Wilmer Damron v. Brown Corp. of Waverly

• Court: Ohio Court of Appeals
• Writing for the Court: Kline, J.
• Decision Date: 30 June 1995
• Docket Number: 94CA535,95-LW-0413
• Citation: Wilmer Damron v. Brown Corp. of Waverly, 94CA535, 95-LW-0413 (Ohio App. Jun 30, 1995)
• Parties: Wilmer Damron, Plaintiff-Appellant, Cross-Appellee v. Brown Corporation of Waverly, Defendant-Appellee, Cross-Appellant and Personnel Solutions, Defendant-Appellee and Wesley Trimble, Administrator of Bureau of Workers' Compensation, Defendant-Appellee Case

Wilmer Damron, Plaintiff-Appellant Cross-Appellee v. Brown Corporation of Waverly, Defendant-Appellee Cross-Appellant

No. 94CA535.

95-LW-0413 (4th)

Court of Appeals of Ohio, Fourth District Pike

June 30, 1995

Mark Aalyson, Portsmouth, Ohio, for Plaintiff-Appellant Cross-Appellee, Wilmer Damron.

Timothy E. Cownas, Columbus, Ohio, for Defendant-Appellee, Cross-Appellant, Brown Corporation of Waverly.

Ronald Koltak, Columbus, Ohio, for Defendant-Appellee, Personnel Solutions.

Charles Zamora, Worker's Compensation Section, Columbus, Ohio, for Defendant-Appellee, Wesley Trimble, Administrator of Bureau of Workers' Compensation.

DECISION

Kline J.

On June 30, 1993, Personnel Solutions dba Enterprises Unlimited (hereinafter referred to as "Personnel solutions"), filed a notice of appeal(fn1) to the Pike County Court of Common Pleas from an April 1993 Industrial Commission order which entitled plaintiff-appellant, Wilmer Damron (hereinafter referred to as "Damron") to participate in the worker's compensation fund, designating Personnel Solutions as the employer. On July 20, 1993, Damron filed a notice of appeal to the Pike County Court of Common Pleas from a separate April 1993 Industrial Commission order which disallowed Damron's claim for worker's compensation against defendant cross-appellant, Brown, Inc. (hereinafter referred to as "Brown"). On October 13, 1993, Damron filed a motion for joinder of defendants pursuant to Civ.R. 20 to join Brown to the action brought by Personnel Solutions. Before a judgment was entered on the joinder motion, the common pleas court granted Brown's motion to intervene pursuant to Civ.R. 24 and the cases were consolidated. Brown then filed a lotion to dismiss on December 15, 1993 that was later denied on March 1, 1993. On March 8, 1994, Personnel Solutions was granted judgment on the pleadings/motion to dismiss by the common pleas court and on May 16, 1994 the common pleas court granted Brown and defendant-appellee, Administrator of the Bureau of Workers' Compensation, summary judgment.

Appellant asserts the following assignments of error:

1. "THE TRIAL COURT ERRED IN GRANTING APPELLEE BROWN'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF EMPLOYER RESPONSIBILITY FOR APPELLANT'S WORKER'S COMPENSATION CLAIM."

2. "THE TRIAL COURT ERRED IN DENYING APPELLANT DAMRON'S MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF EMPLOYER RESPONSIBILITY FOR APPELLANT'S WORKER'S COMPENSATION CLAIM."

On cross-appeal, Brown, asserts the following assignment of error:

"The trial court erred in overruling defendant-cross-appellant's motion to dismiss."

This case arises from an alleged work-related injury suffered by Damron. The issues on appeal originate from the results of the administrative hearings involving Damron's attempt to obtain worker's compensation from either Personnel Solutions or Brown. Therefore a comprehensive history of the administrative procedures is necessary for judicial review.

On March 1, 1990, while on the premises of Brown, Damron allegedly sustained an injury to his neck. On May 24, 1990, seeking coverage for the injury he incurred. Damron filed a claim first against Personnel Solutions in a C-1 application for payment of Compensation and Medical Benefits. This claim was assigned Claim Number 90-12438. Personnel Solutions rejected the claim and on September 18, 1990, the matter was heard before a district hearing officer. The district hearing officer held that the injury sustained was not in the course of and arising out of employment.

Damron filed a notice of appeal on October 9, 1990 and the matter was heard before the Columbus Regional Board of Review on April 9, 1991. The Regional Board of Review mailed the following decision on May 20, 1991:

"A prehearing conference having been dispensed with, it is the finding of the Board that the claim has been previously Disallowed.

"The order herein based upon the Claimant's Appeal, evidence in the file and evidence adduced at the hearing. The Board finds Dr. Lawyer's report persuasive.

"The District Hearing Officer's Order dated 9-18-90 is hereby Reversed and the claim allowed for 'Cervical Strain'." (Emphasis added.)

