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Tuesday, April 9, 2013

Claudia Bernard v. Unemployment Compensation Review Commission et al., Case no. 2012-0717
Second District Court of Appeals (Miami County)

Larry J. Moretz et al. v. Kamel F. Muakkassa, M.D., et al., Case no. 2012-0797
Ninth District Court of Appeals (Summit County)

In the Matter of the Application of: Marlon G. Pariag (State of Ohio, Appellant), Case no. 2012-0819
Tenth District Court of Appeals (Franklin County)

Disciplinary Counsel v. Edward Royal Bunstine, Case no. 2012-2049
Ross County

Does Pay That Worker Deferred to Flexible Spending Account Count As ‘Wages’ in Determining Unemployment Eligibility?

In Calculating Whether ‘Average Weekly Wage’ Reached Minimum to Qualify for Benefits

Claudia Bernard v. Unemployment Compensation Review Commission et al., Case no. 2012-0717
Second District Court of Appeals (Miami County)

ISSUE: In calculating whether an unemployed worker’s “average weekly wage” during  her last period of employment was above the minimum amount required to qualify for unemployment compensation benefits, does the applicable state law exclude from a worker’s countable  “wages” job earnings that she elected to have her employer pay into a pre-tax flexible spending account?

BACKGROUND:  Claudia Bernard’s employment with the Wakeman Educational Foundation ended in January 2010.  She subsequently applied to the Ohio Department of Job and Family Services (ODJFS) for state unemployment compensation benefits. 

The department denied her application based on its finding that Bernard‘s average weekly wages during 2009 were less than the $213-per-week minimum required to qualify for benefits. In calculating Bernard’s average weekly wages, the department did not count $900 per month in earnings that Bernard had her employer deduct from her paychecks and deposit into a pre-tax medical spending account.

Bernard appealed to the Ohio Unemployment Compensation Review Commission (UCRC), arguing that the uncounted $900 per month was compensation for work she performed, and the fact that she chose to have that portion of her earnings paid into a flexible spending account rather than included in her weekly paychecks did not change the legal status of that compensation as “wages” that should have been counted in determining her eligibility. The UCRC rejected Bernard’s argument and affirmed the state’s denial of unemployment benefits.

Bernard appealed the UCRC’s ruling to the Miami County Court of Common Pleas and then to the Second District Court of Appeals. Both courts denied her appeals.  In a 2-1 opinion, the Second District found that some of the statutory language cited by the UCRC as its basis for not counting Bernard’s flexible spending deferrals as wages was ambiguous. The appellate majority held, however, that when the legislature has given a regulatory agency authority to interpret and administer a specialized area of law, as it has given the UCRC to administer and apply workers’ compensation statutes, courts reviewing disputed rulings should defer to the agency’s interpretation of statutory language unless that interpretation is “unlawful, unreasonable, or against the manifest weight of the evidence.”

Bernard sought and was granted Supreme Court review of the Second District’s decision.

Attorneys for Bernard advance two arguments.  First, they assert that the UCRC and lower courts misread and misapplied a provision of federal law that excludes earnings that an employee defers into a “cafeteria” or flexible benefits plan from the category of “wages.”  They argue that in order to be excludable, the law requires that cafeteria plan contributions 1) not be taxable as “constructive wages,” and 2) not be countable as wages if the cafeteria plan didn’t exist.  They contend that neither the UCRC nor the reviewing courts applied the second prong of that test, and therefore wrongfully excluded the payments made by Bernard’s employer into her flexible spending account because those payments would have been paid to her in cash and taxed as wages if no cafeteria plan had been available to her.

Bernard also argues that, even if the court finds that the disputed  statutory language does not clearly require that her flexible benefits deferrals be counted as wages, that  language is at best ambiguous, and a specific provision of Ohio’s unemployment compensation law, R.C. 4141.46, requires that the law be interpreted liberally in favor of applicants seeking benefits and against the state.

Attorneys for Wakeman and ODJFS urge the court to affirm the rulings of the trial court and Second District, which they say properly deferred to the UCRC’s interpretation of the statutory language addressing cafeteria plan contributions. 

