[Cite as State ex rel. Daily Servs., L.L.C. v. Buehrer, 2015-Ohio-4956.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Daily Services, LLC, : 

 

 Relator, : 

v. : No. 14AP-405 

Stephen Buehrer, Administrator, : (REGULAR CALENDAR) 

Ohio Bureau of Workers' Compensation, 

 : 

 Respondent. 

 : 

 

D E C I S I O N 

Rendered on December 1, 2015 

 

Law Office of W. Evan Price II, LLC, and W. Evan Price, II,

for relator. 

Porter, Wright, Morris & Arthur LLP, James A. King and 

David S. Bloomfield, Jr., for respondent. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

BROWN, P.J. 

{¶ 1} Relator, Daily Services, LLC ("Daily Services"), has filed an original action 

requesting that this court issue a writ of mandamus ordering respondent, the 

Administrator of the Ohio Bureau of Workers' Compensation ("respondent"), to vacate a 

March 2013 hearing order of the Adjudicating Committee ("adjudicating committee") of 

the Ohio Bureau of Workers' Compensation ("BWC"), as well as a November 2013 hearing 

order of the BWC's Administrator's Designee ("administrator's designee"), determining 

that Daily Services wholly succeeded I-Force, LLC ("I-Force"). 
No. 14AP-405 2 

{¶ 2} This court referred the matter to a magistrate 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 that this court 

issue a writ of mandamus ordering respondent to vacate the March 2013 hearing order of 

the adjudicating committee and the November 2013 hearing order of the administrator's 

designee. 

{¶ 3} Respondent has filed four objections to the magistrate's decision, arguing 

that the magistrate erred in: (1) applying the continuing jurisdiction doctrine under R.C. 

4123.52 to vacate the orders of the adjudicating committee and the administrator's 

designee; (2) finding that BWC delayed an unreasonable period of time to exercise its 

continuing jurisdiction to adjudicate Daily Services' successor-liability protest; (3) failing 

to find numerous critical facts supporting the merits of BWC's determination that Daily 

Services succeeded I-Force; and (4) failing to conclude, as a matter of law, that Daily 

Services succeeded I-Force. 

{¶ 4} The following background facts and procedural history are taken from the 

magistrate's findings of fact as well as from the record of proceedings. Ryan Mason was 

the owner of I-Force, a company that provided temporary staffing services to other 

businesses. I-Force opened a workers' compensation policy with BWC, effective 

December 19, 2005. Due to a poor claims history, I-Force lost its group rating status on 

June 30, 2008, and the company closed its business operations on March 23, 2009. Prior 

to the closing, the I-Force headquarters was located in a building adjacent to the offices of 

Daily Services, a company also owned by Mason and located on Morse Road, Columbus, 

Ohio. 

{¶ 5} Daily Services is in the business of providing temporary staffing services to 

its clients and has maintained a workers' compensation policy with BWC since April 3, 

2006. In April and May 2009, BWC conducted an audit of Daily Services. The BWC 

issued a subpoena to Daily Services on April 29, 2009, seeking payroll records and client 

lists, and investigators from the BWC's Special Investigations Unit subsequently 

conducted interviews of former I-Force employees. 

{¶ 6} In May 2009, BWC made a determination that Daily Services was the 

successor to I-Force and was responsible for I-Force's unpaid premiums. In June 2009, 
No. 14AP-405 3 

BWC filed a certificate of judgment against I-Force for more than $3.8 million.1 In a letter 

dated June 15, 2009, Daily Services protested BWC's determination that it was a 

successor-in-interest to I-Force within the meaning of Ohio Adm.Code 4123-17-02(C). 

The BWC's adjudicating committee subsequently held a hearing on the matter. On 

September 1, 2009, BWC filed a suit in common pleas case No. 09CVH09-13229, seeking 

to hold Daily Services liable as a successor-in-interest.2 

{¶ 7} On October 15, 2009, the adjudicating committee issued an order, holding 

in part: "Based on the testimony at the hearing and the materials submitted with the 

protest, the Adjudication Committee affirms the experience combination." Daily Services 

did not appeal the adjudicating committee's 2009 order. 

{¶ 8} On November 6, 2009, the BWC filed a certificate of judgment against Daily 

Services in common pleas case No. 09JG-11-46435. Daily Services subsequently filed a 

motion to vacate the certificate of judgment. 

{¶ 9} On July 13, 2010, BWC filed a certificate of judgment against Daily Services 

for over $3.1 million in common pleas case No. 10JG-06-26568. On August 18, 2010, 

Daily Services filed a motion to vacate the certificate of judgment pursuant to Civ.R. 

60(B). The trial court subsequently granted the motion to vacate on the basis that the 

BWC failed to properly serve Daily Services with an assessment. 

{¶ 10} On September 21, 2010, BWC served Daily Services with an assessment in 

the amount of $3,170,366.53. Daily Services filed a petition objecting to the assessment, 

and the adjudicating committee conducted a hearing on January 13, 2011. 

{¶ 11} On February 8, 2011, the trial court, in common pleas case No. 09JG-11-

46435, granted Daily Services' request for Civ.R. 60(B) relief from the certificate of 

judgment filed by BWC on November 6, 2009. In its decision (hereinafter "the Judge 

Bessey decision"), the trial court found in part that the BWC "mistakenly claims that the 

hearing before the Adjudicating Committee of the BWC resulted in a finding that [Daily 

Services] was a successor to I-Force." Rather, the trial court determined, the 2009 order 

of the adjudicating committee "makes no reference to the issue of whether [Daily 

 

1 In October 2009, BWC filed a release and satisfaction, discharging its judgment against I-Force. 

2 On March 31, 2010, the trial court entered a preliminary injunction in common pleas case No. 09CVH09-

13229, under which Mason agreed to make monthly payments toward past due premiums. On August 26, 

2010, the parties entered into an agreement to stay the action. On March 21, 2011, BWC voluntarily 

dismissed the action without prejudice pursuant to Civ.R. 41(A). 
No. 14AP-405 4 

Services] was a successor to I-Force and thus liable for I-Force's deficiencies." The trial 

court further held "there is no basis for the BWC to claim that it administratively decided 

the issue in its favor, when the issue was and still is pending before the Court in [case No.] 

09CVH09-13229." 

{¶ 12} By order mailed February 9, 2011, the adjudicating committee upheld the 

BWC's September 21, 2010 assessment, finding that the adjudicating committee's 

October 15, 2009 order affirming the experience combination operated to transfer IForce's debt and liabilities to Daily Services. Daily Services appealed the decision of the 

adjudicating committee, and the administrator's designee conducted a hearing on 

April 19, 2011. By order mailed June 14, 2011, the administrator's designee upheld the 

order of the adjudicating committee, finding in part that "the issue of liability under [Ohio 

Adm.Code] 4123-17-03(C) was addressed by the Adjudicating Committee in its order 

dated October 15, 2009 when it applied OAC 4123-17-03(B) and determined that the 

employer was a successor employer under the rule." 

{¶ 13} On February 18, 2011, the BWC filed a judgment against Daily Services in the 

amount of $3,170,366.53. On March 9, 2011, Daily Services filed a motion to vacate 

pursuant to Civ.R. 60(B). On November 21, 2011, the trial court rendered a decision in 

common pleas case No. 11JG-02-7617 (hereinafter "the Judge Reece decision"), granting 

the motion to vacate. In its decision, the trial court noted in part that "[t]he issue of 

whether a successor-in-interest finding was made on October 15, 2009, was argued before 

Judge Bessey [who] found that such a determination had not been made in the 

October 15, 2009 order." The court therefore granted the motion to vacate on the basis 

that Daily Services had presented a meritorious defense by way of the BWC's "failure to 

follow the requirements" of R.C. 4123.37 and 4123.291 in filing a praecipe for judgment 

"prior to said judgment having become final." This court, by decision rendered 

September 18, 2012, affirmed the trial court's determination that Daily Services had a 

meritorious defense. See Ohio Bur. of Workers' Comp. v. Daily Servs., LLC, 10th Dist. 

No. 11AP-1122, 2012-Ohio-4242. 

{¶ 14} On December 21, 2011, Daily Services filed a complaint for unjust 

enrichment and declaratory judgment against BWC in common pleas case No. 11CV015913. On January 19, 2012, BWC filed an answer and counterclaim. In the 

counterclaim, BWC alleged causes of action for fraudulent transfers, statutory successor 
No. 14AP-405 5 

liability, common law successor liability, and successor liability as contemplated under 

Ohio Adm.Code 4123-17-02. The trial court subsequently granted summary judgment in 

favor of BWC and dismissed Daily Services' unjust enrichment claim. The court also 

dismissed BWC's counterclaims for successor liability, holding in part that "the 

Adjudicating Committee is the proper forum for adjudicating the issue of [Daily Services'] 

successor liability." Daily Services appealed the trial court's decision. In Daily Servs., 

LLC v. Ohio Bur. of Workers' Comp., 10th Dist. No. 13AP-509, 2013-Ohio-5716, this court 

affirmed the judgment of the trial court, finding that the BWC was entitled to judgment as 

a matter of law on Daily Services' claim for unjust enrichment. 

{¶ 15} By letter dated January 15, 2013, the secretary of the adjudicating committee 

informed counsel for Daily Services that the adjudicating committee would schedule a 

hearing as a result of decisions rendered by "the Franklin County Court of Common Pleas 

in Case No. 11JG-02-7617 and in Case No. 09JG-46435" in which those courts "concluded 

that the Adjudicating Committee's October 15, 2009 Order never resolved whether Daily 

Services is the successor to I-Force within the meaning of O.A.C. 4123-17-02(C). That 

issue, in the view of the BWC, remains pending." 

{¶ 16} On January 29, 2013, Daily Services filed a complaint for a writ of 

prohibition with the Supreme Court of Ohio, asserting that the adjudicating committee 

lacked jurisdiction to schedule and conduct a hearing on the issue of successor liability. 

On February 13, 2013, respondent filed a motion to dismiss the complaint. On March 15, 

2013, the Supreme Court dismissed Daily Services' prohibition action pursuant to Civ.R. 

12(B)(6). 

