A recent Tenth District Court of Appeals for the State of Ohio case addressed a rarely seen issue involving third-level Ohio Industrial Commission hearings, specifically those set in front of the three commissioners. The case of State ex rel. Evert v. Indus. Comm., 2012-Ohio-2404 was decided on May 31, 2012, and involved a death claim and the widow’s request on behalf of her late husband for the functional loss of use of all four of his extremities. In its own right, the issue appears to have been quite compelling, but the focus for the Court of Appeals was in fact a procedural issue. At stake procedurally was the validity of a Commission decision when all of the members were not present and a reviewable record was not kept.

As part of the appeal, the magistrate issued a decision highlighting the relevant facts. Of note, the Commission held a hearing with only two of its three members in attendance. In the subsequent commission order, there was a split decision between the two attending members, with the non-attending member casting the deciding vote. The non-attending commissioner claimed she reviewed a summary of “the testimony and arguments” presented by the parties. No actual transcript or audio recording of the hearing existed.

In its decision, the court focused on the fact that it could not know from the record before it what happened at the hearing attended only by two commissioners. In highlighting the importance of due process and impartiality by the commissioners, the court agreed with the magistrate’s recommendation that the Commission be ordered to conduct a new hearing with all members in attendance or at which a reviewable record is kept.