ODJFS asserts that, while resolution of  the contested issue in this case requires analysis of several  different state and federal statutes, those statutes clearly and unambiguously exclude employer payments made directly to a worker’s pre-tax medical benefit account from the compensation that is countable toward his or her eligibility for  unemployment benefits. The department argues that  this interpretation of the law is strongly supported by the  fact that the state does not require employers to include amounts they pay into pre-tax cafeteria plans on behalf  of their employees in calculating the amount of “wages” on which the employer must make contributions to the state unemployment compensation fund.

Representing Claudia Bernard: Robert Guehl, 937.610.0444

Representing Ohio Department of Job and Family Services: Alexandra T. Schimmer, 614.995.2273

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Must Defendant Present Expert Testimony to Establish ‘Written-Down’ Medical Bills as True Value of Plaintiff’s Injuries?

In Medical Malpractice Case Where Plaintiff Offers Full Medical Bills As Proof of Damages

Larry J. Moretz et al. v. Kamel F. Muakkassa, M.D., et al., Case no. 2012-0797
Ninth District Court of Appeals (Summit County)

ISSUE: In a medical malpractice case where the plaintiff has offered his full medical bills as presumptive evidence of the amount of his damages, is the defendant required to present expert testimony to challenge those amounts by establishing that: 1) the plaintiff’s medical service providers accepted less than the amounts they originally billed as full payment for their services based on “write-off” agreements between the providers and the plaintiff’s insurance company; and 2) the “written off” amounts actually paid to the providers by the plaintiff’s insurer represent the reasonable value of the plaintiff’s injuries?

BACKGROUND: Larry Moretz of Akron suffered the permanent loss of control of his bowels and bladder and all sexual function as a result of accidental nerve damage incurred during a surgical procedure to remove a large cyst from the base of his spine. Moretz and his wife filed a medical malpractice lawsuit against both the general surgeon who performed the operation, Dr. Gary Williams, and Dr. Kamel Muakkassa, a neurosurgeon who had recommended the surgery and was present in the operating room, but who declined to “scrub in” and assist Williams in identifying and avoiding nerve tissue during the procedure.

Dr. Williams entered into a settlement with the Moretzes. Dr. Muakkassa denied any liability for Larry’s injuries, and the case proceeded to a jury trial. The jury returned a verdict in favor of the Moretzes and awarded them damages of more than $995,000.  The court also awarded the Moretzes pre-judgment interest based on a finding that Dr. Muakkassa had not made a good-faith effort to settle the case prior to trial.

Dr. Muakkassa appealed, raising multiple assignments of error. These included a claim that the trial court acted contrary to law by allowing the Moretzes to introduce the medical bills they received for treatment of Larry’s surgery-related injuries as evidence of the reasonable value of that treatment, but barring Dr. Muakkassa from introducing other billing records that showed the health care providers had accepted reduced amounts as full payment for their services because of write-off agreements with Summa Care, the Moretzes’ medical insurance company.

The Ninth District Court of Appeals affirmed the verdict of the trial court on all issues other than the calculation of pre-judgment interest, and remanded the case for the limited purpose of recalculating the interest award. With regard to the exclusion of evidence of medical bill write-offs, the court of appeals held that the trial judge acted properly in barring Dr. Muakkassa from introducing evidence of reduced payments made by the Moretzes’ insurer because that evidence was offered without the foundation of expert testimony to establish that the “written down” amounts, rather than the amounts originally billed and presumed reasonable under R.C. 2317.42, reflected the reasonable value of the medical services provided.

The Supreme Court agreed to review of the Ninth District’s decision on the sole issue of whether evidence of medical bill write-downs is admissible without accompanying  expert testimony.

Attorneys for Dr. Muakkassa, supported by amicus curiae (friend of the court)  briefs from the Ohio Hospital Association, Ohio State Medical Association, and several other medical and insurance industry groups, urge the court to overrule the Ninth District and hold that evidence of insurance write-downs of medical bills may be introduced at trial without supporting expert testimony.

They argue that under the Supreme Court of Ohio’s 2010 decision in Jaques v. Manton, trial courts are required to admit evidence regarding write-downs of medical bills so that jurors are able to base decisions about the reasonable value of medical treatment on the actual amounts that were accepted as full payment for that treatment, rather than considering only original billings that often reflect charges much higher than the plaintiff actually paid. 