{¶ 17} On March 20, 2013, the adjudicating committee conducted a hearing "to 

provide the employer the opportunity to fully administratively adjudicate the Bureau's 

determination on successor liability under O.A.C. 4123-17-02(C)." Following that 

hearing, the adjudicating committee issued an order (hereinafter "the March 2013 hearing 

order") denying the protest filed by Daily Services. In its order, the adjudicating 

committee determined it had jurisdiction over Daily Services' protest because "[t]he 

question of successor liability remains unresolved." With respect to the merits of the case, 

the adjudicating committee concluded that "Daily Services is a successor-in-interest to IForce for workers' compensation purposes under Ohio Adm.Code 4123-17-02(C) and 

thus, liable for I-Force's obligations." 
No. 14AP-405 6 

{¶ 18} Daily Services filed an appeal of that order to the administrator's designee 

pursuant to R.C. 4123.291. Following a November 14, 2013 hearing, the administrator's 

designee issued an order (hereinafter "the November 2013 hearing order") affirming the 

adjudicating committee's March 2013 hearing order. 

{¶ 19} On May 19, 2014, Daily Services filed its complaint in mandamus with this 

court, asserting that respondent exceeded its jurisdiction in holding the March 20, 2013 

hearing. In the magistrate's decision, the magistrate framed the issue presented as 

whether the BWC had continuing jurisdiction under R.C. 4123.52 "to adjudicate that 

portion of relator's June 2009 protest regarding the [BWC's] transfer of I-Force's 

premium obligations under Ohio Adm.Code 4123-17-02(C) long after the [BWC], through 

its adjudicating committee of October 15, 2009 had issued a final order adjudicating the 

protest."3 The magistrate concluded that the BWC "lacked R.C. 4123.52 continuing 

jurisdiction to convene an adjudicating committee to revisit the October 15, 2009 final 

order of the adjudicating committee." 

{¶ 20} Respondent's first and second objections are interrelated, and we will 

consider them jointly. Under the first objection, respondent asserts the magistrate erred 

in applying the continuing jurisdiction doctrine of R.C. 4123.52 to vacate both the 

adjudicating committee's March 2013 hearing order as well as the November 2013 

hearing order of the administrator's designee. Respondent argues that the magistrate sua 

sponte raised a continuing jurisdiction issue that Daily Services did not allege in its 

complaint, and then based the recommendation for issuance of a writ of mandamus on an 

issue not applicable. Under the second objection, respondent argues the magistrate erred 

in finding that the BWC unreasonably delayed its exercise of jurisdiction to adjudicate the 

successor-liability protest. 

{¶ 21} Respondent advances several arguments challenging the magistrate's 

application of R.C. 4123.52 to the instant proceedings. Respondent argues that R.C. 

4123.52, the statute establishing the continuing jurisdiction of the Industrial Commission 

of Ohio ("Industrial Commission"), contains no language addressing the adjudicating 

committee. Further, citing the absence of any cases applying R.C. 4123.52 in the context 

 

3 In analyzing this issue, the magistrate noted the prerequisites for the Industrial Commission of Ohio's 

exercise of continuing jurisdiction under R.C. 4123.52, as set forth in State ex rel. Gobich v. Indus. Comm., 

103 Ohio St.3d 585, 2004-Ohio-5900, ¶ 14 ("(1) new and changed circumstances, (2) fraud, (3) clear mistake 

of fact, (4) clear mistake of law, or (5) error by an inferior tribunal"). 
No. 14AP-405 7 

of proceedings by the adjudicating committee, respondent contends the magistrate erred 

by seeking to import the limitations under R.C. 4123.52 into a proceeding governed by 

R.C. 4123.291. In the alternative, respondent argues that, even assuming the applicability 

of R.C. 4123.52, the continuing jurisdiction doctrine does not apply because the 

adjudicating committee did not modify or change a former finding or order; rather, 

respondent maintains, the adjudicating committee adjudicated the successor-liability 

issue for the first time when it issued its order following the March 20, 2013 hearing. 

{¶ 22} In response, Daily Services argues that respondent misconstrues the import 

of the magistrate's ruling. Specifically, Daily Services argues that the magistrate did not 

apply the continuing jurisdiction doctrine to vacate BWC orders; instead, it maintains, 

after the magistrate concluded that jurisdiction was otherwise lacking, the magistrate held 

that the continuing jurisdiction doctrine did not operate to confer jurisdiction on the 

BWC. According to Daily Services, the issue is not whether the continuing jurisdiction 

doctrine of R.C. 4123.52 is applicable but, rather, whether there was another source of 

jurisdiction authorizing the BWC to hold the 2013 hearings with respect to the 2009 

protest action. 

{¶ 23} We begin with the general proposition that, "[l]ike all statutorily created 

agencies, BWC can exercise only those powers conferred upon it by the General 

Assembly." State ex rel. V&A Risk Servs. v. Ohio Bur. of Workers' Comp., 10th Dist. No. 

11AP-742, 2012-Ohio-3583, ¶ 30. As such, "[i]t must conform its operations to the 

procedures set out in the statutes or rules adopted pursuant to statutory authority." Id. 

{¶ 24} R.C. 4123.52(A) states that "[t]he jurisdiction of the industrial commission 

and the authority of the administrator of workers' compensation over each case is 

continuing, and the commission may make such modification or change with respect to 

former findings or orders with respect thereto, as, in its opinion is justified." (Emphasis 

added.) As noted by one commentator, "[e]ven though R.C. § 4123.52 confers continuing 

jurisdiction on the Commission and the Administrator, the Commission's jurisdiction 

differs from that of the Administrator." Fulton, Ohio Workers' Compensation Law, 

Section 5.5, at 165 (4th Ed.2011). 

{¶ 25} The issue of whether the adjudicating committee was authorized to conduct 

the 2013 hearing in the instant case does not, in our view, implicate the industrial 

commission's statutory authorization under R.C. 4123.52 to modify or change former 
No. 14AP-405 8 

findings or orders. Rather, it involves a consideration of the provisions of R.C. 4123.291, 

which "authorizes the Administrator to appoint an 'adjudicating committee' to consider 

[certain] risk premium matters." Fulton at 640, Section 14.10.4 Specifically, R.C. 

4123.291(A) authorizes "[a]n adjudicating committee appointed by the administrator of 

workers' compensation to hear any matter specified in divisions (B)(1) to (7) of this 

section." Under this provision, "[a]n employer desiring to file a * * * protest, or petition 

regarding any matter specified in divisions (B)(1) to (7) of this section shall file the * * * 

protest * * * to the adjudicating committee on or before twenty-four months after the 

administrator sends notice of the determination." R.C. 4123.291(A). Included among the 

matters specified under divisions (B)(1) to (7) are "[a]n employer protest relating to an 

audit finding * * *, experience rating, or transfer or combination of risk experience," (R.C. 

4123.291(B)(5)), and "[a]ny decision relating to any other risk premium matter under 

Chapters 4121., 4123., and 4131. of the Revised Code." (R.C. 4123.291(B)(6)). 

{¶ 26} The adjudicating committee "may issue decisions without formal hearing, 

but it must afford an employer a formal hearing if the employer so requests." Fulton at 

670, Section 14.24. The decision of the adjudicating committee "shall be the decision of 

the administrator." Ohio Adm.Code 4123-14-06(E). The employer may file a written 

appeal of the decision of the adjudicating committee, and "the administrator or the 

administrator's designee shall hear the appeal of the decision and shall conduct a hearing 

for such purpose." Ohio Adm.Code 4123-14-06(E). See also R.C. 4123.291(B) ("An 

employer who is adversely affected by a decision of an adjudicating committee appointed 

by the administrator may appeal the decision of the committee to the administrator or the 

administrator's designee," and the "administrator or the designee shall hold a hearing."). 

{¶ 27} During the March 20, 2013 hearing before the adjudicating committee, 

counsel for Daily Services argued that the adjudicating committee lacked jurisdiction "to 

hold another hearing, a second hearing, on the June 2009 protest," in order to address 

the issue of successor liability. In the March 2013 hearing order, the adjudicating 

committee rejected this contention, holding in relevant part: 

 

4 Ohio Adm.Code 4123-14-06(B) provides that "[t]he adjudicating committee shall consist of three members 

appointed by the administrator." Pursuant to Ohio Adm.Code 4123-14-06(C), the three-member 

adjudicating committee "shall hold meetings and hearings to determine matters referred to it by the 

administrator." 
No. 14AP-405 9 

Daily Services asserted in its hearing brief that this 

Adjudicating Committee does not have jurisdiction to hold 

another hearing. This assertion is moot in light of the 

Supreme Court's denial of Daily Service's prohibition action 

and the dismissal of the Bureau's counterclaim in case no. 11-

CV-015913. The question of successor liability remains 

unresolved, therefore, the Adjudicating Committee retains 

jurisdiction over Daily Service's original protest of the 

Bureau's successor determination that was submitted by 

Daily Services on June 15, 2009. Two separate court 

decisions found the order from the Adjudicating Committee 

held October 15, 2009, which was in response to the June 15, 

2009 protest, failed to determine whether Daily Services is 

the successor to I-Force. On May 15, 2013, in case no. 11-CV015913, the court found "the Adjudicating Committee is the 

proper forum for adjudicating the issue of Plaintiff's 

successor liability." 

Daily Services' protest has not been fully adjudicated. Courts 

that have interpreted the order from the Adjudicating 

Committee held October 15, 2009 have found the 

Adjudicating Committee did not address Daily Services' 

protest challenging the Bureau's determination that Daily 

Services is a successor to I-Force. As a matter of law, the 

issue remains pending at the Adjudicating Committee 

processing level. 

 

{¶ 28} During the November 14, 2013 hearing before the administrator's designee, 

Daily Services again argued that the adjudicating committee lacked jurisdiction to 

consider the issue of its liability as a successor to I-Force. The administrator's designee 

disagreed, adopting the analysis of the adjudicating committee and holding in part: "Prior 

to March 20, 2013, the Adjudicating Committee had not issued a final administrative 

order addressing the issue of Daily Services' liability under [Ohio Adm.Code] 4123-17-

02(C) as successor-in-interest to I-Force; therefore, the Committee had retained, and 

properly exercised, jurisdiction to do so." 

{¶ 29} In its order rejecting Daily Services' jurisdictional challenge, the 

adjudicating committee relied in part on State ex. rel. Bur. of Workers' Comp. v. C.W. 

