NFIB wins BIG in the Supreme Court for Ohio Employers

Date: October 02, 2017

Why Ferguson v. State of Ohio Matters to You

The Ohio Supreme Court issued its decision in the Ferguson v. State of Ohio case ruling in favor of Ohio’s employers. The Supreme Court specifically held that the “Consent Provision” is constitutional. The “Consent Provision” is a part of Ohio Revised Code section 4123.512(D) which prohibits a claimant from dismissing an employer-initiated appeal unless they have the written consent of the employer.

Ohio Revised Code 4123.512 permits an employer or claimant to appeal the allowance or disallowance of a workers’ compensation claim to a court of common pleas. In order to initiate the appeal, either party shall file a notice with the court within 60 days of the final order of the Industrial Commission. The claimant is then required to file their complaint within 30 days of the notice.

However, under Ohio Civil Rule of Procedure 41(A), any claimant had the right to voluntarily dismiss their complaint and refile the complaint within one-year, which is commonly known as Ohio’s Savings Statute. Employers challenged this, arguing they suffered prejudice because they were required to pay benefits while an appeal was pending, which could sometimes be carried on for up to three years if the claimant dismissed under the Savings Statute and refiled a year later. As a result, in 2006, R.C. 4123.512 was amended to include the Consent Provision, i.e. a claimant may only dismiss his or her complaint in an employer-initiated appeal with the employer’s consent.

This was the law in Ohio until this matter was brought before the Eighth District Court of Appeals in 2015. In 2015, the plaintiff brought a declaratory judgment action asking the court to declare the Consent Provision unconstitutional. The judge agreed with the plaintiff and held that Ohio Civil Rule of Procedure 41(A) took precedence over the Consent Provision, and a claimant may voluntarily dismiss their complaint under Rule 41(A) in employer-initiated court appeals without the employer’s consent. The State of Ohio appealed this decision to the Supreme Court of Ohio.

The Supreme Court’s decision here reverses the Eighth District Court of Appeals decision, and, and claimants are again required to obtain the consent of the employer in order to dismiss their complaint under the Savings Statute.

The NFIB watched this case closely from start to finish and filed an Amicus brief opposing the Eighth District Court of Appeals decision when this matter reached the Supreme Court. An Amicus brief is a brief filed by a non-party as a “friend of the court” in order to provide guidance or additional information to the Court relevant to the case that may not otherwise be considered.

On behalf of the NFIB, attorneys at Bricker & Eckler LLP filed an Amicus brief arguing that finding the Consent Provision unconstitutional would be unfair to employers and create an unjustifiable delay in the adjudication of disputed workers’ compensation claims. Permitting a claimant to unilaterally dismiss the employer’s appeal into court would delay an adjudication on the merits for up to three years from the time the original appeal was taken from the Industrial Commission’s decision. Thus, a claimant has every incentive to delay the judicial process by dismissing their complaint on the eve of trial to ensure that they will enjoy workers’ compensation benefits for the disputed condition for an additional two years.

Recognizing the unfair imposition of continuing liability upon employers, the Supreme Court agreed with employers and upheld the constitutionality of R.C. § 4123.512(D) finding that a claimant may not dismiss their complaint without the employer’s consent in an employer-initiated court appeal. The Supreme Court declared workers’ compensation appeals “special proceedings” upon which the Ohio Rules of Civil Procedure do not equally apply.

This is a BIG win for Ohio’s employers who can move forward with confidence that their appeal of a workers’ compensation claims into the court of common pleas will not be unreasonably delayed by the claimant.

– Sue Roudebush, Bricker & Eckler LLP

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