pec i i 2QCc3 CLEaK OF COURT SUPREME Or H 1^ IN THE SUPREME COURT OF OHIO BALTIMORE RAVENS, Appellant, Case No.:

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1 BALTIMORE RAVENS, IN THE SUPREME COURT OF OHIO Appellant, Case No.: V. STACEY HAIRSTON, INC., et al., Appellees. (On appeal from the Eighth Appellant District no. CA ) APPELLEE'S RESPONSE TO MEMORANDUM IN SUPPORT OF JURISDICTION Thomas L. Reitz ( ) Larrimer & Larrimer 165 N. High Street Columbus, Ohio (614) ; Fax (614) tom(anarrimer.com Counsel for Appellee Stacey Hairston Irwin Dinn Dinn, Hochman and Potter 5910 Landerbrook Dr., Ste. 200 Cleveland, OH (216) Counsel for Appellant Baltimore Ravens, Inc. Mark Fellenbaum Assistant Attorney General Workers' Compensation Section 614 West Superior Ave, 11`h Floor Cleveland, OH (216) Counsel for Appellee, Ohio Bureau of Workers Compensation pec i i 2QCc3 CLEaK OF COURT SUPREME Or H 1^

2 TABLE OF CONTENTS STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS...:... 2 LAW AND ARGUMENT....6 CERTIFICATE OF SERVICE

3 TABLE OF AUTHORITIES Cases Page(s) State ex ret. Hospitality Motor Inns, Inc., v. Gillespie, 66 Ohio St.2d , 7 State ex rel. Wickline v. Ohio Bell, 9 Ohio App.3d Ohio Revised Code R.C , 5 R.C (F) , 6

4 STATEMENT OF WHETHER THIS CASE IS OF PUBLIC OR GREAT GENERAL INTEREST This Court should refuse to accept jurisdiction over this matter because the facts and law in this case are not of great public and general interest. In this case, Baltimore Ravens certified that Hairston sustained a work related injury to his neck. On June 24, 1996, the Third Party Administrator for the Baltimore Ravens accepted Hairston's claim, no , for "fracture of spinous process and cervical sprain." The Baltimore Ravens fail to clearly articulate why this case is of great public interest because there is no reason for this Court to hear argument on this extremely limited matter. It is extremely unlikely that the general public will encounter a situation where the employer continues to litigate the certification of a workers' compensation claim by a self-insured employer almost 10 years after the original injury. The Court of Appeals rightly recognized that it was an abuse of discretion for the trial court to prohibit the payment of any attorney fees for counsel's effort contrary to the reading of R.C Thus, as this case deals with the limited issue of attorney fees, it does not involve the public or great general interest. Hairston, wherefore, requests that this Court deny the Baltimore Raven's permission to file a discretionary appeal. STATEMENT OF FACTS Stacey Hairston played professional football for the Baltimore Ravens, formerly known as the Cleveland Browns. (hereafter known as the "Ravens"). The Ravens, for workers' compensation purposes, are self-insured. Being self- 2

5 insured means that the Ravens have applied for and been granted this status by the state of Ohio, do not pay into the Ohio Bureau of Workers' Compensation Fund and elects to self manage the worker's compensation claims of its employees. In this case, the Ravens, hired Alexis Inc. to act as a Third Party Administrator and assist in managing any worker's compensation claims. On October 13, 1994, the Browns were playing the Houston Oilers in the Astrodome. During the course of this game, Hairston was "up ended" causing his head to strike the artificial turf and injuring his neck. On May 29, 1996, Hairston filed a C-50 asking that he be entitled to compensation and medical benefits for fracture of the "spinous process and sprain of cervical spine." On June 24, 1996, the Third Party Administrator for the Baltimore Ravens accepted Hairston's claim, no , for "fracture of spinous process and cervical sprain." On June 25, 1996, the Ravens, additionally, informed the Ohio Bureau of Workers' Compensation that it had accepted Hairston's claim for "fracture of spinous process and cervical sprain," which is noted by the BWC time stamp. On June 7, 1996, Hairston filed for an application for the determination of a percentage of permanent partial disability in claim no On November 13, 1996, almost 1.5 years after Hairston's injury, the Ravens informed the Ohio Bureau of Workers' Compensation that it wanted to change its position and deny Hairston's claim for "fracture of spinous process." On September 30, 1996, the Ohio Bureau of Workers' Compensation had Dr. Weaver examine Hairston. On October 29, 1996, the Ohio Bureau of Workers' 3

