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Zebrasky v. Discount Drug Mart, Inc.

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 22, 2017

ALAN ZEBRASKY APPELLANT
v.
DISCOUNT DRUG MART, INC., ET AL. DEFENDANTS- APPELLEES

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-848980

          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

          EILEEN A. GALLAGHER, J.

         {¶1} 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.

         {¶2} 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 appeal.[1]

         {¶3} 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 additional conditions.

         {¶4} 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."[2] 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.

         {¶5} 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.

         {¶6} 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 ...

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