[Cite as Donini v. Manor Care, Inc.,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

RITA DONINI, : Case No. 13CA3583

Plaintiff-Appellant, :

v. : DECISION AND JUDGMENT ENTRY MANOR CARE, INC., : ET AL., : RELEASED: 04/21/14 Defendants-Appellees. : APPEARANCES:

Chad D. McHenry, McHenry Law Office, L.L.C., Portsmouth, Ohio, for appellant.

David M. McCarty, Randall W. Mikes, and Katja E. Garvey, Kegler, Brown, Hill & Ritter Co., L.P.A., Columbus, Ohio, for appellee Manor Care, Inc.

Harsha, J. {¶1} The Industrial Commission of Ohio granted the workers’ compensation

claim of appellant, Rita Donini, recognizing additional medical conditions entitling her to

benefits. After her employer, appellee Manor Care, Inc. (“Manor Care”), appealed the

administrative decision to the court of common pleas, Donini filed a complaint in that

court seeking to participate in the workers’ compensation fund for the additional medical

conditions the commission recognized. As trial on the action approached, the parties

filed a stipulated dismissal without prejudice, which specified that Donini could refile the

action within one year. After the one-year time limit expired without Donini refiling her

complaint, the trial court granted Manor Care's motion for judgment on the pleadings.

The trial court found that Donini was not entitled to participate in workers’ compensation Scioto App. No. 13CA3583 2

benefits for the claimed additional conditions because she failed to meet the saving

statute by refiling her complaint within one year of the stipulated dismissal.

{¶2} On appeal, Donini clams that the trial court lacked jurisdiction over

Manor Care’s motion for judgment on the pleadings because the parties’ stipulation had

dismissed both Donini’s complaint and Manor Care’s appeal. However the parties’

stipulated dismissal operated to dismiss only Donini’s complaint, but not Manor Care’s

appeal. Otherwise, the stipulation would not have specified that Donini could refile her

complaint within a year. In an employer-initiated workers’ compensation appeal, the

employee-claimant must file a subsequent complaint. If the claimant voluntarily

dismisses the complaint with the employer’s consent, the employer is entitled to

judgment on its appeal if the claimant fails to refile the complaint within the year allowed

by the saving statute. In such a proceeding, the filing of the complaint does not

commence the action and confer jurisdiction; rather, the filing of the notice of appeal

with the court of common pleas does. Therefore, the dismissal of Donini’s complaint did

not divest the common pleas court of jurisdiction over Manor Care’s appeal.

Accordingly, we overrule Donini’s assignment of error and affirm the judgment of the

trial court.

I. FACTS

{¶3} Manor Care employed Donini in Scioto County. In May 2010, Donini

sustained injuries during the course of and arising out of her employment with Manor

Care. She filed a workers’ compensation claim, which the Ohio Bureau of Workers’

Compensation allowed for the medical condition of right knee sprain. Scioto App. No. 13CA3583 3

{¶4} Donini filed a motion requesting that her claim be additionally allowed for

the medical conditions of torn medial meniscus and substantial aggravation of

preexisting osteoarthritis of her right knee. After a district hearing officer for the

Industrial Commission rejected Donini’s claim for additional conditions, she appealed

and a staff hearing officer granted the claim. The commission refused Manor Care’s

appeal from the decision.

{¶5} Manor Care appealed from the commission’s decision to the Scioto

County Court of Common Pleas. In accordance with R.C. 4123.512(D), Donini filed a

complaint in the appeal in the common pleas court seeking to participate in the workers’

compensation fund for the additional conditions of torn medial meniscus and substantial

aggravation of preexisting osteoarthritis of the right knee. Manor Care and the

administrator of the Ohio Bureau of Workers’ Compensation filed answers to the

complaint.

{¶6} In March 2012, less than two weeks before a scheduled jury trial in the

case, the parties filed a stipulation of dismissal which provided:

Pursuant to Civ.R. 41(A)(1)(b), now come the participating parties, by and through counsel, and hereby stipulate that the above-captioned matter is dismissed. Such dismissal is without prejudice to the bringing of another action based on any of the claims included in the above-captioned matter. The participating parties agree that Plaintiff, Rita Donini, may re- file the action within one year. Costs for this Stipulated Dismissal to respective parties. No record.

