Smith v. SOCI Petroleum, Inc., 2017 Ohio 7224

Brian D. Smith, a Soci Petroleum employee, filed a workers’ compensation claim after a fall; the Industrial Commission allowed several injuries.
Soci appealed the Commission’s allowance to the Hamilton County Court of Common Pleas under R.C. 4123.512.
Under R.C. 4123.512(D), once an employer files a notice of appeal, the claimant must file a petition asserting entitlement to participate in the fund within 30 days; the claimant bears the burden to prove entitlement by a preponderance of the evidence.
Soci served notice of its appeal (certified mail in Aug. 2015; regular mail in Dec. 2015); Smith never filed the required petition or appeared in the trial-court case.
Soci moved to dismiss for failure to prosecute under Civ.R. 41(B)(1); Soci served the motion on Smith by regular mail advising dismissal was possible if he did not file the petition.
The trial court dismissed Smith’s case for failure to prosecute; Smith argued error, including that the court should have sua sponte warned him of dismissal and that the BWC should be required to file the petition on his behalf.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal was proper for failure to file the statutorily required petition within 30 days after employer's notice of appeal	Smith contends the trial court erred in dismissing his claim because he did not receive adequate notice or the court should have allowed filing out of time	Soci argued Smith failed to meet the affirmative statutory duty to file the petition and failed to appear or oppose the motion to dismiss	Court affirmed dismissal: claimant has an affirmative 30‑day duty; failure to file and to appear justified dismissal under Civ.R. 41(B)(1)
Whether the court was required to sua sponte give further notice or require BWC to file the petition for Smith	Smith argued the court should have warned him or compelled the Bureau to file on his behalf	Soci argued its motion to dismiss, served on Smith, satisfied notice requirements; no duty exists for BWC to file the petition for a noncompliant claimant	Court held Soci’s motion provided sufficient notice; no legal requirement to force BWC to file; no abuse of discretion in dismissing the unopposed, inactive claim

Bennett v. Administrator, Ohio Bureau of Workers’ Comp., 982 N.E.2d 666 (Ohio 2012) (claimant bears burden to prove entitlement regardless of Commission decision)
Zuljevic v. Midland-Ross Corp., 403 N.E.2d 986 (Ohio 1980) (affirming dismissal for failure to timely file petition under R.C. 4123.512(D))
Singer Sewing Machine Co. v. Puckett, 197 N.E.2d 353 (Ohio 1964) (trial court may permit late filing but claimant still bound by statutory duty)
Pembaur v. Leis, 437 N.E.2d 1199 (Ohio 1982) (dismissal for lack of prosecution is within trial court's discretion)
Sazima v. Chalko, 712 N.E.2d 729 (Ohio 1999) (motion that notifies pro se party of possible dismissal satisfies Civ.R. 41(B)(1) notice requirement)
Perotti v. Ferguson, 454 N.E.2d 951 (Ohio 1983) (dismissal notice under Civ.R. 41(B)(1) must be sent directly to a pro se party)