[Cite as Cline v. Defiance Therapeutic Massage & Wellness Ctr., 2018-Ohio-1891.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

DEFIANCE COUNTY 

 

ANDREA L. CLINE, ET AL., 

 APPELLEES, CASE NO. 4-17-19 

 v. 

DEFIANCE THERAPEUTIC MASSAGE 

& WELLNESS CENTER, LLC, O P I N I O N 

 APPELLANT. 

 

Appeal from Defiance County Common Pleas Court 

Trial Court No. 16-CV-43657 

Judgment Affirmed 

Date of Decision: May 14, 2018 

 

APPEARANCES: 

 

Mark S. Barnes for Appellant 

 Eric A. Baum for Appellees 
Case No. 4-17-19 

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PRESTON, J. 

{¶1} Appellant, Defiance Therapeutic Massage & Wellness Center, L.L.C. 

(“Defiance Therapeutic”), appeals the judgment of the Defiance County Court of 

Common Pleas affirming the Unemployment Compensation Review Commission’s 

(“Commission”) determination allowing claimant-appellee’s, Andrea L. Cline 

(“Cline”), application for unemployment compensation benefits. For the reasons 

that follow, we affirm. 

{¶2} Cline’s employment as an acupuncturist with Defiance Therapeutic was 

terminated on September 27, 2015. (Doc. No. 1, Ex. B). After her employment was 

terminated, Cline filed an application for unemployment compensation benefits. 

(Doc. No. 4). 

{¶3} On November 20, 2015, appellee, the Ohio Department of Job & 

Family Services (“ODJFS”), approved Cline’s application for unemployment 

compensation benefits. (Id.). On December 10, 2015, Defiance Therapeutic 

appealed ODJFS’s decision approving Cline’s application for unemployment 

compensation benefits. (Id.). On January 4, 2016, ODJFS issued its 

redetermination affirming its November 20, 2015 determination. (Id.). Defiance 

Therapeutic appealed ODJFS’s redetermination on January 25, 2016. (Id.). 

{¶4} On January 27, 2016, Defiance Therapeutic’s appeal was transferred to 

the Commission. (Id.). After telephone hearings on February 12 and March 17, 
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2016, the Commission issued its decision on May 2, 2016 affirming ODJFS’s 

determination. (Id.). On May 23, 2016, Defiance Therapeutic requested that the 

Commission review its May 2, 2016 decision. (Id.). On June 8, 2016, the 

Commission denied Defiance Therapeutic’s request for review. (Id.). 

{¶5} On July 6, 2016, Defiance Therapeutic appealed to the Defiance County 

Court of Common Pleas the Commission’s denial of its request for review of its 

May 2, 2016 decision affirming ODJFS’s determination allowing Cline’s 

application for unemployment compensation benefits. (Id.). 

{¶6} Defiance Therapeutic filed the administrative file on August 18, 2016. 

(Doc. No. 4). Defiance Therapeutic filed its brief on October 17, 2016. (Doc. No. 

10). ODJFS filed its response to Defiance Therapeutic’s brief on January 18, 2017. 

(Doc. No. 19). On February 27, 2017, Defiance Therapeutic filed its reply to 

ODJFS’s response. (Doc. No. 24). 

{¶7} On October 25, 2017, the trial court denied Defiance Therapeutic’s 

appeal and affirmed the May 2, 2016 decision of the Commission. (Doc. No. 25). 

{¶8} Defiance Therapeutic filed its notice of appeal on November 22, 2017. 

(Doc. No. 26). It raises one assignment of error for our review. 

Assignment of Error 

The Trial Court Erred in Affirming the Decision of the Review 

Commission that Appellee Andrea L. Cline was an Employee of 

Defiance Therapeutic, as Said Decision is Unlawful, 

Unreasonable, and Against the Manifest Weight of the Evidence. 
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{¶9} In its assignment of error, Defiance Therapeutic argues that the trial 

court erred by affirming the Commission’s decision approving Cline’s application 

for unemployment compensation benefits because the “Commission’s finding [that 

Cline] worked in covered employment at Defiance Therapeutic Wellness Center 

under R.C. 4141.01(B)(1) is unlawful, unreasonable, and against the manifest 

weight of the evidence.” (Appellant’s Brief at 21). That is, Defiance Therapeutic 

challenges the Commission’s conclusion that Cline was not an independent 

contractor of Defiance Therapeutic. 

{¶10} “An applicant seeking unemployment compensation benefits submits 

to ODJFS an application for such benefits along with information in support of his 

or her claim.” Henderson v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin 

No. 12AP-154, 2012-Ohio-5382, ¶ 5, citing McGee v. Ohio Dept. of Job & Family 

Servs., 10th Dist. Franklin No. 09AP-680, 2010-Ohio-673, ¶ 9. “Initially, ODJFS 

makes findings of fact and conclusions of law as to whether the applicant is entitled 

to unemployment compensation benefits.” Id., citing McGee at ¶ 

9, citing R.C. 4141.28(B). “Such decision is subject to an appeal to the commission 

for a de novo hearing.” Id., citing McGee at ¶ 9, citing R.C. 4141.281(C)(1) and 

(3). 

{¶11} “A party dissatisfied with the commission’s final determination may 

appeal to the appropriate court of common pleas, which shall hear the appeal on the 
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record certified by the commission.” Id. at ¶ 6, citing McGee at ¶ 10, citing R.C. 

4141.282(H). 

Pursuant to R.C. 4141.282(H), “[i]f the court [of common pleas] finds 

that the decision of the commission was unlawful, unreasonable, or 

against the manifest weight of the evidence, it shall reverse, vacate, or 

modify the decision, or remand the matter to the commission. 

Otherwise, the court shall affirm the decision of the commission.” 

Id., quoting McGee at ¶ 10. 

