Zuljevic v. Midland-Ross Corp., Unitcast Division

• Decision Date: 30 April 1980
• Docket Number: No. 79-740,MIDLAND-ROSS,79-740
• Citation: 16 O.O.3d 140,62 Ohio St.2d 116,403 N.E.2d 986
• Parties: , 16 O.O.3d 140 ZULJEVIC, Appellee, v.CORP., UNITCAST DIVISION, Appellant, et al.
• Court: Ohio Supreme Court

Page 116

62 Ohio St.2d 116

403 N.E.2d 986, 16 O.O.3d 140

ZULJEVIC, Appellee, v. MIDLAND-ROSS CORP., UNITCAST DIVISION, Appellant, et al.

No. 79-740.

Supreme Court of Ohio.

April 30, 1980.

Syllabus by the Court

In a R.C. 4123.519 appeal, a Court of Common Pleas may not, upon an employer's motion, dismiss a workers' compensation claim based upon the claimant's failure to file a R.C. 4123.519 complaint within the 30-day statutory time limit, where claimant was given no notice of the employer's motion. (Singer Sewing Machine v. Puckett, 176 Ohio St. 32, 197 N.E.2d 353, and Thompson v. Reibel, 176 Ohio St. 258, 199 N.E.2d 117, approved and followed.)

On August 4, 1975, the appellee herein, Ivan Zuljevic, moved the Bureau of Workers' Compensation to amend a prior compensation award to include compensation for varicosities of his left leg allegedly resulting from the previously allowed injury. The bureau disallowed plaintiff's motion. On review, the regional board vacated the bureau's order and allowed claimant's motion. By order dated March 9, 1978, the Industrial Commission refused to hear further appeal.

The appellant herein, Midland-Ross Corporation, Unitcast Division (hereinafter "Midland Ross"), timely filed a notice of appeal with both the Court of Common Pleas and the Industrial Commission, pursuant to R.C. 4123.519. ¹ Midland Ross served a copy of the notice of appeal on the attorney who had represented the claimant in the administrative proceedings.

On June 14, 1978, Midland Ross moved the court to enter judgment denying the award amendment for the reason that the claimant had "fail(ed) and refus(ed) to prosecute his claim before this court." Neither the claimant nor claimant's counsel was served a copy of the employer's motion.

On June 30, 1978, claimant's counsel entered his appearance as trial counsel in the Court of Common Pleas. On July 6, 1978, claimant filed his complaint as provided for in R.C. 4123.519, and Midland-Ross responded thereto by answer filed on July 20. Nevertheless, on July 27, 1978, the court entered judgment against the claimant finding "defendant's motion for default judgment to be well taken * * * by reason of the fact that said claimant-plaintiff, despite immediate notice of the appeal, has failed and refused to comply with his statutory obligation to prosecute his claim therefor upon this appeal."

The Court of Appeals reversed and remanded the cause to the trial court.

The cause is before this court upon allowance of a motion to certify the record.

Gallon, Kalniz & Iorio Co., L.P.A., and William E. Takacs, Toledo, for appellee.

Fuller, Henry, Hodge & Snyder and Richard S. Baker, Toledo, for appellant.

SWEENEY, Justice.

R.C. 4123.519 allows an employer or a claimant to obtain judicial review of certain workers' compensation administrative decisions and orders. Such an appeal is initiated by filing a notice of appeal in accordance with the statute within 60 days after the date of the receipt of the adverse decision or order. "Such filings shall be the only act required to perfect the appeal and vest jurisdiction in the court." R.C. 4123.519.

Thereafter it is the affirmative duty of the claimant, irrespective of the claimant's success or failure at the administrative level, to, "within thirty days after the filing of the notice of appeal, file a petition containing a statement of facts in ordinary and concise language showing a cause of action to participate or to continue to participate in the fund and setting forth the basis for the jurisdiction of the court over the action." R.C. 4123.519. The purpose of the petition (referred to as a "complaint" since the adoption of the Civil Rules) is to give orderliness to the appellate proceeding. Singer Sewing Machine v. Puckett (1964), 176 Ohio St. 32, 37, 197 N.E.2d 353. Further pleadings are then had in accordance with the Civil Rules. R.C. 4123.519.

The appeal authorized by R.C. 4123.519 is in the nature of a new trial in the common pleas court State ex rel. Federated Dept. Stores v. Brown (1956), 165 Ohio St. 521, 138 N.E.2d 248; Crabtree v. Young (1965), 1 Ohio St.2d 93, 204 N.E.2d 685 at which the court "determine(s) the right of the claimant to participate or to continue to participate in the fund upon the evidence adduced at the hearing of such action." R.C. 4123.519.

It has been held that a claimant has both the burden of going forward with evidence and the burden of proof at the hearing before the common pleas court. Swift & Co. v. Wreede (1959), 110 Ohio App. 252, 168 N.E.2d 757. See, also, Smith v. Young (1963), 119 Ohio App. 176, 197 N.E.2d 835. Thus, where an employer appeals an unfavorable administrative decision to the court the claimant must, in effect, re-establish his workers' compensation claim to the satisfaction of the common pleas court even though the claimant has previously satisfied a similar burden at the administrative level.

Civ.R. 41(B)(1) provides:

"Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim."

In the cause sub judice, Midland-Ross' motion seeking entry of judgment against the claimant was grounded upon claimant's "failure and refusal to prosecute his claim." The court did not designate the source of its authority in granting the employer's motion and entering judgment dismissing the workers' compensation claim. We construe such action to be a Civ.R. 41(B)(1) and (3) adjudication on the merits based upon the claimant's failure to prosecute. ²

In Singer Sewing Machine v. Puckett, supra, this court held that a claimant's failure to timely file his R.C. 4123.519 complaint does not of necessity warrant a judicial determination in favor of the employer and against the claimant. "To summarily grant a motion for judgment on the pleadings where the claimant fails to file his petition would be too harsh a consequence for the failure to file a timely petition." Id., 176 Ohio...