Savings Statute Applies
Fowee v. Wesley Hall, Inc. (4/19/06), 108 Ohio St.3d 533, 2006-Ohio-1712.
Issue: Does the savings statute, R.C. 2305.19, apply when an injured worker voluntarily dismisses an employer’s R.C. 4123.512 court appeal?
Background: Fowee was injured and her claim was allowed. She later sought to add additional conditions to her claim. The additional conditions were allowed administratively, and the employer appealed to court under R.C. 4123.512.
Fowee timely filed a complaint, but later dismissed the complaint pursuant to Civil Rule 41(A). After Fowee did not refile the complaint within the one year time provided for refiling a complaint by the saving statute (R.C. 2305.19), the employer filed a motion for judgment on the pleadings.
The trial court granted the motion and entered judgment for the employer. Fowee appealed.
The Court of Appeals found in favor of Fowee. The Court ruled that the savings statute did not apply to workers’ compensation cases where the notice of appeal had been filed by the employer. The employer appealed.
Decision: Supreme Court reverses.
The Court reviews the savings statute and previous cases involving the issue of an employee’s use of Civil Rule 41(A) in cases where the employer has filed a notice of appeal. The Court concludes that even wherethe employer files a workers’ compensation appeal, the case is “commenced” by the filing of the complaint R.C. 4123.512 requires the injured worker to file. As a result, the saving statute’s one year time limit for refiling a claim applies. The Court concludes:
We hold that in an employer-initiated workers’ compensation appeal, after the employee-claimant files the petition as required by R.C. 4123.512 and voluntarily dismisses it as allowed by Civ.R. 41(A), if the employee-claimant fails to refile within the year allowed by the saving statute, R.C. 2305.19, the employer is entitled to judgment on its appeal.
Editor’s Comment: Before the Supreme Court reached this decision, the Tenth Appellate District reached the same result. In Robinson v. Kokosing Constr. Co., Inc. (3/30/06), Franklin App. No. 05AP-770, 2006-Ohio-1532, the Tenth District rejected the Court of Appeals’ decision in this case.
This issue may not arise in the future, based on the recent amendments to the workers’ compensation statute. If those amendments are valid, an employee could no longer use Civil Rule 41(A) to unilaterally dismiss a complaint in an employer’s appeal.