{¶12} “This standard of review applies to all levels of appellate review in 

unemployment compensation cases.” Id. at ¶ 7, citing Tzangas, Plakas & Mannos 

v. Ohio Bur. of Emp. Servs., 73 Ohio St.3d 694, 696-97 (1995). “Applying the same 

standard of review at both the common pleas and appellate court levels does not 

result in a de novo review standard.” Id., citing Tzangas at 697. “In reviewing 

commission decisions, a court may not make factual findings or determine witness 

credibility.” Id., citing Tzangas at 696, citing Irvine v. State Unemp. Comp. Bd. of 

Rev., 19 Ohio St.3d 15, 18 (1985). “Factual questions remain solely within the 

province of the commission.” Id., citing Tzangas at 697. “Similarly, a court may 

not substitute its judgment for that of the commission.” Id., citing McCarthy v. 

Connectronics Corp., 183 Ohio App.3d 248, 2009-Ohio-3392, ¶ 16 (6th Dist.), 

citing Irvine at 18. “The fact that reasonable minds might reach different 
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conclusions is not a basis for reversing the commission’s decision.” Id., citing 

McGee at ¶ 11, citing Tzangas at 696. “Instead, a court must ‘determine whether 

[the Commission’s] decision is supported by the evidence in the record.’” Id., 

quoting Tzangas at 696, citing Irvine at 18. “Judgments supported by some 

competent, credible evidence on the essential elements of the controversy may not 

be reversed as being against the manifest weight of the evidence.” Id., citing Houser 

v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin No. 10AP-116, 2011-

Ohio-1593, ¶ 7, citing Carter v. Univ. of Toledo, 6th Dist. Lucas No. L-07-1260, 

2008-Ohio-1958, ¶ 12, citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 

279 (1978), syllabus. 

{¶13} “This court’s focus is on the commission’s decision, rather than on 

that of the common pleas court.” Id. at ¶ 8, citing Howard v. Electronic Classroom 

of Tomorrow, 10th Dist. Franklin No. 11AP-159, 2011-Ohio-6059, ¶ 12, 

citing Moore v. Comparison Mkt., Inc., 9th Dist. No. 23255, 2006-Ohio-6382, ¶ 8. 

“Thus, our task is to review the commission’s decision and determine whether it is 

supported by evidence in the certified record and is unlawful, unreasonable or 

against the manifest weight of the evidence.” Id., citing McGee at ¶ 12. 

{¶14} Accordingly, the issue before us is whether the Commission’s 

determination that Cline worked in covered employment with Defiance Therapeutic 

is against the manifest weight of the evidence because it is not supported by some 
Case No. 4-17-19 

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competent, credible evidence, or, conversely, whether it is unlawful or 

unreasonable. See Clark v. Ohio Dept. of Job & Family Servs., 2d Dist. 

Montgomery No. 25257, 2012-Ohio-5311, ¶ 7. 

{¶15} On May 6, 2016, the Commission issued a written decision, which 

included the following pertinent findings of fact: 

[Cline] began performing [acupuncture services for Defiance 

Therapeutic] with the understanding that she would be an independent 

contractor. [Cline] did not sign an independent contractor agreement 

with Carrie Radzik [(“Radzik”)], managing member[,] but rather 

agreed to pay a share of the revenue she brought in, excluding tips. 

[Cline] was given access to the facility and was able to set her own 

hours. [Cline] was responsible for providing her own liability 

insurance. [Cline] never discussed the prospect of performing work 

at another facility. 

[Cline] was asked to fill-in for the receptionist to answer the 

telephone or schedule appointments when the receptionist was not 

available. [Cline] did not solely schedule appointments for herself 

when she filled in. [Cline] was responsible for cleaning the linens she 

used and was asked to clean linens used by the other individuals who 

provided services. [Cline] was informed as to a specific way to fold 
Case No. 4-17-19 

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the linens. With respect to opening and closing, [Cline] was informed 

of certain expectations which included opening and closing the blinds 

at or by certain times, turning on an outside light when leaving for the 

day and ensuring the back door is properly and completely shut. 

During the period that [Cline] provided services she was asked 

to pay Worker’s [sic] Compensation premiums and was encouraged 

to attend regular staff meetings. During the time she provided 

services the employer introduced a handbook which contained 

expectations with respect to reporting for work no later than thirty 

minutes prior to their first appointment, an approval process for 

changing schedules, a corrective access procedure, checking facility 

voicemail, and backroom cleaning responsibilities. The backroom 

responsibilities included cleaning the back area, labeling food in the 

refrigerator, and specific laundry instructions which included when 

laundry should be started, how to best dry the laundry and specific 

folding instructions. The manual also contains a provision for 

rescheduling appointments if a provider is absent and does not state 

that providers can bring in a substitute if they are not available. 

[Cline] brought some clients to the facility when she began 

performing services. She was required to complete documentation 
Case No. 4-17-19 

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regarding the services which were placed in client charts. When 

[Cline] was separated she was not permitted to remove client files 

including information regarding the clients she brought to the facility 

in April, 2010. 

(Doc. No. 1, Ex. B); (Doc. No. 4). 

{¶16} Based on those facts, the Commission concluded that an employeremployee relationship existed between Defiance Therapeutic and Cline within the 

meaning of the statute. In particular, based on the application of the 20 factors under 

Ohio Adm.Code 4141-3-05-(B), the Commission concluded that Defiance 

Therapeutic “did have the right to control” Cline. (Id.); (Id.). Regarding the 

application of those 20 factors, the Commission reasoned: 

[Defiance Therapeutic] operates a spa and the acupuncture services 

performed by [Cline] were essential to the profitability of the 

company. Those services were an integral part of the regular 

functions of the company. [Cline] answered the telephone and 

performed filing as needed. She further cleaned and folded laundry 

not used by her and the client’s she serviced and was not permitted to 

take her client files when the relationship was severed. [Cline] did 

not have a written independent contractor agreement but rather was 

governed by a manual which set forth opening and closing procedures, 
Case No. 4-17-19 

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refrigerator cleaning, and other subjects that are not typically covered 

in a business to business relationship. The manual exemplifies a level 

of detail and control beyond what is found in a typical independent 

contractor agreement. In addition, [Cline] engaged in a continuing 

relationship, was paid regularly, was not permitted to bring substitutes 

and had to pay money towards Worker’s [sic] Compensation 

coverage. 

