Robinson v. B.O.C. Group

[This opinion has been published in Ohio Official Reports at 

81 Ohio St.3d 361

.]




 ROBINSON, APPELLEE, v. B.O.C. GROUP, GENERAL MOTORS CORPORATION,
                                       APPELLANT.
    [Cite as Robinson v. B.O.C. Group Gen. Motors Corp., 

1998-Ohio-432

.]
Workers’ compensation—When employer has appealed Industrial Commission
        decision to common pleas court under R.C. 4123.512, court may
        subsequently grant a motion to voluntarily dismiss employee’s complaint
        without prejudice under Civ.R. 41(A)(2).
When an employer has appealed a decision of the Industrial Commission to a court
        of common pleas under R.C. 4123.512, the court of common pleas may
        subsequently grant a motion to voluntarily dismiss the employee’s
        complaint without prejudice under Civ.R. 41(A)(2).
  (Nos. 96-2634 and 96-2778—Submitted January 13, 1998—Decided April 8,
                                           1998.)
 APPEAL from and CERTIFIED by the Court of Appeals for Trumbull County, No.
                                        96-T-5419.
                                  __________________
        {¶ 1} In July 1989, claimant-appellee, Lester L. Robinson, Jr., then an
employee of appellant, B.O.C. Group, General Motors Corporation (“GM”), filed
an application for workers’ compensation benefits with the Industrial Commission
of Ohio (“commission”). In July 1990, a district hearing officer allowed the claim,
finding that claimant contracted “small airway disease secondary to fume
exposure” during the course of his employment with GM. This order was affirmed
administratively.
        {¶ 2} On November 1, 1991, GM filed a notice of appeal to the Trumbull
County Court of Common Pleas. Claimant then filed a complaint, alleging that he
was entitled to participate in the State Insurance Fund because he had contracted an
                             SUPREME COURT OF OHIO




occupational disease in the course of his employment with GM. Both GM’s appeal
and claimant’s complaint were filed pursuant to, and in accordance with, former
R.C. 4123.519. Effective October 20, 1993, former R.C. 4123.519 was amended
and renumbered R.C. 4123.512.
       {¶ 3} On October 27, 1994, claimant filed an entry of dismissal without
prejudice pursuant to Civ.R. 41(A), which the trial judge signed. On January 23,
1995, GM filed a motion to dismiss the action with prejudice for failure to prosecute
pursuant to Civ.R. 41(B)(1), on the basis that “[p]laintiff had no right to voluntarily
dismiss his Complaint pursuant to Ohio Civil Rule 41(A)(1).” On September 15,
1995, the trial court dismissed the case under Civ.R. 41(B)(1) for failure to
prosecute.
       {¶ 4} On October 2, 1995, claimant refiled his complaint. On January 5,
1996, GM again filed a motion to dismiss under Civ.R. 41(B)(1) and, on January
19, 1996, the trial court ordered the clerk to serve counsel for all parties with the
previous judgment of dismissal in favor of GM.
       {¶ 5} The court of appeals reversed the judgment of the trial court and held
that “the claimant in a workers’ compensation action is allowed to invoke the
procedure under Civ.R. 41(A) because the voluntary dismissal of the complaint
does not directly conflict with any procedure set forth in R.C. 4123.512.” The court
also found that claimant’s October 27, 1994 voluntary dismissal was effectuated
under Civ.R. 41(A)(2), by order of court, rather than under Civ.R. 41(A)(1)(a), by
notice of dismissal.
       {¶ 6} In a subsequent entry, the appellate court granted GM’s motion to
certify the record on the basis that its opinion and judgment conflict with that of the
Court of Appeals for Franklin County in Rhynehardt v. Sears Logistics Services
(1995), 

103 Ohio App.3d 327

, 

659 N.E.2d 375

.
       {¶ 7} On January 29, 1997, this court allowed a discretionary appeal in case
No. 96-2634, determined that a conflict exists in case No. 96-2778, and sua sponte




