, 652 N.E.2d 684 (1995). And “ ‘[n]o court—not a trial 

court, not an appellate court, nor even a supreme court—has the authority, within 

its discretion, to commit an error of law.’ ” (Brackets added.) Johnson v. Abdullah, 

166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 38, quoting State v. Boles, 

187 Ohio App.3d 345, 2010-Ohio-278, 932 N.E.2d 345, ¶ 26 (2d Dist.). The same 

is true of the BWC.

{¶ 37} Because the evidence presented in this case is not in conflict, our 

review is de novo. The relevant facts in the record are contained in the testimony 

of Jerry M. Hein Sr. and Florence Hein, who operate Friendship.

The Undisputed Facts

{¶ 38} Jerry Hein Sr. explained in an affidavit that Friendship provides 

services to people (called “consumers” or “customers” by Friendship) who have 

had an Individual Service Plan (“ISP”) prepared by the Franklin County Board of 

Developmental Disabilities, specifying the types of services to be provided to the 

consumer and the number of hours that services are to be provided. Consumers 

with an ISP are “free to deviate, change or delete services as the consumer deems 

appropriate.” In-home care providers are “required to comply with the services, 

subject to modification by the consumer, as designated by the ISP * * *. The 

manner and means of providing those specified services is at the direction of the 

consumer.” According to Jerry, Friendship “does not supervise or in any way 

manage the services provided by the [in-home care providers] on a particular day. 

There is no on-site supervision.” Friendship does have employees whose job duties 

differ from those of the in-home care providers; those employees contact the 

consumers to ensure that “the [consumer] is, for example, treated fairly, that 

sufficient groceries are at the residence, that the [consumer] is taking medication as 

ordered, and that the appropriate activities have been provided.”

{¶ 39} Friendship’s in-home care providers determine the number of hours 

that they will work; Jerry attested that “[t]he specific hours of service of the 
January Term, 2023

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independent contractor [i.e., the in-home care provider] are determined by the 

independent contractor.” In fact, he went on to note that “[t]he independent 

contractor is free to not show up on a particular day.” Jerry also pointed out that 

in-home care providers are not even required to devote their full time to Friendship, 

that most of them have second jobs, and that 80 percent of them also work for 

Friendship’s competitors.

{¶ 40} Jerry explained that “[t]he independent contractor relationship * * * 

is intended to be short-term, as many independent contractors have second jobs or 

are enrolled in school. Most independent contractors are looking for short-term 

arrangements.”

{¶ 41} Friendship does not reimburse the expenses of its in-home care 

providers or provide them with benefits, although the state reimburses the 

providers’ mileage. Friendship does not supply its in-home care providers with 

tools or materials, nor does it provide them with facilities in which to provide the 

consumers with services. The written agreement for hire between Friendship and 

its in-home care providers specifies that the in-home care providers are independent 

contractors, and Friendship issues them Internal Revenue Service (“IRS”) Form 

1099.

{¶ 42} In her affidavit, Florence Hein incorporated the sworn testimony that 

she had provided to the Ohio Unemployment Compensation Review Commission 

in a separate proceeding, which resulted in the determination that one of 

Friendship’s in-home care providers was an independent contractor. See 

Friendship Supported Living, Inc. v. Dir., Ohio Dept. of Job & Family Servs., 

Franklin C.P. No. 15CVF-8721 (Mar. 7, 2016). She explained that Friendship pays 

its in-home care providers an hourly rate and gives them the choice of receiving a 

weekly or biweekly paycheck. The in-home care providers control the days and 

hours that they work. Once the in-home care provider is at a consumer’s home, 

Friendship does not dictate what the provider does that day or how the work is 
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performed—“the contractor and the consumer really control[ ] what’s happening 

that day. * * * When a shower happens, when a grocery store is [visited], when a 

movie is taken in, any of that, [Friendship is] out of that loop and it’s between the 

consumer and the [provider].” Florence testified that in-home care providers are 

not supervised by Friendship, but she noted that if a consumer has a concern about 

a provider, the consumer may contact her or one of Friendship’s employees. 

Friendship does not provide the in-home care providers with training or supply

them with any tools or materials, and the providers have to supply their own 

insurance and vehicle. The only expense that Friendship reimburses is mileage, 

which the state, in turn, reimburses to Friendship.

{¶ 43} Florence acknowledged that Friendship does not permit its in-home 

care providers to subcontract out their assignments to provide services for 

Friendship’s consumers “because of the requirements that [Friendship has] to work 

within [its] contract with the state.” In-home care providers may decline to work 

with a particular consumer, and if a provider is unable to care for an assigned 

consumer, one of Friendship’s employees provides coverage until the assigned 

provider is able to return to the assignment or another in-home care provider is able 

to take over the services. Friendship does not guarantee in-home care providers a 

certain number of hours of work—if there is no work available, the provider does 

not get paid. In-home care providers have flexibility in determining the hours that 

they do work; the ISP dictates the number of hours and the time frames within 

which that consumer can receive services, but Florence testified that this is 

controlled by the state, not by Friendship.

{¶ 44} Florence explained that it is standard in the industry for in-home care

providers to be independent contractors; she noted that the state and other 

competitors provide the same services using independent contractors. She also 

pointed out that Friendship has in-home care providers who work for other service 

providers in addition to working for Friendship.
January Term, 2023

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Application of the Right-to-Control Test

{¶ 45} This court has pointed to the following factors as guiding the 

determination of who has the right to control the manner or means of doing work:

“[T]he existence of a contract for the performance by a person of a 

certain piece or kind of work at a fixed price, the independent nature 

of his business or his distinct calling, his employment of assistants 

with the right to supervise their activities, his obligation to furnish 

necessary tools, supplies, and materials, his right to control the 

progress of the work except as to final results, the time for which the 

workman is employed, the method of payment, whether by time or 

by job, and whether the work is part of the regular business of the 

employer.”