(Id.); (Id.). 

{¶17} After reviewing the record, we conclude that Commission’s 

determination that Cline worked in covered employment with Defiance Therapeutic 

is not unlawful, unreasonable, or against the manifest weight of the evidence. “R.C. 

4141.01(B)(1) defines ‘employment’ as ‘service performed by an individual for 

remuneration under any contract of hire, written or oral, express or implied, * * * 

unless it is shown to the satisfaction of the director that such individual has been 

and will continue to be free from direction or control over the performance of such 

service, both under a contract of service and in fact.’” Henderson, 2012-Ohio-5382,

at ¶ 11, quoting R.C. 4141.01(B)(1). 

{¶18} Consistent with the statutory definition of “employment” under R.C. 

4141.01, Ohio Adm.Code 4141-3-05(A) provides, in relevant part: 
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“[A] worker is in employment when an ‘employer-employee’ 

relationship exists between the worker and the person for whom the 

individual performs services and the director determines that: 

(1) The person for whom services are performed has the right to 

direct or control the performance of such services; and 

(2) Remuneration is received by the worker for services performed.” 

Evans v. Dir. Ohio Dept. Job & Family Servs., 10th Dist. Franklin No. 14AP-743, 

2015-Ohio-3842, ¶ 15, quoting Ohio Adm.Code 4141-3-05(A). 

{¶19} “Ohio Adm.Code 4141-3-05(B) sets forth 20 factors ‘[a]s an aid to 

determining whether there is sufficient direction or control present’ to establish 

employment.” Id. at ¶ 16, quoting Ohio Adm.Code 4141-3-05(B). 

Those factors, which “are designed only as guides” and “must be 

considered in totality,” include: 

(1) The worker is required to comply with the instructions of the 

person for whom services are being performed, regarding when, 

where, and how the worker is to perform the services; 

(2) The person for whom services are being performed requires 

particular training for the worker performing services; 

(3) The services provided are part of the regular business of the 

person for whom services are being performed; 
Case No. 4-17-19 

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(4) The person for whom services are being performed requires that 

services be provided by a particular worker; 

(5) The person for whom services are being performed hires, 

supervises or pays the wages of the worker performing services; 

(6) A continuing relationship exists between the person for whom 

services are being performed and the worker performing services that 

contemplates continuing or recurring work, even if not full time; 

(7) The person for whom services are being performed requires set 

hours during which services are to be performed; 

(8) The person for whom services are being performed requires the 

worker to devote himself or herself full time to the business of the 

person for whom services are being performed; 

(9) The person for whom services are being performed requires that 

work be performed on its premises; 

(10) The person for whom services are being performed requires that 

the worker follow the order of work set by the person for whom 

services are being performed; 

(11) The person for whom services are being performed requires the 

worker to make oral or written progress reports; 
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(12) The person for whom services are being performed pays the 

worker on a regular basis such as hourly, weekly or monthly; 

(13) The person for whom services are being performed pays 

expenses for the worker performing services; 

(14) The person for whom services are being performed furnishes 

tools, instrumentalities, and other materials for use by the worker in 

performing services; 

(15) There is a lack of investment by the worker in the facilities used 

to perform services; 

(16) There is a lack of profit or loss to the worker performing services 

as a result of the performance of such services; 

(17) The worker performing services is not performing services for a 

number of persons at the same time; 

(18) The worker performing services does not make such services 

available to the general public; 

(19) The person for whom services are being performed has a right to 

discharge the worker performing services; 

(20) The worker performing services has the right to end the 

relationship with the person for whom services are being performed 
Case No. 4-17-19 

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without incurring liability pursuant to an employment contract or 

agreement. 

Id., quoting Ohio Adm.Code 4141-3-05(B). 

{¶20} “The director shall make a determination, based on the factors listed 

in this rule, as to whether or not an employment relationship exists for purposes of 

Chapter 4141. of the Revised Code.” Hasch v. Vale, 5th Dist. Stark No. 

2001CA00361, 2002 WL 1343262, *3 (June 17, 2002). “‘The burden of proving 

entitlement to the independent contractor exemption is on the employer.’” BNA 

Constr., Ltd. v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin No. 16AP317, 2017-Ohio-7227, ¶ 21, quoting Peter D. Hart Research Assocs., Inc. v. Admr. 

Ohio Bur. of Emp. Servs., 10th Dist. Franklin No. 95APE06-736, 1995 WL 765202, 

*3 (Dec. 28, 1995), citing McConnell v. Admr. Ohio Bur. of Emp. Servs., 10th Dist. 

Franklin No. 95APE03-262, 1995 WL 584359, *3 (Oct. 5, 1995). 

{¶21} Cline testified at the February 12, 2016 telephone hearing. (Feb. 12, 

2016 Tr. at 13). On examination by the hearing officer, she testified that she 

informed her existing clients that she would be performing acupuncture at Defiance 

Therapeutic beginning in April 2010. (Id. at 14). Although Cline did not sign an 

independent contractor agreement with Defiance Therapeutic, she “thought that we 

were going to be independent contractors. That we would * * * control what we 
Case No. 4-17-19 

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could and couldn’t do * * * and that although [Radzik] would supply all my supplies 

* * *, that was my nature of my understanding when I began work there.” (Id.). 