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                                 January Term, 1998




consolidated the two causes.
                                __________________
        Gemma & Gemma and Anthony N. Gemma, for appellee.
        Vorys, Sater, Seymour & Pease and F. Daniel Balmert, for appellant.
        Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy,
urging affirmance for amicus curiae, Ohio Academy of Trial Lawyers.
        Reminger & Reminger Co., L.P.A., and William R. Thomas, urging reversal
for amicus curiae, ABF Freight System, Inc.
        Vorys, Sater, Seymour & Pease, Robert A. Minor and Robin R. Obetz,
urging reversal for amici curiae, Ohio Manufacturers’ Association and Ohio Self-
Insurers’ Association.
                                __________________
        ALICE ROBIE RESNICK, J.
        {¶ 8} The issue certified is as follows:
        “When an employer has appealed a decision of the Industrial Commission
to a court of common pleas under R.C. 4123.512, can the court of common pleas
subsequently grant a motion to voluntarily dismiss the employee’s complaint
without prejudice under Civ.R. 41(A)(2)?”
        {¶ 9} R.C. 4123.512(A) provides that “[t]he claimant or the employer may
appeal an order of the industrial commission * * * to the court of common pleas *
* *.”
        {¶ 10} R.C. 4123.512(D) provides:
        “The claimant shall, 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. Further
pleadings shall be had in accordance with the Rules of Civil Procedure, provided
that service of summons on such petition shall not be required. * * * The court, or




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the jury * * *, shall determine the right of the claimant to participate or to continue
to participate in the fund upon the evidence adduced at the hearing of the action.”
       {¶ 11} Civ. R. 41(A)(1) provides that “an action may be dismissed by the
plaintiff without order of court * * *.”
       {¶ 12} Civ.R. 41(A)(2) provides:
       “Except as provided in subsection (1) an action shall not be dismissed at the
plaintiff’s instance except upon order of the court and upon such terms and
conditions as the court deems proper. If a counterclaim has been pleaded by a
defendant prior to the service upon him of the plaintiff’s motion to dismiss, the
action shall not be dismissed against the defendant’s objection unless the
counterclaim can remain pending for independent adjudication by the court. Unless
otherwise specified in the order, a dismissal under this paragraph is without
prejudice.”
       {¶ 13} In Lewis v. Connor (1985), 

21 Ohio St.3d 1

, 21 OBR 266, 

487 N.E.2d 285

, at the syllabus, the court held:
       “Where a notice of appeal is filed within the time prescribed by R.C.
4123.519 [now R.C. 4123.512] and the action is dismissed without prejudice after
expiration of that time, R.C. 2305.19, the savings statute, is applicable to workers’
compensation complaints filed in the common pleas court.”
       {¶ 14} Claimant reads Lewis as providing that “[w]here the claimant timely
files his complaint (petition) as required by [R.C.] 4123.512, and thereafter
voluntarily dismisses such complaint, claimant is * * * entitled to refile his
complaint within one year of the dismissal.” To the extent that claimant seeks to
bring the facts of the present case within the purview of the holding in Lewis, we
disagree.
       {¶ 15} Unlike the present case, the claimant in Lewis appealed the
commission’s order to the common pleas court, and the court dismissed claimant’s
complaint without prejudice due to failure of claimant’s counsel to attend a pretrial




                                           4
                                 January Term, 1998




conference. It is true that the syllabus in Lewis is broader than its facts, since, by
its terms, it permits the refiling of a complaint without regard to who filed the appeal
or whether the claimant initiated the dismissal. However, despite the broadness of
the syllabus language, it cannot fairly be said that the court in Lewis gave any
consideration to the issue certified in the case sub judice.
        {¶ 16} The certified issue has not been directly addressed by this court. The
First, Second, and Tenth District Courts of Appeals have concluded that Civ.R.
41(A) does not apply to a workers’ compensation claimant in a case appealed by
the employer under R.C. 4123.512 or former R.C. 4123.519.                 Rhynehardt;
Richwalsky v. ABF Freight Sys., Inc. (Sept. 18, 1996), Hamilton App. No. C-
960064, unreported, 

1996 WL 526695

, appeal pending in case No. 96-2442;
Anderson v. Sonoco Products Co. (1996), 

112 Ohio App.3d 305, 310-311

, 

678 N.E.2d 631, 634-635

.
        {¶ 17} In a series of cases, the Eighth District Court of Appeals has held to
the contrary. Rice v. Stouffer Foods Corp. (Nov. 6, 1997), Cuyahoga App. No.
72515, unreported, 

1997 WL 691156

; Schade v. Ohio Bur. of Workers’ Comp.
(1997), 

117 Ohio App.3d 857

, 

691 N.E.2d 772

; Moore v. Trimble (Aug. 15, 1996),
Cuyahoga App. No. 67895, unreported, 

1996 WL 465383

; Ross v. Wolf Envelope
Co. (Aug. 2, 1990), Cuyahoga App. No. 57015, unreported, 

1990 WL 109082

.
        {¶ 18} In lining up on one or the other side of the issue, the following
inquiries are presented: (1) whether the pleading that claimant is required to file in
the common pleas court is a “petition” or a “complaint”; (2) whether it is the filing
of the notice of appeal by the employer or the filing of the petition/complaint by
the claimant that “commences” the action; (3) whether the claimant should be
considered the “plaintiff” in the action; (4) whether the employer’s appeal should
be analogized to a “counterclaim” that cannot be independently adjudicated; and
(5) whether application of Civ.R. 41(A) alters or defeats the basic purpose of R.C.
4123.512. See, also, Keller v. LTV Steel Co. (1996), 

