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June 5, 2006

If you do workers comp court appeals, you should be aware that a quirk in the voluntary dismissal procedure has been addressed by the Ohio legislature.  If either side is not satisfied with the result of a work comp case at the administrative levels, they can appeal to Common Pleas court.  (And unlike other administrative appeals, you get a trial de novo.)  The procedure starts with the filing of a notice of appeal to the court, followed by a complaint filed by the claimant.  After that, it's governed by the normal rules of civil procedure.

Including Rule 41, and that's where the anomaly arose.


Obviously, if the claimant had appealed and wanted to voluntarily dismiss the complaint, that didn't present anything unusual.  But what if the employer had appealed?  Back in 1998, the Supreme Court had held that the claimant could use the voluntary dismissal procedure even if it was the employer who had appealed, reasoning that the fact that the claimant was the one who had to file the complaint made him the "plaintiff" for purposes of the proceedings.

This could have led to a bizarre result:  if it was the employer's appeal, the claimant could file his complaint, then dismiss it and defeat the appeal simply by not refiling the complaint.  This loophole was closed just a few months ago in Fowee v. Wesley Hall, Inc., where the Supreme Court held that if the claimant did not refile the complaint within one year, refiling was barred, and the employer was entitled to judgment on the pleadings.  (This was the same position the 8th District had adopted four years earlier.)

But now even that option has been foreclosed.  In a recent amendment to RC 4123.512, the appeals statute, the legislature specified that "the claimant may not dismiss the complaint without the employer's consent if the employer is the party that filed the notice of appeal..."  The law takes effect June 30, 2006, and although it doesn't specify whether it affects pending cases, under normal rules of construction, there's little question that it will.  Of course, you can still dismiss up until the drop-dead date, and if you're the one that filed the appeal, you can dismiss after that as well.

(On edit:  a shout out to attorney Paul Friedman for tipping me off to the change in the law.  If you've got a tidbit like that, or an interesting issue in a case, drop me a line.  You too could appear in the briefcase.  Your mother will be proud.)

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