Fletcher, Inc., 4th Dist. No. 96CA32 (Mar. 13, 1997). Under the facts of that case, BWC 

conducted an audit of C.W. Fletcher, Inc. ("Fletcher"), and ascertained that Fletcher owed 

unpaid workers' compensation premiums. The BWC assessed Fletcher the amount due, 

and Fletcher filed a petition with BWC's adjudicating committee objecting to the 
No. 14AP-405 10 

assessment. The adjudicating committee, however, never resolved Fletcher's petition. 

The BWC subsequently obtained a judgment lien against Fletcher, and later garnished 

Fletcher's bank account. Fletcher then filed an action with the trial court, seeking to have 

the court either void the judgment lien or grant Civ.R. 60(B) relief; the trial court 

ultimately granted Fletcher Civ.R. 60(B) relief. 

{¶ 30} On appeal, the court in C.W. Fletcher held that the trial court did not abuse 

its discretion in granting Fletcher relief under Civ.R. 60(B). In considering the issue of 

whether Fletcher had a meritorious defense, the court found that BWC was not entitled to 

a judgment for an unpaid assessment as it failed to comply with the requirements of R.C. 

4123.37. More specifically, the court noted that "a petition objecting to the assessment 

was filed but no finding was made resolving the petition," and therefore "the BWC was not 

authorized to file a certified copy of the assessment with the clerk of courts." C.W. 

Fletcher. Rather, the court held, the BWC's "failure to resolve the petition has left the 

matter pending, thus precluding a judgment." Id. In so holding, the court characterized 

the judgment filed by the BWC as "analogous to an order which neither adjudicates all 

claims or parties nor has Civ.R. 54(B) 'no just reason for delay' language; the BWC partly 

adjudicated the matter by making an assessment against Fletcher, but did not resolve the 

petition." Id. 

{¶ 31} As noted under the facts, in the instant case, two prior decisions by the 

Franklin County Court of Common Pleas found that the adjudicating committee's 

October 15, 2009 order did not adjudicate the issue of successor liability. Specifically, in 

Judge Bessey's decision, the trial court found that the 2009 order of the adjudicating 

committee "makes no reference to the issue of whether [Daily Services] was a successor to 

I-Force and thus liable for I-Force's deficiencies," and that there was "no basis for the 

BWC to claim that it administratively decided the issue in its favor." The subsequent 

Judge Reese decision noted that the Judge Bessey decision had addressed the "issue of 

whether a successor-in-interest finding was made on October 15, 2009," and "Judge 

Bessey found that such a determination had not been made in the October 15, 2009 

order." Further, in a May 2013 decision rendered by the Franklin County Court of 

Common Pleas, addressing Daily Services' unjust enrichment claim and BWC's 

counterclaims for successor liability, the trial court observed that "the Adjudicating 
No. 14AP-405 11 

Committee is the proper forum for adjudicating the issue of [Daily Services'] successor 

liability." 

{¶ 32} As outlined above, R.C. 4123.291(B)(5) and (6) set forth the administrative 

procedures with respect to an employer's protest of certain risk premium matters, and the 

statute authorizes the administrator to appoint an adjudicating committee to consider 

and decide an employer's protest regarding "an audit finding" or a determination of an 

"experience rating, or transfer or combination of risk experience," as well as "[a]ny 

decision relating to any other risk premium matter." In the instant case, Daily Services 

invoked the jurisdiction of the administrator and the adjudicating committee by filing a 

protest of the BWC's determination that Daily Services was the successor to I-Force and 

responsible for its premiums. Following the March 2009 hearing, the adjudicating 

committee issued a decision in which it "affirm[ed] the experience combination." The 

BWC subsequently sought to recover unpaid premiums from Daily Services based upon 

the agency's interpretation of the March 2009 hearing order as having adjudicated the 

issue of successor liability. However, as determined by two subsequent decisions of the 

Franklin County Court of Common Pleas, the adjudicating committee's March 2009 

hearing order failed to administratively decide the issue of successor liability at issue in 

the protest. 

{¶ 33} As observed by the court in C.W. Fletcher, "[a]djudicative functions by 

administrative agencies allow matters to be resolved by experts in that area and often 

provide for a less formal hearing atmosphere," but such "lesser level of formality does not 

relieve the administrative agency from entering a final order on matters presented to it." 

In the instant case, the adjudicating committee's failure to determine the issue of 

successor liability prior to the March 2013 hearing "left the matter pending." Id. Thus, at 

the time of that hearing, the adjudicating committee had yet to issue an order that finally 

and fully adjudicated the rights, duties, and obligations of the parties with respect to the 

protest. Under these circumstances, we conclude that the adjudicating committee, having 

obtained jurisdiction of the matter following the filing of the 2009 protest, and in the 

absence of statutory or administrative regulations to the contrary, retained and properly 

exercised jurisdiction to hold the March 2013 hearing to adjudicate the issue of successor 

liability and to issue an order that fully determined the protest. Accordingly, we decline to 

adopt the magistrate's recommendation that the agency was without jurisdiction to 
No. 14AP-405 12 

conduct the 2013 hearing to adjudicate that portion of the protest by Daily Services 

regarding the BWC's transfer of I-Force's premium obligations. 

{¶ 34} Under the second objection, respondent contends the magistrate erred in 

finding that BWC unreasonably delayed its exercise of continuing jurisdiction. 

Specifically, respondent points to the following language in the magistrate's decision: 

"Certainly, as of the date that Judge Bessey issued his judgment on February 8, 2011 * * * 

the bureau should have been aware that its interpretation of the October 15, 2009 order of 

the adjudicating committee was not the correct interpretation. Accordingly, it appears 

that the bureau delayed an unreasonable period of time to exercise its continuing 

jurisdiction." (Magistrate's Decision at ¶ 89.) 

{¶ 35} Respondent challenges the magistrate's reliance on February 8, 2011 (the 

date that Judge Bessey issued his judgment) as the starting point for the period used to 

assess any delay by BWC in setting the March 2013 hearing of the adjudicating 

committee. Respondent maintains there were compelling procedural reasons the hearing 

took place on March 20, 2013, including related litigation between the parties, a standstill 

agreement executed by both sides, and a request by Daily Services to delay the hearing. 

{¶ 36} In general, under Ohio law, "[i]t is the duty of an administrative agency to 

hear matters pending before it without unreasonable delay and with due regard to the 

rights and interests of the litigants." Immke Circle Leasing, Inc. v. Ohio Bur. of Motor 

Vehicles, 10th Dist. No. 05AP-1179, 2006-Ohio-4227, ¶ 13. This court has previously 

observed that, "[i]n some instances, courts have held long delays to be unlawful when the 

delay is completely unexplained." Gourmet Beverage Ctr., Inc. v. Ohio Liquor Control 

Comm., 10th Dist. No. 01AP-1217, 2002-Ohio-3338, ¶ 25. See also Mowery v. Ohio State 

Bd. of Pharmacy, 11th Dist. No. 96-G-2005 (Sept. 30, 1997) (noting that courts "have held 

that an unexplained and unreasonable delay deprives the affected part of the due process 

to which he is entitled"). Litigation between parties can be a factor in considering 

allegations of unreasonable agency delay. Gourmet Beverage at ¶ 26 (delay of seven years 

between decision and hearing on administrative appeal because of protracted litigation 

between parties did not constitute due process violation). 

{¶ 37} As evidenced by the background facts, the instant case has a somewhat 

lengthy procedural history. While BWC took the position, following the March 2009 

hearing order, that the adjudicating committee's finding as to the experience combination 
No. 14AP-405 13 

also resolved the issue of successor liability (a view similarly expressed by the 

administrator's designee in the order following the April 19, 2011 hearing), two 

subsequent decisions by the court of common pleas found that the issue of successor 

liability had not been adjudicated. During this time, as noted by respondent, the parties 

were involved in pending litigation, including (1) an action for unjust enrichment, filed by 

Daily Services on December 21, 2011, in which BWC filed a counterclaim on the issue of 

successor liability, and (2) BWC's appeal of the Judge Reece decision, which resulted in a 

decision rendered by this court on September 18, 2012. The record also reflects that the 

parties, on October 17, 2012, executed a standstill agreement which remained in effect 

until January 2013. Further, after the secretary of the adjudicating committee provided 

notice of a hearing date to determine the issue of successor liability, Daily Services filed a 

prohibition action in the Supreme Court, which the Supreme Court dismissed on 

March 15, 2013. Finally, the record supports respondent's contention that the agency, 

having originally scheduled a hearing date for March 5, 2013, rescheduled the hearing for 

March 20, 2013, at the request of counsel for Daily Services. 

{¶ 38} Upon review of the procedural history of this case, we find that the delay is 

not "completely unexplained," nor does the record suggest that administrative delay 

hindered the ability of Daily Services to present its evidence before the adjudicating 

committee and the administrator's designee as to the issue of successor liability during 

the 2013 hearing proceedings. Gourmet Beverage at ¶ 25. We therefore decline to hold 

that BWC's failure to schedule the hearing prior to March 20, 2013 constituted 

unreasonable delay. Having determined that the adjudicating committee was not without 

jurisdiction to conduct the March 2013 hearing, and further finding no unreasonable 

delay in the proceedings, we sustain respondent's first and second objections. 

{¶ 39} Respondent's third and fourth objections contend the magistrate erred in 

failing to confirm Daily Services' successor liability for I-Force's premium obligations, as 

determined by the adjudicating committee and subsequently affirmed by the 

administrator's designee. The magistrate, however, having concluded that the 

adjudicating committee lacked continuing jurisdiction to conduct the March 2013 

hearing, never reached the merits of the successor liability issue. In light of this court's 

disposition of the first and second objections, we remand this matter to the magistrate to 

address, in the first instance, the merits of the successor liability determination by the 
No. 14AP-405 14 

adjudication committee (as affirmed by the administrator's designee). Because the 

magistrate has not yet addressed the merits of this action, respondent's third and fourth 

objections are rendered moot. 

{¶ 40} Based upon the foregoing, we adopt the magistrate's findings of fact, but not 

the conclusions of law, and we decline to adopt the magistrate's recommendation that this 

court issue a writ of mandamus. Respondent's first and second objections are sustained, 

the third and fourth objections are rendered moot, and this matter is remanded to the 

magistrate for further proceedings in accordance with law, consistent with this decision. 

