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In this 2006 file photo, longtime Corky & Lenny's customer Bernard Sherman, then-77, of Woodmere, is served breakfast at the famed delicatessen. Corky & Lenny's is a plaintiff in a so-far-successful lawsuit alleging unfair pricing for state workers' compensation coverage in Ohio.

(Tim Harrison, special to The Plain Dealer, File, 2006)

The 8th Ohio District Court of Appeals in Cleveland has unanimously upheld a lower-court decision that the state Bureau of Workers' Compensation gouged some Ohio employers to benefit others.

The ruling, by Judges Kenneth Rocco, Eileen A. Gallagher and Mary Eileen Kilbane, lets stand a 2012 decision by Common Pleas Judge Richard McMonagle in a lawsuit spearheaded by famed Woodmere delicatessen Corky & Lenny's.

In 2013, McMonagle ordered the bureau, which runs Ohio's state-monopoly workers' compensation program, to refund to about 264,000 employers more than $859 million. The bureau appealed, which led to the May 15 appellate decision.

The arguments and math are complex. But the case turns on this: whether the Bureau of Workers' Compensation charged some Ohio employers such as Corky & Lenny's grossly excessive workers' compensation premiums to subsidize lower premiums the bureau granted other employers participating in group-rating plans. A 1989 law, which took effect in mid-1991, authorized group-rating plans in Ohio.

Compounding the "win-win" enjoyed by group-plan employers, the Court of Appeals found, was this: "Sponsors [of group plans] could hand pick employers for groups to ensure the maximum [premium] discounts." That, according to a consultant the appellate panel quoted, meant the BWC's group-rating program "was like 'having a fantasy league where the players are chosen after the season has ended.' "

The result, the court said, was that the Bureau of Workers' Compensation "knowingly overcharged nongroup-rated employers workers' compensation insurance premiums in order to subsidize massive, undeserved premium discounts for group-rated employers. ... The clear winners were group-rated employers and their group sponsors; the clear losers – the nongroup-rated employers."

Roughly 89,000 of the 264,000 employers represented in the class-action suit at times did participate in a group-rating plan. The Appeals Court told McMonagle to adjust any refund such an employer might get to reflect the financial benefit it gained when group-rated.

There are hints that Gov. John Kasich's administration might settle the case, San Allen Inc. vs. Buehrer, rather than appeal it to the Ohio Supreme Court. The administration should settle. The BWC has a created a reserve fund to pay the judgment, if it must. The plaintiffs are entitled to justice. They've waited long enough for it. And, as tweaked by the Court of Appeals, McMonagle's decision offers it.