[Cite as State ex rel. Ohio Valley Selective Harvesting, L.L.C. v. Buehrer, 2017-Ohio-369.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. : 

Ohio Valley Selective Harvesting, L.L.C. 

and : 

Peggy A. Lansing, 

 : 

 Relators, No. 16AP-5 

 : 

v. (REGULAR CALENDAR) 

 : 

Stephen Buehrer, Administrator of the 

Ohio Bureau of Workers' Compensation, : 

 

Respondent. : 

___________________________________________ 

 D E C I S I O N 

 Rendered on January 31, 2017 

___________________________________________ 

Anthony A. Moralja, for relators. 

Michael DeWine, Attorney General, and John R. Smart, for 

respondent. 

___________________________________________ 

IN MANDAMUS 

BRUNNER, J. 

{¶ 1} Relators Ohio Valley Selective Harvesting, L.L.C. ("OVSH") and Peggy A. 

Lansing have filed an original action requesting this Court issue a writ of mandamus 

ordering respondent, Stephen Buehrer, Administrator of the Ohio Bureau of Workers' 

Compensation ("BWC"), to vacate BWC's final order issued on November 30, 2015 finding 

that OVSH had underreported its payroll by not reporting its workers as employees, but 

claiming that they were independent contractors, and ordering BWC to issue a new order 

finding that OVSH's workers were independent contractors for purposes of reporting 

payroll. 
2 

No. 16AP-5 

{¶ 2} We referred this matter to a magistrate of this Court pursuant to Civ.R. 

53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the 

appended decision, including findings of fact and conclusions of law, recommending this 

Court deny relators' request for a writ of mandamus. 

{¶ 3} No objections have been filed to the magistrate's decision. 

{¶ 4} Having conducted an independent review of the record in this matter and 

finding no error of law or other defect on the face of the magistrate's decision, this Court 

adopts the magistrate's decision as our own, including the findings of fact and conclusions 

of law contained therein. In accordance with the magistrate's decision, we deny the 

requested writ of mandamus. 

Writ of mandamus denied. 

BROWN and SADLER, JJ., concur. 

_____________ 

 
3 

No. 16AP-5 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. : 

Ohio Valley Selective Harvesting, L.L.C. 

and : 

Peggy A. Lansing, 

 : 

 Relators, No. 16AP-5 

 : 

v. (REGULAR CALENDAR) 

 : 

Stephen Buehrer, Administrator of the 

Ohio Bureau of Workers' Compensation, : 

 

Respondent. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on August 17, 2016

 

Anthony A. Moraleja, for relators. 

Michael DeWine, Attorney General, and John R. Smart, for 

respondent.

 

IN MANDAMUS 

{¶ 5} Relators, Ohio Valley Selective Harvesting, L.L.C. ("OVSH") and Peggy A. 

Lansing ("Lansing"), filed this original action requesting that this court issue a writ of 

mandamus ordering respondent, Ohio Bureau of Workers' Compensation ("BWC"), to 

vacate its order finding that OVSH had underreported its payroll by not reporting its 

workers as employees but claiming that they were independent contractors, and ordering 

the BWC to issue a new order finding that OVSH's workers were independent contractors 

for purposes of reporting payroll. 
4 

No. 16AP-5 

Findings of Fact:

{¶ 6} 1. OVSH is involved in the business of cutting trees and hauling away the 

cut logs. 

{¶ 7} 2. On May 8, 2012, Peggy A. Cooper (kna Peggy Lansing), doing business as 

OVSH, signed an application for workers' compensation coverage. In that application, 

Lansing identified herself as the owner of the company, indicated that the machinery, 

equipment, and tools necessary included a skidder, loader, and chain saws, that the 

operation type for purposes of payroll was cutting timber. As a sole proprietor, Lansing 

did not elect coverage for herself and further claimed she had no employees, and no 

payroll. Coverage was effective May 9, 2012. 