{¶22} Cline testified that her employment with Defiance Therapeutic 

transformed from an independent contractor to an employer-employee relationship 

because “in the beginning it was assumed that * * * [Cline] would have control over 

[her] hours, * * * how much [she] worked[,] advertising, things of that nature and 

as time progressed that became less * * * an ability for” her because “[e]verything 

had to be approved through Ms. Radzik.” (Id. at 19-20). More specifically, 

if [Cline] wanted to do advertising it had to have [Defiance 

Therapeutic’s] logo. It had to have all of [Defiance Therapeutic’s] 

contact information on it * * * and we had to submit it, like if we were 

going to do some kind of advertising we would have to give it to 

[Radzik] first and she would then approve it. * * * [W]e had 

mandatory meetings that would take place after [Cline’s] hours. [That 

is,] typically when [she] would be done working then we’d have a 

mandatory meeting that we had to attend. * * * [W]e had some 

mandatory events, not all, sometimes we were allowed to choose if 

we wanted to them [sic] but in the beginning there were a lot of 

mandatory outings and by those I mean like marketing opportunities. 

* * * [W]e had the chambers [sic] golf outing that we had to go to * * 
Case No. 4-17-19 

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* and we had to wear our [Defiance Therapeutic] polos, so we had to 

wear [Defiance Therapeutic’s] advertising while we were there * * *. 

(Id. at 20). (See also id. at 32-34). According to Cline, she discussed multiple times 

with Radzik that she was treating her as an employee as opposed to an independent 

contractor. (Id. at 34-35). Cline testified that, in response, Radzik “would get very 

defensive and just kind of say well this is how I run things * * * and it’s none of 

[Cline’s] concern.” (Id. at 35). 

{¶23} As compensation, Cline retained 60 percent of “the profits that [she] 

brought in” and Defiance Therapeutic received 40 percent. (Id. at 15). She 

renegotiated her rate to 66 percent in 2013. (Id.). Cline received a paycheck “every 

two weeks” and also received compensation from tips. (Id. at 31). Her maternity 

leave was unpaid and she was required to provide notice if she intended to take 

vacation time. (Id. at 39). 

{¶24} Cline paid for her own liability insurance. (Id. at 27-28). Defiance 

Therapeutic deducted workers’ compensation insurance from Cline’s paycheck. 

(Id. at 28). According to Cline, Radzik stated that she was paying that money toward 

her individual workers’ compensation insurance account. (Id.). Cline contacted the 

Ohio Bureau of Workers’ Compensation and was informed that “it was being paid 

into a * * * group fund for [Defiance Therapeutic] and that there was no record of 

* * * individuals having paid into Workers’ Comp[ensation].” (Id.). Further, Cline 
Case No. 4-17-19 

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was required to purchase a Defiance Therapeutic polo shirt. (Id. at 20). Cline also 

paid for the software system used by Defiance Therapeutic. (Id. at 37). She testified 

that Radzik ordered business cards for Cline and that Cline was required to pay 

Radzik for them. (Id. at 21-22). 

{¶25} When she began practicing at Defiance Therapeutic, Cline brought “an 

electric stem machine and heat lamp” as equipment with her. (Id. at 16). Defiance 

Therapeutic initially provided her supplies—namely, acupuncture needles; 

however, after she renegotiated her compensation in 2013, she provided her own 

supplies. (Id. at 17). Cline was not permitted to decorate the room in which she 

provided acupuncture services. (Id. at 31-32). She testified that she was required 

to wear “gray or black” scrubs and “closed toed shoes” while working at Defiance 

Therapeutic. (Id. at 20). 

{¶26} In addition to performing acupuncture, Cline testified that she was 

responsible for laundering linens—“we had a group pile of linens in the back and 

then you were just in charge of washing linens * * * when you had time you were 

supposed to put a load in and wash them and dry them for everybody.” (Id. at 18). 

Cline further testified that she was required to provide receptionist-type work, 

including answering the phone, scheduling and cancelling appointments for other 

employees of Defiance Therapeutic, answering questions, selling products, 

“check[ing] somebody else’s patient out for them,” and preparing rooms for other 
Case No. 4-17-19 

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employees, when a receptionist was not available. (Id. at 24). Cline was also 

required to clean the facility, including cleaning “the break room,” the bathrooms 

and the washing machine, sweeping and mopping the rooms, and shoveling and 

salting sidewalks. (Id. at 24-25). She testified that she was required to follow 

procedures for opening and closing the office. (Id. at 30). She testified that she 

spent approximately eight hours each week providing these ancillary services. (Id.

at 38). According to Cline, she assumed she would be fired for not attending the 

events of which her attendance was mandatory. (Id. at 21). 

{¶27} On examination by counsel representing ODJFS, Cline testified that 

she received a standards of practice manual in August 2015 “that talked about 

opening, closing, * * * disciplinary procedures, charting * * * and then at the end 

[she] had to sign a paper that said [she] had * * * read through it.” (Id. at 42-43). 

Cline did not receive any other document explaining her “relationship” with 

Defiance Therapeutic. (Id. at 44). 

{¶28} Cline did not work for any other business while employed by Defiance 

Therapeutic and presumed that she would not be permitted to work for any other 

business. (Id. at 41). She testified that she was required to provide her work 

schedule to Radzik for approval. (Id. at 40). 

{¶29} Cline further testified that “part of our understanding was that part of 

my, why the percentage was the way it was to pay for the receptionist * * *.” (Id.
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at 54). According to Cline, Radzik did not require new employees to pay for the 

software system even though she required Cline to pay for it. (Id. at 49). 

{¶30} After Cline was terminated from her employment with Defiance 

Therapeutic, Cline went to the office to retrieve her belongings; however, Radzik 

refused to provide to Cline a list of her clientele. (Id. at 51-53). Cline testified that 

she was never provided a list of her clientele or her clients’ files. (Id. at 53). 

{¶31} On examination by counsel representing Defiance Therapeutic, Cline 

testified that she directed how she provided acupuncture services for her clients. 