76 Ohio St.3d 55

, 

666 N.E.2d 5

                             SUPREME COURT OF OHIO




225 (Lundberg Stratton, J., dissenting).
       {¶ 19} All these questions are a necessary and unavoidable consequence of
the symbiotic relationship that the General Assembly has created between R.C.
4123.512 and the Civil Rules. Although these inquiries tend to overlap and merge
in application, they will be considered separately for purposes of analysis.
                                           I
                                 Petition/Complaint
       {¶ 20} The inquiry into whether the claimant’s initial pleading under R.C.
4123.512 is properly denominated a “petition” or a “complaint” is a misdirected
question. The term “petition,” as used in R.C. 4123.512, has no special significance
and possesses no unique value. For purposes of the Civil Rules, the pleading that
R.C. 4123.512 names a petition is a complaint. R.C. 4123.512’s use of the word
“petition” in no way affects the operation or applicability of Civ.R. 41(A). Zuljevic
v. Midland-Ross Corp. (1980), 

62 Ohio St.2d 116, 118

, 

16 O.O.3d 140, 141

, 

403 N.E.2d 986, 987

; Staff Notes to Civ.R. 8(A); Young’s Workmen’s Compensation
Law of Ohio (2 Ed.1971) 214, 216, Section 11.20.
                                           II
                             Commencement of Action
       {¶ 21} According to one view, “Civ.R. 41(A) applies only to those who
commence the action and the claimant was not the one who commenced the action.”
(Emphasis sic.) Keller, 

76 Ohio St.3d at 55

, 

666 N.E.2d at 225

 (Lundberg Stratton,
J., dissenting).   Similarly, GM argues that “[t]he employer commenced the
proceeding and * * * it is not the claimant’s case to dismiss.”
       {¶ 22} Amicus curiae Ohio Academy of Trial Lawyers (“OATL”) argues
that the action is commenced by the filing of the complaint, rather than by the notice
of appeal. In support, it refers to Civ.R. 3, which provides that “[a] civil action is
commenced by filing a complaint with the court.”
       {¶ 23} R.C. 4123.512(A) governs who may appeal an order of the Industrial




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                                January Term, 1998




Commission, which court has jurisdiction, and when the appeal must be filed. The
last sentence of the first paragraph of R.C. 4123.512(A) reads: “The filing of the
notice of the appeal with the court is the only act required to perfect the appeal.”
The second paragraph of R.C. 4123.512(A) begins, “[i]f an action has been
commenced * * *.”
       {¶ 24} The requirement that the claimant must file a petition first appears
in R.C. 4123.512(D). When “the employer appeals, the purpose of requiring a
petition by the claimant is to give orderliness to the appellate proceeding.” Singer
Sewing Machine Co. v. Puckett (1964), 

176 Ohio St. 32

, 37, 

26 O.O.2d 303

, 305,

197 N.E.2d 353

, 356.
       {¶ 25} It seems reasonably clear that the General Assembly contemplated
that the filing of the notice of appeal, not the complaint, commences the action.
Contrary to OATL’s position, “the statutory requirement of a notice of appeal is
essential to the commencement of the action and it takes precedence over Rule 3(A)
which defines commencement as the filing of a complaint with the court.” Young’s
Workmen’s Compensation Law of Ohio, at 214, Section 11.20. Accordingly, it is
the employer, not the claimant, who has commenced the action pursuant to R.C.
4123.512.
       {¶ 26} This does not mean, however, that the claimant may not dismiss the
action. It is not true that “Civ.R. 41(A) applies only to those who commence the
action” or that “it is not the claimant’s case to dismiss.” There is nothing in Civ.R.
41(A) that purports to limit its application to those who commence the action or
that makes dismissal contingent upon commencement.                Indeed, the word
“commence” is nowhere to be found in Civ.R. 41(A).
       {¶ 27} An action is a “claim for relief.” Staff Notes to Civ.R. 8(A). In the
usual civil case, the party commencing the action is the one presenting a claim for
relief. Thus, in the usual civil case, it would be accurate to conclude that Civ.R.
41(A) applies to those who commence the action.