{¶7} In April 2013, after one year had passed from the stipulated dismissal,

Manor Care filed a motion for judgment on the pleadings, requesting a finding that

Donini is not entitled to participate in workers’ compensation benefits for the claimed

additional conditions. Manor Care argued that this result was required because Donini Scioto App. No. 13CA3583 4

failed to refile her complaint within one year of the dismissal, as required by the saving

statute. Donini filed a memorandum in opposition, and she and Manor Care filed

additional memoranda. The trial court granted Manor Care’s motion because Donini

failed to meet the saving statute by refiling her complaint within one year of the

dismissal. The trial court found that Donini is not entitled to participate in workers’

compensation benefits for additional medical conditions.

{¶8} Donini appealed the trial court’s judgment on the pleadings.

II. ASSIGNMENT OF ERROR

{¶9} Donini assigns the following error for our review:

I. THE COMMON PLEAS COURT LACKED JURISDICTION OVER THE DEFENDA[N]T-APPELLEE’S MOTION FOR JUDGMENT ON THE PLEADINGS AND SHOULD HAVE DISMISSED THE MOTION.

III. STANDARD OF REVIEW

{¶10} The existence of a court’s jurisdiction is a question of law that we review

de novo. In the Matter of D.P.J. and P.R.J., 4th Dist. Scioto No. 13CA3532, ¶ 11. In

addition, appellate courts generally review a trial court’s entry of judgment on the

pleadings de novo allowing an independent review. Quality Car & Truck Leasing, Inc. v.

Pertuset, 4th Dist. Scioto No. 11CA3436,

. “Judgment on the

pleadings is appropriate if, after construing all material allegations set forth in the

complaint in favor of the nonmoving party, together with all reasonable inferences, the

trial court finds, beyond doubt, that the non-moving party can prove no set of facts that

entitle it to relief.”

IV. LAW AND ANALYSIS

Jurisdiction in Employer-Initiated Workers’ Compensation Appeal Scioto App. No. 13CA3583 5

{¶11} “R.C. 4123.512 provides a unique process for an appeal to the court of

common pleas regarding a claimant’s right to participate in the State Insurance Fund.”

Kaiser v. Ameritemps, Inc.,

,

(1999).

Regardless of whether the claimant or employer appeals the commission order, “[t]he

claimant shall, within thirty days after the filing of the notice of appeal, file a petition

containing a statement of facts in ordinary and concise language showing a cause of

action to participate or to continue to participate in the fund and setting forth the basis

for the jurisdiction of the court over the action.” R.C. 4123.512(D). The common pleas

court’s review in the appeal is de novo, and the claimant bears the burden of proving a

right to participate in the workers’ compensation fund regardless of the commission

decision. Bennett v. Admr., Bur. of Workers’ Comp.,

, 2012-Ohio-

5639,

, ¶ 17. In other words, where the employer appeals an

unfavorable administrative decision, the claimant must re-establish the claim in the court

of common pleas in spite of prevailing at the administrative level. Kaiser at 413.

{¶12} In an employer-initiated workers’ compensation appeal, the claimant’s

dismissal of the complaint does not affect the employer’s appeal, which remains

pending until the refiling of the complaint. Id. at 415. That is, in a workers’

compensation appeal under R.C. 4123.512, “the filing of the complaint does not

commence the action and confer jurisdiction.” McKinney v. Ohio Bur. of Workers’

