Rajeh v. Steel City Corp., 03-MA-102.

• Decision Date: 15 June 2004
• Docket Number: No. 03-MA-102.,03-MA-102.
• Citation: 813 NE 2d 697,157 Ohio App.3d 722
• Parties: RAJEH, Appellant, v. STEEL CITY CORPORATION et al., Appellees.
• Court: Ohio Court of Appeals

157 Ohio App.3d 722

2004-Ohio-3211

813 NE 2d 697

2004-Ohio-3211

RAJEH, Appellant, v. STEEL CITY CORPORATION et al., Appellees.

No. 03-MA-102.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Decided June 15, 2004.

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Boyd, Rummell, Carach & Curry and Matthew N. Bins-Castronovo, Youngstown, for appellant.

Stefanski & Associates and Janice T. O'Halloran, Youngstown; Jim Petro, Attorney General, and Mary Ann O. Rini, Assistant Attorney General, Workers' Compensation Section, Cleveland, for appellees.

GENE DONOFRIO, Judge.

{¶ 1} Plaintiff-appellant, Ghassan Rajeh, appeals from a Mahoning County Common Pleas Court decision awarding summary judgment in favor of defendants-appellees, Steel City Corporation ("Steel City") and the Administrator of the Bureau of Workers' Compensation.

{¶ 2} Appellant is a citizen of Lebanon. He has been in the United States since 1980. In 1981, he was given the status of lawful permanent resident. However, in 1988, he was convicted in federal district court of conspiracy to distribute heroin, an aggravated felony, and served at least five years of an eight-year prison term. Due to his conviction, appellant was found to be "deportable" by an immigration judge. Thus, as of February 26, 1993, appellant was ordered to be deported to Lebanon. He appealed this decision, which was upheld by the Board of Immigration Appeals and the Sixth Circuit Court of Appeals. Appellant was ordered to appear for deportation on two occasions, in 1995 and 1999. He failed to appear at either. He was arrested for failing to appear for deportation and then petitioned the Board of Immigration Appeals in March 1999 for relief from deportation pursuant to the Convention Against Torture. The board granted appellant's request for protection and ordered his deportation deferred on September 6, 2001.

{¶ 3} During the time that appellant's deportation order was active, he obtained a job at Steel City in March 1997. He did not inform Steel City of his deportation status. Appellant claims that he was injured on June 30, 1997, while moving a skid at Steel City. He filed a claim for workers' compensation on November 20, 1997. The claim was initially allowed. However, Steel City later learned of appellant's alien status. It then petitioned the Industrial Commission to deny appellant workers' compensation benefits. The case was reexamined by a district hearing officer and then a staff hearing officer, both of whom concluded that appellant was not entitled to benefits. The district hearing officer concluded that while Ohio law does not preclude illegal aliens from participating in the Workers' Compensation Fund, appellant was not entitled to payments for temporary total disability because he was unable to return to work, since he could not be legally employed per federal law. However, the staff hearing officer concluded that appellant was not entitled to participate in the Workers' Compensation Fund because he was not a "qualified alien" eligible to receive state public benefits within the meaning of Section 1621(a)(c), Title 8, U.S.Code, and was an "unauthorized alien" under Section 1324(a)(h)(3) and 1231(a)(7), Title 8, U.S.Code, which precluded him from entering into a legal employee/employer relationship with Steel City.

{¶ 4} Appellant appealed to the Industrial Commission, which refused the appeal. On September 11, 2002, appellant filed a notice of appeal in the trial court from the Industrial Commission's decision denying his participation in the Workers' Compensation Fund. On May 14, 2003, the trial court issued a one-line judgment entry sustaining appellees' motion for summary judgment. Appellant filed his timely notice of appeal with this court on June 13, 2003.

{¶ 5} Appellant raises two assignments of error, both alleging summary judgment was improper, which will be addressed together. They state:

{¶ 6} "The trial court erred in sustaining defendant-appellee Steel City Corporation's motion for summary judgment, in light of the clear and unresolved issues of fact of whether the plaintiff-appellant was an `employee' of Steel City on June 30, 1997, the day of the injury."

{¶ 7} "Even if no issue of fact is present, the trial court erred in sustaining defendant-appellee Steel City Corporation's motion for summary judgment, because federal and state law favored with plaintiff-appellant."

{¶ 8} Appellant first argues that an issue of fact exists regarding whether he was an "employee" at the time he incurred his injury.

