Richardson v. Indus. Comm.Richardson v. Indus. Comm.
Rendered on the 29th day of May , 2009.
. . . . . . . . . . .
EARL RICHARDSON, P.O. Box 60891, Dayton, Ohio 45406 Plaintiff-Appellant, pro se
RICHARD CORDRAY, by DOUGLAS R. UNVER, Atty. Reg. #0051624, Attorney General‘s Office, 150 East Gay Street, 22nd Floor, Columbus, Ohio 43215-3130 Attorney for Defendant-Appellees, Industrial Commission of Ohio and The Bureau of Workers’ Compensation
CARL E. HABEKOST, Atty. Reg. #0043920, and PETER N. LAVALETTE, Atty. Reg. #0063542, Robison, Curphey & O‘Connell, Four SeaGate, Ninth Floor, Toledo, Ohio 43604 Attorneys for Defendant-Appellee, Product Action International
ROBERT G. HANSEMAN, Atty. Reg. #0071825, Sebaly Shillito & Dyer, 40 North Main Street, Suite 1900, Dayton, Ohio 45423
. . . . . . . . . . . . .
FAIN, J.
{¶ 1} Plaintiff-appellant Earl Richardson appeals from a judgment of the Montgomery County Court of Common Pleas dismissing his administrative appeal from an adverse decision of the Industrial Commission of Ohio. Richardson contends that his notice of appeal was timely filed and was in substantial compliance with
I
{¶ 2} Richardson was employed by defendant-appellee Product Action International, LLC (Product Action) during 2004. Richardson alleges that during the term of employment he was exposed to toxic gases which resulted in “high blood pressure, shortness of breath, dizziness, weakness and fatigue etc. [and a] mild heart attack.” Richardson claims thаt while employed by Product Action, he was “contracted out” to TI Group Automotive Systems/Bundy Tubing Corporation‘s (hereinafter TI Group) Sabina, Ohio plant. It was at the TI Group plant that the alleged exposure to toxic gases occurred. Richardson alleges that a female co-worker purposely exposed him to the gases.
{¶ 3} Richardson filed a claim for workers’ compensation benefits with the BWC for what he claimed was an occupational disease allegedly resulting from exposure to the unnamed toxic gases. Richardson‘s claim was denied by a Distriсt Hearing Officer upon a finding that he “failed to submit a causal relationship statement relating an injury to his employment.” The Hearing Officer also noted that the only medical evidence in the record
{¶ 4} Thereafter, Richardson filed an administrative appeal to the Industrial Commission of Ohio which affirmed the decision of the BWC. The final order issued by the Commission was dated June 20, 2007.
{¶ 5} On August 21, 2007, Richardson filed a document styled as a notice of appeal filed with the Montgomery County Court of Common Pleas. The document named thе Commission, the BWC, Product Action and TI Group as defendants. That notice, which consisted of a cover sheet and twenty-four pages of exhibits, did not set forth a BWC claim number or the date of the order appealed. Furthermore, a review of that document reveals that it does not statе that Richardson is appealing from the denial of benefits; it expresses Richardson‘s desire to have the trial court issue a subpoena allowing him access to the records of Product Action and TI Group. The document further states that Richardson wants the court to order a “criminal/civil investigation” of his “toxic exposure claim.”
{¶ 6} The record contains another document, time-stamped August 28, 2007, which is also styled as a notice of appeal. This one-page document sets forth Richardson‘s BWC claim number, the mailing date of the Commission‘s order, as well as a statemеnt that Richardson was appealing the decision of the Commission.
{¶ 7} The Commission filed a motion to dismiss on the basis that it was not a proper party to the action. Product Action, the BWC and TI Group filed motions to dismiss, contending that Richardson‘s first notice of appeal was fatally deficient in that it failed to substantially comply with the mandates of
{¶ 8} On November 14, 2007, the magistrate filed an order and entry setting dates
II
{¶ 9} Richardson‘s Second, Third, Fourth, Sixth, Seventh, and Ninth assignments of error state as follows:
{¶ 10} “DID THE COURT ERROR WHEN IT DISMISSED OHIO BUREAU OF WORKERS COMPENSATION FROM THE ADMINISTRATIVE APPEAL? APPELLANT SAYS YES.