Comp., 10th Dist. Franklin No. 04AP-1086,

. Instead, under the

plain language of the governing statute, the only act required to perfect the appeal is the

timely filing of the notice of appeal. Spencer v. Freight Handlers, Inc.,

,

,

, ¶ 8; R.C. 4123.512(A) (“The appellant shall file Scioto App. No. 13CA3583 6

the notice of appeal with a court of common pleas within sixty days after the date of the

receipt of the order appealed from or the date of receipt of the order of the commission

refusing to hear an appeal of a staff hearing officer’s decision under division (D) of

section 4123.511 of the Revised Code. The filing of the notice of appeal with the court is

the only act required to perfect the appeal”). Therefore, the only act that confers

jurisdiction on the common pleas court is the filing of the notice of appeal. See Gambrel

v. C.J. Mahan Constr. Co., 10th Dist. Franklin No. 07AP-1023,

,

citing Fisher v. Mayfield,

,

(1987), paragraph one of the

syllabus (“The filing of a notice of appeal is the only act required to vest jurisdiction in

the common pleas court”).

{¶13} In her sole assignment of error, Donini asserts that the trial court lacked

jurisdiction to address the merits of Manor Care’s motion for judgment on the pleadings

because the parties’ stipulated dismissal acted to dismiss Manor Care’s appeal, not

simply her complaint. Donini’s assertion lacks merit for several reasons. First, a review

of the plain language of the stipulated dismissal specifies that it was filed pursuant to

Civ.R. 41(A)(1)(b). R.C. 4123.512(D) provides that within 30 days after the appeal is

filed, the claimant must file a petition in the common pleas court setting forth "a cause of

action" to participate or to continue to participate in the workers’ compensation fund.

After the claimant files the petition, “[f]urther pleadings shall be had in accordance with

the Rules of Civil Procedure, provided that service of summons on such petition shall

not be required and provided 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 to court

pursuant to this section.” R.C. 4123.512(D). Under Civ.R. 41(A)(1)(b), “a plaintiff, Scioto App. No. 13CA3583 7

without order of court, may dismiss all claims asserted by that plaintiff against a

defendant by * * * filing a stipulation of dismissal signed by all parties who have

appeared in the action.” (Emphasis added.) Therefore, the stipulated dismissal

dismissed only the claims asserted by appellant in her complaint; under the rule, the

dismissal does not purport to dismiss the claims of the employer who initiated the

appeal.

{¶14} Second, the language of the dismissal itself supports this construction

limiting the dismissal to Donini’s complaint because it specifies that “[t]he participating

parties agree that Plaintiff, Rita Donini, may re-file the action within one year.” This

language relates to Donini's duty under the statute requiring her to file "a petition ***

showing a cause of action to participate…(.)" See R.C. 4123.512(D). There is no

language in the dismissal that the parties intended that Manor Care be permitted to

refile its appeal within one year. In fact, notwithstanding Donini’s argument to the

contrary, R.C. 2305.19, the saving statute, applies to claims asserted in pleadings,

which would address Donini’s complaint, but not Manor Care’s appeal because Manor

Care did not file any claim for relief in its answer, e.g., a counterclaim. See R.C.

2305.19(A) (“In any action that is commenced * * *, * * * if the plaintiff fails otherwise

than upon the merits, the plaintiff * * * may commence a new action within one year

after the date of * * * the plaintiff’s failure otherwise than upon the merits * * *. This

division applies to any claim asserted in any pleading by a defendant”). Therefore,

Manor Care would not have been able to refile a timely appeal of the commission’s

decision. Scioto App. No. 13CA3583 8

{¶15} Third, Manor Care’s consent to the dismissal of Donini’s complaint did

not estop it from seeking to enforce the saving statute when Donini failed to refile her

complaint within the one-year period specified in R.C. 2305.19. See Dobransky v.

Cleveland Metro Park Sys., 8th Dist. Cuyahoga No. 98533,

(“The

[employer’s] consent to [claimant’s] voluntary dismissal of its appeal[1 ] did not mean

that it was conceding or settling the question of benefits in [claimant’s] favor and that

[claimant] did not have to refile her petition. Had that been the case, the [employer]

would arguably have consented to a dismissal with prejudice”).

{¶16} Fourth, the cases cited by Donini—Feckner v. Donley’s, Inc., 8th Dist.

Cuyahoga No. 88926,

, and Sipes v. Sipes, 5th Dist. Richland No.