{¶ 8} 3. In April 2014, Kelly Smith filed a First Report of an Injury, Occupational 

Disease or Death ("FROI"), asserting that, while employed by OVSH, he sustained a workrelated injury when a tree he was cutting down fell on his leg. In his application, Smith 

indicated that he was hired July 28, 2010. 

{¶ 9} 4. In a memorandum dated May 16, 2014, Jason Price of the BWC's Special 

Investigations Unit ("SIU") summarized his review of Smith's claim. Price's memo 

provides, in pertinent part: 

The attorney for the EOR, Tony Moraleja contacted SMITH'S 

assigned Claim Service Specialist (CSS) and notified BWC 

that SMITH was terminated from Employment on April 22, 

2014, the day before the alleged industrial injury. 

A review of SMITH'S claim 14-819572 revealed a First 

Report of Injury (FROI signed and dated by Smith on 

April 25, 2014, when SMITH was cutting down a tree that fell 

on him. The date of injury and the last date worked are both 

listed as April 23, 2014. * * * 

On May 14, 2014, Special Agent Jason Price (Agent Price) 

conducted an interview with Ohio Valley Selective 

Harvesting business owner, Peggy Lansing (Lansing). 

Lansing advised that on April 22, 2014, SMITH arrived to 

work and demanded her husband, Brad Lansing (Brad) drive 

SMITH to a trailer park so he could obtain a pain pill, which 

Brad refused. During lunch that same day, SMITH again 

requested Brad drive him into town so he could obtain a pain 
5 

No. 16AP-5 

pill. Brad refused again, and notified Lansing of the events. 

At the end of the work day, Lansing met SMITH and the 

other employees at the business * * *. Lansing advised she 

terminated SMITH'S employment with several witnesses in 

the area. 

Lansing further stated that on April 23, 2014, SMITH 

showed up to a job site without permission. SMITH took a 

chain saw from his nephew, Jake Smith, proceeded down 

into the brush, and began alleging that a tree fell on him and 

he was hurt. Lansing was notified of the events and 

proceeded to the job site. When Lansing arrived on site, 

SMITH was walking around. Lansing stated she informed 

SMITH that she was there to take him to the hospital. 

SMITH denied being in any pain and refused to go to the 

hospital. Lansing advised she dropped SMITH off at his 

mother's residence. 

(Emphasis sic.) 

{¶ 10} 5. Following Smith's claim, the BWC initiated an audit of OVSH's business 

and requested specific documentation from Lansing. Among the documents provided 

was the 2013 tax return for OVSH indicating wages of $67,612, specific business expenses 

which included work clothes, employee fines, cell phones and supplies, employee drug 

tests, and membership fees to the BWC. Lansing also provided a blank unsigned copy of a 

contractor and subcontractor agreement and a certain amount of worker payment 

information. 

{¶ 11} 6. The auditor made the following findings: 

The risk issued 1099's for all individuals that worked for the 

employer. In 2012 they did have two that worked as drivers 

however the[y] also worked performing the other functions 

as well (cutting trees, operating skidders & loaders). There 

was no segregation. The risk did provide a[n] unsigned 

contract. However it does not address terms of work. The 

risk owns all equipment the contractors use. The employer 

made verbal agreements on what they would pay individuals 

to perform any work. There is [sic] no invoices or any other 

document to support independence. Per tax return showed 

the employer was [sic] expenses for work clothes, license 

tags, cell phone & supplies, employees fines & drug test. 

These are the actual titles on the tax return deductions 

section. 
6 

No. 16AP-5 

{¶ 12} The auditor also noted that he was still awaiting additional information 

from OVSH including 1099s, the 2012 Federal Tax Return, and all signed contracts for the 

1099s issued in 2012 and 2013. 

{¶ 13} 7. The BWC found that OVSH had failed to report its payroll and failed to 

pay workers' compensation premiums from May 2012 to December 2013 and noted that 

the determination was based on the limited information provided by Lansing. 