On June 7, 1991, Personnel Solutions filed a notice of appeal from this decision and the matter was heard before the Industrial Commission on July 22, 1991. The Industrial Commission mailed the following order on August 12, 1991:

"This claim has been previously recognized for: cervical strain.

"It is the finding and order of the Staff Hearing Officers that the employer's Appeal be granted and the order of the Regional Board of Review be vacated. It is the further finding of the Staff Hearing Officers that the District Hearing Officers order dated 9/18/90 be reinstated.

"The order of the District Hearing Officer is modified with the additional finding that the claimant was not an employee of the named employer and that the claimant was not supervised and controlled by the named employer. Therefore, the captioned claim is DISALLOWED." (Emphasis added.)

Damron requested reconsideration of that Industrial Commission order on August 26, 1991 and also filed a second C-1 application for payment of Compensation and Medical Benefits, this time listing Brown as the employer. In order to preserve his right to appeal the order of August 12, 1991 to the common pleas court, Damron filed a notice of appeal to the Pike County Court of Common Pleas on October 15, 1991 as he had not yet received any information on his request for reconsideration. However, the Industrial Commission heard the matter for reconsideration on the same day, October 15, 1991, and mailed the following findings on October 29, 1991:

"It is the order of the Industrial Commission to grant the claimant's request for reconsideration filed on August 26, 1991.

"The Staff Hearing Officer's order of July 22, 1991 is vacated, set aside and held for naught.

"It is ordered that the Regional Board of Review order dated April 9, 1991 remain in full force and effect and the employer's appeal from this Board order is to be held in abeyance, bending adjudication of the claimant's C-1 Application against Brown, Inc.

"After publication of this order, the claim file is referred to PORTS to be set for hearing before a District Hearing Officer on the issue of the allowance of claimant's claim against Brown, Inc. (NOTE: Claimant filed a C-1 in August, 1991, but no claim number has been given by the Bureau of Worker's Compensation as of this date.) Claim Number 90-12438 is to be set for hearing as a reference file.

"The reason for this order is that there may have been an abuse of discretion in the prior order of July 22, 1991." (Emphasis added.)

After receiving the commission's order on reconsideration, Damron voluntarily dismissed his appeal and complaint pursuant to Civ.R. 41(A) (1) (a) on March 9, 1992. Accordingly, the Industrial Commission then ordered and mailed the following finding on May 1, 1992:

"Pursuant to the Journal entry of the Pike County Court of Common Pleas filed herein on 03/17/92, it is ordered that the appeal be dismissed. It is further ordered that the prior orders of the Industrial Commission remain in full force and effect.

"File is to be referred to be scheduled for a District Hearing Officer hearing in accordance with the order of the Industrial Commission dated 10/15/91, findings mailed 10/29/91." (Emphasis added.)

The Bureau of Worker's Compensation proceeded then to address Damron's C-1 application that was filed on August 26, 1991 (application for payment of Compensation and Medical Benefits designating Brown as the employer). The application was assigned Claim Number 90-66014. Brown subsequently rejected Damron's application, claiming that Damron was not an employee of Brown. The matter was before a district hearing officer on August 25, 1992 and the following finding was mailed August 27, 1992:

"This claim is disallowed for the following reason: Claimant was not an employee of the named employer. Place copy of order in herewith claim #90-12438." (Emphasis added.)

Personnel Solutions filed a notice of appeal on September 14, 1992 to preserve its rights. Damron also filed a notice of appeal of the August 25, 1992 finding on September 17, 1992 and the Columbus Regional Board of Review held a hearing on November 12, 1992. The Regional Board of Review issued two separate orders mailed December 9, 1992. Regarding Claim Number 90-66014, the Board held:

"This matter came on for hearing on 11-12-92, before the Regional Board of Review on the Claimant's Appeal from the order of the District Hearing Officer dated 8-5-92[sic].

"***

"A prehearing conference having been dispensed with, it is the finding of the Board that the claim has been previously disalowed[sic].

"***

"The District Hearing Officer's Order dated 8-5-92 [sic] is affirmed." (Emphasis added.)

In regards to Claim Number 90-12438, the Regional Board of Review issued the following order:

"This matter came on for hearing on 11-12-92, before the Regional Board of Review on the Employer's Appeal from the order of the District Hearing Officer dated 8-5-92 [sic] & 4-9-91. ***

"***

"A prehearing conference having been dispensed with, it is the finding of the Board that the claim has been previously disallowed.

"***

"The District Hearing Officer's Order dated 8-5-92 [sic] & 4-9-91 is affirmed." (Emphasis added.)

The Regional Board affirmed the August 25, 1992 district hearing officer's order that Damron's claim be disallowed as to Brown (Claim Number 90-66014) and affirmed the district hearing officer's April 9, 1991 order allowing Damron's claim for "cervical strain" as to Personnel Solutions (Claim Number 90-12438).

Damron filed a notice of appeal on December 18, 1992 from the ...