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                              SUPREME COURT OF OHIO




        {¶ 28} However, R.C. 4123.512 is a special statutory proceeding that
creates a unique situation in which the party commencing the action is not
presenting a claim for relief.     When an employer appeals the commission’s
allowance of a claim pursuant to R.C. 4123.512, the employer is not presenting a
claim for relief. A notice of appeal filed by the employer pursuant to R.C. 4123.512
is no more a claim for relief than it is a request for “affirmative relief” or a “demand
for judgment.” Zuljevic, 

62 Ohio St.2d at 119

, 

16 O.O.3d at 142

, 

403 N.E.2d at 988, fn. 2

.
        {¶ 29} Regardless of who files the notice of appeal, the action belongs to
the claimant. It is the claimant who must “file a petition * * * 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. 4123.512(D). It is the
claimant who must plead all “the jurisdictional facts, i.e., injury in the course of
and arising out of employment, disability, causal relationship, the filing of a claim,
the required administrative processing terminating in an appealable order and the
venue, situs of the injury or contract.” Young’s Workmen’s Compensation Law,
at 213, Section 11.20.
        {¶ 30} It is also the claimant’s burden to prove all these facts. As the court
explained in Zuljevic, 

62 Ohio St.2d at 118

, 

16 O.O.3d at 141-142

, 

403 N.E.2d at 988

:
        “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. *
* * 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 [or jury] even though the claimant has
previously satisfied a similar burden at the administrative level.”          (Citations
omitted.) See, also, Fulton, Ohio Workers’ Compensation Law (1991) 267, Section
12.6. Thus, “a claimant must again substantiate his claim in order to refute an




                                           8
                                January Term, 1998




employer’s appeal.” (Emphasis added.)            Youghiogheny & Ohio Coal Co. v.
Mayfield (1984), 

11 Ohio St.3d 70, 72

, 11 OBR 315, 316, 

464 N.E.2d 133, 135

.
       {¶ 31} In Price v. Westinghouse Elec. Corp. (1982), 

70 Ohio St.2d 131

, 

24 O.O.3d 237

, 

435 N.E.2d 1114

, the court held Civ.R. 56 applicable to proceedings
brought under former R.C. 4123.519.             In Price, the employer appealed the
commission’s decision to the court of common pleas, and we noted that Civ.R.
56(B) was applicable to these proceedings. 

Id.,

70 Ohio St.2d at 132

, 

24 O.O.3d at 238

, 

435 N.E.2d at 1115, fn. 1

. Civ.R. 56(B) makes summary judgment available
to “[a] party against whom a claim * * * is asserted,” while Civ.R. 56(A) makes
summary judgment available to “[a] party seeking to recover upon a claim.”
(Emphasis added.)
       {¶ 32} Clearly, this court has consistently found that in an employer-
initiated R.C. 4123.512 appeal, it is the claimant, not the employer, who presents a
claim for relief. Accordingly, the fact that GM commenced the instant action in the
common pleas court does not preclude claimant from voluntarily dismissing it
pursuant to Civ.R. 41(A). Indeed, it would be quite anomalous to preclude claimant
access to Civ.R. 41(A) on the basis that he did not commence the action. The cause
is presently before this court precisely because it was dismissed by the trial court
pursuant to Civ.R. 41(B)(1), on the basis that claimant failed to prosecute the action.
Yet, the party who is required to prosecute the action under Civ.R. 41(B)(1) (and
to show a “right to relief” under [B][2]) is the same person to whom Civ.R. 41(A)
gives the right to dismiss the action. If the right to dismiss is contingent upon
commencement, so is the duty to prosecute. It is inconsistent to withhold from
claimant the voluntary dismissal provisions of Civ.R. 41(A), on the basis that it is
not his action to dismiss, yet apply against claimant the involuntary dismissal
provisions of Civ.R. 41(B), on the basis that it is claimant’s action to prosecute.
                                          III
                                Claimant as Plaintiff




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                             SUPREME COURT OF OHIO