{¶ 14} 8. OVSH was sent an invoice dated December 15, 2014 in the amount of 

$67,688.07. 

{¶ 15} 9. In a letter dated January 8, 2015, OVSH disputed the audit findings, 

stating: 

This notice to inform the Bureau of Worker's [sic] 

Compensation that my office represents Peggy Cooper, aka 

Peggy Lansing, and Ohio Valley Selective Harvesting 

regarding the invoice she received on December 15, 2014. 

Ohio Valley Selective Harvesting pays subcontractors with a 

1099, they do not have a payroll of employees. The company 

is a lumbering business with sporadic/seasonal work and 

therefore can only hire on a job-by-job basis. Depending on 

the extent of each individual timbering contract, the 

company decides on the number of subcontractors 

necessary. The number varies from job to job. My client 

would like to dispute the invoice that she received and have 

this matter further reviewed. Please advise my office of the 

next course of action would be [sic]. 

{¶ 16} 10. In a letter dated January 22, 2015, the BWC notified OVSH that its 

protest had been denied, stating: 

Your complaint received on 1/15/15 protesting audit findings 

for the period covering 5/9/12 — 12/31/13 has undergone a 

departmental review. Regrettably, the BWC has denied your 

request and the audit findings have been affirmed. 

The requirements for being an independent contractor are 

found in Ohio Revised Code Section 4123.01. BWC uses a 

factor test to determine employee/employer relationships. 

Because the following conditions apply: There was no 

information to support that the individuals were true 

independent contractors. We have determined that there was 
7 

No. 16AP-5 

an employee/employer relationship with all 1099's that were 

issued by the company for 2012 & 2013. 

You may appeal BWC's decision pursuant to Ohio Revised 

Code Section 4123.291 and Ohio Administrative Code 

Section 4123-14-06. If you have any questions regarding this 

matter, please call me. 

{¶ 17} 11. Lansing requested a hearing before the BWC adjudicating committee 

and that hearing was held on May 5, 2015. Within the findings of fact section of the 

adjudicating committee's order are the following facts which related to the claim 

submitted by Smith in April 2014: 

[Five] On May 16, 2014, Jason Price, BWC Special 

investigations Unit (SIU), submitted a memorandum in 

claim 14-819572, which contains certain relevant 

information as follows: 

a. The attorney for the employer, Tony Moraleja contacted 

Smith's CSS and told BWC "that SMITH was terminated 

from employment on April 22, 2014, the day before the 

alleged industrial industry." 

b. An Interview Statement signed by Peggy Lansing on 

May 14, 2014, wherein she states that after Mr. Smith asked 

her husband to take him into town to get a pain pill, she 

"fired Smith on the spot and wrote him his final paycheck on 

the 22nd." (Reference is to April 22, 2014.) 

[Six] The claim filed by Kelly Smith was denied by BWC on 

May 20, 2014. The order reflects that the claim was being 

denied based upon the lack of an employer/employee 

relationship because the worker was terminated on April 22, 

2014. Similarly, on June 26, 2014, the DHO denied the claim 

based upon the documentation submitted by SIU. The SHO 

also denied the claim stating that the decision was based 

upon SIU records and written statements from Peggy 

Lansing, Brad Lansing, and Jacob Smith, "all of whom agree 

the applicant was not employed with the named 

employer on the alleged date of injury." [Emphasis 

added.] 

[Seven] On September 18, 2014, BWC Auditor Joe Maurizi 

conducted an audit of the employer's business for the 

periods set forth above. The audit resulted in significant 
8 

No. 16AP-5 

findings based upon payments picked up for various workers 

that the employer considered to be independent contractors. 

Specific Description of Operations and Findings & 

Comments from the audit, are as follows: 

THE RISK IS A CONTRACTOR THAT CUTS DOWN TREES. 

