Michael L. Rice v. Stouffer Foods Corp. Nka Nestle Frozen Food Co.
| Decision Date | 06 November 1997 |
| Docket Number | 97-LW-4265,72515 |
| Parties | MICHAEL L. RICE, Plaintiff-Appellee v. STOUFFER FOODS CORP., ET AL. nka NESTLE FROZEN FOOD COMPANY, Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Court of Common Pleas, Case No. 267708.
For Plaintiff-Appellee: THOMAS E. DAVIS, ESQ. and JOHN R BARRETT, ESQ., 430 Society Building, Akron, Ohio 44308.
For Defendant-Appellant: LOUIS J. LICATA, ESQ. and ELLYN TAMULEWICZ, ESQ., Licata & Assoc. Co., L.P.A., 795 Courthouse Square Bldg., 310 Lakeside Avenue, West, Cleveland, Ohio 44113.
This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25.
Defendant-appellant Nestle Frozen Food Company (formerly known as Stouffer Foods Corporation) appeals from an order of the trial court denying Nestle's motion for judgment for failure of plaintiff-appellee Michael L. Rice to prosecute his workers' compensation claim in the trial court. We find the appeal well taken and reverse and enter judgment for defendant-appellant.
This case arises from Nestle's appeal from an order of the Industrial Commission allowing the claim of Nestle's employee, plaintiff Rice, "for fracture of the right fifth metatarsal resulting from an industrial accident on 3-23-90; that all compensation and benefits paid from date of injury until six weeks thereafter are allowed and paid pursuant to this order * * *."
Nestle exercised its statutory right to appeal by filing its notice of appeal from the order in the Common Pleas Court on March 24, 1994. Under R.C. 4123.512(D), within thirty days of service of the notice of appeal, plaintiff Rice was required to file a complaint showing his cause of action to participate in the workers' compensation fund. Notice of appeal was served on Rice on October 25, 1994, thereby requiring Rice to file his complaint by November 24, 1994. Plaintiff Rice failed to file his complaint by that date and offered no explanation for said failure.
After six months passed without the filing of a complaint, Nestle moved the trial court, under Civ.R. 41(B)(1) and (3), to enter judgment for Nestle for plaintiff's failure to prosecute. Plaintiff's response offered no explanation for disregarding his statutory obligations and argued that Nestle sustained no prejudice from the delay, and further that a court should not decide the merits of an action on procedural grounds. The trial court denied Nestle's motion and allowed the filing of plaintiff's complaint instanter on June 1, 1995.
The trial court scheduled the case for trial on January 17, 1996. On January 16, 1996, one day before the scheduled trial date plaintiff voluntarily dismissed his complaint without prejudice pursuant to Civ.R. 41(A)(1)(a). The dismissal entry expressly stated in full text as follows:
Upon notice of the Plaintiff, the Plaintiff hereby voluntarily dismisses his Complaint under the terms and conditions stated herein. This dismissal shall be pursuant to Ohio Rule of Civil Procedure 41(A), shall be without prejudice to future actions, shall be for failure otherwise than upon the merits, and shall specifically allow the Plaintiff to retain the right to refile his cause of action within one (1) year from the date of this Dismissal as prescribed by law. This dismissal of Plaintiff's Complaint shall not operate as a dismissal of Defendant's, Stouffer's Foods Corporation, previously and timely filed R.C. 4123.519 Notice of Appeal.
The dismissal ostensibly precluded the trial court from renderinga decision concerning Nestle's appeal, i.e., whether plaintiff was entitled to participate in the workers' compensation fund.
In any event, plaintiff did not refile his complaint within one year as permitted by Ohio's savings statute, R.C. 2305.19. On the premise that plaintiff could no longer refile his complaint once the savings statute had lapsed to establish his right to participate in the workers' compensation system, Nestle moved the trial court, pursuant to Civ.R. 41(B)(1), for judgment on February 20, 1997. On April 15, 1997, the trial court denied Nestle's motion as "moot," finding that "the issue need be considered only upon refiling." The net effect of this procedural posture appears to deprive Nestle of any right to have a trial court determination of its obligation to pay benefits or have an appeal heard since plaintiff has no economic incentive to refile his complaint. Nestle appealed the trial court's "mootness" decision to this Court by notice filed May 15, 1997. Appellee has filed no brief in this Court.
We will address Nestle's second assignment of error first as we find it dispositive of the appeal.
