ROBINSON, APPELLEE, v. B.O.C. GROUP, GENERAL MOTORS CORPORATION, APPELLANT.
Nos. 96-2634 and 96-2778
SUPREME COURT OF OHIO
April 8, 1998
81 Ohio St.3d 361 | 1998-Ohio-432
Submitted January 13, 1998
When an employer has appealed a decision of the Industrial Commission to a court of common pleas under
APPEAL from and CERTIFIED by the Court of Appeals for Trumbull County, No. 96-T-5419.
{¶ 1} In July 1989, claimant-appellee, Lester L. Robinson, Jr., then an employee of appellant, B.O.C. Group, General Motors Corporation (“GM“), filed an application for workers’ compensation benefits with the Industrial Commission of Ohio (“commission“). In July 1990, a district hearing officer allowed the claim, finding that claimant contracted “small airway disease secondary to fume exposure” during the course of his employment with GM. This order was affirmed administratively.
{¶ 2} On November 1, 1991, GM filed a notice of appeal to the Trumbull County Court of Common Pleas. Claimant then filed a complaint, alleging that he was entitled to participate in the State Insurance Fund because he had contracted an
{¶ 3} On October 27, 1994, claimant filed an entry of dismissal without prejudice pursuant to
{¶ 4} On October 2, 1995, claimant refiled his complaint. On January 5, 1996, GM again filed a motion to dismiss under
{¶ 5} The court of appeals reversed the judgment of the trial court and held that “the claimant in a workers’ compensation action is allowed to invoke the procedure under
{¶ 6} In a subsequent entry, the appellate court granted GM‘s motion to certify the record on the basis that its opinion and judgment conflict with that of the Court of Appeals for Franklin County in Rhynehardt v. Sears Logistics Services (1995), 103 Ohio App.3d 327, 659 N.E.2d 375.
{¶ 7} On January 29, 1997, this court allowed a discretionary appeal in case No. 96-2634, determined that a conflict exists in case No. 96-2778, and sua sponte
Gemma & Gemma and Anthony N. Gemma, for appellee.
Vorys, Sater, Seymour & Pease and F. Daniel Balmert, for appellant.
Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, urging affirmance for amicus curiae, Ohio Academy of Trial Lawyers.
Reminger & Reminger Co., L.P.A., and William R. Thomas, urging reversal for amicus curiae, ABF Freight System, Inc.
Vorys, Sater, Seymour & Pease, Robert A. Minor and Robin R. Obetz, urging reversal for amici curiae, Ohio Manufacturers’ Association and Ohio Self-Insurers’ Association.
ALICE ROBIE RESNICK, J.
{¶ 8} The issue certified is as follows:
“When an employer has appealed a decision of the Industrial Commission to a court of common pleas under
{¶ 9}
{¶ 10}
“The claimant shall, within thirty days after the filing of the notice of appeal, file a petition containing a statement of facts in ordinary and concise language showing a cause of action to participate or to continue to participate in the fund and setting forth the basis for the jurisdiction of the court over the action. Further pleadings shall be had in accordance with the Rules of Civil Procedure, provided that service of summons on such petition shall not be required. * * * The court, or
{¶ 11}
{¶ 12}
“Except as provided in subsection (1) an action shall not be dismissed at the plaintiff‘s instance except upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff‘s motion to dismiss, the action shall not be dismissed against the defendant‘s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.”
{¶ 13} In Lewis v. Connor (1985), 21 Ohio St.3d 1, 21 OBR 266, 487 N.E.2d 285, at the syllabus, the court held:
“Where a notice of appeal is filed within the time prescribed by
{¶ 14} Claimant reads Lewis as providing that “[w]here the claimant timely files his complaint (petition) as required by [R.C.] 4123.512, and thereafter voluntarily dismisses such complaint, claimant is * * * entitled to refile his complaint within one year of the dismissal.” To the extent that claimant seeks to bring the facts of the present case within the purview of the holding in Lewis, we disagree.
{¶ 15} Unlike the present case, the claimant in Lewis appealed the commission‘s order to the common pleas court, and the court dismissed claimant‘s complaint without prejudice due to failure of claimant‘s counsel to attend a pretrial
{¶ 16} The certified issue has not been directly addressed by this court. The First, Second, and Tenth District Courts of Appeals have concluded that
{¶ 17} In a series of cases, the Eighth District Court of Appeals has held to the contrary. Rice v. Stouffer Foods Corp. (Nov. 6, 1997), Cuyahoga App. No. 72515, unreported, 1997 WL 691156; Schade v. Ohio Bur. of Workers’ Comp. (1997), 117 Ohio App.3d 857, 691 N.E.2d 772; Moore v. Trimble (Aug. 15, 1996), Cuyahoga App. No. 67895, unreported, 1996 WL 465383; Ross v. Wolf Envelope Co. (Aug. 2, 1990), Cuyahoga App. No. 57015, unreported, 1990 WL 109082.