THE RISK USES A NON MECHANIZED PROCESS (HAND 

CHAIN SAWS ) TO CUT DOWN TREES. THEY OPERATE A 

SKIDDER TO HAUL THE TREES TO AN OPEN AREA, IN 

WHICH A LOADER LOADS THE TREES ON THE TRUCK 

TO BE DELIVERED TO THE SAWMILL. THE RISK OWNS 

ALL EQUIPMENT USED. ALL OF WHICH ARE 

REPORTABLE TO MANUAL 2701. 

THE RISK ISSUED 1099'S FOR ALL INDIVIDUALS THAT 

WORKED FOR THE EMPLOYER. IN 2012 THEY DID 

HAVE TWO THAT WORKED AS DRIVERS HOWEVER 

THE[Y] ALSO WORKED PERFORMING THE OTHER 

FUNCTIONS AS WELL (CUTTING TREES, OPERATING 

SKIDDERS & LOADERS ). THERE WAS NO 

SEGREGATION. THE RISK DID PROVIDE A[N] 

UNSIGNED CONTRACT. HOWEVER IT DOES NOT 

ADDRESS TERMS OF WORK. THE RISK OWNS ALL 

EQUIPMENT THE CONTRACTORS USE. THE EMPLOYER 

MADE VERBAL AGREEMENTS ON WHAT THEY WOULD 

PAY INDIVIDUALS TO PERFORM ANY WORK. THERE IS 

[SIC] NO INVOICES OR ANY OTHER DOCUMENT TO 

SUPPORT INDEPENDENCE. PER TAX RETURN SHOWED 

THE EMPLOYER WAS [SIC] EXPENSES FOR WORK 

CLOTHES, LICENSE TAGS, CELL PHONE & SUPPLIES, 

EMPLOYEES FINES & DRUG TEST. THESE ARE THE 

ACTUAL TITLES ON THE TAX RETURN DEDUCTIONS 

SECTION. 

(Emphasis sic.) 

{¶ 18} The adjudicating committee outlined the relevant case law for determining 

whether someone is an employee or an independent contractor, stating: 

In Gillum v. Industrial Com., 141 Ohio St. 373, 48 N.E.2d 

234, 1943 Ohio LEXIS 427, 25 Ohio Op. 531 (Ohio 1943), 

paragraph 2, syllabus, the Supreme Court of Ohio set forth 

the test for determining whether a person is an independent 

contractor, as follows: 
9 

No. 16AP-5 

Whether one is an independent contractor or in service 

depends upon the facts of each case. The principal test 

applied to determine the character of the arrangement is that 

if the employer reserves the rights to control the manner or 

means of doing the work, the relation created is that of 

master and servant, while if the manner or means of doing 

the work or job is left to one who is responsible to the 

employer only for the result, an independent contractor 

relationship is thereby created. 

In determining the amount of control exercised over the 

alleged employee in order to determine his status, the 

Supreme Court has set forth certain factors to be considered. 

These factors include such indicia as 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 traveled; the length of employment; the type of 

business; the method of payment; and any pertinent 

agreements or contracts. Bostic v. Connor, 37 Ohio 

St.3d 144, 146, 524 N.E.2d 881, 1988 Ohio LEXIS 164 (Ohio 

1988). 

Generally, independent contractors provide goods or services 

to another entity under terms specified in a contract or 

within a verbal agreement Unlike an employee, an 

independent contractor does not work regularly for an 

employer. Independent contractors usually perform a special 

service that is not in the normal course of business of the 

employer. Independent contractors often advertise, maintain 

a visible business location, and are available to work in a 

trade, or some other service. Contractors often work through 

a sole proprietorship, LLC, or franchise, which they 

themselves own. As a business owner, the independent 

contractor incurs its own expenses to provide the contracted 

service. Independent contractors also typically retain control 

over their schedule and number of hours worked, jobs 

accepted, and performance of their job. In addition, they 

may have a major investment in equipment, furnish all their 

own supplies, provide their own insurance and repairs, and 

cover all other expenses related to their business. 

