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by Justice Paul E. Pfeifer
If you were to look up the word “audacity” in the dictionary, the definition would read something like this: “boldness or daring, especially with confident disregard for conventional thought; shameless boldness.” A case that we recently reviewed here at the Supreme Court of Ohio could well be exhibited as an example added to that dictionary definition.
The case actually began all the way back in 1967, when a man named Henry Lynch was injured in an industrial accident. He was subsequently awarded permanent total disability compensation by Ohio’s Bureau of Workers’ Compensation.
When someone receives permanent total disability, that person generally isn’t supposed to be involved in “sustained remunerative employment.” In other words, in most cases a person receiving permanent total disability isn’t supposed to hold another paying job.
The Industrial Commission of Ohio – which administers workers’ compensation awards – eventually determined that it had to terminate Henry Lynch’s permanent total disability compensation. Why? The Commission concluded that Henry’s ongoing crack-cocaine enterprise constituted sustained remunerative employment sufficient to terminate permanent total disability compensation.
In 1997, Henry was indicted by a federal grand jury on multiple charges relating to the possession, sale, and distribution of crack cocaine. The criminal complaint and supporting affidavit alleged that from approximately January 1, 1994, through July 17, 1997, Lynch was selling crack from his home.
In addition, he also supplied others with crack for resale. Henry’s income from this thriving enterprise was estimated at $300 to $500 a week.
Henry pleaded guilty in federal court to conspiracy to possess cocaine with intent to distribute. He was then incarcerated, and at that time the Bureau of Workers’ Compensation moved to terminate Henry’s permanent total disability compensation and to have all the compensation paid to Henry on or after January 31, 1994, declared an overpayment.
A notice of the hearing on that motion was sent to Henry’s home, and on March 10, 1998, the Industrial Commission held the hearing. On March 19, 1998, the Industrial Commission issued its findings from the hearing. The Commission determined that Henry’s “criminal activities for profit… constituted sustained remunerative employment.” As a result, permanent total disability compensation was terminated retroactive to January 31, 1994. That order became final.
In June 2004, Henry filed a motion with the Industrial Commission alleging that he had not received notice of the March 10, 1998 disability-termination hearing or the actual termination order. He asked the Commission to either reopen the issue or to permit him to file a belated motion for reconsideration.
Both options – reopening the issue or permitting a belated motion – are allowable under the law. The Industrial Commission granted the latter request and allowed Henry to file a belated motion for reconsideration.
When Henry filed his belated motion for reconsideration of the March 19, 1998 order, he alleged that the Industrial Commission had committed a clear mistake of law in terminating his compensation. The Commission, though, found that a clear error of law had not occurred. Hence, the Commission had no continuing jurisdiction to reopen the March 19, 1998 order and reexamine the merits of Henry’s entitlement to permanent total disability.
Undeterred, Henry turned to the court of appeals. When he had no better luck with that court, Henry filed an appeal with us – the Supreme Court of Ohio.
In his appeal to us, Henry first argued that the March 19, 1998 order terminating his permanent total disability did not satisfy the procedural requirements that had been established in three cases that had been decided by our court over the course of several years. One of the cases was decided in 1998, one in 1999, and the last was decided in 2004.
These cases held that orders by the Industrial Commission must indicate which of five identified prerequisites is the basis for the exercise of continuing jurisdiction. The five prerequisites are fraud, new and changed circumstances, clear mistake of fact, clear mistake of law, and error by an inferior tribunal – meaning a lower court or board.
There was a problem with Henry’s position though – it overlooked a critical point: those three cases were all decided after the termination order in his case. His proposition, therefore, lacked merit.
It can also be said that Henry’s next proposition lacked merit as well. Henry claimed that the Industrial Commission couldn’t consider the activity he engaged in – the possession, sale, and distribution of crack cocaine – to be sustained remunerative employment. Why not? Because, he argued, the activity was illegal.
We disagreed. Well, we didn’t disagree that the activity was illegal; clearly it was. Rather, we disagreed with his argument. Henry cannot use the illegality of his pursuits as a shield.
Henry Lynch exchanged labor for pay on a sustained basis. Granted, that labor was buying, selling, and distributing an illegal drug. But nevertheless, this constitutes sustained remunerative employment for purpose of permanent total disability.
While Henry’s arguments lacked merit, they lacked nothing for sheer audacity. A man engages in the illegal drug trade for years, goes to prison because of it, and then files a complaint with the Industrial Commission because his disability compensation was terminated.
By a seven-to-zero vote we affirmed the judgment of the court of appeals. Our ruling means that we upheld the Industrial Commission’s decision to terminate Henry Lynch’s permanent total disability compensation retroactive to January 31, 1994, and that the Commission has no continuing jurisdiction to reopen the matter.EDITOR'S NOTE: The case referred to is State ex rel. Lynch v. Indus. Comm., 116 Ohio St.3d 342, 2007-Ohio-6668. Case No. 2007-0423. Decided Dec. 19, 2007. Opinion Per Curiam.