6 Compensation granted Hairston a 17% PPD award. The Ravens filed an objection to this award. On December 14, 2006, Hairston's application for a determination of permanent partial impairment was heard. At this hearing the District Hearing Officer stated that "as there appears to be an issue regarding correct claim allowance and/or claim allowance in general, this matter is referred back to the Industrial Commission docketing section to be docketed on the issue of claim allowance/claim clarification a the District Hearing Officer level. On March 19, 1997, the District Hearing Officer affirmed the BWC's September 30, 1996, decision and held that Hairston was entitled to a permanent partial award of 17% based on the allowances of cervical sprain and fracture of spinous process. On April 10, 1997, the Ravens objected to this 17% PPD award and filed a notice of appeal with the reason being "a request to correct the allowance of the claim. On January 17, 2007, after an unexplained gap of many years, the District Hearing Officer held that the Industrial Commission did not have continuing jurisdiction to address the currently allowed conditions in claim no The DHO stated that "this claim was certified for a 'Fracture of the Spinous Process and a Cervical Sprain' by the self-insured employer on 6/24/1996." The DHO concluded that the employer, while the evidence is disputable, has not submitted any evidence supporting a mistake of fact, fraud/error by an inferior tribunal or mistake of law to warrant an exercise of continuing jurisdiction by the Industrial Commission in regards to the allowed conditions in this claim. 4

7 On April 16, 2007, after an appeal by the employer, the Staff Hearing Officer declined to accept continuing jurisdiction of this matter and overturn the self-insured employer's original certification of this claim. The SHO reasoned that "the self-insured employer, through its Third Party Administer, certified this claim approximately one month after receipt of the C-50." The SHO noted that the employer certified the injuries approximately a year and a half after the original injury, and that this was sufficient time to adequately evaluate this matter. Thus, the SHO stated that Hairston's claim remains allowed for spinous fracture and cervical sprain and that the processing of the application for a permanent partial disability impairment should proceed. On May 7, 2007, the Industrial Commission denied further appeals and the Staff Hearing Officer's order was affirmed. On July 12, 2007, the District Hearing Officer granted Hairston a 17% permanent partial award. On June 28, 2007, the Defendant-Baltimore Ravens filed a notice of appeal in Cuyahoga Common Pleas Court per R.C On August 9, 2007, as prescribed per law, Hairston filed a Complaint to this court. On January 7, 2008, the Cuyahoga Common Pleas Court granted Hairston's Motion to Dismiss for Lack of Jurisdiction. On February, 1, 2008, the Trial Court, without hearing, denied Hairston's request for attorney fees pursuant to R.C (F). On October 27, 2008, the Court of Appeals, Eighth Appellate District, reversed the trial court holding that "the attorney's fees that Hairston incurred 5

8 defending this matter are not only reasonable, but well beyond the $4,200 statutory maximum. LAW AND ARGUMENT The Baltimore Ravens proposition of law fails to accurately reflect the facts in this case or the proper application of Ohio law. The Court of Appeals awarded attorney fees because counsel's efforts were necessary in preserving Hairston's workers' compensation claim. R.C (F) exists to ensure that the employer and the injured worker are on "an even playing field." A claimant who has sustained a work injury and suffers financial hardship as a result will be at a tremendous disadvantage in pursuing a workers' compensation claim if the worker is unable to secure an attorney to assist him in this complicated process. This Court addressed precisely this issue in Hospitality Motor Inns v. Gillespie, 66 Ohio St.2d 206. In Hospitality, the trial court dismissed the appeal for lack of jurisdiction and awarded attorney fees. Upon appeal, this Court stated that "Hospitality sought to invoke the jurisdiction of the Court of Common Pleas by way of appeal. The 'legal proceedings' contemplated by R.C is the act of the appeal itself." Id at 213. The Court continued, "the procedure utilized by the appellant was still an 'appeal' and the same was prosecuted, albeit unsuccessfully by the appellant, pursuant to R.C. section , appellant can not now be heard to complain of the detriments flowing thereform. Id at 213. The Baltimore Ravens for the first time raise new arguments not raised before the trial court and the court of appeals. The Baltimore Ravens now contend that Hairston's workers' compensation claim fails because the specific 6

9 level of the fracture is not identified. The Baltimore Ravens continually forget that its team physician diagnosed the injury and its Third Party Administrator certified this injury as a workers compensation claim. Also, in a confusing argument, the Baltimore Ravens now contend that this allowed and certified claim is barred by the statute of limitations. This contention should be rejected on its face, as Hairston's claim for the conditions at issue has been allowed since In this case, the Court of Appeals properly applied Hospitality Motor Inns v. Gillespie, 66 Ohio St.2d 206 and Wickline v. Ohio Bell Telephone Co., 9 Ohio App.3d 32 to determine that the payment of no attorney fees was an unreasonable decision by the trial court. Wherefore, as this matter does not present a case of public or great general interest, Hairston requests that this Court deny jurisdiction. Respectfully submitted: Thomas L. Reitz (0068 LARRIMER AND LARRiMER 165 N. High Street Columbus, OH (614) Counsel for Appellee, Hairston 7

10 CERTIFICATE OF SERVICE This is to certify that an accurate copy of the foregoing Merit Brief was sent via regular U.S. mail, postage prepaid, to Irwin Dinn, 5910 Landerbrook Drive, Suite 200, Cleveland, OH, 44124, and Mark Fellenbaum Assistant Attorney General Workers' Compensation Section 614 West SuperiorAve, 11 th Floor Cleveland, OH on this j f day of Thomas L. Reitz Counsel for Appel 8