 In denying OVSH's protest, the adjudicating committee stated: 

In this particular case, the employer's representative stated 

in the initial complaint and at hearing that the employer's 

need for workers is not regular and may be sporadic. The 

Committee believes that the record supports this statement. 
10 

No. 16AP-5 

At the same time, employment status under RC 4123.01 and 

the Ohio common law is not limited to full time workers. 

Rather, workers' compensation coverage is still required for 

part time employees, as well as casual workers earning more 

than $160.00 per calendar quarter. 

In terms of the "right to control," the Committee was 

presented with credible testimony that the employer's 

husband is perceived as being the manager. Moreover, the 

report from BWC SIU referenced in paragraph 5 of the 

Findings of Fact, above, confirms Mr. Lansing's presence on 

the jobsite. At the hearing, the employer's representatives 

conceded that at least in some cases, the workers are 

transported from the employer's location to the worksite. In 

addition, with regard to Kelly Smith, Peggy Lansing provided 

a statement that after being contacted by her husband, she 

personally fired Mr. Smith. 

While perhaps less important than control over the workers, 

there are additional factors that support an 

employer/employee relationship with regard to the workers 

at issue. There was no evidence that any of the workers had 

their own businesses in the form of signed contracts with any 

individual business owners. The workers did not have any of 

their own expenses associated the work performed for Peggy 

Cooper/Select Harvesting. While some of the workers may 

have had their own hand tools, it is apparent that tools were 

made available by the employer and any larger equipment 

was provided by the employer. The employer's representative 

stated that the employer had no "continuing relationship" 

with the workers. However, the information obtained in the 

audit shows that there were continuing relationships with 

many of the workers. For example, Kelly Smith was paid 

almost $34,000 by the employer in 2012. 

The employer's representative stated that the workers are 

able to work for others. Given that there was or is not 

continuous work available, the Committee recognizes that 

many or all the workers may have performed work for 

others. While, they may not have had specific daily hours, 

the opportunities to work are at times specified by the 

employer. Finally, the firing of an individual worker is not 

consistent with independent contractor status. 

(Emphasis sic.) 
11 

No. 16AP-5 

{¶ 19} 12. Relator requested a hearing before the administrator's designee and 

that hearing occurred on September 10, 2015. After setting out the basic test for 

determining whether workers are employees or independent contractors is the amount of 

control the employer exercises over the manner and means of the work, the 

administrator's designee discussed the evidence presented by OVSH as follows: 

OVSH's representative stated that OVSH does not control 

the manner or means of the work. OVSH stated that the 

workers get to the job site by any means they chose and can 

stay overnight at their own expense. While OVSH prefers 

that the workers drive themselves to the work location, 

OVSH testified that there have been occasions, for logistical 

reasons, where workers meet at OVSH's main office and then 

travel together to the jobsite, following Brad Lansing, an 

OVSH employee. The main office is the home of the 

Lansings. 

OVSH's representative stated that OVSH does not control 

the hours worked. The workers do not arrive all at the same 

time. The days worked are determined by need and contract 

with the Lansings. The workers are contacted to see if they 

are available for the job once the need is established, and are 

only contacted for that specific job. Workers are paid by the 

terms of the contract. There are no regular wages. 

OVSH stated that Brad Lansing is not a supervisor; but as 

the general contractor, he is responsible for the work and 

makes sure the workers stay within the boundaries of the 

land that they are permitted to cut timber. OVSH's 

representative stated that Brad Lansing is not titled as a 

manager. Some workers do refer to him as such, but it is not 

his title. The workers do not issue progress reports. The 

workers will, and OVSH prefer; that they provide their own 

tools if they have them. However, OVSH does have 

equipment available and supplies it [to] the workers if 

needed in order to avoid a work stoppage. If a worker shows 

up and does not have a tool that he needs, OVSH does not 

want that to impact the work schedule. 

