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Antoun v. The Shelly Co.

Court of Appeals of Ohio, Seventh District, Mahoning

June 16, 2017


         Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 13 CV 3228

          For Plaintiff-Appellee Attorney Frank Gallucci, III Attorney Fred Papalardo, Jr., Attorney Paul Flowers.

          For Defendant-Appellant, The Shelly Co., Attorney Kelly Johns.

          For Defendant, Ohio Bureau of Workers' Compensation, Assistant Attorney General Workers' Compensation Section.

          JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Carol Ann Robb.


          DeGENARO, J.

         {¶1} Defendants-Appellants, the Shelly Company and the Administrator of the Ohio Bureau of Workers' Compensation, appeal the trial court judgment granting Plaintiff-Appellee, Ronald Antoun's motion to dismiss without prejudice Antoun's administrative appeal pursuant to Civ. R. 41, without the company's consent. As the Company's and BWC's assigned error is meritorious, the judgment of the trial court is reversed and the case remanded for further proceedings.

         {¶2} While Antoun was working he was involved in a vehicle accident on September 17, 2012. Antoun's workers' compensation claim was initially allowed for cervical sprain/strain and lumbar sprain/strain, and later additionally allowed by the Industrial Commission for cervical disc displacement C5-C6. On November 14, 2013, the Company appealed the Industrial Commission decision allowing Antoun's claim for cervical disc displacement to the common pleas court.

         {¶3} Two years later, following the completion of discovery and several trial continuances as a result of Antoun changing attorneys three times and his separately pending personal injury case, on December 21, 2015, Antoun filed a motion to voluntarily dismiss his complaint, which he based on alternative grounds. Curiously, he first relied on Civ. R. 41(A)(1)(a), which governs notices of dismissal and does not require judicial action, relying on Ferguson v. State, 8th Dist. No. 102553, 2015-Ohio-4499, noting that the Eighth District held that R.C. 4123.512(D) was unconstitutional, but Antoun made no argument to support that contention. Second, Antoun relied upon Civ. R. 41(A)(2) as the basis for his motion; that subsection of the rule controls motions for dismissal. The company did not consent to the dismissal of the administrative appeal and opposed Antoun's motion.

         {¶4} Although it was the Company's appeal, a unique rule governs workers' compensation administrative appeals. After the employer files a notice of appeal with the Industrial Commission, the claimant must file a complaint with the common pleas court. R.C. 4123.512. Further, the appeal to the common pleas court is a complete de novo review which permits the parties to introduce new evidence, and the burden remains on the claimant to justify the award, regardless of which party is appealing. Id.

         {¶5} The trial court granted Antoun's motion to voluntarily dismiss the complaint without elaboration, merely referring to Civ.R. 41(A)(1)(a) rather than Civ.R. 41(A)(2). Also, there was no discussion or mention of Ferguson.

         Workers' Compensation System

         {¶6} Some context before addressing the issue on appeal is beneficial. Ohio's workers' compensation system is a statutory scheme, the fundamental purpose of which is, inter alia to protect injured workers and employers from losses because of workplace accidents, to compensate injured workers and ensure employers pay premiums that reasonably correspond with the risk they present to the system. See State ex rel. Superior Foundry, Inc. v. Indus. Comm. of Ohio, 168 Ohio St. 537, 542, 156 N.E.2d 742 (1959). Those premiums are based upon the nature of the work performed by the employees and the employer's experience rating. Id. The employer's experience rating is determined by the type of claims filed and their safety record. Id. The experience period for each claim is typically five years. Id.

         {¶7} The State cannot charge a claim to an employer's risk account until there is a final determination of the claimant's right to benefits. R.C. 4123.512(H); Arth Brass & Aluminum Castings, Inc.,104 Ohio St.3d 547, 2004-Ohio-6888, 820 N.E.2d 900, ¶37. The State must also reimburse an employer for an increase in premiums due to an improper charge to a risk account. Id. Thus, if a claim is initially allowed administratively, but later denied in the appeal process, the employer will be repaid for any costs incurred on the claim, including costs related to benefit ...

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