        {¶ 33} The assertion that a claimant is not a plaintiff in an employer-
initiated R.C. 4123.512 appeal is based on two arguments: (1) the claimant is not
the one who brought the action, and (2) the claimant is an appellee.
        {¶ 34} The first argument is a restated version of the commencement
argument, and fails for essentially the same reasons. The claimant files a complaint,
pleads all jurisdictional facts, presents a claim for relief, appears in the caption of
the complaint as a plaintiff, opens and closes the case, has the burden of production
and persuasion, and has the duty to prosecute the action. A trial de novo takes place
in the common pleas court within the traditional framework of civil trials, and the
claimant is required to take all affirmative steps necessary to have his or her claim
litigated.
        {¶ 35} Also, as pointed out with respect to the commencement argument,
the ruling giving rise to the present appeal is the trial court’s granting of GM’s
motion pursuant to Civ.R. 41(B)(1). Civ.R. 41(B)(1) authorizes the court to
involuntarily dismiss an action or claim “[w]here the plaintiff fails to prosecute.”
(Emphasis added.) This is the same plaintiff to whom Civ.R. 41(A) grants the right
of voluntary dismissal. Thus, for purposes of Civ.R. 41, the claimant in an
employer-initiated R.C. 4123.512 appeal is the plaintiff.
        {¶ 36} As to the second argument, the fact that claimant is denominated an
appellee under R.C. 4123.512 does not detract from his or her status as a plaintiff
for purposes of Civ.R. 41. “The appeal authorized by R.C. 4123.519 is unique in
that it is considered a trial de novo.” Youghiogheny & Ohio Coal Co., 

11 Ohio St.3d at 71

, 11 OBR at 316, 

464 N.E.2d at 134

. It necessitates a new trial, without
reference to the administrative claim file or consideration of the results of the
administrative hearings. Valentino v. Keller (1969), 

17 Ohio St.2d 21

, 

46 O.O.2d 194

, 

244 N.E.2d 750

; Young’s Workmen’s Compensation Law, at 217, Section
11.20. It is not a record review or an error proceeding. Instead, “[t]he court, or the
jury under the instructions of the court, if a jury is demanded, shall determine the




                                          10
                                January Term, 1998




right of the claimant to participate or to continue to participate in the fund upon the
evidence adduced at the hearing of the action.” R.C. 4123.512(D).
       {¶ 37} In a particularly poignant analysis, the Court of Appeals for Franklin
County, in Marcum v. Barry (1991), 

76 Ohio App.3d 536, 539-540

, 

602 N.E.2d 419, 421-422

, explained as follows:
       “Although labeled an appeal and commenced initially by the filing of a
notice of appeal, the action in the common pleas court under R.C. 4123.519 seeking
a redetermination of a decision of the Industrial Commission is not a traditional
error proceeding[ ] * * *. R.C. 4123.519 contemplates not only a full and complete
de novo determination of both facts and law but also contemplates that such
determination shall be predicated not upon the evidence adduced before the
Industrial Commission but, instead, upon evidence adduced before the common
pleas court as in any civil action, which may involve a jury trial if demanded. The
proceedings are de novo both in the sense of receipt of evidence and determination.
The common pleas court, or the jury if it be the factual determiner, makes the
determination de novo without consideration of, and without deference to, the
decision of the Industrial Commission. R.C. 4123.519 contemplates a full de novo
hearing and determination. * * *
       “* * * With respect to an R.C. 4123.519 appeal, there are no words such as
‘review, affirm, modify, or reverse’ as are contained in R.C. 2505.02, nor even the
word ‘affirm’ or the words ‘reverse, vacate, or modify’ as set forth in R.C. 119.12
with respect to administrative appeals generally. Rather, the express language of
R.C. 4123.519 is that contained in division (C) [now section (D) of R.C. 4123.512]
that the court or jury shall ‘determine the right of the claimant to participate or to
continue to participate in the fund upon the evidence adduced at the hearing of the
action.’ (Emphasis added.)” (Citations omitted.)
       {¶ 38} Thus, when the employer appeals the allowance of a workers’
compensation claim pursuant to R.C. 4123.512, the claimant is a plaintiff in the




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common pleas court proceedings.
                                        IV
                            The Counterclaim Analogy
       {¶ 39} GM argues that permitting the claimant to dismiss under Civ.R.
41(A) effectively nullifies the employer’s right to appeal. In support, GM relies on
Rhynehardt and Anderson for the proposition that “an employer’s appeal under
Ohio Rev. Code §4123.512 cannot be resolved when a claimant voluntarily
dismisses his petition.”
       {¶ 40} The court in Rhynehardt reasoned that:
       “While it is not completely on point, we find the present scenario to be
persuasively analogous to the situation in which a Civ.R. 41(A)(1)(a) dismissal is
expressly inapplicable, namely, when there is a counterclaim that cannot be
independently adjudicated. The employer’s appeal cannot be heard independent of
the adjudication of the claimant’s complaint.” Id., 