OVSH's representatives stated that the nature of OVSH's 

business does not allow for them to have regular employees, 

as the need for workers changes with each job. Each worker 

is allowed to work for themselves and even work on the same 

day they work for OVSH. Most of the workers do other odd 

jobs. The job does not require special skills and the workers 
12 

No. 16AP-5 

are not trained by OVSH. OVSH does not have an ongoing 

relationship with the workers. 

There was some discussion about the Kelly Smith matter, 

whether Smith was "fired" by Brad Lansing, and whether 

that action indicated an employment relationship. The 

Administrator's Designee notes the discussion of this issue in 

the Adjudicating Committee order of May 5, 2015, and the 

testimony at the Administrator's Designee hearing. 

 Thereafter, the administrator's designee set out the bureau's position: 

The Bureau's auditor stated that there were no written 

contracts available for the Bureau to review, nor were there 

any invoices from the alleged independent contractors to 

OVSH for the work performed. The Bureau auditor stated 

that there were no W-2 forms and that there were 1099 

forms. More significantly, the Bureau auditor stated that the 

OVSH tax returns show deductions for worker fines, work 

clothes, supplies, and drug tests. The Bureau auditor stated 

that the workers used OVSH equipment, loading timber with 

OVSH loaders and skidders. The Bureau representative 

claims that the Bureau's investigation establishes that Brad 

Lansing is the manager and foreman on the job site, and that 

all of the workers recognize him as such, proving that he is in 

a management position over the workers. The workers also 

do not retain their own insurance, which would be expected 

if the workers were self employed. Finally, the Bureau 

testified that the workers do not appear to be [in] a position 

of sustaining a profit or loss, an indication that they are not 

actually in a business, but are employees paid by the job. 

{¶ 20} In finding that OVSH exercised sufficient control over the manner and 

means of performing the work, the administrator's designee made the following findings: 

The Administrator's Designee finds that the temporary or 

sporadic nature of the worker [sic] available for the workers 

is not a determining factor of whether the workers are 

employees or independent contractors. As noted by the 

Bureau auditor, workers who work occasionally are referred 

to as spot labor, but there is still an employer-employee 

relationship with spot labor. The May 5, 2015, order of the 

Adjudicating Committee also addressed this issue as follows: 

In this particular case, the employer's 

representative stated in the initial complaint 

and at hearing that the employer's need for 
13 

No. 16AP-5 

workers is not regular and may be sporadic. 

The Committee believes that the record 

supports this statement. At the same time, 

employment status under RC 4123.01 and the 

Ohio common law is not limited to full time 

workers. Rather, workers' compensation 

coverage is still required for part time 

employees, as well as casual workers earning 

more than $160.00 per calendar quarter. 

(emphasis added) 

The Administrator's Designee finds that OVSH exercises 

sufficient control over the manner and means of doing the 

work such that the workers are employees. The 

Administrator's Designee adopts the reasoning of the 

Adjudicating Committee in its May 5, 2015, [sic] order as 

follows: 

In terms of the "right to control," the 

Committee was presented with credible 

testimony that the employer's husband is 

perceived as being the manager. Moreover, the 

report from BWC SIU referenced in 

paragraph 5 of the Findings of Fact, above, 

confirms Mr. Lansing's presence on the jobsite. 

At the hearing, the employer's representatives 

conceded that at least in some cases, the 

workers are transported from the employer's 

location to the worksite. In addition, with 

regard to Kelly Smith, Peggy Lansing provided 

a statement that after being contacted by her 

husband, she personally fired Mr. Smith. 

While perhaps less important than control over 

the workers, there are additional factors that 

support an employer/employee relationship 

with regard to the workers at issue. There was 

no evidence that any of the workers had their 

own businesses in the form of signed contracts 

with any individual business owners. The 

workers did not have any of their own expenses 

associated the work performed for [OVSH]. 

