COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72515 MICHAEL L. RICE ) ACCELERATED DOCKET ) Plaintiff-Appellee ) JOURNAL ENTRY ) -vs- ) AND ) STOUFFER FOODS CORP., ET AL. ) OPINION nka NESTLE FROZEN FOOD COMPANY ) ) Defendant-Appellant ) ) PER CURIAM Date of Announcement of Decision NOVEMBER 6, 1997 Character of Proceeding Civil appeal from Court of Common Pleas Case No. 267708 Judgment REVERSED; JUDGMENT ENTERED FOR APPELLANT. Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant: THOMAS E. DAVIS, ESQ. LOUIS J. LICATA, ESQ. JOHN R. BARRETT, ESQ. ELLYN TAMULEWICZ, ESQ. 430 Society Building Licata & Assoc. Co., L.P.A. Akron, Ohio 44308 795 Courthouse Square Bldg. 310 Lakeside Avenue, West Cleveland, Ohio 44113 PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. 2 Defendant-appellant Nestle Frozen Food Company (formerly known as Stouffer Foods Corporation) appeals from an order of the trial court denying Nestle's motion for judgment for failure of plaintiff-appellee Michael L. Rice to prosecute his workers' compensation claim in the trial court. We find the appeal well taken and reverse and enter judgment for defendant-appellant. This case arises from Nestle's appeal from an order of the Industrial Commission allowing the claim of Nestle's employee, plaintiff Rice, for fracture of the right fifth metatarsal resulting from an industrial accident on 3-23-90; that all compensation and benefits paid from date of injury until six weeks thereafter are allowed and paid pursuant to this order ***. Nestle exercised its statutory right to appeal by filing its notice of appeal from the order in the Common Pleas Court on March 24, 1994. Under R.C. 4123.512(D), within thirty days of service of the notice of appeal, plaintiff Rice was required to file a complaint showing his cause of action to participate in the workers' compensation fund. Notice of appeal was served on Rice on October 25, 1994, thereby requiring Rice to file his complaint by November 24, 1994. Plaintiff Rice failed to file his complaint by that date and offered no explanation for said failure. After six months passed without the filing of a complaint, Nestle moved the trial court, under Civ.R. 41(B)(1) and (3), to enter judgment for Nestle for plaintiff's failure to prosecute. Plaintiff's response offered no explanation for disregarding his statutory obligations and argued that Nestle sustained no prejudice 3 from the delay, and further, that a court should not decide the merits of an action on procedural grounds. The trial court denied Nestle's motion and allowed the filing of plaintiff's complaint instanter on June 1, 1995. The trial court scheduled the case for trial on January 17, 1996. On January 16, 1996, one day before the scheduled trial date, plaintiff voluntarily dismissed his complaint without prejudice pursuant to Civ.R. 41(A)(1)(a). The dismissal entry expressly stated in full text as follows: Upon notice of the Plaintiff, the Plaintiff hereby voluntarily dismisses his Complaint under the terms and conditions stated herein. This dismissal shall be pursuant to Ohio Rule of Civil Procedure 41(A), shall be without prejudice to future actions, shall be for failure otherwise than upon the merits, and shall specifically allow the Plaintiff to retain the right to refile his cause of action within one (1) year from the date of this Dismissal as prescribed by law. This dismissal of Plaintiff's Complaint shall not operate as a dismissal of Defendant's, Stouffer's Foods Corporation, previously and timely filed R.C. 4123.519 Notice of Appeal. The dismissal ostensibly precluded the trial court from rendering a decision concerning Nestle's appeal, i.e., whether plaintiff was entitled to participate in the workers' compensation fund. In any event, plaintiff did not refile his complaint within one year as permitted by Ohio's savings statute, R.C. 2305.19. On the premise that plaintiff could no longer refile his complaint once the savings statute had lapsed to establish his right to participate in the workers' compensation system, Nestle moved the trial court, pursuant to Civ.R. 41(B)(1), for judgment on February 4 20, 1997. On April 15, 1997, the trial court denied Nestle's motion as moot, finding that the issue need be considered only upon refiling. The net effect of this procedural posture appears to deprive Nestle of any right to have a trial court determination of its obligation to pay benefits or have an appeal heard since plaintiff has no economic incentive to refile his complaint. Nestle appealed the trial court's mootness decision to this Court by notice filed May 15, 1997. Appellee has filed no brief in this Court. We will address Nestle's second assignment of error first as we find it dispositive of the appeal. II. THE TRIAL COURT DENIED APPELLANT NESTLE FROZEN FOOD COMPANY ITS STATUTORY RIGHT TO APPEAL AN ADVERSE ADMINISTRATIVE DECISION BY REFUSING TO ENTER AN ORDER PROHIBITING APPELLEE FROM PARTICIPATING IN THE WORKERS' COMPENSATION SYSTEM AFTER APPELLEE FAILED TO