(Mar. 17, 2016 Tr., Vol. I, at 10, 13). She identified Exhibits F and H as documents 

that she created instructing other Defiance Therapeutic staff members as to how to 

schedule acupuncture patients. (Id. at 14-15). 

{¶32} According to Cline, she interpreted her employment with Defiance 

Therapeutic as an employer-employee relationship because she was responsible for 

“cleaning the whole facility or cleaning the back room, answering phones, staff 

meetings, and there’s a practice that [employees] were supposed to be held to, 

mandatory charting, mandatory meetings, mandatory events, it sounds like an 

employee.” (Id. at 29). However, she testified that she filed her taxes from 2009 

through 2014 as a sole proprietor. (Id. at 34-35). 

{¶33} Cline is the owner of Acupuncture Zen, a limited liability company 

that she formed in 2009. (Id. at 32). (See also Employer Ex. A). Yet, Cline was 
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not permitted to operate under Acupuncture Zen while she was employed with 

Defiance Therapeutic. (Mar. 17, 2016 Tr., Vol. I, at 33). Cline testified that she 

was permitted to donate her acupuncture services to charity. (Id. at 31). (See also

Employer Ex. B). 

{¶34} Next, Michael Goosey (“Goosey”) testified that he is a supervisor in 

the compliance section of ODJFS. (Mar. 17, 2016 Tr., Vol. I, at 41). According to 

Goosey, an investigation regarding Defiance Therapeutic was initiated after Cline 

filed her application for unemployment compensation benefits because “no 

unemployment account ha[d] been established” by Defiance Therapeutic for Cline. 

(Id. at 42). In particular, ODJFS investigated whether Cline “should be deemed an 

employee and then covered employment.” (Id. at 42-43). Goosey identified ODJFS 

Exhibits A and B as the initial unemployment compensation benefits rate 

determination letters regarding Defiance Therapeutic. (Id. at 44). (See also ODJFS 

Exs. C-O). 

{¶35} Goosey identified ODJFS Exhibit P as a letter sent by Radzik’s father 

to the Ohio State Representative that represented the district in which Defiance 

Therapeutic is located regarding Cline’s application for unemployment 

compensation benefits. (Mar. 17, 2016 Tr., Vol. I, at 58-59). According to Goosey, 

the letter is replete with “evidence establishing [that an] employee-employer 

relationship” existed between Defiance Therapeutic and Cline. (Id. at 60-63). (See
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ODJFS Ex. P). In particular, Goosey testified that “when you apply the law 

correctly in those relationships, * * * you quickly determine that * * * there is an * 

* * employer-employee relationship and not a business-to-business relationship” 

because “the right to direct and control these * * * individuals was paramount 

throughout the entire relationship.” (Mar. 17, 2016 Tr., Vol. I, at 63). 

{¶36} Goosey addressed whether the 20 factors under Ohio Adm.Code 4141-

3-05 indicate whether an employer-employee relationship existed between Defiance 

Therapeutic and Cline. (See id. at 64-78). Regarding the first factor, Goosey 

testified that Cline, based on the instructions contained in the “independent 

contractor manual” was given instruction on when, where, and how to perform 

services. (Id. at 65-70). Indeed, Goosey testified that the manual “really should 

read employee manual.” (Id. at 70). According to Goosey, because an individual 

“has been given training as an acupuncturist” or has “a license” does not mean that 

the person is an independent contractor. (Id.). Goosey testified that Cline could not 

“bring in anybody to replace her.” (Id. at 71). He testified that Defiance Therapeutic 

hired Cline and paid Cline for her services “on a 1099 basis.” (Id.). According to 

Goosey, even though Defiance Therapeutic did not control how Cline performed 

her acupuncture services, Defiance Therapeutic hired Cline “to come in and perform 

[her] particular services and [she was] expected to perform those services under the 

direction and control of the employer who knew exactly what was going on and, * 
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* * knew what clients were being scheduled, services received and performed by 

[Cline].” (Id. at 72-73). As to the sixth factor, Goosey testified that a continuing 

relationship existed between Cline and Defiance Therapeutic. (Id. at 73). Under 

the seventh factor, Goosey testified that although Cline “did not have set hours, she 

was able to inform her employer her hours of availability” and “if scheduled [sic] 

changed [sic] needed to be made, those scheduled changes had to be approved by 

the employer or the office manager.” (Id. at 73). Goosey testified that, 

notwithstanding her attendance at outside functions, Cline primarily performed her 

services full-time at the Defiance Therapeutic offices. (Id. at 73-74). Defiance 

Therapeutic required Cline to generate case notes after providing a service for a 

client, those notes were reviewed by the office manager, and those case files “were 

deemed the property of the employer.” (Id. at 74). Goosey testified that although 

Defiance Therapeutic paid “some of the basic overhead costs,” “some of the 

expenses were being borne by the contractors.” (Id. at 75). As to the fourteenth 

factor, Defiance Therapeutic provided a massage table and linens for all of its 

service providers to use. (Id. at 75-76). Cline paid for her licensure and insurance. 

(Id. at 75). Cline did not have any investment in the Defiance Therapeutic facility. 

(Id. at 76). Under the sixteenth factor, aside from her tax returns, Goosey could not 

specifically identify a profit or loss to Cline as a result of her acupuncture services. 

(Id.). Goosey testified that “there is no way to know” whether Cline was performing 
Case No. 4-17-19 

-23- 

the services for any other persons or entities as described by the seventeenth factor. 

(Id. at 77). He testified that “[o]ther than the * * * word of mouth,” there is no way 

to know whether she was making her services available to the general public apart 

from her advertising through Defiance Therapeutic. (Id.). Goosey testified that, 

under the manual, advertising had to be approved by Defiance Therapeutic. (Id.). 

Goosey testified that Defiance Therapeutic had the right to discharge Cline and that 

Cline had the right to resign from her employment with Defiance Therapeutic 

without incurring liability “because there was no binding contractual relationship 

between the parties.” (Id. at 77-78). 

