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Injured Worker’s Inability to Dismiss an Employer Workers’ Compensation Court Appeal without Consent from the Employer Is Ruled Unconstitutional


By Kevin Sanislo and Rebecca Rayner

November 16, 2015

Under Ohio workers’ compensation law, an injured worker or an employer has the right to appeal a final decision of the Industrial Commission into the Court of Common Pleas.  The appealable issue must be a right to participate issue. Under Ohio Revised Code section 4123.512, regardless of who files the appeal into court, the injured worker must always be the Plaintiff and carry the burden of proof and the Employer is always the Defendant.

In 2006, the Ohio Legislature amended Ohio revised Code section 4123.512 thereby requiring an injured worker to seek approval from the employer prior to dismissing his/her Complaint in the trial court on an employer appeal. This amendment was in response to the powerless employers that pursued court appeals on claim allowances or additional allowances.  In those cases, the injured workers would invariably dismiss the Complaint at or near the trial date and re-file the Complaint one year later under Ohio’s savings statute.  Thus, it would prolong litigation.

Recently, the Eighth District Court of Appeals, in Ferguson v. State, 8th Dist. No. 102553, 2015-Ohio-4499, addressed the issue of whether the provision in Ohio Revised Code section 4123.512 prohibiting the injured worker from dismissing an employer appeal in the Court of Common Pleas without the approval of the employer is constitutional.  The Court of Appeals determined that the part of the law prohibiting the injured worker from dismissing the Complaint while in court on an employer appeal is unconstitutional.

The injured worker, Shannon Ferguson, challenged the constitutionality of the portion of the law in the Cuyahoga County Court of Common Pleas.  The trial court agreed with Ferguson noting that the amendment was unconstitutional.  The State of Ohio appealed the decision to the court of appeals. The Eighth District Court of Appeals determined that the amendment to Ohio Revised Code section 4123.512 prohibiting the dismissal of employer appeals without the employer’s consent is unconstitutional and did so on three grounds: (1) it violates the separation of powers doctrine between the court system and the legislature; (2) it is a violation of the Equal Protection Clause because there is no rational basis to strip an injured worker of his/her right to voluntarily dismiss the Complaint without prejudice with the ability to re-file; and (3) it is a violation of Due Process.

This is a decision from the Eighth District Court of Appeals, in Cuyahoga County, which means that it is only controlling in that District. However, it is anticipated that counsel for claimants will lean heavily upon this decision in other Ohio districts to permit them to voluntarily dismiss their client’s claims in the trial court on an employer appeal. Ultimately, this ruling means that for claims in Cuyahoga County an injured worker can dismiss an employer appeal without the employer’s consent.  For the other Ohio districts, employers should anticipate that their court appeals may be dismissed without their consent based upon the Ferguson case. Employers should be prepared for this and should be prepared to proactively fight the underlying claims administratively on treatment and compensation issues while the employer appeal is dismissed and re-filed in the trial court. 

If you would like a copy of the 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.