REFILE HIS COMPLAINT WITHIN ONE YEAR OF ITS DISMISSAL. In ruling that Nestle's motion for judgment was moot, we assume that the trial court found that it had no jurisdiction to enter judgment for Nestle until plaintiff refiled his complaint pursuant to the savings statute. Alternatively, the trial court may have decided that the issue was not ripe or justiciable until the complaint was refiled. Unfortunately, that decision fails to take into account the statutory procedures unique to workers' compensation appeals. Unlike a typical civil action, the filing of a complaint in a workers' compensation matter does not commence the action and confer jurisdiction. Compare R.C. 4123.512(A) with Civ.R. 3(A) ( A 5 civil action is commenced by filing a complaint with the court ***. ). In a workers' compensation appeal: Under Section 4123.519, Revised Code, the filing of a petition is not jurisdictional. The filing of a notice of appeal with the Industrial Commission of Ohio and the Court of Common Pleas is the only act required to perfect the appeal and vest jurisdiction in the court. Singer Sewing Machine Co. v. Puckett (1964), 176 Ohio St. 32, q2 of syllabus; Thompson v. Reibel (1964), 176 Ohio St. 258, 260 ( It is the filing of the notice of appeal which vests jurisdiction in the court and not the filing of the [complaint] by the claimant. ). See, also, Rhynehardt v. Sears Logistics Services (1995), 105 Ohio App.3d 327, 332; Ford Motor Co. V. Hamilton (1983), 9 Ohio App.3d 17; Yates v. General Motors (1967), 10 Ohio App.2d 9, 13; Smoliga v. Keller (1965), 3 Ohio App.2d 250, 255. It therefore follows that the mere voluntary dismissal of the complaint does not oust the common pleas court of jurisdiction. The claimant's dismissal of her complaint does just that and nothing more. The complaint is dismissed, but it does not dismiss the employer's appeal or divest the common pleas court of jurisdiction.Rhynehardt v. Sears Logistics Serv., supra at 332; see, also, Anderson v. Sonoco Products Co. (1996), 112 Ohio App.3d 305, 309. Plaintiff's voluntary dismissal herein recognized this principle by stating: This dismissal of Plaintiff's Complaint shall not operate as a dismissal of Defendant's, Stouffer's Foods Corporation [Nestle's], previously and timely filed R.C. 4123.519 Notice of Appeal. 6 The issue still remains whether defendant Nestle can continue to be charged for the payment of benefits to plaintiff now that time for refiling plaintiff's petition under the savings statute has passed. R.C. 4123.512(A) confers a statutory right on an employee and an employer to appeal a decision of the Industrial Commission to the court of common pleas: The claimant or the employer may appeal an order of the industrial commission *** in any injury or occupational disease case, other than a decision as to the extent of disability, to the court of common pleas ***. An appeal pursuant to R.C. 4123.512(A) does not stay the payment of an award of compensation once made by the Commission. R.C. 4123.512(H). In other words, an employer remains responsible for benefit payments pending appeal until the court denies the employee the right to participate in the fund. State, ex. rel. Rossetti v. Industrial Comm. (1983), 5 Ohio St.3d 230, 233. In the instant case, Nestle paid six weeks of benefits to its employee which it is contesting. As a self-insured, Nestle is entitled to recoup the amount from the surplus fund if those benefits were erroneously paid. R.C. 4123.512(H); Kokitka v. Ford Motor Co. (June 17, 1993), Cuyahoga App. No. 62410, unreported at 11; Robinson v. B.O.C. Group, General Motors Corp. (Oct. 11, 1996), Trumbull App. No. 96-T-5419, unreported at 4. Appeals taken pursuant to R.C. 4123.512 are de novo, that is, the trial court must independently assess whether an employee is entitled to participate in the workers' compensation system without regard to the Commission's findings and decisions. Youghiogheny & 7 Ohio Coal Co. v. Mayfield (1984), 11 Ohio St.3d 70, 71; Forster v. Ohio Bur. Of Workers' Comp (1995), 102 Ohio App.3d 744, 746. The burden of proof is always on the employee. See Youghiogheny, 11 Ohio St.3d at 71, citing Zuljevic v. Midland-Ross (1980), 62 Ohio St.2d 116, 118: [W]here an employer appeals an unfavorable administrative decision to the court the [employee] must, in effect, reestablish his workers' compensation claim to the satisfaction of the common pleas court even though the [employee] has previously satisfied a similar burden at the administrative level. This Court has ruled that Civ.R. 41(A) concerning voluntary dismissals apply to all workers' compensation appeals. Rogers v. Ford Motor Co. (Aug. 18, 1994), Cuyahoga App. No. 66118, unreported at 5-6. An employee can voluntarily dismiss his complaint and thereafter avail himself of Ohio's savings statute. Rogers at 5. If an employee refiles his action within one year of the voluntary dismissal, the matter will proceed until the court of common pleas renders a decision regarding the employee's