{¶37} On examination by counsel for Defiance Therapeutic, Goosey testified 

that he is not an attorney. (Id. at 79). He clarified that he established a conclusion 

regarding the relationship between Defiance Therapeutic and Cline based on those 

20 factors because “as a compliance supervisor,” he is required to review 

compliance determinations. (Id. at 106-107). He further clarified that he considers 

the requirement that employees attend staff meetings to be indicative of an 

employer-employee relationship because the manual indicates that there are 

consequences for failing to attend those meetings. (Id. at 90-91). 

{¶38} Next, Melissa Constein (“Constein”) testified that she was the office 

manager of Defiance Therapeutic from 2014 through 2015. (Mar. 17, 2016 Tr., Vol. 

II, at 7). On examination by the hearing officer, she testified that she prepared the 
Case No. 4-17-19 

-24- 

payroll for Defiance Therapeutic and that Cline was paid every other Friday. (Id. at 

8). According to Constein, Cline and the other therapists were required to answer 

the phone and check the voicemail when Constein was not in the office. (Id.). 

Constein testified that, although the manual “was not put in place until August of 

2015, there was * * * some procedures up in a gray binder [that] specifically went 

over how to answer the phone, how to take messages * * *.” (Id. at 9). She further 

testified that the therapists were required to attend staff meetings and that there were 

repercussions for missing those meetings. (Id. at 17). Constein testified that the 

issue of whether Cline was an employee or independent contractor was exposed 

when Defiance Therapeutic “started incorporating the [new] software” system. (Id.

at 11). 

{¶39} On examination by counsel for ODJFS, Constein testified that the 

therapists were not permitted to have input on the manual. (Id. at 21). She testified 

that she was required to “micromanage[]” the therapists, including the time when 

they reported to work and whether they folded sheets correctly. (Id. at 24-26). 

{¶40} On examination by counsel for Defiance Therapeutic, Constein 

testified that she was an employee of Defiance Therapeutic. (Id. at 31). As an 

employee, she did not have to pay for the software, did not pay 30 to 40 percent of 

her income to Defiance Therapeutic, and was issued a W2. (Id. at 31-32). She 

testified that, in her opinion, Radzik’s control of the therapists exceeded the bounds 
Case No. 4-17-19 

-25- 

of an independent contractor relationship. (Id. at 38-39). As an example, Constein 

cited Radzik’s constant pressure to sell more products—that is, although the 

therapist “was an independent contractor but yet she was being controlled by how 

much money she needed to bring into the center.” (Id. at 39). Regarding the manual, 

which Constein assisted Radzik in preparing, Constein testified that Radzik 

“googled employee handbook, downloaded one and changed everything to 

independent contractor.” (Id. at 29). 

{¶41} Radzik testified on behalf of Defiance Therapeutic. (Id. at 60-61). On 

examination by the hearing officer, she testified that she initially retained 40 percent 

of Cline’s earnings but later agreed to retain 34 percent when Cline requested “to 

have more supply write off.” (Id. at 61). Although she did not pay for Cline’s 

liability insurance, Radzik required that Cline provide “copies of [her] insurance” 

“just to keep in [her] file * * *.” (Id. at 67). 

{¶42} Regarding the therapists’ performance of receptionist duties, Radzik 

testified that she “expected that they pick up the phones, but they were never told 

that they had to * * *.” (Id. at 62). She testified that she did not require Cline to 

maintain records beyond the medical documentation required by the State. (Id. at 

63). Regarding the linens, Radzik testified that they “were generally put into one, 

one basket” and that Cline “did more laundry but she was also there more, so she 

would have more laundry to do.” (Id. at 65). She further testified that she required 
Case No. 4-17-19 

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that the linens be folded a certain way because there was limited storage space. (Id.). 

She also required the therapists to follow certain opening and closing procedures, 

including snow removal because “[i]t was their responsibility to clean [the 

sidewalks] off and if it got deeper, they would just have to call the snow guy again.” 

(Id. at 66). According to Radzik, Cline did not “raise concerns * * * that she felt 

she was doing employee-type duties instead of independent contractor duties.” 

(Id.). 

{¶43} Radzik admitted that she edited an employee-handbook template that 

she found on the internet to apply to an independent contractor. (Id. at 69-70). 

Specifically, she testified 

that a lot of the verbiage that was in the paragraph under the employee 

manual, [she] would take that paragraph and understand the 

justification as to why that paragraph was in there, implement it if 

[she] felt it was necessary for an independent contractor, and [she] 

would re-write the entire paragraph. [She] wouldn’t just take words 

out and delete it and enter it in. 

(Id.). She testified that she included language in the manual regarding a 

probationary period for new independent contractors because she was experiencing 

a lot of turnover. (Id. at 70). 
Case No. 4-17-19 

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{¶44} On examination by counsel for Defiance Therapeutic, Radzik testified 

that she did not direct Cline as to how to perform her acupuncture services and 

permitted her to establish her own work schedule. (Id. at 73-75). She did not 

supervise Cline’s work or review Cline’s notes for accuracy. (Id. at 76). Although 

Radzik did not require approval for Cline to take time off from work, she required 

Cline to notify Radzik “so that [she] could look at the schedule as a whole and make 

sure that the rooms weren’t overbooked.” (Id. at 75). Radzik conducted staff 

meetings but asserted that they were not mandatory. (Id. at 76). 

