[Cite as Liebe v. Indus. Comm., 2014-Ohio-4082.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100649

KAREN LIEBE, ET AL. 

RELATORS 

vs. 

THE INDUSTRIAL COMMISSION OF OHIO, 

ET AL. 

RESPONDENTS 

JUDGMENT: 

WRIT DENIED 

Writ of Prohibition 

Motion Nos. 476745 and 476808 

Order No. 477981 

RELEASE DATE: September 17, 2014 
ATTORNEYS FOR RELATOR

For Karen Liebe

Michael H. Gruhin 

Gruhin & Gruhin 

24100 Chagrin Boulevard 

Suite 250 

Beachwood, Ohio 44122 

Matthew A. Palnik 

Shapiro, Marnecheck, Riemer & Palnik 

425 Western Reserve Building 

1468 West 9th Street 

Cleveland, Ohio 44113 

For Michael Gruhin

Martin T. Galvin 

Reminger Company L.P.A. 

1400 Midland Building 

101 Prospect Avenue West 

Cleveland, Ohio 44113 

ATTORNEYS FOR RESPONDENTS

For Industrial Commission of Ohio 

Administrator, Bureau of Workers’ Compensation

Michael DeWine 

Ohio Attorney General 

State Office Building, 11th Floor 

615 West Superior Avenue 

Cleveland, Ohio 44113 

Thomas M. McCarty 
Assistant Attorney General 

State Office Building, 11th Floor 

615 West Superior Avenue 

Cleveland, Ohio 44113 

For March Hodge Lamarch Cleveland, L.L.C.

Thomas R. Wyatt 

David T. Andrews 

Jerry P. Cline 

Andrews & Wyatt L.L.C. 

561 Boston Mills Road 

Suite 700 

Hudson, Ohio 44236 

EILEEN A. GALLAGHER, J.: 
{¶1} On November 20, 2013, the relators, Karen Liebe and Michael Gruhin, 

commenced this prohibition action against the respondents, the Industrial Commission of 

Ohio and the Administrator of the Bureau of Workers’ Compensation (hereinafter 

collectively referred to as the “Industrial Commission”). The relators seek to prohibit 

the respondents from conducting further administrative hearings relating to Liebe’s 

September 26, 2011 injury claim and from enforcing the August 29, 2013 district hearing 

officer’s decision. The relators claimed that the respondents’ use of privileged work 

product information exceeded the Industrial Commission’s judicial authority and deprived 

it of jurisdiction to proceed. On December 4, 2013, this court permitted Liebe’s 

employer, March Hodge Lamarch Cleveland, L.L.C. (“March Hodge”) to intervene as a 

respondent. Pursuant to court order, on June 16, 2014, the parties filed dispositive 

motions and subsequently submitted briefs in opposition. 

{¶2} On July 11, 2014, Liebe voluntarily dismissed her prohibition claims as part 

of a settlement of her workers’ compensation claims. Gruhin did not settle and his 

claims for prohibition remain. On July 15, 2014, March Hodge moved to dismiss 

because the issues were moot and on July 17, 2014, the Industrial Commission similarly 

moved. Because both motions relied on materials outside the pleadings, this court sua 

sponte converted those to motions for summary judgment and granted the parties until 

August 8, 2014, to respond pursuant to Civ.R. 56. Gruhin filed responses to these later 

dispositive motions. Accordingly, this matter is ripe for disposition. For the following 

reasons, this court grants the respondents’ motions for summary judgment, denies 
Gruhin’s motion for summary judgment, and denies the application for a writ of 

prohibition. 

Factual and Procedural Background 

{¶3} On September 26, 2011, Liebe fell at work and immediately went to her 

treating physician, Dr. Ryan Haely, who diagnosed five conditions: (1) low back 

sprain/strain, (2) thoracic sprain/strain, (3) cervical sprain/strain, (4) right sacroiliac 

sprain/strain and (5) right knee sprain/strain. On September 29, 2011, the doctor filed a 

C-9, Physician’s Request of Medical Service and the Bureau of Workers’ Compensation 

(“the Bureau”) assigned claim number 11-352776 to Liebe’s claim. 

