Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEYS FOR APPELLANT Frank L. Gallucci, III Fred S.
Papalardo Plevin & Gallucci Co., L.P.A. Paul W. Flowers
Paul W. Flowers Co., L.P.A.
ATTORNEY FOR APPELLEE, DISCOUNT DRUG MART, INC. Glenn R.
Jones Jones, Funk & Associates L.P.A.
ATTORNEYS FOR APPELLEE, ADMINISTRATOR, OHIO BUREAU OF
WORKERS' COMPENSATION Michael DeWine Attorney General of
Ohio BY: Timothy X. McGrail Assistant Attorney General
BEFORE: E.A. Gallagher, J., Keough, A.J., and Boyle, J.
JOURNAL ENTRY AND OPINION
A. GALLAGHER, J.
This is an appeal brought by appellant Alan Zebrasky
("Alan") from an order of the Cuyahoga County Court
of Common Pleas dismissing a workers' compensation appeal
filed by his wife, Michelle Zebrasky ("Michelle")
on the ground that it abated upon her death. For the reasons
that follow, we affirm.
Michelle filed a workers' compensation claim for injuries
she allegedly sustained after she slipped and fell on ice
outside of her place of employment in January 2014. Her
workers' compensation claim was allowed for a left ankle
sprain/strain and lumbar sprain. In March 2015, Michelle
filed a motion seeking additional allowances for conditions
described as a left labral calcaneus contusion, closed
fractures of the left second and third metatarsals, a left
calcaneus fracture and left neuritis. Both the district
hearing officer and staff hearing officer allowed her
additional claim for a left labral calcaneus contusion but
disallowed her claim for closed fractures of the left second
and third metatarsals, a left calcaneus fracture and left
neuritis. Michelle appealed the staff hearing officer's
decision to the Industrial Commission of Ohio (the
"industrial commission"). On July 7, 2015, the
industrial commission issued an order refusing to hear the
On July 29, 2015, Michelle commenced this administrative
appeal in the Cuyahoga County Common Pleas Court pursuant to
R.C. 4123.512, seeking review of the staff hearing
officer's decision and requesting a finding that she be
permitted to participate in the workers' compensation
fund for the disallowed conditions of closed fractures of the
left second and third metatarsals, left calcaneus fracture
and left neuritis. Her employer, appellee Discount Drug Mart,
Inc. ("Discount Drug Mart"), and appellee
Administrator, Ohio Bureau of Workers' Compensation (the
"BWC") filed answers denying that Michelle
sustained the disallowed conditions as a result of her
workplace injury and denying that she was entitled to
participate in the workers' compensation fund for these
While her administrative appeal was pending in the common
pleas court, Michelle died. On January 13, 2016,
Michelle's counsel filed a suggestion of death pursuant
to Civ.R. 25(E), indicating that Michelle had died on
December 16, 2015. On August 30, 2016, Discount Drug Mart
filed a motion to dismiss, asserting that Michelle's
workers' compensation claim had abated upon her death.
Michelle's counsel opposed the motion, arguing that Alan,
as her surviving husband, should be allowed to "continue
[her] workers' compensation appeal through R.C.
4123.60" as her dependent. On September 16, 2016, more
than nine months after the filing of the suggestion of her
death, Michelle's counsel filed a motion to substitute
Alan as the real party in interest pursuant to Civ.R. 25(A),
asserting that Alan was "entitled to pursue
[Michelle's] workers' compensation claim as her
dependent in accordance with R.C.
4123.60." That same date, Michelle's counsel
filed a motion to consolidate this action with an
administrative appeal Alan had previously filed in the common
pleas court (Cuyahoga C.P. No. CV-16-8686946) in which he
sought judicial review of an industrial commission decision
denying his claim for death benefits under R.C. 4123.59.
On September 23, 2016, the common pleas court granted
Discount Drug Mart's motion to dismiss concluding that
"[a]n employee-appellant's R.C. 4123 administrative
appeal before a court abates with the death of the
employee-appellant." The common pleas court ordered the
case dismissed with prejudice and indicated that its judgment
was final. The common pleas court thereafter entered a
journal entry denying Michelle's motion to substitute and
motion to consolidate as moot.
Michelle appealed the common pleas court's decision,
raising the following two assignments of error for review:
Assignment of Error I: The trial court erred, as a matter of
law, by dismissing this workers' compensation appeal on
the grounds that the claim abated upon death.
Assignment of Error II: An abuse of discretion was committed
when the unopposed motion to substitute the decedent's