While some of the workers may have had their 

own hand tools, it is apparent that tools were 

made available by the employer and any larger 

equipment was provided by the employer. The 
14 

No. 16AP-5 

employer's representative stated that the 

employer had no "continuing relationship" 

with the workers. However, the information 

obtained in the audit shows that there were 

continuing relationships with many of the 

workers. For example, Kelly Smith was paid 

almost $34,000 by the employer in 2012. 

The Administrator's Designee also finds that the Bureau's 

determination of independent contractor status is for the 

purpose of reporting Ohio workers' compensation payroll 

and premiums only, and this determination is not conclusive 

or binding on OVSH for other payroll reporting obligations, 

such as to the Internal Revenue Service for taxes or to the 

Ohio Department of Job and Family Services for 

unemployment compensation. 

(Emphasis sic.) 

{¶ 21} 13. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law:

{¶ 22} For the reasons that follow, it is this magistrate's decision that relator has 

failed to demonstrate that the BWC abused its discretion in finding that OVSH's workers 

were employees and, as such, OVSH owed premiums to the BWC, and this court should 

deny relator's request for a writ of mandamus. 

{¶ 23} The Supreme Court of Ohio has set forth three requirements which must be 

met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to 

the relief prayed for; (2) that respondent is under a clear legal duty to perform the act 

requested; and (3) that relator has no plain and adequate remedy in the ordinary course 

of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). 

{¶ 24} Ohio employers are required to report their payroll to the BWC and are 

required to keep those records available for inspection by the BWC. Specifically, 

R.C. 4123.24 provides: 

Every employer amenable to this chapter shall keep, 

preserve, and maintain complete records showing in detail 

all expenditures for payroll and the division of such 

expenditures into the various divisions and classifications of 

the employer's business. The records shall be preserved for 
15 

No. 16AP-5 

at least five years after the respective times of the 

transactions upon which the records are based. 

All books, records, papers, and documents reflecting upon 

the amount and the classifications of the payroll 

expenditures of an employer shall be kept available for 

inspection at any time by the bureau of workers' 

compensation or any of its assistants, agents, 

representatives, or employees. If an employer fails to keep, 

preserve, and maintain the records and other information 

reflecting upon payroll expenditures, fails to make the 

records and information available for inspection, or fails to 

furnish to the bureau or any of its assistants, agents, 

representatives, or employees, full and complete information 

in reference to expenditures for payroll when the 

information is requested, the bureau may determine the 

amount of premium due from the employer upon such 

information as is available to it, and its findings are primafacie evidence of the amount of premium due from the 

employer. 

{¶ 25} In the present case, OVSH came under scrutiny by the BWC after Kelly 

Smith filed a workers' compensation claim asserting that he was injured during the course 

of his employment with OVSH. As the stipulated evidence reveals, OVSH argued that 

Smith was not entitled to workers' compensation benefits for his alleged injury because 

Smith had been terminated the day before he allegedly was injured. Specifically, in the 

addendum to memorandum to claim file, Jason Price of the Portsmouth Special 

Investigations Unit, noted in the June 23, 2014 addendum: 

On May 14, 2014, Fraud Analyst Rita Johnson (Analyst 

Johnson) received a notification that Kelly Smith (SMITH) 

filed a claim. SMITH had previously filed a false claim in 

2010 against a company he was never employed by. On 

December 16, 2011, SMITH pled no contest to Attempted 

Workers' Compensation Fraud, was fined $250, and 

received 1 year of community control, and 35 hours of 

community service. 

On June 2, 2014, Agent Price conducted an interview with 

Brad Lansing (B. Lansing), Manager/Foreman for Ohio 

Valley Selective Harvesting. B. Lansing confirmed that 

SMITH was an employee of the business for approximately 2 

years. When SMITH presented to work on April 22, 2014, 

SMITH requested B. Lansing drive him into town so he could 
16 

No. 16AP-5 

obtain a pain pill. B. Lansing refused, and all employees 

proceeded to the job site. Around lunch time, SMITH again 

requested B. Lansing to take him to get a pain pill so he 

wouldn't be sick, and B. Lansing again refused. B. Lansing 

notified his wife and business owner Peggy Lansing 

(Lansing) of the events. B. Lansing and the rest of the 

employees arrived at the office at the end of the day 

between 3:00 and 4:00 pm. Lansing met SMITH outside, 

handed him his final paycheck, and terminated his 

employment. 