Attorneys for the Moretzes respond that the Jaques decision held only that evidence regarding write-downs on medical bills is admissible at trial, if it is offered with a proper foundation and in accordance with the state’s Rules of Evidence.  They contend that because the reasonable cost of any given medical procedure is generally “beyond the knowledge or experience of lay persons” Evid.R. 702(A) requires expert testimony to establish that discounted amounts reflected on a plaintiff’s medical bills are more “reasonable” charges for the services provided than the amounts set forth in the providers’ original billing statements. 

They point out that at trial the Moretzes presented expert testimony in support of their claim that the original medical bills they submitted to the court reflected the reasonable value of the treatment provided, and urge the court to affirm the Ninth District’s holding that because Dr. Muakkassa offered no expert testimony to support the reasonableness of other billing records that reflected write-offs, the trial court properly barred admission of those records.

Representing Dr. Kamel Muakkassa: Douglas G. Leak, 216.623.0150

Representing Larry and Nicole Moretz: Mark D. Amaddio, 216.274.0800

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May Court Seal Record of Dismissed Charges When Defendant Is Convicted of Separate Charge That May Not Be Sealed

Where Charges All Arise from Same Arrest, But Are Filed Under Different Case Numbers

In the Matter of the Application of: Marlon G. Pariag (State of Ohio, Appellant), Case no. 2012-0819
Tenth District Court of Appeals (Franklin County)

ISSUE: When a criminal defendant is charged under two separate case numbers for alleged offenses arising out of the same incident, and all of the charges alleged in one case are subsequently dismissed in exchange for the defendant’s guilty plea in the other case, may the court grant the defendant’s motion to seal the record of the dismissed charges despite the fact that the charge to which the defendant pled guilty is an offense for which the record may not be sealed as a matter of law. 

BACKGROUND: Ohio Revised Code Section 2953.52 provides that any person who is found not guilty of a criminal charge by a judge or jury, or who is named as the defendant in a criminal indictment or bill of information that is subsequently dismissed by the state, may apply to the court for an order to seal the record of his or her case.  The statute specifies that an order to seal a case record is not limited to records on file with the trial court or clerk’s office, but also includes “all records that are possessed by any public office or agency that relate to a criminal case,” including “all records and investigative reports possessed by law enforcement,” and “all records of all testimony and evidence presented in all proceedings in the case.”

With regard to the timing of motions to seal a criminal case record, R.C. 2953.52 provides that a defendant may apply to have a case record sealed at any time after the finding of not guilty or the dismissal of the complaint “except as provided in Section 2953.61 or the Revised Code.”  Section 2953.61 specifies that when a person is charged with two or more offenses “as a result of or in connection with the same act,” and at least one of the charges has a final disposition that is different than the final disposition of the other charges, the defendant may not apply to the court for the sealing of his record in any of the cases “until such time as he would be able to apply to have all of the records in all of the cases sealed.”

In this case, Marlon Pariag of Columbus was stopped by a Highway Patrol trooper for driving under a suspended license. As the result of a search conducted during that traffic stop, Pariag was also charged with misdemeanor counts of possession of drug paraphernalia and possession of a drug of abuse.  Pursuant to the Supreme Court’s Rules of Superintendence, the criminal and traffic offenses against Pariag were assigned separate case numbers, even though all three charges arose from the same incident and the same arrest. The city prosecutor’s office entered into a plea agreement in which Pariag pleaded guilty to the driving under suspension charge in exchange for the state’s dismissal of the case in which he was charged with the drug paraphernalia and drug possession counts.

Pariag subsequently applied to the trial court to seal the record of the dismissed drug-related charges.
The state opposed the motion to seal, pointing out that Pariag’s conviction for driving under suspension is one of a number of driver-license law violations that may not ever be sealed, and arguing that since the drug-related charges and driving under suspension charge arose from the same incident, R.C. 2953.61 precluded Pariag from ever being eligible to apply for sealing of the dismissed charges. 