Objections sustained in part and rendered moot in part; 

action remanded with instructions. 

SADLER and LUPER SCHUSTER, JJ., concur. 

_____________________ 
No. 14AP-405 15 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Daily Services, LLC, : 

 

 Relator, : 

v. : No. 14AP-405 

Stephen Buehrer, Administrator, : (REGULAR CALENDAR) 

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 April 27, 2015

 

Law Office of W. Evan Price II, LLC, and W. Evan Price, II,

for relator. 

Porter, Wright, Morris & Arthur LLP, James A. King and 

David S. Bloomfield, Jr., for respondent. 

 

IN MANDAMUS 

{¶ 41} In this original action, relator, Daily Services, LLC ("Daily Services" or 

"relator"), requests a writ of mandamus ordering respondent, the Administrator of the 

Ohio Bureau of Workers' Compensation ("administrator" or "bureau") to vacate the 

March 20, 2013 order of the adjudicating committee and the November 14, 2013 order of 

the administrator's designee that revisited the adjudication of relator's June 15, 2009 

protest of the bureau's finding that it is the successor employer to I-Force LLC ("I-Force"). 

Relator claims that the bureau lacked jurisdiction to convene its March 20, 2013 
No. 14AP-405 16 

adjudicating committee. In the alternative, relator requests that the writ order 

respondent to vacate the November 14, 2013 order of its administrator's designee that 

determined that Daily Services wholly succeeded I-Force, and that pursuant to former 

Ohio Adm.Code 4123-17-02(C)(1), Daily Services is liable for the unpaid premiums and 

obligations of I-Force. Relator requests that, in the alternative, the writ order respondent 

to enter an order finding that Daily Services did not wholly succeed I-Force and is thus 

not liable for the unpaid premiums and obligations of I-Force. 

Findings of Fact: 

{¶ 42} 1. I-Force was in the business of providing temporary staffing services to its 

customer employers. Up to the time it closed its business on or about March 23, 2009, IForce was owned by Ryan Mason. I-Force opened a workers' compensation policy with 

the bureau effective December 19, 2005. 

{¶ 43} 2. Also owned by Mason, Daily Services has had a workers' compensation 

policy with the bureau since April 3, 2006. Daily Services is also in the business of 

providing temporary staffing services to its customer employers. 

{¶ 44} 3. Due to a poor claims history, I-Force lost its group rating status on 

June 30, 2008. 

{¶ 45} 4. For the payroll reporting period for the second half of 2008, premiums 

were due by February 28, 2009. I-Force filed a payroll report, but did not make the 

payroll payment for the second half of 2008. 

{¶ 46} 5. Prior to its closing, the I-Force headquarters was located in a building 

adjacent to Daily Services' offices on Morse Road in Columbus, Ohio. 

{¶ 47} 6. In April and May 2009, the bureau conducted an audit of Daily Services. 

{¶ 48} 7. On April 29, 2009, the bureau executed a subpoena. Payroll records and 

client lists were obtained. 

{¶ 49} 8. In May 2009, investigators from the bureau's Special Investigations Unit 

conducted interviews of former I-Force employees. 

{¶ 50} 9. By letter dated May 22, 2009, Michael Glass, the bureau's director of 

underwriting and premium audit department, informed relator: 

We received notification of a business acquisition/merger or 

purchase/sale, and have determined you are the successor 

employer for Ohio workers' compensation purposes. 
No. 14AP-405 17 

As the successor employer for the entire operation, you are 

responsible for all existing and future financial rights and 

obligations of the former employer. BWC will base your 

workers' compensation rate(s) on the former employer's 

experience or the combined experience of all employers 

involved in the transaction if you had established coverage 

prior to acquiring the business. As a result, BWC will recalculate your premium rates, which may result in a rate 

change. 

{¶ 51} 10. On or about May 22, 2009, the bureau mailed to Daily Services an 

invoice indicating that Daily Services owed the bureau $3,486,852.87. The balance was 

due June 19, 2009. 

{¶ 52} 11. By letter dated June 15, 2009, relator's counsel protested the invoice: 

The invoice contains language stating "as the successor to IFORCE LLC, you are responsible for any total balance shown 

on the invoice Invoice/Statement for this policy." Daily 

Services is unaware of any prior determination that it is the 

successor to I-Force LLC and hereby protests to and appeals 

any such determination. Daily submits that the amount 

invoiced is a liability solely of I-Force, not Daily, and 

requests that the matter be referred to the Bureau's 

Adjudicating Committee for resolution. 

{¶ 53} 12. On June 25, 2009, the bureau filed with the clerk of the Franklin County 

Court of Common Pleas ("common pleas court") a certificate of judgment against I-Force 

in the amount of $3,886,816.08. 

{¶ 54} 13. On October 13, 2009, the bureau discharged its judgment lien against IForce. 

{¶ 55} 14. Earlier, on September 1, 2009, the bureau filed in the common pleas 

court a complaint against Mason, Daily Services, and I-Force. The complaint alleged that 

I-Force, through Mason, fraudulently transferred its assets to Daily Services to avoid the 

payment of its liabilities to the bureau. The complaint sought an injunction against 

Mason and the appointment of a receiver. The bureau alleged that, as of the date I-Force 

closed, i.e., March 23, 2009, I-Force had unpaid obligations for workers' compensation 

premiums in the amount of $3,926,605.26. The action was assigned case No. 09-CVH-9-

13229. 

{¶ 56} 15. On March 21, 2011, the bureau voluntarily dismissed its action in case 

No. 09-CVH-9-13229. 
No. 14AP-405 18 

{¶ 57} 16. Earlier, following an October 15, 2009 hearing, the bureau's 

adjudicating committee issued an order stating: 

Background Facts and Issues Presented: During an 

Audit, the BWC transferred experience, rights and 

obligations from predecessor I-FORCE LLC, Policy 

#1484986 to successor DAILY SERVICES LLC, Policy 

#1495057 pursuant to Ohio Administrative Code (O.A.C.) 

4123-17-02(B) and (C). 

* * * 

The Employer protested the transfer/combination and 

requested a hearing before the Adjudicating Committee. 

* * * 

Employer's Position: 

The experience combination was proper. The bureau 

properly applied the rules. The two companies started as 

separate businesses. They had separate contracts and 

customers. However, I-Force was closed and certain 

employees and contracts were transferred to Daily Services, 

LLC. 

Bureau's Position: 

The BWC representative stated the employer's 

representatives stated that employer ran a temporary 

agency. The owner of I-Force is also the owner of Daily 

Services. The businesses are the same. The clients are the 

same. The location of the business is the same. The 

employees of the companies are the same. The employer 

never notified the Bureau of the transfer of the business 

when it applied for the new policy. 

Findings of Fact and Conclusion of Law: 

Based on the testimony at the hearing and the materials 

submitted with the protest, the Adjudicating Committee 

affirms the experience combination. The employer 

representatives indicated at hearing they were in agreement 

with the BWC position. 

* * * 

An appeal of this order may be filed within thirty 

days of its receipt by the employer. 
No. 14AP-405 19 

{¶ 58} 17. The October 15, 2009 order of the adjudicating committee was not 

administratively appealed to the administrator's designee as provided by R.C. 4123.291. 

{¶ 59} 18. On November 6, 2009, the bureau filed with the clerk of the common 

pleas court a certificate of judgment against Daily Services in the amount of 

$54,959,570.71. 

{¶ 60} 19. On August 18, 2010, pursuant to Civ.R. 60(B), Daily Services moved the 

common pleas court to vacate the bureau's November 6, 2009 certificate of judgment. 

(The case was assigned No. 09JG-46435.) 

{¶ 61} 20. On February 8, 2011, the common pleas court, through Judge John 

Bessey granted Daily Services' August 18, 2010 motion to vacate the bureau's 

November 6, 2009 certificate of judgment. In his decision and entry granting relief to 

Daily Services, Judge Bessey explained: 

[T]he Court finds that before Plaintiff BWC filed its suit in 

Case No. 09CVH09-13229, seeking to hold Defendant liable 

for I-Force's debt as a successor-in-interest, Defendant did 

protest the BWC's attempt to combine the experience of 

Defendant with I-Force for the purpose of setting future 

premiums. However, the Court finds that the BWC 

mistakenly claims that the hearing before the Adjudicating 

Committee of the BWC resulted in a finding that Defendant 

was a successor to I-Force. The October 15, 2009 Order of 

the Adjudicating Committee of the BWC specifically states: 

Based on the testimony at the hearing and the 

materials submitted with the protest, the Adjudicating 

Committee affirms the experience combination. The 

employer representatives indicated at the hearing 

they were in agreement with the BWC position. 

[Emphasis added.] 

The Court finds that this Order makes no reference to the 

issue of whether Defendant was a successor to I-Force and 

thus liable for I-Force's deficiencies. 

(Emphasis sic.) 

{¶ 62} 21. The judgment of the common pleas court (Judge Bessey) that vacated 

the November 6, 2009 certificate of judgment was not appealed to this court. 

{¶ 63} 22. Earlier, during September 2010, the bureau issued an "assessment" in 

the amount of $3,170,366.53. Daily Services protested the "assessment." 
No. 14AP-405 20 

{¶ 64} 23. Following a January 13, 2011 hearing, the adjudicating committee 

issued an order upholding the assessment in the amount of $3,170,366.53. As indicated 

in the order, during the hearing Daily Services' counsel objected to the jurisdiction of the 

committee to hear the protest. Daily Services argued that the committee lacked 

jurisdiction over Daily Services' protest because of the civil action then pending in the 

common pleas court in case No. 09-CVH-9-13229. (Judge Bessey's judgment entry was 

filed February 8, 2011 and the committee's order was mailed February 9, 2011.) 

{¶ 65} The adjudicating committee's decision to uphold the assessment was 

premised upon its interpretation of the scope of the October 15, 2009 committee order 

that was not administratively appealed: 

The Bureau's representative stated that the subject debt was 

transferred to Daily Services as the result of an experience 

combine with the experience of I-Force having been 

transferred to Daily Services. The Committee notes that the 

specific issue of the experience combination was specifically 

before the Adjudicating Committee on October 15, 2009. In 

the resulting order, the Adjudicating Committee, in affirming 

the experience combination, specifically stated that "[t]he 

employer representatives indicated at hearing they were in 

agreement with the BWC position." The order from the 

October 15, 2009 hearing, was not appealed. 