In ruling that Nestle's motion for judgment was moot, we assume that the trial court found that it had no jurisdiction to enter judgment for Nestle until plaintiff refiled his complaint pursuant to the savings statute. Alternatively, the trial court may have decided that the issue was not ripe or justiciable until the complaint was refiled. Unfortunately, that decision fails to take into account the statutory procedures unique to workers' compensation appeals.
Unlike a typical civil action, the filing of a complaint in a workers' compensation matter does not "commence" the action and confer jurisdiction. Compare R.C. 4123.512(A) with Civ.R. 3(A) (). In a workers' compensation appeal:
Under Section 4123.519, Revised Code, the filing of a petition is not jurisdictional. The filing of a notice of appeal with the Industrial Commission of Ohio and the Court of Common Pleas is the only act required to perfect the appeal and vest jurisdiction in the court.
Singer Sewing Machine Co. v. Puckett (1964), 176 Ohio St. 32, ¶2 of syllabus; Thompson v. Reibel (1964), 176 Ohio St. 258, 260 (). See, also, Rhynehardt v. Sears Logistics Services (1995), 105 Ohio App.3d 327, 332; Ford Motor Co. V. Hamilton (1983), 9 Ohio App.3d 17; Yates v. General Motors (1967), 10 Ohio App.2d 9, 13; Smoliga v. Keller (1965), 3 Ohio App.2d 250, 255.
It therefore follows that the mere voluntary dismissal of the complaint does not oust the common pleas court of jurisdiction. Rhynehardt v. Sears Logistics Serv., supra at 332; see, also, Anderson v. Sonoco Products Co. (1996), 112 Ohio App.3d 305, 309. Plaintiff's voluntary dismissal herein recognized this principle by stating: "This dismissal of Plaintiff's Complaint shall not operate as a dismissal of Defendant's, Stouffer's Foods Corporation [Nestle's], previously and timely filed R.C. 4123.519 Notice of Appeal."
The issue still remains whether defendant Nestle can continue to be charged for the payment of benefits to plaintiff now that time for refiling plaintiff's petition under the savings statute has passed. R.C. 4123.512(A) confers a statutory right on an employee and an employer to appeal a decision of the Industrial Commission to the court of common pleas:
The claimant or the employer may appeal an order of the industrial commission * * * in any injury or occupational disease case, other than a decision as to the extent of disability, to the court of common pleas * * *.
An appeal pursuant to R.C. 4123.512(A) does not stay the payment of an award of compensation once made by the Commission. R.C. 4123.512(H). In other words, an employer remains responsible for benefit payments pending appeal until the court denies the employee the right to participate in the fund. State, ex. rel. Rossetti v. Industrial Comm. (1983), 5 Ohio St.3d 230, 233. In the instant case, Nestle paid six weeks of benefits to its employee which it is contesting. As a self-insured, Nestle is entitled to recoup the amount from the surplus fund if those benefits were erroneously paid. R.C. 4123.512(H); Kokitka v. Ford Motor Co. (June 17, 1993), Cuyahoga App. No. 62410, unreported at 11; Robinson v. B.O.C. Group, General Motors Corp. (Oct. 11, 1996), Trumbull App. No. 96-T-5419, unreported at 4.
Appeals taken pursuant to R.C. 4123.512 are de nova, that is, the trial court must independently assess whether an employee is entitled to participate in the workers' compensation system without regard to the Commission's findings and decisions. Youghiogheny & Ohio Coal Co. v. Mayfield (1984), 11 Ohio St.3d 70, 71; Forster v. Ohio Bur. Of Workers' Comp (1995), 102 Ohio App.3d 744, 746. The burden of proof is always on the employee. See Youghiogheny, 11 Ohio St.3d at 71, citing Zuljevic v. Midland-Ross (1980), 62 Ohio St.2d 116, 118:
[W]here an employer appeals an unfavorable administrative decision to the court the [employee] must, in effect, reestablish his workers' compensation claim to the satisfaction of the common pleas court even though the [employee] has previously satisfied a similar burden at the administrative level.
This Court has ruled that Civ.R. 41(A) concerning voluntary dismissals apply to all workers' compensation appeals. Rogers v. Ford Motor Co. (Aug. 18, 1994), Cuyahoga App. No. 66118, unreported at 5-6. An employee can voluntarily dismiss his complaint and thereafter avail himself of Ohio's...
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