{¶ 9} Although appellant claims that an issue of fact exists as to whether he was an employee, the facts are not in dispute. The dispute between the parties is whether appellant fits the definition of "employee" in the workers' compensation statute, thus entitling him to participate in the Workers' Compensation Fund and whether federal law precludes such participation. Thus, we must resolve this issue as a matter of law.

{¶ 10} In reviewing an award of summary judgment, appellate courts must apply a de novo standard of review. Cole v. Am. Industries & Resources Corp. (1998), 128 Ohio App.3d 546, 552, 715 N.E.2d 1179. Thus, we shall apply the same test as did the trial court in determining whether summary judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary judgment if no genuine issue of material fact exists and when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377. A "material fact" depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc. (1995), 104 Ohio App.3d 598, 603, 662 N.E.2d 1088, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202.

{¶ 11} It should be noted that appellant attached copies of the staff hearing officer's decision and the district hearing officer's decision to the complaint and appeal in the trial court. These decisions were never filed with the trial court. Civ.R. 56(C) lists the types of documents a court may consider when ruling on a motion for summary judgment. They include pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact. Civ.R. 56(C). The proper way to introduce evidentiary matter not specifically authorized by Civ.R. 56(C) is to incorporate such evidence by reference in an affidavit pursuant to Civ.R. 56(E). Robinson v. Springfield Local School Dist. Bd. of Edn., 9th Dist. No. 20606, 2002-Ohio-1382, 2002 WL 462860, at ¶ 25. Neither party followed this procedure. However, appellant attached the copies of the decisions to his pleading, and both parties referred to the decisions, appellant in his pleadings and appellees in their motion for summary judgment, thus acknowledging their authenticity. Additionally, neither party objected to the court's considering the decisions. We have held that such evidence may be considered. Werden v. Ohio Bur. of Workers' Comp., 151 Ohio App.3d 815, 2003-Ohio-1222, 786 N.E.2d 107, at ¶ 7. Thus, we will consider the staff hearing officer's and district hearing officer's decisions.

{¶ 12} In order to participate in the Workers' Compensation Fund, an employee must demonstrate that he sustained an injury in the course of and arising out of his employment. R.C. 4123.01(C). Thus, one must be an "employee" in order to participate. R.C. 4123.01(A)(1)(b) defines an "employee" as:

{¶ 13} "Every person in the service of any person, firm, or private corporation, including any public service corporation, that (i) employs one or more persons regularly in the same business or in or about the same establishment under any contract of hire, express or implied, oral or written, including aliens and minors * * *." (Emphasis added.)

{¶ 14} Appellant argues that since R.C. 4123.01(A)(1)(b) includes aliens, he was an employee entitled to participate in the Workers' Compensation Fund. Conversely, appellees contend that had the legislature intended to include illegal aliens in this definition, it would have specifically stated so. They assert that the legislature intended to make a distinction between aliens and illegal aliens by not including the latter.

{¶ 15} In examining the meaning of a statute:

{¶ 16} "`The court must look to the statute itself to determine legislative intent, and if such intent is clearly expressed therein, the statute may not be restricted, constricted, qualified, narrowed, enlarged or abridged; significance and effect should, if possible, be accorded to every word, phrase, sentence and part of an act, and in the absence of any definition of the intended meaning of the words or terms used in a legislative enactment, they will, in the interpretation of the act, be given their common, ordinary and accepted meaning in the connection in which they are used.'" Moore v. Strassel (Feb. 26, 1998), 4th Dist. No. 97 CA 32, 1998 WL 101354, quoting Wachendorf v. Shaver (1948), 149 Ohio St. 231, 36 O.O. 554, 78 N.E.2d 370, paragraph five of the syllabus.

{¶ 17} The statute does not define "alien." Thus, we must give the word its common, ordinary, and accepted meaning. Webster's New World College Dictionary defines "alien" in relevant part as "a foreigner" and "a foreign-born resident in a country who has not become a naturalized citizen." Webster's New World College Dictionary (3d Ed.1997) 34. These common, everyday definitions make no distinction between legal and illegal aliens.

{¶ 18} And according to the rule of statutory construction, "expressio unius est exclusio alterius," an "`expression of one or more items of a class implies that those not identified are to be excluded.'" State v. Caynor, 7th Dist. No. 867, 2003-Ohio-3282, 2003 WL 21448255, at ¶ 16, quoting State v. Droste (1998...