{¶45} She testified that the manual was meant to set forth a standards of 

practice and not “a list of rules and regulations.” (Id. at 79). Radzik did not 

terminate anyone for failing to follow the manual. (Id.). According to Radzik, she 

“did not make anybody use the [Defiance Therapeutic] logo [for business cards] and 

if they wanted to go out to another company to get their own business cards, they 

could.” (Id. at 81). Regarding the Defiance Therapeutic polo shirt, Radzik asserted 

that “some of the girls said, I want to have one of those too” after seeing Radzik 

wear it at an event. (Id.). Regarding the software system, she testified that she 

“brought each individual therapist into [her] office and [she] asked them how much 

they would want to invest in a software system [and Cline] said that [she] would 

pay anywhere from $100.00 a month.” (Id. at 82). She further testified that “[t]hey 

were happy to do this because it was a tax write off for them * * *.” (Id.). 
Case No. 4-17-19 

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{¶46} On examination by counsel for ODJFS, Radzik testified that she 

required all of the therapists to sign an acknowledgement form agreeing “to abide 

by those provisions” stated in the manual. (Id. at 96). Further, although Radzik 

testified that the staff meetings were not mandatory, she testified that the manual 

describes a progressive ladder of discipline for failing to attend those meetings. (Id.

at 97-98). In addition, she agreed that the manual states that Defiance Therapeutic 

“has the right to terminate independent contractors who compete or interfere in any 

way with the sale of products or services that [Defiance Therapeutic] provides” and 

that the manual “references performance as salary review for independent 

contractors[.]” (Id. at 104). 

{¶47} According to Radzik, after consulting the state medical board, she 

concluded that patient charts “are the property of the patient and the facility that 

they are in.” (Id. at 100). She further testified that the manual explicitly states that 

“patient charts are the property of” Defiance Therapeutic. (Id. at 101). 

{¶48} On appeal, Defiance Therapeutic advances three arguments 

challenging the Commission’s determination. First, Defiance Therapeutic contends 

that the Commission’s order is unlawful because it wrongly applied the statutory 

definition of employment in its analysis to include the ancillary services provided 

by Cline. Second, Defiance Therapeutic argues that the Commission’s order is 

unlawful “[b]ecause the hearing officer failed to articulate how he applied the 20 
Case No. 4-17-19 

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factors to appellee’s services as an acupuncturist.” (Appellant’s Brief at 15). Third, 

Defiance Therapeutic contends that the Commission’s decision that Cline’s work 

for Defiance Therapeutic constituted employment under R.C. 4141.01(B)(1) is 

unreasonable and against the manifest weight of the evidence based on the 

application of the factors under Ohio Adm.Code 4141-3-05(B). 

{¶49} Defiance Therapeutic’s first argument is meritless. R.C. 

4141.01(B)(1) cannot be examined in a vacuum. See, e.g., Gress v. Gress, 9th Dist. 

Wayne No. 95CA0069, 1996 WL 285373, *1 (May 29, 1996) (noting that the 

application of the division-of-marital-property statute cannot be examined in a 

vacuum, but must be considered under the totality of the circumstances); Sabino v. 

WOIO, L.L.C., 8th Dist. Cuyahoga No. 102571, 2016-Ohio-491, ¶ 47 (noting that 

statements are not to be judged in a vacuum, but must be based on the totality of the 

circumstances). Thus, although Cline and Radzik’s testimony reflects that Cline’s 

rate of pay was based on her provision of acupuncture services, it is clear from the 

totality of the testimony that Cline’s ability to practice acupuncture at Defiance 

Therapeutic and receive her rate of pay was conditioned on her performance of 

ancillary services. Accordingly, Defiance Therapeutic’s argument that Cline’s 

performance of her acupuncture duties should be examined separately from her 

performance of the ancillary services is erroneous. 
Case No. 4-17-19 

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{¶50} Also erroneous is Defiance Therapeutic’s argument that the 

Commission’s order is unlawful because “the hearing officer failed to set forth 

which, if any, of [the Ohio Adm.Code 4141-3-05(B) factors] compelled the Review 

Commission’s decision.” (Appellant’s Brief at 14). Although the Commission’s 

order does not explicitly state which factors the hearing officer relied on, the 

Commission’s order generally references the Ohio Adm.Code 4141-3-05(B) factors 

and it is apparent from the analysis contained in the order that the hearing officer 

applied those factors to the testimony presented at the telephone hearings. Stated 

another way, it is clear that the hearing officer considered the Ohio Adm.Code 4141-

3-05(B) factors because the order explicitly sets forth facts relevant to several of the 

factors. See Misleh v. Badwan, 9th Dist. Summit No. 24693, 2009-Ohio-6949, ¶ 9 

(concluding that it was “clear” that the trial court considered the statutory factors 

“as it explicitly provided facts relevant to several of the factors”). Compare Evans, 

2015-Ohio-3842, at ¶ 17 (discussing the facts that the trial court relied on in 

concluding that the 20 Ohio Adm.Code 4141-3-05(B) factors “established that 

Evans did not have the right to direct or control the drivers”). 

{¶51} Turning to Defiance Therapeutic’s argument that the Commission’s 

determination that Defiance Therapeutic directed and controlled Cline’s work is 

unreasonable and against the manifest weight of the evidence, we reject Defiance 

Therapeutic’s argument. First, based on our conclusion above, the Commission’s 
Case No. 4-17-19 

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order is not unreasonable for analyzing the totality of the services Cline performed 

in rendering its ultimate conclusion. 

{¶52} Second, there is some competent, credible evidence supporting the 

Commission’s decision. On appeal, in challenging the weight of the evidence 

supporting the Commission’s conclusion, Defiance Therapeutic essentially requests 

that this court conduct a de novo review of the Commission’s application of the 

Ohio Adm.Code 4141-3-05(B) factors. In other words, Defiance Therapeutic 

contends that this court should reweigh the facts in a light more favorable to it. “[I]t 

is not the function of this court to reweigh the evidence.” Cassaro v. Ohio Dept. of 

Job & Family Servs., 3d Dist. Crawford No. 3-16-08, 2016-Ohio-7643, ¶ 27, citing 

Hicks v. Ohio Dept. of Job & Family Servs., 10th Dist. Franklin No. 13AP-902, 

2014-Ohio-2735, ¶ 13. “The fact that reasonable minds might reach different 

conclusions is not a basis for reversing the commission’s decision.” Henderson, 

2012-Ohio-5382, at ¶ 29, citing McGee, 2010-Ohio-673, at ¶ 11. Indeed, this court 

is not permitted to substitute its judgment for that of the Commission; rather, this 

court is required to determine whether there is some competent, credible evidence 

supporting the Commission’s conclusion. See Cassaro at ¶ 27. 