2011-C

, are inapposite. Feckner did not include a statement

in the notice of stipulated dismissal similar to the one here that specified that the

claimant could refile the action within one year, which indicates that the parties intended

to only dismiss the claimant’s complaint and not the employer’s appeal. Feckner also

preceded the same appellate district’s holdings in Dobransky and Nykiel v. Northcoast

Moving Enterprises, 8th Dist. Cuyahoga No. 97009,

, which both held

that the common pleas court retained jurisdiction over employer-initiated workers’

1 Some of the language of cases, including the cited appellate case and prior appellate cases, use the terms “appeal” and “complaint” interchangeably even though they are not. See also Kaiser,

,

, syllabus (“A workers’ compensation claimant may employ Civ.R. 41(A)(1)(a) to voluntarily dismiss an appeal to the court of common pleas brought by an employer under R.C. 4123.512”). In its syllabus in Kaiser, the Supreme Court of Ohio used the terminology of a claimant dismissing an employer’s appeal, but in its opinion, it later specified that the claimant could “properly dismiss his complaint pursuant to Civ.R. 41(A)(1)(a).” (Emphasis added.) Ultimately, the holding in Kaiser was superseded by Am.Sub.S.B. No. 7, effective in August 2006, which ended a claimant’s unilateral ability to dismiss the complaint in an appeal brought by an employer by requiring an employer to consent to the dismissal. See Thorton v. Montville Plastics & Rubber, Inc.,

, 2009- Ohio-360,

. Under R.C. 4123.512(A), the only jurisdictional event is the timely filing of a notice of appeal from the commission’s decision; the filing of the complaint is not jurisdictional. See generally Wasil and Mastrangelo, Ohio Workers’ Compensation Law, Section 14:98 (2009), citing McKinney, 10th Dist. Franklin No. 04AP-1086,

. Scioto App. No. 13CA3583 9

compensation appeals after the claimants filed stipulated dismissals of their complaints.

Sipes is inapplicable because it does not involve an employer-initiated workers’

compensation appeal pursuant to R.C. 4123.512.

{¶17} Therefore, by the plain language of the stipulated dismissal and

consistent with the governing statutes, rule, and precedent, the common pleas court

retained jurisdiction over Manor Care’s appeal after Donini dismissed her complaint with

Manor Care’s consent pursuant to Civ.R. 41(A)(1)(b).

{¶18} After Donini failed to refile her complaint within one year after she had

voluntarily dismissed it with Manor Care’s consent, the trial court properly granted

Manor Care’s motion for judgment on the pleadings. “In an employer-initiated workers’

compensation appeal pursuant to R.C. 4123.512, 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.” Fowee v.

Wesley Hall, Inc.,

,

,

, syllabus.

Although Fowee has been legislatively superseded by Am.Sub.S.B. No. 7 insofar as the

employee-claimant cannot unilaterally dismiss the complaint, but must secure the

employer’s consent to the dismissal, no party suggests that the remainder of its holding

is not viable as long as the employer’s consent to the claimant’s dismissal is obtained.

Thorton,

,

,

. Indeed, cases

involving claimed injuries arising after the effective date of the amendment have applied

precedent to hold that the employer is entitled to judgment if the claimant fails to refile

the complaint within one year of the dismissal. See Dobransky and Nykiel; compare Scioto App. No. 13CA3583 10

Klamforth v. Advanced Foundations Solutions, 10th Dist. Franklin No. 08AP-934, 2009-

Ohio-4547, ¶ 15 (“because the plaintiff in a right-to-participate action bears the burden

of prosecuting the action, it follows that the claimant, postured as a plaintiff, must bear

the burden of his failure to prosecute-even if the action represents, in essence, an

appeal filed by an employer dissatisfied with a determination by the commission that

grants a claim”).

V. CONCLUSION

{¶19} Consequently, the trial court had jurisdiction in the appeal to address the

merits of and grant Manor Care’s motion for judgment on the pleadings. We overrule

Donini’s assignment of error and affirm the judgment of the trial court.

JUDGMENT AFFIRMED. Scioto App. No. 13CA3583 11

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.