{¶ 66} 24. Daily Services administratively appealed the January 13, 2011 order of 

the adjudicating committee to the administrator's designee. 

{¶ 67} 25. On February 18, 2011, while the January 13, 2011 order of the 

adjudicating committee was pending before the administrator's designee, the bureau filed 

with the clerk of the common pleas court a certificate of judgment against Daily Services 

in the amount of $3,170,366.53. 

{¶ 68} 26. Pursuant to Civ.R. 60(B), on March 9, 2011, Daily Services moved the 

common pleas court to vacate the bureau's February 18, 2011 certificate of judgment 

{¶ 69} 27. Following an April 19, 2011 hearing, the administrator's designee 

mailed an order on June 14, 2011 that affirms the January 13, 2011 order of the 

adjudicating committee. 

{¶ 70} 28. On November 21, 2011, the common pleas court, through Judge Guy L. 

Reece, II, granted Daily Services' March 9, 2011 motion to vacate the bureau's 
No. 14AP-405 21 

February 18, 2011 certificate of judgment. In his lengthy decision and entry (18 pages) 

Judge Reece explains: 

The issue of whether a successor-in-interest finding was 

made on October 15, 2009, was argued before Judge Bessey 

in Case No. 09JG-46435 and Judge Bessey found that such a 

determination had not been made in the October 15, 2009 

order. Daily Services and the BWC were both parties to the 

action pending before Judge Bessey and it is undisputed that 

this is a court of competent jurisdiction. Accordingly, the 

Court agrees with Daily Services about the preclusive effect 

of Judge Bessey's February 8, 2011 decision - as to whether a 

successor-in-interest determination was made in the 

October 15, 2009 order - on the February 9, 2011 decision by 

the Adjudicative Committee and on the June 14, 2011 

decision by the Designee. 

{¶ 71} 29. The bureau appealed the November 21, 2011 judgment of Judge Reece 

to this court. On September 18, 2012, this court issued its decision affirming Judge 

Reece's decision granting relief to Daily Services under Civ.R. 60(B). This court held that 

R.C. 4123.37 did not permit the bureau to obtain a judgment lien against Daily Services 

while its administrative appeal to the administrator's designee was pending. State ex rel. 

Ohio Bur. of Workers' Comp. v. Daily Serv., LLC, 10th Dist. No. 11AP-1122, 2012-Ohio4242. 

{¶ 72} 30. By letter dated February 28, 2013, the bureau noticed Daily Services 

that its "experience combine protest" has been rescheduled for a hearing before the 

adjudicating committee on March 20, 2013. The letter informed that "[o]nly issues 

contained in Enclosed Statement of Protest will be heard at the hearing." (Emphasis sic.) 

The enclosure stated: 

In May 2009, the Bureau determined that Daily Services, 

LLC was the successor to I-Force, LLC and responsible for IForce's unpaid premiums. In June 2009, the Bureau issued 

invoices to Daily Services, billing Daily Services for I-Force's 

unpaid premiums. The invoices noted that Daily Services 

was the successor to I-Force, LLC and responsible for IForce's unpaid premiums, stating that "As a successor to IForce, LLC, you are responsible for any total balance shown 

on the Invoice/Statement for this policy." 

In a letter dated June 15, 2009, the employer protested the 

Bureau's determination that the [sic] Daily Services was a 

successor in interest to I-Force within the meaning of O.A.C. 
No. 14AP-405 22 

4123-17-02(C). Specifically, the employer argued that the 

"amount invoiced is a liability solely of I-Force, not Daily 

[Services]...." 

On October 15, 2009, the bureau's Adjudicating Committee 

held a hearing on the employer's protest. The statement of 

facts for that hearing noted that the Bureau would determine 

first, whether I-Force's experience should be transferred to 

Daily Services under O.A.C. 4123-17-02(B), and second, 

whether Daily Services was a successor to I-Force and thus 

was liable for I-Force's obligations under O.A.C. 4123-17-

02(C). 

In a decision dated October 15, 2009, the Adjudicating 

Committee held that I-Force's experience should be 

transferred to Daily Services under O.A.C. 4123-17-02(B). As 

determined by two judges of the Franklin County Court of 

Common Pleas, however, the Adjudicating Committee never 

determined the second issue, i.e., whether Daily Services was 

a successor to I-Force and thus was liable for I-Force's 

obligations under O.A.C. 4123-17-02(C). 

Therefore, a hearing is scheduled with the Adjudicating 

Committee to provide the employer the opportunity to fully 

administratively adjudicate the Bureau's determination on 

successor liability under O.A.C. 4123-17-02(C). 

(Emphasis sic.) 

{¶ 73} 31. Earlier, on January 16, 2013, the bureau issued notice that Daily 

Services' June 2009 protest was scheduled for hearing before the adjudicating committee 

on March 5, 2013. The notice of hearing prompted relator to file an original action in 

prohibition in the Supreme Court of Ohio on January 29, 2013. In its complaint, Daily 

Services requested a writ prohibiting respondent "from exercising any further jurisdiction 

on the 2009 Protest." 

{¶ 74} 32. On March 15, 2013, the Supreme Court of Ohio granted the 

respondents' motion to dismiss the prohibition action. 

{¶ 75} 33. Following a March 20, 2013 hearing, the bureau's three-member 

adjudicating committee issued a lengthy order (23 pages) in which it concluded: 

This Adjudicating Committee DENIES the Employer's 

protest of the transfer/Combination based on the Joint 

Exhibits, evidence outlined in the Statement of Facts, and 

the referenced testimony and evidence. The Committee finds 
No. 14AP-405 23 

Daily Services is a successor-in-interest to I-Force for 

workers' compensation purposes under Ohio Adm.Code 

4123-17-02(C) and thus, liable for I-Force's obligations. Ryan 

Mason guided I-Force [sic] through a "seamless" takeover of 

I-Force's occupation or industry in such a way that Daily 

Services wholly succeeded I-Force for workers' 

compensation purposes. The maneuvering that moved 

business operations from one legal entity to another 

discussed above amounts to a voluntary transfer of business 

operations. 

{¶ 76} 34. The order of the adjudicating committee was mailed in July 2013. 

{¶ 77} 35. During the period between the hearing date of the adjudicating 

committee and the mailing of its order, the common pleas court, through Judge Kim 

Brown, issued a decision in a civil action that had been filed by Daily Services against the 

bureau in December 2011. That civil action was assigned case No. 11CV-15913. In that 

action, the bureau had filed a counterclaim against Daily Services. On May 15, 2013, 

Judge Brown issued a decision and entry that, among other things, dismissed the bureau's 

counterclaim. 

{¶ 78} 36. Relator administratively appealed the March 20, 2013 order of the 

adjudicating committee to the administrator's designee pursuant to R.C. 4123.291. 

{¶ 79} Following a November 14, 2013 hearing, the administrators' designee issued 

an order affirming the March 20, 2013 order of the adjudicating committee. The order of 

the administrator's designee explains: 

Pursuant to Ohio Revised Code Section 4123.291, this matter 

came on for hearing before the Administrator's Designee on 

the employer's appeal of the Adjudicating Committee order 

dated March 20, 2013. At issue before the Administrator's 

Designee was the Bureau's determination that Daily Services, 

LLC ("Daily Services") was the successor to I-Force, LLC ("IForce") and responsible for I-Force's unpaid premiums. 

In a decision dated October 15, 2009, the Adjudicating 

Committee held that I-Force's experience should be 

transferred to Daily Services under OAC 4123-17-02(B). As 

determined by two judges of the Franklin County Court of 

Common Pleas, however, the Adjudicating Committee never 

determined the second issue, i.e., whether Daily Services was 

a successor to I-Force and thus was liable for I-Force's 

obligations under OAC 4123-17-02(C). 
No. 14AP-405 24 

Therefore, the Administrator's Designee hearing was 

scheduled to provide the employer the opportunity to fully 

administratively adjudicate the Bureau's determination on 

successor liability under OAC 4123-17-02(C). 

* * * 

The Administrator's Designee adopts the Statement of Facts * 

* * contained in the order of the Adjudicating Committee 

dated March 20, 2013. 

As a preliminary matter, Daily Services argued before the 

Administrator's Designee * * * and in its Hearing Brief 

submitted November 14, 2013, that the Adjudicating 

Committee lacks jurisdiction to consider the issue of Daily 

Services' liabilities as a successor to I-Force under OAC 

4123-17-02(C). The Administrator's Designee rejects Daily 

Services' argument and finds the Adjudicating Committee 

retained jurisdiction to consider the issue of Daily Services' 

successor liability on March 20, 2013, as the issue, having 

been raised by Daily Services' June 15, 2009, protest, 

remained unresolved; the Adjudicating Committee had never 

issued a final administrative order addressing the matter. 

The Administrator's Designee is persuaded by, and hereby 

adopts, the analysis contained in pages 15-16 of the 

March 20, 2013, Adjudicating Committee order, which states 

in part: 

Daily Services asserted in its hearing brief that this 

Adjudicating Committee does not have jurisdiction to hold 

another hearing. This assertion is moot in light of the 

Supreme Court's denial of Daily Services' prohibition action 

and the dismissal of the bureau's counterclaim in case no. 11-

CV-015913. The question of successor liability remains 

unresolved, therefore, the Adjudicating Committee retains 

jurisdiction over Daily Services' original protest of the 

Bureau's successor determination that was submitted by 

Daily Services on June 15, 2009. Two separate court 

decisions found the order from the Adjudicating Committee 

held October 15, 2009, which was in response to the June 15, 

2009 protest, failed to determine whether Daily Services is 

the successor to I-Force. On May 15, 2013, in case no. 11-CV015913, the court found "the Adjudicating Committee is the 

proper forum for adjudicating the issue of Plaintiff's 

successor liability." * * * 

Daily Services' protest has not been fully adjudicated. Courts 

that have interpreted the order from the Adjudicating 
No. 14AP-405 25 

Committee held October 15, 2009 have found the 

Adjudicating Committee did not address Daily Services' 

protest challenging the Bureau's determination that Daily 

Services is a successor to I-Force. As a matter of law, the 

matter remains pending at the Adjudicating Committee 

processing level. See State Bur. of Workers' Comp. v. C.W. 