103 Ohio App.3d at 332

, 

659 N.E.2d at 378

.
       {¶ 41} The court in Anderson agreed “because the employer’s appeal,
which the employee/claimant obviously cannot dismiss, is incapable of being
adjudicated independently of the employee/claimant’s claim of entitlement to
Workers’ Compensation benefits set forth in the petition.”
       {¶ 42} By its terms, Civ.R. 41(A)(2) is also inapplicable where a
counterclaim is pleaded that cannot remain pending for independent adjudication.
However, the analogy is fundamentally flawed. A counterclaim is “[a] pleading
that sets forth a claim for relief.” Civ.R. 8(A). As previously mentioned with
respect to the commencement argument, a notice of appeal filed by the employer
pursuant to R.C. 4123.512 is no more a claim for relief than it is a request for
affirmative relief or a demand for judgment. Zuljevic, 

62 Ohio St.2d at 119

, 

16 O.O.3d at 142

, 

403 N.E.2d at 988, fn. 2

.
       {¶ 43} Thus, as stated by the court of appeals, “the foregoing logic is not




                                           12
                                January Term, 1998




persuasive because an employer’s appeal in a workers’ compensation case is not
analogous to a counterclaim in a civil action.”
                                          V
                          Alteration of Statutory Purpose
       {¶ 44} Civ.R. 1(C) provides, in pertinent part:
       “These rules, to the extent that they would by their nature be clearly
inapplicable, shall not apply to procedure * * * (7) in all other special statutory
proceedings; provided, that where any statute provides for procedure by a general
or specific reference to all the statutes governing procedure in civil actions such
procedure shall be in accordance with these rules.”
       {¶ 45} In Price v. Westinghouse Elec. Corp. (1982), 

70 Ohio St.2d 131, 132

,

24 O.O.3d 237, 238

, 

435 N.E.2d 1114, 1115

, the court explained:
       “Civ.R. 1 is clearly a rule of inclusion rather than exclusion. * * * To the
extent that the issue in question is procedural in nature, the Civil Rules should apply
unless they are ‘clearly inapplicable.’ * * *
       “* * * Moreover, it is clear that in certain instances some of the Civil Rules
will be applicable while others will be clearly inapplicable.” (Citations omitted.)
See, also, Staff Notes (1970) to Civ.R. 1(C).
       {¶ 46} A Civil Rule is clearly inapplicable “ ‘only when [its] use will alter
the basic statutory purpose for which the specific procedure was originally provided
in the special statutory action.’ ” 

Id.,

70 Ohio St.2d at 133

, 

24 O.O.3d at 239

, 

435 N.E.2d at 1116

, quoting State ex rel. Millington v. Weir (1978), 

60 Ohio App.2d 348, 349

, 

14 O.O.3d 310, 311

, 

397 N.E.2d 770, 772

.
       {¶ 47} GM and the amici in support argue that the application of Civ.R.
41(A) would allow claimants to arbitrarily delay the proceedings for perhaps an
additional one or two years, during which time they will continue to receive or
pursue disputed compensation and benefits which the employer or the fund may
not be able to recoup. Thus, Civ.R. 41(A), if applied to an employer’s appeal under




                                          13
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R.C. 4123.512, would alter the basic statutory purpose of such an appeal, which is
to provide for a speedy and inexpensive remedy, and is clearly inapplicable.
       {¶ 48} As presented, the argument is directed at the applicability of Civ.R.
41(A) as a whole, rather than at the applicability of Civ.R. 41(A)(2) in particular,
and draws support from cases that involve dismissals under Civ.R. 41(A)(1)(a).
However, the issue certified in this case, and the only issue properly before the
court at this time, is limited to the applicability of Civ.R. 41(A)(2).
       {¶ 49} Whatever reasoning may be advanced as justification for denying a
claimant the unilateral ability to dismiss his or her action loses its potency with
respect to dismissals under Civ.R. 41(A)(2). The claimant has no ability under
Civ.R. 41(A)(2) to arbitrarily delay the adjudication of the common pleas court
proceedings. Civ.R. 41(A)(2) bestows no right or power of decision upon the
claimant. To the contrary, it provides that “an action shall not be dismissed at the
plaintiff’s instance except upon order of the court and upon such terms and
conditions as the court deems proper.”
       {¶ 50} Civ.R. 41(A)(2), therefore, forces a judicial determination as to the
propriety of the dismissal prior to its effectuation. In considering whether to grant
the dismissal under Civ.R. 41(A)(2), the trial court is able to assess the claimant’s
reasons for dismissal and to gauge whether, and to what extent, the claimant stands
to receive more compensation or benefits at the time the dismissal is sought. Thus,
the employer’s right to an expeditious appeal would not be altered by the claimant’s
use of Civ.R. 41(A)(2).
       {¶ 51} Moreover, the result urged by GM is that the dismissal without
prejudice here operates as the summary destruction of claimant’s complaint. “This
result is both anomalous and fundamentally unfair.” Lewis, 