The trial court overruled the state’s objection and ordered that the records of the dismissed case be sealed.  On review, the Tenth District Court of Appeals affirmed the trial court order sealing records of the drug-related charges. In a 2-1 majority opinion, the Tenth District held that: 1) the dismissed  counts against Pariag could be sealed because they were charged under a different case number than the driving under suspension count on which he was convicted; and 2) the  language in R.C. 3953.61 cited by the state does not prohibit courts from sealing records of dismissed charges when a conviction returned against the same defendant is nonsealable, it merely states that an order to seal the dismissed charges may not be entered “until such time ... as the defendant would be able to apply” for sealing of any other counts that are part of the same case.

The state sought and was granted Supreme Court review of the Tenth District’s ruling.

The state, represented by attorneys from the Columbus city prosecutor’s office, argues that the Tenth District erred by failing to follow the Supreme Court of Ohio’s 2009 ruling in State v. Futrall and multiple court of appeals decisions from across the state holdingthat records documenting dismissedcharges against a defendant are not eligible for sealing if another charge arising from the same conduct results in a conviction for an offense that may not be sealed as a matter of law.

They argue that when a single incident generates both dismissed charges and a defendant’s non-sealable conviction, there is no practical way for all of the police records and court documents relating to the dismissed counts to be expunged by the court without also unlawfully sealing the record of the defendant’s conviction and the factual basis for that conviction. They assert that the language of R.C. 3953.61 in not conditioned on all charges against a defendant being brought  under a single case number, but rather specifically provides that a court may not seal the records of dismissed charges arising from an incident until such time as the defendant “is able to apply to the court and have all of the records in all of the cases pertaining to those charges” sealed.

Because Mr. Pariag, who is self-represented, did not file a responsive brief in the case, only the state will present arguments before the justices.

Representing the state and Columbus city prosecutor’s office: Melanie R. Tobias, 614.645.8876

Marlon Pariag, pro se: No telephone contact information provided

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Attorney Discipline

Disciplinary Counsel v. Edward Royal Bunstine, Case no. 2012-2049
Ross County

The Board of Commissioners on Grievances & Discipline has recommended that the law license of Chillicothe attorney Edward R. Bunstine be suspended for one year, with the final six months of that term stayed on conditions, for soliciting sexual activity from a client.

The board found that Bunstine violated two provisions of the Rules of Professional Conduct when he made comments to a client he was representing in a child visitation case suggesting that she could compensate him for his legal services by engaging in a sexual liaison with him, and shortly thereafter drove to the client’s home, despite being told by the client not to do so, in an apparent effort to follow through on that solicitation.

Bunstine has entered objections to the board’s findings and recommended sanction. He argues that he was not yet engaged in a lawyer/client relationship with the complainant at the time of the incident underlying the disciplinary charges, denies that that his comments to her were intended as a solicitation of sexual activity, and asserts that his trip to the woman’s home was to obtain information for use in the upcoming child visitation case, not to pursue sexual activity. If the court finds that he engaged in misconduct, Bunstine also contends that the actual suspension from practice recommended by the board is an excessive sanction compared to the penalties imposed in similar cases.

The Office of Disciplinary Counsel, which prosecuted the charges against Bunstine before the board, responds that Bunstine’s hearing testimony and objections to the board’s findings have presented several different versions of events and inconsistent explanations for his conduct. Counsel urges the court to defer to the conclusions of both the hearing panel and the full board that the complainant was telling the truth in describing Bunstine’s statements and actions, while Bunstine’s version of those events lacked credibility. With regard to the recommended sanction, Disciplinary Counsel notes that Bunstine received a stayed suspension in 2012 for a prior incident of misconduct, and cites several cases in which lawyers who solicited sex from vulnerable clients have received actual suspensions from practice.

Representing the Office of Disciplinary Counsel: Jonathan E. Coughlan, 614.461.0256

Edward E. Bunstine, pro se: 740.775.5600

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These informal previews are prepared by the Supreme Court's Office of Public Information to provide the news media and other interested persons with a brief overview of the legal issues and arguments advanced by the parties in upcoming cases scheduled for oral argument. The previews are not part of the case record, and are not considered by the Court during its deliberations.

Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.