Fletcher, 4th Dist. No. 96CA32, 1997 Ohio App. LEXIS 923, 

*12 (Mar. 13, 1997) (holding that the BWC's failure to 

administratively decide a petition challenging an assessment 

"left the matter pending"); see also State Bur. of Workers' 

Comp. v. Daily Services, LLC, 10th Dist. No. 11AP-1122, 

2012-Ohio-4242, 1 ¶ 22-23 (recognizing and following the 

Fourth District's Fletcher opinion). 

* * * 

As the court in Fletcher noted, "Adjudicative functions by 

administrative agencies allow matters to be resolved by 

experts in that area and often provide for a less formal 

hearing atmosphere. However, a lesser level of formality 

does not relieve the administrative agency from entering a 

final order on matters presented to it. Orders are necessary 

to bring finality and resolution to matters." Fletcher, 1997 

Ohio App. LEXIS 923, at *9. Prior to March 20, 2013, the 

Adjudicating Committee had not issued a final 

administrative order addressing the issue of Daily Services' 

liability under OAC 4123-17-02(C) as successor-in-interest to 

I-Force; therefore, the Committee had retained, and properly 

exercised, jurisdiction to do so. 

Determination of Successorship 

At issue in this case is whether Daily Services is the successor 

employer of I-Force under the Ohio workers' compensation 

laws, specifically for purposes of determining Daily Services' 

liability for the unpaid premium obligations of I-Force. The 

relevant issues in determining whether there is a 

successorship are whether there was a transfer of the 

operations of the business, in whole or in part, and whether 

the transfer was voluntary. 

R.C. 4123.32 provides the basis for the Bureau to make 

successorship determinations. R.C. 4123.32(C) states: 

The administrator of workers' compensation, with the advice 

and consent of the bureau of workers' compensation board of 

directors, shall adopt rules with respect to the collection, 
No. 14AP-405 26 

maintenance, and disbursements of the state insurance fund 

including all of the following: 

* * * 

(C) Such special rules as the administrator considers 

necessary to safeguard the fund and that are just in the 

circumstances, covering the rates to be applied where one 

employer takes over the occupation or industry of another or 

where an employer first makes application for state 

insurance, and the administrator may require that if any 

employer transfers a business in whole or in part or 

otherwise reorganizes the business, the successor in interest 

shall assume, in proportion to the extent of the transfer, as 

determined by the administrator, the employer's account and 

shall continue the payment of all contributions due under 

this chapter; ... 

(emphasis added.) 

On the authority of R.C. 4123.32(C), BWC adopted Rule 

4123-17-02 to further the purposes embodied in the statute. 

The rule has been in effect in some form since at least 1962. 

During the time period relevant to this case [March 2009], 

Paragraph (B) of the rule provided (and still provides) 

various scenarios to determine whether the Bureau will 

transfer the experience of the predecessor, in whole or in 

part, to the successor to establish an experience modifier rate 

for the successor, based upon the Bureau's determination of 

whether, and the extent to which, the employer succeeded 

another legal entity in the operation of a business. The 

Adjudicating Committee order dated October 15, 2009, 

affirmed that Daily Services wholly succeeded I-Force for 

purposes of experience combination under OAC 4123-17-

02(B), and that order was not appealed. * * * 

Paragraph (C) of the rule as in effect during the time period 

relevant to this case (the version initially effective July 27, 

2006), provided for the transfer of the liabilities of the 

predecessor to the successor employer where the Bureau 

determines that "one employer wholly succeeds another in 

the operation of a business:" 

(C) Succeeding employers -- risk coverage transfer. 

(1) Whenever one employer succeeds another employer in 

the operation of a business in whole or in part, the successor 

shall notify the bureau of the succession. Where one 
No. 14AP-405 27 

employer wholly succeeds another in the operation of a 

business, the bureau shall transfer the predecessor's rights 

and obligations under the workers' compensation law. The 

successor shall be credited with any credits of the 

predecessor, including the advance premium security deposit 

of the predecessor. This paragraph shall apply where an 

employer wholly succeeds another employer in the operation 

of a business on or after September 1, 2006. 

(Emphasis added.) 

In State ex rel. Lake Erie Constr. Co. v. Indus. Comm. 

(1991), 62 Ohio St.3d 81, the Ohio Supreme Court held that 

"a successor in interest, for workers' compensation purposes, 

is simply a transferee of a business in whole or in part." Id. at 

83. The Court noted that "the General Assembly would have 

expressly set forth a more specialized meaning if that was its 

intent." Id. at 83. 

In State ex rel. Valley Roofing, L.L.C. v. Ohio Bur. of 

Workers' Comp., 122 Ohio St.3d 275, 2009-Ohio-2684 the 

Court emphasized the importance of a voluntary transfer of 

the business in the determination of successorship. Citing 

State ex rel. Crosset Co., Inc. v. Conrad (2000), 87 Ohio 

St.3d 467, the Court stated "the specific language of R.C. 

4123.32(D) [now R.C. 4123.32(C)] * * *, i.e., employer 

transfers his business in whole or in part or otherwise 

reorganizes the business, is plain and unambiguous. The 

language of the statute clearly refers to a voluntary act of the 

employer and not the involuntary transfer of the employer's 

business through an intermediary bank." (emphasis added.) 

Daily Services argued before the Administrator's Designee 

and in its Hearing Brief submitted November 14, 2013 that 

the Ohio Supreme Court decision in State ex rel. K&D 

Group, Inc. v. Buehrer, 135 Ohio St.3d 257, 2013-Ohio-734, 

precludes a finding that Daily Services is a successor to IForce because, it alleges, there was no "voluntary transfer" of 

business operations from I-Force to Daily Services. The K&D 

Group, Inc., case dealt with the management of an 

apartment complex upon transfer of ownership of the 

apartment complex. The Court found in that case that the 

new management company was not a successor to the old 

management company; prior to doing so, the Court stated 

the following standards to determine successorship: 

. . . First, K&D Group argues that it was not a party to the 

sale of the apartments and it did not acquire any assets as a 
No. 14AP-405 28 

result of the transaction. But neither R.C. 4123.32(C) nor 

Ohio Adm.Code 4123-17-02(B)(3) requires the transfer of 

assets. The focus of the statute and the rule is the transfer of 

business operations or labor, not the legal concept of 

corporate succession. R.C. 4123.32(C) ("where one employer 

takes over the occupation or industry of another" [emphasis 

added]); Ohio Adm.Code 4123-17-02(B)(3) ("Where a legal 

entity succeeds in the operation of a portion of a business * * 

*" [emphasis added]). A business operation may be 

transferred through methods other than a purchase ... 

K&D Group, Inc., at 14 (emphasis added) 

The Administrator's Designee finds that the Court held K&D 

Group, Inc. was not a successor because of the unique facts 

of that case, facts that are not present in this adjudication. 

In that case, K&D Enterprises, Inc. contracted with FameMidamco Company, L.L.C. (by and through FameMidamco's management company, Mid-America) to 

purchase an apartment complex, and assigned its rights 

under the purchase agreement to newly created company 

Euclid-Richmond Gardens, Ltd. The new company hired 

K&D Group, Inc. to manage the apartments. K&D Group, 

Inc. hired some former employees of Mid-America and 

assumed the day-to-day operations of the complex. Under 

these facts, the Court found there was no voluntary transfer 

of business operations from Mid-America to K&D Group, 

Inc.; rather, the Court held, "K&D Group merely contracted 

with the new owner to assume management of the existing 

apartment complex." K&D Group, Inc., at ¶ 16. In other 

words, the Court held that the new owners of the complex 

had simply hired a new management company. 

The present case is distinguishable. Both I-Force and Daily 

Services are owned by the same individual. Ryan Mason 

* * *, and the testimony and other evidence submitted to the 

Adjudicating Committee support the Committee's conclusion 

that, at Ryan Mason's direction * * *, employees transferred 

the business operation of long-term temporary staffing from 

I-Force to Daily Services, which previously had offered only 

day laborer services * * *. Among the evidence to support 

such conclusion, as set forth in the Adjudicating Committee's 

Statement of Facts and the evidence presented: 

 When I-Force shut down, Daily Services "had 

something like six or seven" permanent employees 

and hired a number of I-Force permanent employees. 
No. 14AP-405 29 

* * * Daily Services made job offers "to virtually 

everyone" and on "the next pay date, or the first that 

came after that, 54 of those folks were then employed 

by Daily Services." Id. They were terminated on 

Friday and most accepted positions at Daily Services. 

* * * I-Force did not have the right to sell or assign its 

permanent staff to anyone..." * * * Some of the 

permanent staff are long-time employees doing the 

same thing some were "previously employed by 

Mancan when I-Force was still part of Mancan..." * * * 

 Daily Services asserted that "I-Force's leases were 

terminated or breached. Daily Services went in and 

signed new leases for the properties, to the extent they 

were able to. Some of the properties were actually 

owned by Ryan Mason personally. They have 

previously been leased by I-Force and were 

subsequently leased by Daily Services." * * * "[T]he 

properties weren't transferred, I-Force shut down, 

had 31 locations and Daily Services was able to lease 

11 of those locations thereafter." * * * Daily Services 

took over the computer leases of I-Force. * * * Daily 

Services made all of their quarterly tax payments to 

the Federal Government. Id. * * * 

 Mr. Mason had his employees contact his I-Force 

clients who were to contact and re-sign them to Daily 

Services. * * * 

 The contracts mirrored those of I-Force with the only 

difference being the name of the company and 

contracting services. * * * 

 The staff employees were moved from one company to 

the other over a weekend and were required to sign 

no-compete clauses and some employees were asked 

to backdate those employee forms to March of 2009. 

* * * 

 Ms. Archer also testified about a ranking system that 

was used to determine which clients Daily Services 

would want to keep from I-Force where the client 

employers were ranked between 1 and 3. * * * 

 During the month of April and early March of 2009, 

BWC's Workers' Compensation Insurance System 

(WCIS) reflects an extreme number of notes for new 
No. 14AP-405 30 

manual codes to be added to the Daily Services' 

account. * * * This indicates "they were preparing to 

move the clients from I-Force to Daily so the manual 

codes would be there so when they had to report the 

payroll under that six months [reporting period], 

there would be three months under one company and 

three months under the other." * * * 

 "Based on the interviews ... the regional supervisors 

were sent out with new contracts and told them to let 

the customers know that it was just a name change, it 

would be no interruption of their services, that they 

were just wanting them to sign the new paperwork 

with the new Talocity name on it." * * * 

 Daily Services asserted before the Adjudicating 

Committee that "roughly one-third of the business 

that formerly belonged to - the payroll that it formerly 

belonged to I-Force wound up being utilized, being 

billed out by Daily Services in the following months." 

