Bartering services for reduction in horse boarding fees and expenses constituted sustained remunerative activities:
State ex rel. Seibert v. Richard Cyr, Inc., 2019-Ohio-3341
Seibert was injured in 1990 and 1991, and his claim was allowed for various back and psychological conditions. In 2007, the IC awarded Seibert PTD compensation, effective in 2006. In 2013, the Special Investigative Department of the BWC initiated an investigation into Seibert after determining that he had an active groomer/owner license with the Ohio State Racing Commission. He had a groomer license in 2008, and an owner license in 2009, 2010, 2011, 2012, and 2013. Between April and June 2014, he was observed washing, running, bathing, and grooming horses at Lebanon Raceway. Interviews with witnesses revealed that he helped the owner of one of the barns at the Raceway, and had half ownership with one of the horses, and had owned other horses. He was working three to five days a week at the Raceway in 2014. In exchange for helping around the barn, he sometimes received a share in proceeds from a sale, and occasionally he was paid small fees from other horse owners.
The BWC moved to terminate PTD, declare a overpayment, and accused Seibert of fraud. The IC granted the BWC’s motion, finding that Seibert had been engaging in substantive remunerative employment since March 2009, based on the date of a check he received from the Lebanon Trotting Club as prize earnings for a horse he had owned. The IC also found that he had committed fraud by concealing his work at the raceway while receiving PTD.
The Tenth District found that there was some evidence Seibert engaged in substantive remunerative employment as of March 2009 and some evidence of fraud. Siebert appealed.
The Supreme Court of Ohio found that Seibert had engaged in a bartering system by washing, harnessing, jogging, and feeding other houses in exchange for a reduction of his stall rental and feed fees for the two horses he owned, even though no cash payments were made, and this system qualified as remunerative. Because Seibert typically worked Monday through Saturday for two to three hours on non-race days, and from 9 am to 3:30 pm on race days, there was some evidence that the remunerative activity was sustained. There was some evidence supporting the fraud finding because Seibert either knew he was making false representations that he was not working at the raceway, or exhibited utter disregard and recklessness as to the falsity of his representations.
The Supreme Court, however, reversed the Tenth District on the issue of termination date of the PTD, finding that the March 2009 date, based on the prize winning check, was not some evidence of when Seibert began sustained remunerative activity. A limited writ was issued and the case remanded for the IC to determine the appropriate date of PTD termination.