B. Lansing stated that on April 23, 2014, SMITH presented 

to the job site without permission. SMITH took a chainsaw 

from an employee, and proceeded down in the brush. 

SMITH then began asserting a tree fell on his leg, and he 

injured himself. B. Lansing then remained in view of SMITH 

while waiting for Lansing to arrive and transport SMITH to 

the hospital. B. Lansing advised SMITH indicated he was 

fine, and requested to operate a loader the rest of the day. 

Lansing then arrived and transported SMITH off the job site. 

* * * 

On June 2, 2014, Agent Price conducted an interview with 

Jake Smith (J. Smith), identified employee of Ohio Valley 

Selective Harvesting, and nephew of SMITH. J. Smith stated 

that near the end of the work day on April 22, 2014, SMITH 

came up to him and requested he drive him to a location to 

obtain a pain pill, and J. Smith refused. J. Smith advised all 

the employees returned to the office that day between 3:00 

and 4:00 pm. J. Smith confirmed Lansing met SMITH 

outside the office, handed him a paycheck, and terminated 

him on the spot. J. Smith stated on April 23, 2014, he was 

notified by another employee, Cody Lansing that SMITH was 

present and saying a tree fell on him and injured his leg. 

When J. Smith arrived to where the alleged injury occurred, 

SMITH was sitting on a tree stump, and there were no trees 

that had fallen on his leg. J. Smith stated SMITH then began 

walking around the job site unassisted, and saying his leg 

was injured. Lansing then arrived to the job site and 

transported SMITH off the premises. 

(Emphasis sic.) 

{¶ 26} When the BWC conducted its investigation of OVSH concerning payroll and 

the payment of premiums, OVSH made statements which contradicted the statements 
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No. 16AP-5 

made when they challenged Smith's workers' compensation claim. OVSH told the BWC 

investigators that they had no employees, that everyone who did work for them was an 

independent contractor, that Brad Lansing was not a manager even if some people 

thought he was, and that the statement made to Smith, "you're fired," was simply a poor 

choice of words. 

{¶ 27} There was and still is contradictory evidence in the record and the BWC 

evaluated that evidence and ultimately concluded that OVSH does, in fact, have 

employees, failed to report payroll, and owed premiums. As this court explained in State 

ex rel. Labor Works of Dayton LLC v. Ohio Bur. of Workers' Comp., 10th Dist. No. 10AP22, 2010-Ohio-6299, ¶ 6: 

Pursuant to R.C. 4123.24, employers are required to 

"maintain complete records" that "detail all expenditures for 

payroll," including "the division of such expenditures into 

the various divisions of the employer's business." On an 

employer's failure to keep such records, "the bureau may 

determine upon such information as is available to it the 

amount of premium due from the employer and its findings 

shall constitute prima facie evidence of the amount of 

premium due from the employer." Ohio Adm.Code 4123-17-

17. When the bureau conducted an audit of relator, relator 

failed to provide the information that was requested. As a 

result, the bureau estimated the premium due. 

{¶ 28} Based on a review of the stipulation of evidence, the magistrate finds that 

relator has failed to establish that the BWC abused its discretion when it determined that 

OVSH has employees, failed to report payroll as required by law, and owed premiums, 

and this court should deny relator's request for a writ of mandamus. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign 

as error on appeal the court's adoption of any factual finding 
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No. 16AP-5 

or legal conclusion, whether or not specifically designated as 

a finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically 

objects to that factual finding or legal conclusion as required 

by Civ.R. 53(D)(3)(b).