21 Ohio St.3d at 3

, 21
OBR at 267, 

487 N.E.2d at 287

.
       {¶ 52} In accordance with all the foregoing, we answer the certified issue
in the affirmative, and hold that when an employer has appealed a decision of the




                                          14
                                January Term, 1998




Industrial Commission to a court of common pleas under R.C. 4123.512, the court
of common pleas may subsequently grant a motion to voluntarily dismiss the
employee’s complaint without prejudice under Civ.R. 41(A)(2).
       {¶ 53} Accordingly, the judgment of the court of appeals is affirmed.
                                                                  Judgment affirmed.
       MOYER, C.J., DOUGLAS, F.E. SWEENEY and PFEIFER, JJ., concur.
       COOK and LUNDBERG STRATTON, JJ., dissent.
                               __________________
       LUNDBERG STRATTON, J., dissenting.
       {¶ 54} The claimant in this case presents himself as a “plaintiff” and asserts
that he has the right to dismiss his petition under Civ.R. 41(A). Because I would
find that in an appeal perfected by an employer pursuant to R.C. 4123.512, a
claimant may not voluntarily dismiss his or her petition pursuant to Civ.R. 41(A),
I respectfully dissent for the following three reasons.
       {¶ 55} First, a claimant is not similarly situated to a traditional plaintiff
because the claimant is not the one who commences this action. When the employer
appeals a workers’ compensation decision, the claimant is required to file a petition
(not a complaint) in response to a notice of appeal filed by the employer. See Keller
v. LTV Steel Co. (1996), 

76 Ohio St.3d 55

, 

666 N.E.2d 225

 (Lundberg Stratton, J.,
dissenting). The trial de novo issue is merely a statutory delegation of the burden
of proof upon appeal. The majority ignores the fact that the claimant continues to
receive benefits while having to reestablish his or her right to these benefits.
       {¶ 56} In Anderson v. Sonoco Products Co. (1996), 

112 Ohio App.3d 305, 310-311

, 

678 N.E.2d 631, 634-635

, the court emphasized the importance of the
language of R.C. 4123.512:
       “[T]he action is initially brought by the employer, when it is an employer’s
appeal, by virtue of the filing of the notice of appeal. This statute does not refer to
the employee as a ‘plaintiff,’ but as a ‘claimant.’ Furthermore, the statute does not




                                          15
                              SUPREME COURT OF OHIO




refer to the pleading required to be filed by the claimant as a ‘complaint,’ but as a
‘petition.’
        “In our view, the use of the terms ‘claimant’ and ‘petition’ in the statute in
contradistinction to the terms ‘plaintiff’ and ‘complaint’ is significant. It reflects
the fact that the claimant is not a plaintiff in the ordinary sense of that word as being
the person who brought the action. Where the employer has appealed, the employer
has brought the action, although the burden of prosecuting that action immediately
shifts to the claimant by virtue of the statute.            Thus, in our view, the
employee/claimant is not a ‘plaintiff’ for purposes of Civ.R. 41(A)(1), and is not,
therefore, entitled as a matter of right to dismiss the action without prejudice.”
        {¶ 57} Second, this claimant is not similarly situated to a traditional plaintiff
because a traditional plaintiff has not yet received any award and therefore does not
want delay. In an employer’s R.C. 4123.512 appeal, the commission has already
awarded the claimant benefits and the claimant is receiving those benefits. The
majority’s holding today encourages delay and abuse of Civ.R. 41(A). It allows
the claimant to wait as long as possible and then dismiss the case, wait one year and
refile, or never refile at all, in order to continue to receive payments for a claim that
the employer is challenging. Even though the majority limits the dismissals to
Civ.R. 41(A)(2), which would provide for some judicial control over dismissal of
the case, the trial judge nevertheless lacks control over whether the claimant refiles.
The employer has no mechanism to force the claimant to promptly refile his or her
case; the employer simply must wait for the claimant to make the next move, no
matter how long. If the claimant never refiles, does the employer file a motion after
one year to dismiss a case already dismissed in order to bring closure to the
claimant’s failure to pursue what was the employer’s appeal?
        {¶ 58} Third, this claimant is not similarly situated to a traditional plaintiff
because the claimant, having already been awarded benefits at the commission
level, is not required to pay back the benefits received, regardless of the outcome




