2004 Ohio 7002 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 2} On December 4, 2000, Fowee was injured in the course and scope of her employment with Wesley Hall. She filed a workers' compensation claim numbered 00-819520, which the Industrial Commission allowed for the condition of "lumbar sprain." The allowance of her initial claim is not at issue in this appeal.
{¶ 3} On March 5, 2002, Fowee filed an application with the Industrial Commission to amend her claim to include various low-back conditions, including herniated and protruding discs. The allowance of her request to amend her claim was affirmed by a district hearing officer and by a staff hearing officer. Wesley Hall appealed the order allowing the amended claim to the Industrial Commission, which by an order dated June 24, 2002, refused to hear the appeal.
{¶ 4} On August 23, 2002, Wesley Hall appealed the order allowing the amendment of Fowee's claims to the common pleas court pursuant to R.C.
{¶ 6} In Kaiser v. Ameritemps, Inc., the Ohio Supreme Court held that, in employer-initiated appeals under R.C.
{¶ 7} "[A]n employee cannot perpetually delay refiling after a voluntary dismissal because the saving statute, R.C.
{¶ 9} Holding that the savings statute applies to an employer-initiated appeal if the claimant's complaint is dismissed and not refiled within one year, the appellate courts have relied solely upon the bald conclusion in the obiter inKaiser. But the statement in Kaiser cites to Lewis — a claimant-initiated appeal. In Lewis v. Conner,
{¶ 10} In an employer-initiated appeal, a Civ.R. 41(A)(1)(a) voluntary dismissal does not require the claimant to commence a new action to obtain workers' compensation benefits that have already been administratively allowed. The obiter in Kaiser
also cites to Rice v. Stouffer Foods Corp., for the proposition that a claimant must refile the complaint within one year. InRice, the Eighth Appellate District applied the savings statute to the claimant's Civ.R. 41(A)(1)(a) dismissal principally because of the unfairness caused when the employer remains accountable for medical expenses and disability benefits until the common pleas court disallows the claim. But that very argument was rejected in Kaiser. See
{¶ 12} In an employer-initiated appeal, the claimant's responsibility under R.C.
{¶ 14} The supreme court summarized the rules of statutory construction for workers' compensation cases in Bailey v.Republic Engineered Steels, Inc.,
{¶ 15} Whether the savings statute applies to the claimant in employer-initiated appeals under R.C.
{¶ 16} Unlike the typical application of R.C.
{¶ 18} What was the prejudice to Wesley Hall when Fowee's complaint was refiled nineteen days beyond the savings statute? In Kaiser, the supreme court rejected the assertion by the employer that it was prejudiced by the claimant's voluntary dismissal under Civ.R. 41(A)(1)(a), if the claimant continued to receive benefits for the period between the filing of the notice of appeal and the time when the claim was ultimately disallowed. In the case of state-risk employers, the supreme court observed, R.C.
{¶ 19} The savings statute is not a statute of limitations or a tolling statute that extends the period of a statute of limitations. See Reese v. Ohio State Univ. Hosp. (1983),
{¶ 20} If there is any prejudice to be addressed by the application of the savings statute to R.C.
{¶ 21} By contrast, if the savings statute does not apply, the common pleas court retains the ability, after a claimant voluntarily dismisses his or her complaint, to set deadlines by means of pretrial orders and to enforce those deadlines by a dismissal for failure to prosecute under Civ.R. 41(B)(1). This procedure provides "orderliness to the appellate proceeding" under R.C.
{¶ 22} For all the foregoing reasons, we sustain Fowee's assignment of error. We reverse the order of the trial court granting Wesley Hall's motion for judgment on the pleadings and remand this case to the trial court for further proceedings consistent with this Opinion.
Judgment reversed and cause remanded.
Hildebrandt, P.J., and Painter, J., concur separately.
Concurrence Opinion
{¶ 23} I concur with the lead opinion. As a matter of statutory construction, the claimant's filing of a complaint following an employer's appeal does not constitute the filing of a new action within the meaning of R.C.
{¶ 24} I write separately to note the applicability of the familiar admonition to "be careful what you wish for." As the lead opinion aptly notes, the trial court has the authority under Civ.R. 41(B)(1) to order the immediate refiling of the employee's complaint following a voluntary dismissal. Whereas claimants have customarily received a one-year "free ride" during which they have been able to receive benefits without judicial oversight, our decision makes clear that the trial court has the power to truncate the employee's virtually unfettered right to receive benefits following a voluntary dismissal.
Concurrence Opinion
{¶ 25} Kaiser was goofily decided by bending over backwards to favor the employee over the employer. It makes no sense to allow an employee to dismiss a case brought by an employer. In an employer's appeal, how can the employee dismiss the case? Where does it go? Evidently it resides in some sort of legal limbo. The legislature should fix the mess that the Ohio Supreme Court created in Kaiser by amending the statutory scheme. Or that court should overrule Kaiser as an unfortunate aberration. Judge Gorman's resolution of this case is the best we can do with a bad situation.