{¶4} On October 18, 2011, the Bureau allowed all of the claims. However, 

March Hodge appealed. In November, Liebe retained Gruhin to represent her. 

Following an early December 2011 hearing, the Industrial Commission allowed three of 

Liebe’s claims but disallowed the other two. Both parties appealed. At this point, 

March Hodge’s independent medical examiner, Dr. Paul Martin, examined Liebe and 

opined that the allowed conditions were “flare ups” of pre-existing conditions and were 

not new or separate injuries resulting from the September 26, 2011 fall. On February 

22, 2012, Dr. Haely submitted a report rebutting Dr. Martin’s opinions and specifically 

stating that Liebe suffered new and distinct injuries from the September 2011 fall. On 

February 23, 2012, the Industrial Commission heard the appeal and affirmed the previous 

decision; three claims were allowed and two disallowed. 

{¶5} Liebe appealed the disallowances to the common pleas court, Liebe v. Admr. 
Bur. of Workers’ Comp., Cuyahoga C.P. No. CV-12-781525. March Hodge did not 

appeal, but defended the disallowances. As part of discovery, March Hodge’s attorney 

in April 2013 reviewed Dr. Haely’s medical records for Liebe. Among the papers 

found were an initial draft of the report rebutting Dr. Martin’s opinions and a response 

from Gruhin’s office suggesting proposed changes. Comparing the “proposed changes” 

memo with the final report indicates that the doctor adopted the changes verbatim into the 

final report. However, Dr. Haely has maintained that discussions with Gruhin’s office 

caused him to review Liebe’s x-rays and medical evidence and that caused him to clarify 

his opinion and to employ more useful, accurate terminology. 

{¶6} The revelation that March Hodge’s attorney had possession of the “proposed 

changes” memo caused Gruhin to invoke the work product privilege and demand the 

return of the memo and the cessation of its use pursuant to Civ.R. 26(B)(6).1

 In return, 

March Hodge’s attorney accused Gruhin and his office of unethical behavior and 

demanded that Liebe dismiss her litigation. 

{¶7} On April 18, 2013, March Hodge, pursuant to R.C. 4123.52, invoked the 

 

1 Civ.R. 26(B)(6) provides: (b) Information Produced. If information is produced in discovery that is 

subject to a claim of privilege or of protection as trial preparation material, the party making the claim 

may notify any party that received the information of the claim and the basis for it. After being 

notified, a receiving party must promptly return, sequester, or destroy the specified information and 

any copies within the party’s possession, custody or control. A party may not use or disclose the 

information until the claim is resolved. A receiving party may promptly present the information to the 

court under seal for a determination of the claim of privilege or of protection as trial preparation 

material. If the receiving party disclosed the information before being notified, it must take reasonable 

steps to retrieve it. The producing party must preserve the information until the claim is resolved. 

Civ.R. 40(D)(5), relating to subpoenas, contains nearly identical provisions.
Industrial Commission’s continuing jurisdiction by filing a C-86 motion on the basis of 

new and changed circumstances of newly discovered evidence. A district hearing 

officer conducted a hearing and, on August 29, 2013, in an eight-page decision 

disallowed all of Liebe’s claims. The hearing officer decided that the “proposed 

changes” memo was not privileged information, that the Industrial Commission had 

jurisdiction pursuant to R.C. 4123.52 and that because Dr. Haely’s report was no longer 

credible, all of Liebe’s claims should be disallowed. 

{¶8} Liebe appealed this decision and a Staff Hearing Officer hearing was 

scheduled for November 24, 2014. At that time, the relators filed this prohibition action 

and this court issued an alternative writ directing that the respondents not conduct the 

Staff Hearing Officer hearing until further order of this court.2

 

{¶9} On July 11, 2014, Liebe, March Hodge and the Industrial Commission 

reached a universal settlement as to Liebe’s claims. In exchange for $14,000 and the 

Industrial Commission’s waiver of repayment, Liebe dismissed Claim No. 11-352776; her 

common pleas court appeal, Case No. CV-12-781525, and her claims in this prohibition 

action. March Hodge and the Industrial Commission assert that these dismissals render 