{¶53} Although no individual factor or combination of factors under Ohio 

Adm.Code 4141-3-05 controls, the Commission’s findings supporting its 

conclusion that Defiance Therapeutic directed and controlled Cline are within the 
Case No. 4-17-19 

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province of the Commission. Compare Hasch, 2002 WL 1343262, at *3 (“Although 

no individual factor in [Ohio Adm.Code] 4141-3-05 controls, the specific findings 

of the Review Commission hearing officer that Vale was told to work 9AM to 5PM 

hours and directed where to report to work were within the province of said finder 

of fact.”); Henderson at ¶ 29 (“Although no individual factor or combination of 

factors in R.C. 4141.01(B)(2)(k) controls, the specific findings of the commission 

that appellant declined Mid-Ohio’s offer to be placed on the company’s payroll, that 

Mid-Ohio did not set appellant’s hours, and that appellant was free to perform 

outside work without penalty, were within the province of the commission.”). “On 

close questions, ‘[w]here the [commission] might reasonably decide either way, the 

courts have no authority to upset the [commission’s] decision.’” Henderson at ¶ 29, 

quoting Irvine, 19 Ohio St.3d at 18, citing Charles Livingston & Sons, Inc. v. 

Constance, 116 Ohio App. 437 (7th Dist.1961). Because the specific facts and 

circumstances of this case constitute a close question in which the commission 

might reasonably decide either way, we have no authority to upset the 

Commission’s decision, and Defiance Therapeutic has not directed us to any 

authority permitting us to overturn the Commission’s decision. See Edan Farms, 

Inc. v. Toth, 7th Dist. Mahoning No. 99-CA-185, 2000 WL 1809050, *3 (Dec. 5, 

2000) (“These factors set out in Ohio Adm.Code 4141-3-05(B) are to be used by the 

[commission], but they are not necessarily the factors utilized by courts in 
Case No. 4-17-19 

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determining whether reasonable minds could find that a claimant was or was not 

subject to direction and control over the performance of his services.”). 

{¶54} After reviewing the record, we conclude that there is some competent, 

credible evidence supporting the Commission’s conclusion that an employeremployee relationship existed between Defiance Therapeutic and Cline. First, the 

record reflects that the compliance division of ODJFS independently determined 

under Ohio Adm.Code 4141-3-05(B) that an employer-employee relationship 

existed between Defiance Therapeutic and Cline. Moreover, there was significant 

testimony presented at the telephone hearings regarding the manual that Cline was 

expected to adhere to. The record reflects the manual existed in some form 

throughout Cline’s tenure with Defiance Therapeutic. Radzik eventually updated 

the manual by editing an “employee” manual template that she found on the internet. 

The manual directs when, where, and how duties are to be performed. The record 

reflects the duties beyond acupuncture that Cline was expected to perform as part 

of her relationship with Defiance Therapeutic, including administrative activities 

for other therapists working at Defiance Therapeutic; community laundry, cleaning, 

and snow removal; and specific opening and closing procedures. 

{¶55} Our review of the record also reveals that Defiance Therapeutic 

required that acupuncture be performed only by Cline because Cline was not 

permitted to have any other person substitute for her during the times in which she 
Case No. 4-17-19 

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could not perform acupuncture services at Defiance Therapeutic. Moreover, 

Defiance Therapeutic required that Cline comply with the regulations imposed on 

acupuncturists. Compare Miracle Home Health Care, L.L.C. v. Ohio Dept. of Job 

& Family Servs., 10th Dist. Franklin No. 12AP-318, 2012-Ohio-5669, ¶ 25 

(“Because federal and state law mandates particular training and documentation, 

Miracle imposes those requirements on its home caregivers. The fact that federal 

and state law motivated Miracle to adopt the requirements at issue does not negate 

the control and direction that Miracle exercises in enforcing the requirements.”). 

There was also testimony presented that Cline was required to receive Radzik’s 

approval for her schedule, advertising, and outside work. See Edan Farms, 2000 

WL 1809050, at *5 (Donofrio, J., concurring) (concluding that the determination 

that Toth was an employee rather than an independent contractor was supported by 

some competent, credible evidence because, in part, the record reflected that Edan 

Farms, Inc. “exercised significant control over Toth’s work schedule”). Further, 

Cline was expected to attend regular staff meetings and hold herself out as a 

representative of Defiance Therapeutic. 

{¶56} The record further reflects that Cline engaged in a continuing 

relationship with Defiance Therapeutic from 2010 through 2015. Cline received a 

paycheck from Defiance Therapeutic every two weeks. Group workers’ 

compensation premiums were deducted from her paycheck. When her relationship 
Case No. 4-17-19 

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with Defiance Therapeutic was terminated, Cline was not permitted to obtain her 

clients’ files or obtain a list of her clients. 

{¶57} For these reasons, there is some competent, credible evidence 

supporting the Commission’s determination that Cline worked in covered 

employment with Defiance Therapeutic—namely, there is some competent, 

credible evidence that Defiance Therapeutic exercised direction and control over 

Cline. As such, the Commission’s decision is not against the manifest weight of the 

evidence. 

{¶58} For the foregoing reasons, we conclude that the Commission’s order 

is not unlawful, unreasonable, or against the manifest weight of the evidence. 

Therefore, the trial court did not err by affirming the Commission’s decision. 

{¶59} Defiance Therapeutic’s assignment of error is overruled. 

{¶60} Having found no error prejudicial to the appellant herein in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

WILLAMOWSKI, P.J. and SHAW, J., concur. 

/jlr