2006 Bill Changing Workers’ Comp Appeal Process Does Not Apply Retroactively to Claim Filed in 2005
2007-1588. Thorton v. Montville Plastics & Rubber, Inc., Slip Opinion No. 2009-Ohio-360.
Geauga App. No. 2006-G-2744, 2007-Ohio-3475. Judgment affirmed.
Moyer, C.J., and Pfeifer, O'Connor, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton and O'Donnell, J., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-360.pdf 
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(Feb. 5, 2009) In a 5-2 decision announced today, the Supreme Court of Ohio held that, with one exception, amendments to Ohio’s workers’ compensation statute enacted by the General Assembly in 2006 as Am. Sub.S.B. No. 7 apply only prospectively to claims that arose after the effective date of the legislation. Applying that ruling to a workers’ compensation case initiated in 2005, the Court ruled that, under the pre-2006 version of the statute, the claimant was permitted to unilaterally dismiss his complaint in an appeal proceeding initiated by his employer.
The Court’s majority opinion was written by Justice Maureen O’Connor.
When the Ohio Bureau of Workers’ Compensation (BWC) grants an employee’s claim for benefits, and an administrative appeal of that ruling by the worker’s employer to the Industrial Commission is unsuccessful, the employer has a statutory right to appeal the commission’s action to the local common pleas court. In order to initiate such an appeal, after the employer files a notice of appeal, the law requires that the worker whose benefits are being challenged must file an initial complaint with the common pleas court setting forth his claim, to which the employer then files its answer.
In January 2006, the BWC granted an award of benefits to Robert Thorton for injuries he sustained in June 2005 while employed by Montville Plastics & Rubber Inc. After an unsuccessful appeal of that award to the Industrial Commission, Montville filed a notice of appeal in the Geauga County Court of Common Pleas on March 1, 2006. On March 13, 2006, Thorton filed the required complaint, to which Montville filed its answer disputing that Thorton’s injuries arose out of his employment.
As part of S.B. 7, legislation that took effect on Aug. 25, 2006, the General Assembly amended the workers’ compensation statute to specify that once an employee has filed the complaint necessary to initiate his employer’s appeal of a BWC award, the employee may not dismiss that complaint without the employer’s consent.
On Oct. 19, 2006, before the case came to trial, Thorton voluntarily dismissed his complaint under Civil Rule 41(A)(1)(a), which allows the plaintiff in a civil action to unilaterally dismiss his complaint once “without prejudice” (without impairing his ability to later refile that claim). On Oct. 31, 2006, the trial court made an entry in its journal noting the dismissal of Thorton’s complaint without prejudice. The effect of the dismissal was to prevent the common pleas court from proceeding to hear Montville’s appeal until either Thorton reinitiated the appeal process by refiling his complaint or the one-year refiling deadline expired.
On Nov. 30, 2006, Montville filed an action in the 11th District Court of Appeals seeking relief from the trial court’s dismissal of Thorton’s complaint. The company argued that the dismissal was improperly granted because Thorton had failed to first obtain Montville’s consent to the dismissal pursuant to the new requirements of S.B. 7 that took effect Aug. 25, 2006. The court of appeals dismissed Montville’s appeal as untimely, holding that the appeal period had begun to run on Oct. 19, and Montville’s Nov. 30 appeal notice had missed the statutory 30-day deadline. The Supreme Court agreed to hear arguments on the issue of whether the employer-consent provision of S.B. 7 was applicable retroactively to all workers’ compensation appeals pending on the effective date of the bill, or if the new provision was applicable only prospectively to claims that arose on or after Aug. 25, 2006.
Writing for the Court in today’s majority opinion, Justice O’Connor noted that, in a 2006 decision, Fowee v. Wesley Hall Inc., the Supreme Court of Ohio held that under the pre-S.B. 7 version of the workers’ compensation statute, if a claimant whose award was being challenged by his employer unilaterally dismissed his complaint in common pleas court as allowed under Civ.R. 41(A)(1)(a), Ohio’s saving statute for civil claims, R.C. 2305.19, allowed the claimant to refile within one year after the date of dismissal.
“Our decision in Fowee expressly recognized that ‘[t]he primary concern in holding that the employee can dismiss the employer’s appeal is the employee’s ability to interminably prolong the proceedings,’ wrote Justice O’Connor. “But we found, as had most of the courts of appeals that had considered the issue, that this concern was sufficiently addressed by the saving statute, which forces the employee-claimant to refile suit within a year of the dismissal or lose the claim.”
Justice O’Connor noted that within months of the announcement of the Fowee decision, “(T)he General Assembly amended R.C. 4123.512(D) through Am.Sub.S.B. No. 7 to address employers’ concerns. That legislation is significant in two ways here. First, Am.Sub.S.B. No. 7 ended an employee-claimant’s unilateral ability to voluntarily dismiss the complaint in an appeal brought by an employer. ... Now, an employer must consent to the dismissal. Second, the General Assembly included an uncodified provision stating its intent that, with one exception, all of the bill’s amendments are prospective in effect. See Section 3 of Am.Sub.S.B. No. 7 (‘This act applies to all claims pursuant to [R.C. Chapter 4123] arising on and after the effective date of this act, except that division (H) of section 4123.512 as amended by this act also applies to claims that are pending on the effective date of this act’). (Emphasis added.) Thorton’s claim arose on the date of his injury, June 27, 2005, ... over a year before S.B. 7’s effective date.
Noting that the new employer-consent requirement at issue in this case is located in division (D) of the statute, not in division (H), Justice O’Connor found that the General Assembly clearly intended the employer-consent provision of the legislation to be applied only prospectively. Because Thorton’s claim was already pending on the day the new law took effect, she concluded, the trial court did not err by proceeding under the former version of the statute and accepting Thorton’s voluntary dismissal without his employer’s consent.
While finding that the 11th District acted correctly in dismissing Montville’s appeal, Justice O’Connor wrote that, rather than rejecting the appeal as untimely, the court of appeals should instead have ruled that, because Thorton’s voluntary dismissal of his complaint under Civ.R. 41(A)(1) did not operate as an adjudication on the merits of Montville’s appeal, the dismissal was not a “final appealable order,” and therefore was not a matter over which the court of appeals had subject matter jurisdiction.
Justice O’Connor’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Judith Ann Lanzinger and Robert R. Cupp.
Justice Terrence O’Donnell entered a dissent, joined by Justices Evelyn Lundberg Stratton, stating that in his view the uncodified language in S.B. 7 cited by the majority was in direct conflict with codified language in R.C. 4123.512(H) that applies the bill’s provisions to “any action pending in common pleas court or any other court ... under this section.”
Justice O’Donnell wrote: “Because this provision refers to ‘this section’ rather than just division (H) of the statute, it encompasses all R.C. 4123.512, including division (D), which limits the employee’s ability to unilaterally dismiss the complaint. Thus, the legislature expressly stated in the codified portion of the statute that R.C. 4123.512 applies retroactively. ... (The) uncodified statement of legislative intent conflicts with the language of the statute as codified, which plainly calls for retroactive application. I would resolve this conflict between the codified and uncodified provisions of Am.Sub.S.B. No. 7 by giving effect to the codified law.”
Contacts
Aubrey B. Willacy, 216.241.7740, for Montville Plastic & Rubber Inc.
Mitchell A. Stern, 216.861.0006, for Robert Thorton.
William P. Marshall, 216.466.8980, for the Administrator, Ohio Bureau of Workless’ Compensation.