eligibility to participate in the workers' compensation system. Id. Unfortunately, the unreported decisions of this Court tend to promote confusion in this area. The leading case appears to be Ross v. Wolf Envelope Co. (Aug. 2, 1990), Cuyahoga App. No. 57015, unreported, where the employer-appellee appealed compensation awarded to an employee-appellant. In acknowledging the employee's right to enter a voluntary dismissal, we also recognized that this did not dismiss the employer's appeal. We stated as follows at 7- 8: 8 The Rules of Civil Procedure are applicable to proceedings brought under R.C. 4123.519. Price v. Westinghouse Electric Corp. (1982), 70 Ohio St.2d 131. Civ.R. 41(A)(1)(a) expressly provides for a unilateral dismissal by a plaintiff. When an employer files a notice of appeal pursuant to R.C. 4123.519, the claimant is required to file a complaint showing his cause of action to participate or to continue to participate in the fund. The claimant is listed in the caption of that action as the plaintiff. United Parcel Serv., Inc. v. Rice (1982), 4 Ohio App.3d 4. Accordingly, appellant had a right to dismiss his complaint once, pursuant to Civ.R. 41(A)(1)(a). Appellee's appeal from the decision of the Industrial Commission cannot be dismissed due to the voluntary dismissal of appellant's complaint. Cf. Ford Motor Co. v. Hamilton (1983), 9 Ohio App.3d 17. Appellee fulfilled its legal responsibility by filing a timely notice of appeal under R.C. 4123.519, thus, its appeal cannot be dismissed. Appellant's right to file another complaint in accordance with R.C. 4123.519 has not been prejudiced. R.C. 2305.19, the savings statute, is applicable to worker's compensation complaints filed in the court of common pleas. Lewis v. Connor (1985), 21 Ohio St.3d 1, syllabus. Therefore, the date for filing another complaint under R.C. 4123.519 relates back to the filing date for the original complaint for limitations purposes. Id.; see, also, Reese v. Ohio State Univ. Hosp. (1983), 6 Ohio St.3d 162, 163. Faced with a similar fact situation and procedural posture, this Court followed the Ross decision in Rogers v. Ford Motor Company, supra at 4-6: In Ross v. Wolf Envelope Co. (Aug. 2, 1990), Cuyahoga App. No. 57015, unreported, this court held that where an employer filed an appeal pursuant to R.C. 4123.519, the trial court erred in denying the employee's Civ.R.41(A)(1)(a) motion to dismiss his complaint. The employer's appeal would remain 9 pending, but the employee could file another complaint within the one year period of the savings statute. Appellee contends the Ross decision is incorrect because only the party who commences the action can dismiss under Civ.R. 41(A)(1)(a). Civ.R. 41(A)(1)(a) states that a plaintiff may dismiss the action. In a R.C. 4123.519 appeal, the claimant is a plaintiff. United Parcel Serv. Inc. v. Rice (1982), 4 Ohio App.3d 4, 446 N.E.2d 184; Ross, supra. Appellee contends that Ross is contrary to Ford Motor Company v. Hamilton (1983), 9 Ohio App.3d 17, 457 N.E.2d 937 and Powell v. Interstate Motor Freight Sys. (Sept. 4, 1987), Lucas App. No. L-87-009, unreported. These cases held the court could not dismiss an employer's appeal pursuant to Civ.R. 41(B)(1) due to the employee's failure to prosecute. Ross and the case at hand are distinguishable because they deal with the employee's dismissal of the complaint, pursuant to Civ.R. 41(A)(1)(a) and do not involve dismissal of the employer's appeal. See Liggons v. Powertrain Division General Motors Corp. (Feb. 25, 1994), Lucas App. No. L-93-170, unreported. Appellee also contends that Lewis v. Connor (1985), 21 Ohio St.3d 1, 487 N.E.2d 285, Civ.R. 41 and R.C. 2305.19 (the savings statute) refer to dismissal of an action. Therefore, the entire action must be dismissed, not just the complaint. We disagree with this interpretation of the above cited authorities. The entire action does not have to be dismissed, as a counterclaim can remain pending for independent adjudication. Civ.R. 41(A)(1)(a), Holly v. Osleisek (1988), 40 Ohio App.3d 90, 531 N.E.2d 766. Appellee argues that dismissal by the appellant would interfere with its right to have their appeal heard expeditiously. See, R.C. 4123.519(G). R.C. 4123.519(G) does not create a right to an expeditious appeal. It provides only that the appeal will be preferred over most of the other civil actions on the trial court docket. 