{¶ 18} In lining up on one or the other side of the issue, the following inquiries are presented: (1) whether the pleading that claimant is required to file in the common pleas court is a “petition” or a “complaint“; (2) whether it is the filing of the notice of appeal by the employer or the filing of the petition/complaint by the claimant that “commences” the action; (3) whether the claimant should be considered the “plaintiff” in the action; (4) whether the employer‘s appeal should be analogized to a “counterclaim” that cannot be independently adjudicated; and (5) whether application of
{¶ 19} All these questions are a necessary and unavoidable consequence of the symbiotic relationship that the General Assembly has created between
I
Petition/Complaint
{¶ 20} The inquiry into whether the claimant‘s initial pleading under
II
Commencement of Action
{¶ 21} According to one view, ”
{¶ 22} Amicus curiae Ohio Academy of Trial Lawyers (“OATL“) argues that the action is commenced by the filing of the complaint, rather than by the notice of appeal. In support, it refers to
{¶ 23}
{¶ 24} The requirement that the claimant must file a petition first appears in
{¶ 25} It seems reasonably clear that the General Assembly contemplated that the filing of the notice of appeal, not the complaint, commences the action. Contrary to OATL‘s position, “the statutory requirement of a notice of appeal is essential to the commencement of the action and it takes precedence over Rule 3(A) which defines commencement as the filing of a complaint with the court.” Young‘s Workmen‘s Compensation Law of Ohio, at 214, Section 11.20. Accordingly, it is the employer, not the claimant, who has commenced the action pursuant to
{¶ 26} This does not mean, however, that the claimant may not dismiss the action. It is not true that ”
{¶ 27} An action is a “claim for relief.” Staff Notes to
{¶ 28} However,
{¶ 29} Regardless of who files the notice of appeal, the action belongs to the claimant. It is the claimant who must “file a petition * * * showing a cause of action to participate or to continue to participate in the fund and setting forth the basis for the jurisdiction of the court over the action.”
{¶ 30} It is also the claimant‘s burden to prove all these facts. As the court explained in Zuljevic, 62 Ohio St.2d at 118, 16 O.O.3d at 141-142, 403 N.E.2d at 988:
“It has been held that a claimant has both the burden of going forward with evidence and the burden of proof at the hearing before the common pleas court. * * * Thus, where an employer appeals an unfavorable administrative decision to the court the claimant must, in effect, re-establish his workers’ compensation claim to the satisfaction of the common pleas court [or jury] even though the claimant has previously satisfied a similar burden at the administrative level.” (Citations omitted.) See, also, Fulton, Ohio Workers’ Compensation Law (1991) 267, Section 12.6. Thus, “a claimant must again substantiate his claim in order to refute an
{¶ 31} In Price v. Westinghouse Elec. Corp. (1982), 70 Ohio St.2d 131, 24 O.O.3d 237, 435 N.E.2d 1114, the court held
{¶ 32} Clearly, this court has consistently found that in an employer-initiated
III
Claimant as Plaintiff
{¶ 34} The first argument is a restated version of the commencement argument, and fails for essentially the same reasons. The claimant files a complaint, pleads all jurisdictional facts, presents a claim for relief, appears in the caption of the complaint as a plaintiff, opens and closes the case, has the burden of production and persuasion, and has the duty to prosecute the action. A trial de novo takes place in the common pleas court within the traditional framework of civil trials, and the claimant is required to take all affirmative steps necessary to have his or her claim litigated.
{¶ 35} Also, as pointed out with respect to the commencement argument, the ruling giving rise to the present appeal is the trial court‘s granting of GM‘s motion pursuant to
{¶ 36} As to the second argument, the fact that claimant is denominated an appellee under
{¶ 37} In a particularly poignant analysis, the Court of Appeals for Franklin County, in Marcum v. Barry (1991), 76 Ohio App.3d 536, 539-540, 602 N.E.2d 419, 421-422, explained as follows:
“Although labeled an appeal and commenced initially by the filing of a notice of appeal, the action in the common pleas court under
“* * * With respect to an
{¶ 38} Thus, when the employer appeals the allowance of a workers’ compensation claim pursuant to
IV
The Counterclaim Analogy
{¶ 39} GM argues that permitting the claimant to dismiss under
{¶ 40} The court in Rhynehardt reasoned that:
“While it is not completely on point, we find the present scenario to be persuasively analogous to the situation in which a
{¶ 41} The court in Anderson agreed “because the employer‘s appeal, which the employee/claimant obviously cannot dismiss, is incapable of being adjudicated independently of the employee/claimant‘s claim of entitlement to Workers’ Compensation benefits set forth in the petition.”
{¶ 42} By its terms,
{¶ 43} Thus, as stated by the court of appeals, “the foregoing logic is not
V
Alteration of Statutory Purpose
{¶ 44}
“These rules, to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * * (7) in all other special statutory proceedings; provided, that where any statute provides for procedure by a general or specific reference to all the statutes governing procedure in civil actions such procedure shall be in accordance with these rules.”
