Court of Appeals of Ohio, Seventh District, Mahoning
RONALD R. ANTOUN PLAINTIFF-APPELLEE
THE SHELLY COMPANY, et al. DEFENDANTS-APPELLANTS
Appeal from the Court of Common Pleas of Mahoning County,
Ohio Case No. 13 CV 3228
Plaintiff-Appellee Attorney Frank Gallucci, III Attorney Fred
Papalardo, Jr., Attorney Paul Flowers.
Defendant-Appellant, The Shelly Co., Attorney Kelly Johns.
Defendant, Ohio Bureau of Workers' Compensation,
Assistant Attorney General Workers' Compensation Section.
JUDGES: Hon. Mary DeGenaro Hon. Gene Donofrio Hon. Carol Ann
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.
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.
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
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.
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.
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.
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