10 Our decision in Ross, supra, was correct. Thus, the trial court erred in refusing to recognize appellant's notice of dismissal pursuant to Civ.R. 41(A)(1)(a). This Court also followed the analysis of Ross and Rogers in Moore v. Trimble and Manfredi (Aug. 15, 1996), Cuyahoga App. No. 67895, unreported, and held that an employee could voluntarily dismiss his complaint pursuant to Civ.R. 41(A)(1) and that such a dismissal did not mean the entire action was dismissed. Most recently, this Court again had occasion to address the identical fact situation presented in Ross, Rogers and Moore in Schade v. LTV Steel Company (March 13, 1997), Cuyahoga App. No. 70950, unreported, where the Court reviewed the pertinent authorities and stated as follows at 8-9: Finally, in 1996, our court again addressed this exact issue in Moore v. Wesley Trimble and Manfredi Motor Transit Co. In Moore, the employer, Manfredi Transit, filed its notice of appeal from the Industrial Commission's allowance of employee Moore's claim for injuries. Moore properly filed the petition with the Cuyahoga County Common Pleas Court. During settlement negotiations, Moore filed a Civ.R. 41(A)(1)(a) motion to voluntarily dismiss the action. The trial court, however, set a trial date and denied Moore's motion to voluntarily dismiss his action against Manfredi. Moore appealed the trial court's action, and on appeal, our court, following the reasoning of the Rogers court, determined that the trial court erred when if failed to recognize Moore's right to voluntarily dismiss his action. Accordingly, it is the position of our court that in this district the Rules of Civil Procedure apply to these workers' compensation appeals. We recognize that pursuant to the civil rules, a plaintiff has the right to voluntarily dismiss his or her case once without prejudice, invoking the saving 11 statute. A voluntary dismissal is accomplished by the filing of a dismissal notice with the court. Once such notice is filed, the court is divested of jurisdiction. We, therefore, hold, once again, that the trial court may not vacate the claimant/plaintiff's notice of voluntary dismissal brought pursuant to Civ.R. 41(A)(1)(a) even where the appeal is brought to the lower court by the employer. With all due respect, this panel of the Court does not find that once a notice of voluntary dismissal is filed by the employee in a workers' compensation appeal, the court is divested of jurisdiction. We suggest that, in the context, the Schade court was referring generically to a voluntary dismissal under the civil rules. Therefore, we believe that Ross, Rogers and Moore all recognize that the complaint is dismissed but the employer's appeal is still pending, subject to a refiling of the complaint under the savings statute. Consequently, we hold that the court did not lose jurisdiction at the time of the voluntary dismissal. None of the aforesaid cases reach the issue presented by the present appeal, i.e., what effect does the lapse of the savings statute (the passage of one year) without the refiling of a complaint have on the employer's pending appeal. For the reasons hereinafter stated, we find the issue is ripe for decision. We find the trial court erred in holding the matter was moot until refiling of the complaint, the time for which has now passed. If an employee does not refile his complaint within the year's time, he can no longer prove his entitlement to participate in the workers' compensation system, as is his burden on appeal. 12 Zuljevic, supra at 118. In that instance, the employee's failure to refile his complaint warrants judgment for the employer in the same fashion that a defendant's failure to answer a complaint warrants default judgment for the plaintiff. Williams v. E. & L. Transport Co. (1991), 81 Ohio App.3d 108, 110 (court entered judgment for employer because claimant's refiled claim which was previously voluntarily dismissed, was filed outside the one year savings statute). Any other conclusion places the employer in an untenable position because the employer remains accountable for all medical expenses and disability benefits arising from the underlying claim until the court orders a disallowance of the claim. See R.C. 4123.512(H). Moreover, any other conclusion contravenes public policy and effectively denies the employer due process of law as intended by the General Assembly. R.C. 4123.512 confers a statutory right to the employer to appeal an allowed claim. A court's refusal to enter judgment for the employer upon an employee's failure to refile his action effectively renders the employer's right to appeal a nullity because the employer cannot obtain its desired relief, i.e., a court order denying the employee the right to participate in the system. If the General Assembly intended this result, it would never have granted an employer the right to appeal. Consequently, we hold that an employee's failure to refile his complaint within the savings statute operates as a forfeiture of his right to participate in the workers' compensation system. 13 For the foregoing reasons, we sustain Assignment of Error II, reverse the trial court and enter judgment for defendant Nestle on its appeal. Given the disposition of Assignment of Error II, it is unnecessary for us to review Assignment of Error I, which is moot. App.R. 12(A)(1)(c). Judgment reversed; judgment entered for defendant-appellant. 14 It is ordered that appellant recover of appellee its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, CHIEF JUSTICE DAVID T. MATIA, JUDGE JAMES M. PORTER, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .