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Injured Workers in Ohio Must Obtain Employer Consent Before Dismissing the Complaint on Employer Initiated Court Appeals

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By Danielle Lorenz

October 4, 2017

The Ohio Supreme Court recently held an injured worker, in a workers’ compensation appeal, cannot dismiss the R.C. 4123.512 court appeal if: (1) it was the employer’s appeal; and (2) the employer does not consent to the dismissal. Ferguson v. State, Slip Opinion No. 2017-Ohio-7844.

Specifically, under the Ohio workers’ compensation system, both the employer and injured worker have the right to appeal a final decision of the Industrial Commission to common pleas court on a right to participate issue, pursuant to R.C. 4123.512. However, regardless of which party files the workers’ compensation appeal, the injured worker is always the plaintiff, and the employer is always the defendant.

Notably, if it is the employer’s court appeal, the injured worker can obtain benefits and treatment for the contested conditions during the court appeal. Thus, in 2006, the Ohio Legislature amended R.C. 4123.512 to include a “consent provision” on employer appeals. This consent provision requires an injured worker to obtain the employer’s permission prior to dismissing the complaint on the employer’s court appeal.

This consent provision was specifically at issue in Ferguson, where the injured worker challenged its constitutionality and attempted to dismiss the employer’s court appeal without first seeking employer approval. Both the trial court and Eighth District Court of Appeals agreed with the injured worker and found the consent provision to be unconstitutional. However, the Ohio Supreme Court recently reversed the decision of the lower courts and held the consent provision is constitutional. Specifically, the Court held an injured worker must obtain consent from the employer prior to dismissing his or her complaint on an employer’s court appeal.

In coming to this conclusion, the Court noted the Ohio Legislature enacted the consent provision to address employers’ concerns and to “thwart the ability of claimants to voluntarily dismiss an employer’s appeal without the employer’s consent.” Thus, the Court held requiring employer consent to dismiss the complaint on an employer appeal limits payment of compensation during the pendency of the common pleas appeal and avoids unnecessary delay in the appeal process.

This decision is favorable to both state-fund and self-insured employers. This decision confirms an injured worker must obtain employer consent prior to dismissing his or her complaint on an employer’s R.C. 4123.512 appeal. This allows employers to maintain leverage for settlement purposes over injured workers on employer initiated court appeals. Additionally, if an employer initiated a court appeal and the claimant dismissed the complaint without the employer’s approval and a trial court allowed the dismissal based upon the Eight District Court of Appeals’ now reversed decision, the employer should consider seeking immediate relief from the trial court and ask that the original action be immediately re-instated.

If you would like a copy of this opinion, or if you have any questions related to matters of workers’ compensation, please feel free to contact one of our Workers’ Compensation Practice Group attorneys.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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