 

2 The litigation concerning Liebe’s claim and the work product privilege continued 

in other forums not affected by this writ of prohibition. In Liebe’s common pleas 

appeal, Liebe filed a motion in limine to prohibit the use of the “proposed changes”

memo because of the work product privilege, and March Hodge filed a motion in limine to exclude 

the use of Dr. Haely’s report. The trial court summarily denied both. Liebe appealed these 

decisions in Liebe v. Admr., Bur. of Workers’ Comp., 8th Dist. Cuyahoga No. 100230, but on May 1, 

2014, this court dismissed the appeal for lack of a final, appealable order. Additionally, March 

Hodge commenced suit against Dr. Haely for fraud in Cuyahoga C.P. No. CV-14-826567.
Gruhin’s claims for prohibition moot. Indeed, in its July 17, 2014 motion, the Industrial 

Commission stated that “there will be no further OIC proceedings.” (Pg. 4.) In response, 

Gruhin asserts that the issue of whether the “proposed changes” memo is privileged has 

not been resolved, that the respondents must disgorge the privileged material pursuant to 

Civ.R. 26(B)(6), that the Industrial Commission may institute a fraud investigation and 

has not vacated the August 29, 2013 decision, that the issue of whether such work product 

material is privileged is capable of repetition yet evading review, and that this prohibition 

action is not moot. 

Discussion of Law 

{¶10} The principles governing prohibition are well established. Its requisites are 

(1) the respondent against whom it is sought is about to exercise judicial power, (2) the 

exercise of such power is unauthorized by law, and (3) there is no adequate remedy at 

law. State ex rel. Largent v. Fisher, 43 Ohio St.3d 160, 540 N.E.2d 239 (1989). 

Prohibition will not lie unless it clearly appears that the court has no jurisdiction of the 

cause that it is attempting to adjudicate or the court is about to exceed its jurisdiction. 

State ex rel. Ellis v. McCabe, 138 Ohio St. 417, 35 N.E.2d 571 (1941), paragraph three of 

the syllabus. “The writ will not issue to prevent an erroneous judgment, or to serve the 

purpose of appeal, or to correct mistakes of the lower court in deciding questions within 

its jurisdiction.” State ex rel. Sparto v. Juvenile Court of Darke Cty., 153 Ohio St. 64, 

65, 90 N.E.2d 598 (1950). Furthermore, it should be used with great caution and not 

issue in a doubtful case. State ex rel. Merion v. Tuscarawas Cty. Court of Common 
Pleas, 137 Ohio St. 273, 28 N.E.2d 641 (1940); and Reiss v. Columbus Mun. Court, 76 

Ohio Law Abs. 141, 145 N.E.2d 447 (10th Dist.1956). Nevertheless, when a court is 

patently and unambiguously without jurisdiction to act whatsoever, the availability or 

adequacy of a remedy is immaterial to the issuance of a writ of prohibition. State ex rel. 

Tilford v. Crush, 39 Ohio St.3d 174, 529 N.E.2d 1245 (1988), and State ex rel. Csank v. 

Jaffe, 107 Ohio App.3d 387, 668 N.E.2d 996 (8th Dist.1995). However, absent such a 

patent and unambiguous lack of jurisdiction, a court having general jurisdiction of the 

subject matter of an action has authority to determine its own jurisdiction. A party 

challenging the court’s jurisdiction has an adequate remedy at law via an appeal from the 

court’s holding that it has jurisdiction. State ex rel. Rootstown Local School Dist. Bd. of 

Edn. v. Portage Cty. Court of Common Pleas, 78 Ohio St.3d 489, 678 N.E.2d 1365 

(1997). Moreover, this court has discretion in issuing the writ of prohibition. State ex rel. 

Gilligan v. Hoddinott, 36 Ohio St.2d 127, 304 N.E.2d 382 (1973). 

{¶11} This court concludes that Liebe’s settlement does render this prohibition 

action moot because it precludes the fulfillment of the first element of prohibition, that 

the respondent is about to exercise judicial or quasi-judicial power. The Industrial 

Commission will not conduct further proceedings relating to Liebe’s claims. It will not 

be exercising judicial or quasi-judicial power. 