{¶ 11} “DID THE COURT ERROR WHEN IT DISMISSED PRODUCT ACTION INTERNATIONAL FROM THE ADMINISTRATIVE APPEAL? THE APPELLANT SAYS YES.
{¶ 12} “DID THE COURT ERROR WHEN IT DISMISSED TI GROUP AUTOMOTIVE SYSTEMS/BUNDY CORPORATION? APPELLANT SAYS YES.
{¶ 13} “DID THE COURT ERROR WHEN IT RELIED ON BASELESS INFORMATION TO MAKE HIS DECISION CONCERNING THE NOTICE OF APPEAL WITHOUT A TRUE AND HONEST FINDING OF FACT REPORT? APPELLANT SAYS YES.
{¶ 14} “DID THE COURT ERROR WHEN IT DID NOT INVESTIGATE OR INSPECT
{¶ 15} “DID THE COURT ERROR IN NOT TAKING EVERY STEP NECESSARY TO AID IN THE DISPOSITION OF MY CASE WHEN THEIR JURISDICTION WAS DIVESTED DURING MY APPEAL PROCESS? APPELLANT SAYS YES.”
{¶ 16} In support of all of these assignments of error, Richardson argues that the trial court erred by dismissing his administrative appeal. Although the argument set forth in his appellate brief is not clear, we note that during oral argument Richardson claimed that the document styled as a notice of appeal and time-stamped August 28, 2007, was actually provided to the Clerk of Court‘s office for filing on August 21, along with other documents that were filed on that date. Richardson claims that the clerk erred by failing to time-stamp the document on the correct date, instead holding it until August 28. Thus, he contends that his notice of appeal substantially complied with
{¶ 17} We conduct de novo reviews of a trial court‘s decision to grant a motion to dismiss. Howard v. Penske Logistics, LLC, Summit App. No. 24210, 2008-Ohio-4336, ¶7.
{¶ 18}
{¶ 19} “(A) The claimant or the employer may appeal an order of the industrial commission * * * in any injury or occupational disease case * * * to the court of common pleas of the county * * * within sixty days after the date of the receipt of the order appealed from or the date of receipt of the order of the commission refusing to hear an appeal of a staff hearing officer‘s decision under division (D) of section 4123.511 of the Revised Code. The filing of the notice of the apрeal with the court is the only act required to perfect the
{¶ 20} “(B) The notice of appeal shall state the names of the claimant and the employer, the number of the claim, the date of the order appealed from, and the fact that the appellant appeals therefrom. * * * * ”
{¶ 21} “The jurisdictional requirements of
{¶ 22} We begin with Richardson‘s claim that thе clerk neglected to appropriately time-stamp his notice of appeal. We find nothing in the record to indicate that the clerk erred in filing or time-stamping Richardson‘s documents on the dates he tendered them, and thus we presume “the regularity of the Clerk of Courts performance of the filing of documents required of the office and as noted in the records required to be kept by the Clerk.” George v. Pequinot (Aug. 20, 1992), Logan App. No. 8-92-9. Although Richardson claims that he informed the trial court of the clerk‘s error, we find nothing in the record to support this claim. Since he failed to raise such issue at the trial cоurt level he has waived it for appellate review. Sandberg v. John T. Crouch Co. Inc., Montgomery App. No. 21579, 2007-Ohio-7154, ¶13.
{¶ 23} Richardson did file an affidavit with this court, during the pendency of this
{¶ 24} We next address the trial court‘s decision regarding the adequacy and timeliness of the notice of appeal. The notice of appeal filed on August 21 fails to set forth the BWC claim number, the date of the order appealed from, or a statement that Richardson intends to appeal from the denial of benefits. A review of the notice and attached documents establishes that they are not sufficient to apprise the defendants of Richardson‘s intеnt to appeal the BWC and Commission decisions. Instead, as noted above, the document appears to seek a criminal and civil investigation of the events underlying Richardson‘s claim — not a civil review of the Commission‘s denial of benefits. In other words, the document fails to placе the parties on notice as to the nature of the claim raised by Richardson — that he is seeking administrative appellate review of the Commission‘s decision in the Montgomery County Court of Common Pleas. Therefore we conclude that the trial court did not err by finding that the August 21 document does not substantially comply with the provisions of
{¶ 25} It is undisputed that the notice of appeal filed on August 28 was untimely. The requirement that the notice of appeal be timely filed in the appropriate court of common pleas is jurisdictional. Gdovichin v. Geauga Cty. Hwy. Dept. (1993), 90 Ohio App.3d 805. Therefore, even though the later document did substantially comply with
{¶ 27} The Second, Third, Fourth, Sixth, Seventh and Ninth assignments of error are overruled.