* * * However, as counsel for the Bureau pointed out 

during the hearing, on day one of business, Daily 

Services had approximately half of I-Force's business. 

The 30 percent of the customers comprised 50 

percent of I-Force sales for that snapshot period of 

time. * * * 

 On March 23, 2009, Ryan Mason ceased operating IForce's line of business through I-Force, LLC. * * * 

 Daily Services purchased the right to use the name "IForce. * * * Since then, Daily Services has operated 

under the trade name "I-Force" with date of first use 

being listed as 5/01/2010. * * * 

 Daily Services dba I-Force held itself out as a 

continuation of I-Force on its website, which at the 

time of the Adjudicating Committee hearing on 

March 20, 2013 displayed a company history nearly 

identical to that on I-Force's website in February 

2009, prior to I-Force's ceasing operations. * * * 

 Columbus CEO magazine's ranking of temporary 

staffing agencies based on the number of Central Ohio 

hours billed during 2008 (prior to I-Force's ceasing 

operations), 2011, and 2012 all list "I-Force" as the 

second-largest temporary staffing agency in Central 
No. 14AP-405 31 

Ohio, with the same address, website, and telephone 

number for "I-Force" on all three lists. * * * 

Thus, the evidence supports the Adjudicating Committee's 

conclusion that Ryan Mason, as owner of both companies, 

orchestrated the assumption of I-Force's long-term 

temporary staffing business operations by Daily Services, 

targeting the most desirable client employers based on a 

ranking system, to avoid the negative experience rating and 

unpaid premium obligations of I-Force. 

As noted above, the Court in K&D Group, Inc., clearly stated 

that "[a] business operation may be transferred through 

methods other than a purchase," and it is reasonable to find 

these circumstances to constitute such an occasion. For Daily 

Services to assert there was no voluntary transfer of business 

operations in this case is akin to arguing that Mr. Mason's 

right hand did not know what his left hand was doing. 

In addition to K&D Group, Inc., Daily Services cites to two 

Tenth District Court of Appeals cases as support that a 

finding of successorship against Daily Services is not 

appropriate; however, a reading of the cases does not 

support Daily Services' contention. 

In State ex rel. Cleveland Professional Football, L.L.C. v. 

Buehrer, 2012-Ohio-6020, following the bankruptcy of the 

old Arena Football League ("Old League"), the old Cleveland 

AFL team ("Old Gladiators") ceased operations, and a new 

company ("New Gladiators") purchased the rights to the 

Cleveland Gladiators logo from an investor group ("New 

League") that had purchased the assets of the Old League in 

the bankruptcy proceeding. Unlike the Old League, under the 

business model of the New League the players and coaches 

would be employed by the league, not by the individual 

teams, which would be involved solely with the sale of 

tickets, sponsorship, and merchandise for sports 

entertainment. Cleveland Professional Football at ¶ 51-52. 

The BWC Adjudicating Committee and Administrator's 

Designee found that New Gladiators wholly succeeded Old 

Gladiators. The 10th District Court of Appeals, however, 

found otherwise, holding that a partial rather than a 

complete transfer of experience was appropriate, since the 

players and coaches part of Old Gladiators business 

operations did not carry over to New Gladiators: 
No. 14AP-405 32 

{¶ 6} We are unable to discern whether the BWC objects to 

the remaining portion of the magistrate's decision that 

directs the BWC to expressly address how it will apply Old 

Gladiators' experience rating to New Gladiators, given that 

New Gladiators is the transferee of only a portion of Old 

Gladiators' business. We note that if only a portion of Old 

Gladiators' business was transferred to New Gladiators, Old 

Gladiators' experience rating is transferred in proportion to 

the business transferred pursuant to Ohio Adm.Code 4123-

17-02(B)(3). We see no defect in this part of the magistrate's 

analysis. 

{¶ 7} As noted by the magistrate, New Gladiators does not 

employ players or coaches. Therefore, it is not the transferee 

of this portion of Old Gladiators' business. Therefore, we 

agree with the magistrate that the BWC abused its discretion 

by transferring all of Old Gladiators' experience rating to 

New Gladiators. To the extent that the BWC objects to this 

portion of the magistrate's conclusion of law, we overrule the 

objection. 

Cleveland Professional Football at ¶ 6, 7. (emphasis added.) 

In State ex rel. RFFG, L.L.C. v. Ohio Bur. of Workers' Comp., 

2013-Ohio-241, temporary staffing agency Ameritemps, Inc. 

("Ameritemps") was purchased by WTS Acquisition 

Company and subsequently transferred to RFFG. RFFG 

notified BWC of the purchase, and BWC notified RFFG that 

BWC would consider it the successor to Ameritemps for 

workers' compensation purposes. RFFG did not want to 

assume all the risks associated with Ameritemps and argued 

that it had changed significant portions of how and where 

Ameritemps had formerly done business. RFFG at ¶ 4-6. 

However, RFFG ultimately failed to provide sufficient 

documentation to substantiate those assertions, and as a 

result, the Tenth District Court of Appeals upheld BWC's 

determination of successorship. 

In the course of its analysis, the court indicated that a 

reduction in the number of offices or employees, or the 

number of client employers was itself not determinative; 

rather, the key issue was whether the risks were the same for 

RFFG as they were for Ameritemps -- in other words, were 

the business operations of RFFG the same as Ameritemps, 

even if fewer offices/employees were performing them for 

fewer client employers: 
No. 14AP-405 33 

{¶ 9} As to the first objection, the information provided to 

BWC did not really address the key issue of the risks involved 

in the ongoing business. The fact that only 4 of 12 offices 

remained open did not inform the BWC of the alleged 

changes in the business... A reduction in the number of 

business clients, without information of which business 

clients were involved and what services were provided to the 

remaining clients does not tell the BWC whether the risk of 

injury has changed ... 

{¶ 10} The magistrate acknowledges that some information 

provided by RFFG is present in the record before us. Key 

information as to the risks for workers in the ongoing 

business was not provided. RFFG/Ameritemps may employ 

fewer people, but the risks associated with the work done 

may well be unchanged. What RFFG/Ameritemps pays BWC 

will be reduced if fewer people are employed but the rate per 

employee does not need to change just because fewer or 

different people may be employed doing the same tasks. 

* * * 

{¶ 13} The adjudicating committee had only allegations as to 

the change of the tasks performed on behalf of the ongoing 

clientele, no real proof of a significant change in the risk to 

employees. The information provided via the U–118 and 

purchase agreement clearly showed WTS and RFFG were a 

successor to Ameritemps. RFFG did not demonstrate that 

the risks changed, only that fewer and/or different people 

were performing the functions previously performed by 

Ameritemps. 

RFFG at ¶ 9, 10, 13 (emphasis added.) 

Daily Services cites to both the Cleveland Professional 

Football and RFFG cases for the proposition that, since Daily 

Services "did not pick up all of I-Force's business operations, 

customers, or employees" * * * a finding that Daily Services 

wholly succeeded I-Force is improper. Daily Services' 

argument hinges largely on its pointing out that it did not 

assume 100% of I-Force's permanent staff, temporary staff, 

or client employers on March 23, 2009. 

However, as the RFFG case suggests, the numbers alone are 

not dispositive. Like RFFG, Daily Services has not 

demonstrated, and the evidence submitted does not support, 

that the nature of Daily Services' business operations (or 

risks) as of March 23, 2009, forward is significantly different 

from that of I-Force. Instead, the evidence shows that Daily 
No. 14AP-405 34 

Services requested "an extreme number of new manual 

codes" be added to its BWC account, so as to enable it to 

offer the long-term temporary staffing services I-Force had 

offered, which it could then offer not only to I-Force clients 

moving to Daily Services, but to any new clients as well. * * * 

In Cleveland Professional Football, New Gladiators could 

demonstrate its risk was significantly different from that of 

Old Gladiators, and the Tenth District accordingly found 

New Gladiators did not wholly succeed Old Gladiators' 

business operations: Daily Services, like RFFG, has not 

demonstrated so. Therefore, a finding that Daily Services 

wholly succeeded I-Force -- both for purposes of experience 

combination under OAC 4123-17-02(B), as the Adjudicating 

Committee had previously determined * * *, and for the 

transfer of liabilities under OAC 4123-17-02(C) -- is 

appropriate. 

* * * 

[T]he Administrator's Designee specifically finds, for the 

reasons set forth in this order and in the Adjudicating 

Committee order dated March 20, 2013, that Daily Services 

wholly succeeded I-Force for purposes of the transfer of IForce's "rights and obligations under the workers' 

compensation law," including I-Force's unpaid premium 

liabilities, to Daily Services pursuant to OAC 4123-17-

02(C)(1) as in effect at the time of the voluntary transfer of IForce's business operations to Daily Services on March 23, 

2009. 

Based on the testimony and other evidence presented at the 

hearing, the Administrator's Designee, with the Affirmation 

of Legal Standard Applied as set forth above, AFFIRMS the 

decision, findings, and rationale set forth in the order of the 

Adjudicating Committee dated March 20, 2013. 

{¶ 80} 37. On May 19, 2014, relator, Daily Services, LLC, filed this mandamus 

action. 

Conclusions of Law: 

{¶ 81} The issue is whether the bureau had R.C. 4123.52 continuing jurisdiction to 

adjudicate that portion of relator's June 2009 protest regarding the bureau's transfer of IForce's premium obligations under Ohio Adm.Code 4123-17-02(C) long after the bureau, 
No. 14AP-405 35 

through its adjudicating committee of October 15, 2009 had issued a final order 

adjudicating the protest. 

{¶ 82} It is the magistrate's decision that the bureau lacked R.C. 4123.52 

continuing jurisdiction to convene an adjudicating committee to revisit the October 15, 

2009 final order of the adjudicating committee. Accordingly, as more fully explained 

below, it is the magistrate's decision that this court issue a writ of mandamus ordering the 

bureau to vacate the March 20, 2013 order of its adjudicating committee and the 

November 14, 2013 order of its administrator's designee. 