Gillum v. Indus. Comm., 141 Ohio St. 373, 375, 48 N.E.2d 234 (1943), quoting 27 

American Jurisprudence, Indicia of Relationship, Section 5, at 485.

{¶ 46} In applying the right-to-control test, some of the facts of this case 

might seem to favor a determination that the in-home care providers are employees, 

not independent contractors. For example, Friendship pays its in-home care 

providers an hourly rate with a weekly or biweekly paycheck rather than paying 

them a fixed price for the services they provide. However, this is a requirement 

dictated by the state: the state reimburses Friendship for its payments to the inhome care providers based on the number of hours Friendship submits. Also, 

Friendship prohibits its in-home care providers from arranging for their own 

substitutes or from otherwise subcontracting out their assignments to Friendship’s 

consumers. But again, this is dictated by the state; Florence acknowledged during 

her testimony in a separate, unrelated action that the prohibition against 

subcontracting is “because of the requirements that [Friendship has] to work within 
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[Friendship’s] contract with the state.” She also suggested that subcontracting is 

not permitted because the in-home care providers are not certified by the state to

allow others to provide services on their behalf. In these circumstances, then, the 

payment of an hourly rate and the prohibition against subcontracting are consistent 

with an independent-contractor relationship.

{¶ 47} Applying the remaining factors of the right-to-control test also 

demonstrates that the in-home care providers are independent contractors. 

Although both Friendship and its in-home care providers operate in a related field 

by providing services to people with developmental disabilities, the work that each 

performs is separate. Friendship matches its consumers with in-home care 

providers who provide identified services to those consumers under an ISP. And 

the evidence shows that the in-home care providers operate their own independent 

businesses, because they are permitted to, and do sometimes, work with 

Friendship’s competitors in the same line of business. The evidence also shows 

that providing services under an ISP to people with developmental disabilities using 

independent contractors is the industry standard—both the state and Friendship’s 

competitors use independent contractors for this purpose. Friendship’s practices 

are consistent with this standard; its contracts for hire create an independentcontractor relationship with the in-home care providers, and it reports each 

provider’s income to the IRS on Form 1099.

{¶ 48} Further, the actions of Friendship and its in-home care providers 

reflect an independent-contractor relationship. The in-home care providers largely 

set their own schedules, deciding how many hours and days they work each week 

and what times they will arrive at the consumers’ homes. The only limitation is 

that their work must be consistent with their assigned consumer’s ISP, which is, 

again, created by the state. Likewise, Friendship does not guarantee its in-home 

care providers a particular number of hours of work each week; if there is no work 

available, they do not get paid.
January Term, 2023

23

{¶ 49} The in-home care providers provide care as outlined in the ISP. In 

doing that, the in-home care providers and Friendship’s consumers direct the means 

and manner in which the services are provided on a day-to-day basis. Friendship 

does not control what work is performed or how it is performed on a given day. 

Friendship provides no training, tools, or materials for the in-home care providers 

to complete their work. The only evidence of record is that Friendship does not 

supervise the specific manner and means by which services are provided to its 

consumers, although Friendship does confirm that services are actually and 

sufficiently provided pursuant to the consumer’s ISP. That is, Friendship is only 

concerned with the final result of the job, not how the job is accomplished. And “if 

the employer is merely interested in the result and does not retain the right to direct 

the manner in which the work is completed, the relationship is that of employer and 

independent contractor.” Marshall, 15 Ohio St.3d at 49, 472 N.E.2d 335.

{¶ 50} For these reasons, it is manifest that Friendship’s in-home care 

providers are independent contractors, not employees.

{¶ 51} In addition, I disagree with the majority’s decision to remand this 

matter to the BWC, giving it a second chance to justify its determination that 

Friendship’s in-home care providers are employees, not independent contractors. 

This case is unlike the situation we confronted in State ex rel. Nicholson v. 

Copperweld Steel Co., 77 Ohio St.3d 193, 672 N.E.2d 657 (1996), on which the 

majority relies. There, this court determined that the Industrial Commission had 

abused its discretion in denying a workers’ compensation claimant’s application for 

permanent-total-disability compensation because it had not issued an order that was 

fact-specific and that contained the reasons explaining its decision. This court 

rejected the agency’s practice of failing to specify the basis of its decision and 

informing the claimant only that “requested benefits are either being granted or 

denied based on ‘the evidence in the file and/or the evidence adduced at the 

hearing.’ ” State ex rel. Mitchell v. Robbins & Myers, Inc., 6 Ohio St.3d 481, 483, 
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453 N.E.2d 721 (1983), quoting State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 

193, 196-198, 448 N.E.2d 134 (1983) (Clifford F. Brown, J., concurring). That is 

not the situation here. In this case, the BWC gave its reasons for finding that 

Friendship’s in-home care providers are employees rather than independent 

contractors. But those reasons are simply unsupported by the record. And a remand 

to the BWC would be futile, because the evidence does not support the conclusion 

that Friendship’s in-home care providers are employees rather than independent 

contractors.

{¶ 52} For these reasons, I would affirm the judgment of the Tenth District 

Court of Appeals granting a writ of mandamus to compel the BWC to vacate its 

decision reclassifying Friendship’s in-home care providers as employees for 

purposes of Ohio’s workers’ compensation laws. Because the majority does not, I 

dissent.

DEWINE and DETERS, JJ., concur in the foregoing opinion.

_________________

Law Office of Tracy L. Turner, L.L.C., and Tracy L. Turner, for appellee.

Dave Yost, Attorney General, and John Smart, Assistant Attorney General, 

for appellant.

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