                                           16
                                January Term, 1998




of the case. The claimant will continue to receive benefits after failure to refile the
case in one year until a court ruling that would somehow bring closure to this
“dismissed” appeal.
       {¶ 59} In conclusion, to permit a claimant to unilaterally dismiss the
employer’s appeal under Civ.R. 41(A) to delay or thwart the rights of an employer
that is contesting the findings of the Industrial Commission defeats the purpose of
the appeals process and is an abuse of Civ.R. 41(A). Keller, 

76 Ohio St.3d at 55

-
56, 

666 N.E.2d at 225

 (Lundberg Stratton, J., dissenting). Further, permitting this
dismissal frustrates the statutory purpose of R.C. 4123.512. Thus, I agree with the
rationale in Anderson and would hold that when the employer files an appeal in a
common pleas court pursuant to R.C. 4123.512, the employee/claimant is not a
“plaintiff” for purposes of Civ.R. 41(A) and may not voluntarily dismiss the case
without prejudice. Accordingly, I respectfully dissent.
                               __________________
       COOK, J., dissenting.
       {¶ 60} For the reasons set forth in Justice Stratton’s dissenting opinion, I
too must respectfully dissent. I write separately only to complement her analysis.
       {¶ 61} Justice Stratton’s first reason for dissenting tracks the analysis set
forth by Judge Fain in Anderson v. Sonoco Products Co. (1996), 

112 Ohio App.3d 305

, 

678 N.E.2d 631

. Judge Fain, writing for a majority of the court, interpreted
Civ.R. 41(A) to exclude an employee/claimant to an employer’s R.C. 4123.512
appeal from having the right of voluntary dismissal.          Judge Fain based that
interpretation on the differing terms used in Civ.R. 41(A) and in R.C. 4123.512. In
an R.C. 4123.512 appeal, the employee is titled a “claimant” and the pleading that
he or she files is titled a “petition.” As an R.C. 4123.512 claimant to an employer’s
appeal, an employee does not initiate the action by filing the petition. Instead, the
action is initiated by the employer’s filing of an appeal. Common definition of the
term “plaintiff,” which contemplates only the party who initiates an action,




                                          17
                            SUPREME COURT OF OHIO




therefore excludes the R.C. 4123.512 claimant as a person who may invoke a Civ.R.
41(A) dismissal. 

Id. at 309-311

, 

678 N.E.2d 634

-635.
       {¶ 62} Justice Stratton’s remaining reasons for finding Civ.R. 41(A)
inapplicable to employer appeals under R.C. 4123.512 find support in Civ.R. 1(C),
which states:
       “These rules, to the extent that they would by their nature be clearly
inapplicable, shall not apply to procedure * * * (7) in all other special statutory
proceedings.”
       {¶ 63} This court has interpreted that rule to mean that “ ‘[t]he civil rules
should be held to be clearly inapplicable only when their use will alter the basic
statutory purpose for which the specific procedure was originally provided in the
special statutory action.’ ” Price v. Westinghouse Elec. Corp. (1982), 

70 Ohio St.2d 131, 133

, 

24 O.O.3d 237, 239

, 

435 N.E.2d 1114, 1116

, quoting State ex rel.
Millington v. Weir (1978), 

60 Ohio App.2d 348, 349

, 

14 O.O.3d 310, 311

, 

397 N.E.2d 770, 772

.
       {¶ 64} Because the employer’s challenge under R.C. 4123.512 is in the
nature of an appeal and the employee/claimant continues to receive benefits until
the claim is disallowed, a voluntary dismissal under Civ.R. 41(A) permits the
employee/claimant a strategic hedge. Even if the appealing employer ultimately
succeeds on appeal, an employee/claimant may substantially extend his or her
benefit period by invoking Civ.R. 41(A). Accordingly, use of Civ.R. 41(A) in an
R.C. 4123.512 employer’s appeal alters the basic statutory purpose for which the
specific procedure was originally provided in the special statutory action — that
being prompt resolution of a challenge to the employee/claimant’s right to
participate in the State Insurance Fund. By limiting the employee/claimant’s ability
to voluntarily dismiss to the procedure set forth in Civ.R. 41(A)(2), the majority
does not remove this incompatibility.        The delay occasioned by a voluntary
dismissal, even where some control is retained by the court, is simply at odds with




                                        18
                               January Term, 1998




an R.C. 4123.512 appeal.
       {¶ 65} Accordingly, I too would answer the certified question in the
negative and reverse the judgment of the appellate court.
       LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
                              __________________




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