{¶ 83} R.C. 4123.52 states: 

The jurisdiction of the industrial commission and the 

authority of the administrator of workers' compensation over 

each case is continuing, and the commission may make such 

modification or change with respect to former findings or 

orders with respect thereto, as, in its opinion is justified. 

{¶ 84} Continuing jurisdiction is not unlimited. Its prerequisites are: (1) new and 

changed circumstances; (2) fraud; (3) clear mistake of fact; (4) clear mistake of law; (5) 

error by an inferior tribunal. State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 

2004-Ohio-5990; State ex rel. Royal v. Indus. Comm., 95 Ohio St.3d 97 (2002); State ex 

rel. Foster v. Indus. Comm., 85 Ohio St.3d 320 (1999); State ex rel. Nicholls v. Indus. 

Comm., 81 Ohio St.3d 454 (1998). 

{¶ 85} Any commission order seeking to exercise continuing jurisdiction must 

clearly state which of the five bases it is relying on. Nicholls at 459. The reason for the 

exercise of continuing jurisdiction must be articulated contemporaneously with the 

exercise of continuing jurisdiction, not belatedly. Royal at 100. An incomplete 

continuing jurisdiction order cannot be rehabilitated by a subsequent order. Id. 

{¶ 86} In Gobich, the court describes Nicholls, Foster, and Royal as 

"uncompromising in their demand that the basis for continuing jurisdiction be clearly 

articulated." Gobich at ¶ 18. "This rule destroys any assertion that an informal or silent 

invocation of continuing jurisdiction can occur." State ex rel. Internatl. Truck & Engine 

Corp. v. Indus. Comm., 119 Ohio St.3d 402, 2008-Ohio-4494, ¶ 15. As R.C. 4123.52 

indicates, like the commission, the administrator of workers' compensation is also 

statutorily granted continuing jurisdiction. Presumably, the rules regarding continuing 
No. 14AP-405 36 

jurisdiction made applicable to the commission through case law are also applicable to the 

administrator. See State ex rel. Ochs v. Indus. Comm., 85 Ohio St.3d 674 (1999). 

{¶ 87} Here, while the March 20, 2013 order of the adjudicating committee and the 

November 14, 2013 order of the administrator's designee address a jurisdictional issue, 

neither order articulates which of the five bases for continuing jurisdiction is relied upon. 

Rather, the orders find jurisdiction, in large part, based upon two court decisions in which 

the trial judges determined that the October 15, 2009 adjudicating committee order fails 

to adjudicate whether relator is a successor-employer for purposes of transferring liability 

of I-Force's premium obligations to relator pursuant to former Ohio Adm.Code 4123-17-

02(C)(1). Neither judge actually determined or ordered that the October 15, 2009 

adjudicating committee order must be revisited by the bureau. The two judges simply 

determined that the October 15, 2009 adjudicating committee order did not determine all 

that the bureau was purporting. That is, the judges disagreed with the bureau's 

interpretation of its order. 

{¶ 88} The October 15, 2009 order of the adjudicating committee is a final bureau 

order because there was no administrative appeal to the administrator's designee. 

However, that the October 15, 2009 order was not administratively appealed did not 

alone prohibit the bureau from exercising continuing jurisdiction over the October 15, 

2009 order. State ex rel. Scott v. Ohio Bur. of Workers' Comp., 73 Ohio St.3d 202 (1995). 

{¶ 89} However, the March 20, 2013 attempt by the adjudicating committee to 

exercise continuing jurisdiction over the October 15, 2009 order of the adjudicating 

committee occurred more than four years after the October 15, 2009 order. Like the 

commission, the bureau must exercise its continuing jurisdiction within a reasonable 

period of time. State ex rel. Gordon v. Indus. Comm., 63 Ohio St.3d 469 (1992). 

Certainly, as of the date that Judge Bessey issued his judgment on February 8, 2011 in 

Case No. 09JG-46435, the bureau should have been aware that its interpretation of the 

October 15, 2009 order of the adjudicating committee was not the correct interpretation. 

Accordingly, it appears that the bureau delayed an unreasonable period of time to exercise 

its continuing jurisdiction. 

{¶ 90} Both the March 20, 2013 order of the adjudicating committee and the 

November 14, 2013 order of the administrator's designee rely upon the dismissal of 

relator's prohibition action in the Supreme Court of Ohio. Yet, the order of the Supreme 
No. 14AP-405 37 

Court dismissing the action simply explains that the respondents' motion to dismiss is 

granted. No court opinion accompanied the court's dismissal entry. 

{¶ 91} "In order for a writ of prohibition to issue, the relator must establish that 

the court, official or tribunal against whom it is sought, must be about to exercise judicial 

or quasi-judicial power; the exercise of power must amount to an unauthorized 

usurpation of judicial power; and refusal of the writ would result in an injury for which 

there is no adequate remedy." State ex rel. Eaton Corp. v. Lancaster, 40 Ohio St.3d 404 

(1988). 

{¶ 92} Prohibition tests and determines " 'solely and only' " the subject matter 

jurisdiction of an inferior tribunal. Eaton at 409, quoting State ex rel. Staton v. Common 

Pleas Court, 5 Ohio St.2d 17, 21 (1965). In a prohibition action, the question is whether 

jurisdiction is "patently and unambiguously" lacking. State ex rel. Red Head Brass, Inc. 

v. Holmes Cty. Court of Common Pleas, 80 Ohio St.3d 149, 151 (1997). 

{¶ 93} Here, it can be observed that no one contends that the bureau lacks 

jurisdiction generally to determine employer protests relating to premium obligations. 

{¶ 94} Contrary to what is stated in the November 14, 2013 order of the 

administrator's designee, the Supreme Court's dismissal of relator's action did not render 

"moot" relator's claim that the bureau lacks jurisdiction to revisit the October 15, 2009 

order of the adjudicating committee. 

{¶ 95} Citing Ohio Bur. of Workers' Comp. v. C.W. Fletcher, Inc., 4th Dist. No. 

96CA32 (March 13, 1997), respondent argues that it had jurisdiction to convene the 

March 20, 2013 adjudicating committee because there was a matter before the 

October 15, 2009 adjudicating committee that the committee failed to "resolve," and that 

the adjudicating committee of March 20, 2013 "was simply resolving an issue never 

previously decided as part of Daily Services' 2009 protest." (Respondent's brief, 56.) 

{¶ 96} Relator seems to emphasize the word "resolve" so as to suggest jurisdiction 

must exist to "resolve" that which has not been resolved. Relator's reliance upon Fletcher

is misplaced. 

{¶ 97} Following an audit, the bureau assessed C.W. Fletcher, Inc. ("Fletcher") for 

unpaid workers' compensation premiums in the amount of $820,871.58. Fletcher filed a 

petition (protest) with the bureau's adjudicating committee objecting to the assessment. 
No. 14AP-405 38 

However, the adjudicating committee never held a hearing or formally resolved Fletcher's 

petition. 

{¶ 98} Thereafter, the bureau obtained a judgment lien against Fletcher in the 

amount of $820,871.58 in Pickaway County. 

{¶ 99} The secretary of the adjudicating committee mailed Fletcher a letter that the 

adjudicating committee would not hear Fletcher's petition because the adjudicating 

committee viewed the petition as a request for a payment plan rather than an objection to 

the audit. 

{¶ 100} Following Fletcher's default on the payment plan and the garnishment of 

its bank account, Fletcher moved to void the judgment lien pursuant to Civ.R. 60(B)(5). 

{¶ 101} In Fletcher, the trial court found that the adjudicating committee's letter to 

Fletcher did not resolve the petition and that the bureau's judgment was voidable because 

the bureau failed to hold a hearing or dismiss the petition, thus depriving Fletcher of the 

opportunity to appeal to the common pleas court pursuant to R.C. 4123.37. The trial 

court granted Fletcher's Civ.R. 60(B) relief from judgment and the bureau appealed to the 

Fourth District Court of Appeals. 

{¶ 102} The appellate court agreed with the trial court that the letter "leaves one 

guessing as to whether it is the final decision of the adjudicating committee that may be 

appealed" to the common pleas court under R.C. 4123.37. Fletcher at 4. 

{¶ 103} In Fletcher, the appellate court held that the bureau was not authorized to 

file a certified copy of the assessment with the clerk of courts and obtain a judgment lien 

because the bureau had failed to "resolve" the petition. The court states: "The BWC's 

failure to resolve the petition has left the matter pending, thus precluding a judgment." 

Id. at 4. 

{¶ 104} The appellate court did not foreclose the bureau from ruling on the petition 

and obtaining a proper judgment by complying with R.C. 4123.37. The court states: 

Fletcher still owes a significant sum to the BWC and if the 

BWC complies with R.C. 4123.37 in obtaining a judgment, 

then it is entitled to utilize the enforcement powers provided 

by the Revised Code. 

Id. at 6. 

{¶ 105} The complete failure of the adjudicating committee in Fletcher to 

adjudicate or dismiss the petition is equated here by respondent with the bureau's sua 
No. 14AP-405 39 

sponte assertion of continuing jurisdiction over the October 15, 2009 adjudicating 

committee order that, in fact, did adjudicate relator's June 2009 protest although not as 

to an issue that has been the subject of much litigation. Thus, the so-called failure of the 

adjudicating committee in Fletcher to "resolve" the petition is not the same as the failure 

of the October 15, 2009 adjudicating committee order to "resolve" the issue that 

respondent wants to resolve by the exercise of continuing jurisdiction. 

{¶ 106} In Fletcher, there is no issue as to the adjudicating committee's continuing 

jurisdiction because the adjudicating committee had never exercised jurisdiction in the 

first instance to adjudicate Fletcher's petition. In fact, the Fletcher court does not even 

mention R.C. 4123.52 continuing jurisdiction presumably because the case does not 

involve continuing jurisdiction. 

{¶ 107} In short, respondent's reliance upon Fletcher to support its assertion of 

continuing jurisdiction over the October 15, 2009 order of the adjudicating committee is 

misplaced. 

{¶ 108} Accordingly, for all the above reasons, it is the magistrate's decision that 

this court issue a writ of mandamus ordering respondent to vacate the March 20, 2013 

order of its adjudicating committee and the November 14, 2013 order of its 

administrator's designee. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

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 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).