{¶12} Moreover, to the extent that Gruhin relied on the transfer of jurisdiction 

principle for his prohibition claim, the settlement of the common pleas appeal removed 

that jurisdictional impediment. The court further notes that Gruhin did not cite 
persuasive authority for the principle that the transfer of jurisdiction principle “trumps” 

the statutorily granted continuing jurisdiction of the Industrial Commission under R.C. 

4123.52. Thus, Gruhin failed in his burden of proof and persuasion. Cf. State ex rel. 

City of Westlake v. Corrigan, 8th Dist. Cuyahoga No. 86575, 2006-Ohio-3323.3

{¶13} Gruhin speculates that the Industrial Commission could commence fraud 

proceedings against Dr. Haely arising out of Liebe’s claims. However, he presented no 

evidence that the Industrial Commission will do this and this court will not issue a writ of 

prohibition on speculation. 

{¶14} This court is not convinced that the “capable of repetition yet evading 

review” exception to mootness applies in the present case. The multiple opportunities 

for review and appeal in workers’ compensation cases would allow the issue of work 

product privilege to be resolved on its merits on a full record when and if this scenario 

should ever arise again. 

{¶15} Gruhin’s primary premise that the respondents’ use of privileged work 

product information exceeded the judicial authority of the Industrial Commission and 

deprived it of jurisdiction to proceed is not well founded. Prohibition is not the remedy 

to resolve issues of privilege or discovery. R.C. 4123.08 and 4123.10 grant the 

Industrial Commission the power to take testimony and hear evidence and to make 

 

3 Because the underlying claim has been settled and the matter is moot and because Gruhin did not 

cite authority on this issue, this court does not decide the issue of the Industrial Commission’s 

continuing jurisdiction while all or part of the claim is on appeal to the courts. This court declines 

to issue an advisory opinion.
investigations to ascertain the substantial rights of the parties and to carry out justly the 

spirit of the workers’ compensation law. These statutory grants of power necessarily 

include the power to consider evidence, discovery, and privilege. The Supreme Court of 

Ohio has repeatedly ruled that “trial courts have the requisite jurisdiction to decide issues 

of privilege; thus, extraordinary relief in prohibition will not lie to correct any errors in 

decisions of these issues.” State ex rel. Herdman v. Watson, 85 Ohio St.3d 537, 538, 

700 N.E.2d 1270 (1998); State ex rel. Abner v. Elliot, 85 Ohio St.3d 11, 706 N.E.2d 765 

(1999); and State ex rel. Mulholland v. Schweikert, 99 Ohio St.3d 291, 2003-Ohio-3650, 

791 N.E.2d 1164. 

{¶16} Finally, it appears that the relief Gruhin really seeks is a declaration that the 

“proposed changes” memo is protected work product and that he is entitled to have the 

respondents return the memo to him and cease all use of the memo. If the allegations in 

a writ complaint indicate that the real object sought is a declaratory judgment, the 

complaint does not state a cause of action for an extraordinary writ. The court of 

appeals does not have jurisdiction over claims for declaratory judgment. State ex rel. 

Beane v. Dayton, 112 Ohio St.3d 553, 2007-Ohio-811, 862 N.E.2d 97, and State ex rel. 

Ministerial Day Care Assn. v. Zelman, 100 Ohio St.3d 347, 2003-Ohio-6447, 800 N.E.2d 

21. 

{¶17} Accordingly, this court grants the respondents’ motions for summary 

judgment, denies Gruhin’s motion for summary judgment and denies the application for a 

writ of prohibition. Relator Gruhin to pay costs. The court vacates its alternative writ 
as moot. This court directs the clerk of courts to serve all parties notice of this judgment 

and its date of entry upon the journal as required by Civ.R. 58(B). 

Writ denied. 

EILEEN A. GALLAGHER, JUDGE 

FRANK D. CELEBREZZE JR., P.J., and 

PATRICIA A. BLACKMON, J., CONCUR