III
{¶ 28} Richardson‘s First Assignment of Error is as follows:
{¶ 29} “DID THE COURT ERROR WHEN IT DISMISSED INDUSTRIAL COMMISSION FROM THE ADMINISTRATIVE APPEAL? THE APPELLANT SAYS YES.”
{¶ 30} In this assignment of error, Richardson contends that the trial court erred when it dismissed the appeal as against the Commission.
{¶ 31} Pursuant to
{¶ 32} In this case, the Commission did not seek to be added as a party to the appeal; therefore, it did not submit to the jurisdiction of the trial court. The trial court
{¶ 33} Given the clear language of the above statute, as well as Richardson‘s apparent agreement with the decision of the magistrate in this regard, we must conclude that the trial court did not err by dismissing the Commission. Richardson‘s First Assignment of Error is overruled.
IV
{¶ 34} Richardson‘s Fifth Assignment of Error provides:
{¶ 35} “DID THE COURT ERROR WHEN IT DISMISSED THE PREMISES LIABILITY COMPLAINT? APPELLANT SAYS YES.”
{¶ 36} Richardson contends that the trial court erred by dismissing his complaint against TI Group.
{¶ 37} The record shows that Richardson filed a document entitled “Premisеs Liability Complaint” against TI Group on November 28, 2007. Thereafter, on January 2, 2008, he filed a document titled as a “First Amendment Premises Liability/Personal Jury Complaint” which reiterated the same allegations as the Premises Liability Complaint. TI Group filed a motion seeking dismissal of the complaint, which the trial сourt granted.
{¶ 38}
{¶ 39} We begin by noting that Richardson failed to seek leave of court to file the amended complaint, as required by
{¶ 40} We cannot say that the trial court abused its discretion in dismissing the premises liability complaint, given Richardson‘s representations that the administrative aрpeal and the complaint in negligence were intended to be separate and distinct causes of action.
{¶ 41} The Fifth Assignment of Error is overruled.
V
{¶ 43} “DID THE COURT ERROR WHEN IT DENIED ME DUE PROCESS AND ACCESS TO THE PROCEDURAL DEVISES TO OBTAIN PRE-TRIAL DISCOVERY SO THAT EVIDENCE COULD BE HEARD IN THE INSTANT CASE?”
{¶ 44} Richardson contends that the trial court violated his right to due process by denying him the right to conduct discovery.
{¶ 45} Richardson fails to state with specificity how the trial court prevented him from conducting discovery. Throughout this litigation, he has made general assertions that he has been denied access to discovery. However, we note that the record shows that Richardson did conduct discovery. He filed a Request for Production of Documents during the pendency of his administrative appeal in the trial court. There is nothing in the record to suggest that the trial court hindered Richardson‘s attempt at discovery. Therefore, we conclude that this argument lacks merit. Accordingly, the Eighth Assignment of Error is overruled.
VI
{¶ 46} Richardson‘s Tenth Assignment of Error is as follows:
{¶ 47} “DID THE COURT ERROR IN SECURING STIPULATIONS IN REGULATING ALL MATTERS INCIDENTAL TO THE PROCEEDINGS OR TRIAL, WHICH FALLS WITHIN ITS JURISDICTION? APPELLANT SAYS YES.”
{¶ 48} We cannot discern Richardson‘s argument in connection with this assignment of error. He has not set forth any argument specifically directed to this assignment of error. We are not aware of any stipulations secured by the trial court, and Richardson fails to
VII
{¶ 49} All of Richardson‘s assignments of error having been overruled, the judgment of the trial court is Affirmed.
. . . . . . . . . . . . .
DONOVAN, P.J., and FROELICH, J., concur.
Copies mailed to:
Earl Richardson
Richard Cordray
Douglas R. Unver
Carl E. Habekost
Peter N. Lavalette
Robert G. Hanseman
Hon. A. J. Wagner