{¶ 45} In Price v. Westinghouse Elec. Corp. (1982), 70 Ohio St.2d 131, 132, 24 O.O.3d 237, 238, 435 N.E.2d 1114, 1115, the court explained:
”
“* * * Moreover, it is clear that in certain instances some of the Civil Rules will be applicable while others will be clearly inapplicable.” (Citations omitted.) See, also, Staff Notes (1970) to
{¶ 46} A Civil Rule is clearly inapplicable ” ‘only when [its] use will alter the basic statutory purpose for which the specific procedure was originally provided in the special statutory action.’ ” Id., 70 Ohio St.2d at 133, 24 O.O.3d at 239, 435 N.E.2d at 1116, quoting State ex rel. Millington v. Weir (1978), 60 Ohio App.2d 348, 349, 14 O.O.3d 310, 311, 397 N.E.2d 770, 772.
{¶ 47} GM and the amici in support argue that the application of
{¶ 48} As presented, the argument is directed at the applicability of
{¶ 49} Whatever reasoning may be advanced as justification for denying a claimant the unilateral ability to dismiss his or her action loses its potency with respect to dismissals under
{¶ 50}
{¶ 51} Moreover, the result urged by GM is that the dismissal without prejudice here operates as the summary destruction of claimant‘s complaint. “This result is both anomalous and fundamentally unfair.” Lewis, 21 Ohio St.3d at 3, 21 OBR at 267, 487 N.E.2d at 287.
{¶ 52} In accordance with all the foregoing, we answer the certified issue in the affirmative, and hold that when an employer has appealed a decision of the
{¶ 53} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.
COOK and LUNDBERG STRATTON, JJ., dissent.
LUNDBERG STRATTON, J., dissenting.
{¶ 54} The claimant in this case presents himself as a “plaintiff” and asserts that he has the right to dismiss his petition under
{¶ 55} First, a claimant is not similarly situated to a traditional plaintiff because the claimant is not the one who commences this action. When the employer appeals a workers’ compensation decision, the claimant is required to file a petition (not a complaint) in response to a notice of appeal filed by the employer. See Keller v. LTV Steel Co. (1996), 76 Ohio St.3d 55, 666 N.E.2d 225 (Lundberg Stratton, J., dissenting). The trial de novo issue is merely a statutory delegation of the burden of proof upon appeal. The majority ignores the fact that the claimant continues to receive benefits while having to reestablish his or her right to these benefits.
{¶ 56} In Anderson v. Sonoco Products Co. (1996), 112 Ohio App.3d 305, 310-311, 678 N.E.2d 631, 634-635, the court emphasized the importance of the language of
“[T]he action is initially brought by the employer, when it is an employer‘s appeal, by virtue of the filing of the notice of appeal. This statute does not refer to the employee as a ‘plaintiff,’ but as a ‘claimant.’ Furthermore, the statute does not
“In our view, the use of the terms ‘claimant’ and ‘petition’ in the statute in contradistinction to the terms ‘plaintiff’ and ‘complaint’ is significant. It reflects the fact that the claimant is not a plaintiff in the ordinary sense of that word as being the person who brought the action. Where the employer has appealed, the employer has brought the action, although the burden of prosecuting that action immediately shifts to the claimant by virtue of the statute. Thus, in our view, the employee/claimant is not a ‘plaintiff’ for purposes of
{¶ 57} Second, this claimant is not similarly situated to a traditional plaintiff because a traditional plaintiff has not yet received any award and therefore does not want delay. In an employer‘s
{¶ 58} Third, this claimant is not similarly situated to a traditional plaintiff because the claimant, having already been awarded benefits at the commission level, is not required to pay back the benefits received, regardless of the outcome
{¶ 59} In conclusion, to permit a claimant to unilaterally dismiss the employer‘s appeal under
COOK, J., dissenting.
{¶ 60} For the reasons set forth in Justice Stratton‘s dissenting opinion, I too must respectfully dissent. I write separately only to complement her analysis.
{¶ 61} Justice Stratton‘s first reason for dissenting tracks the analysis set forth by Judge Fain in Anderson v. Sonoco Products Co. (1996), 112 Ohio App.3d 305, 678 N.E.2d 631. Judge Fain, writing for a majority of the court, interpreted
{¶ 62} Justice Stratton‘s remaining reasons for finding
“These rules, to the extent that they would by their nature be clearly inapplicable, shall not apply to procedure * * * (7) in all other special statutory proceedings.”
{¶ 63} This court has interpreted that rule to mean that ” ‘[t]he civil rules should be held to be clearly inapplicable only when their use will alter the basic statutory purpose for which the specific procedure was originally provided in the special statutory action.’ ” Price v. Westinghouse Elec. Corp. (1982), 70 Ohio St.2d 131, 133, 24 O.O.3d 237, 239, 435 N.E.2d 1114, 1116, quoting State ex rel. Millington v. Weir (1978), 60 Ohio App.2d 348, 349, 14 O.O.3d 310, 311, 397 N.E.2d 770, 772.
{¶ 64} Because the employer‘s challenge under
{¶ 65} Accordingly, I too would answer the certified question in the negative and reverse the judgment of the appellate court.
LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.