[Cite as Ohio Bur. of Workers’ Comp. v. Petty, 2016-Ohio-5753.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


Ohio Bureau of Workers’ Compensation                       Court of Appeals No. L-16-1007

        Appellant                                          Trial Court No. CVF-14-01194

v.

Beth C. Petty, et al.                                      DECISION AND JUDGMENT

        Appellee                                           Decided: September 9, 2016


                                                 *****

        Zachary D. Maisch and David E. Bowers, for appellant.

        David P. Stadler and Paul R. Morway, for appellee.

                                                 *****

        YARBROUGH, J.

                                            I. Introduction

        {¶ 1} Appellant, the Ohio Bureau of Workers’ Compensation (BWC), appeals the

judgment of the Toledo Municipal Court, denying its motion for summary judgment and
granting appellee’s, Roselyn Rayford, cross-motion for summary judgment. Because we

find that there are genuine issues of material fact that must be resolved, we reverse.

                         A. Facts and Procedural Background

       {¶ 2} This matter arose out of an automobile accident that occurred on June 23,

2010, involving Rayford and appellee, Beth Petty. The accident was allegedly caused by

Rayford.

       {¶ 3} As a result of injuries sustained during the accident, which occurred in the

scope of Petty’s employment, Petty filed a claim with BWC on November 7, 2011,

seeking medical and compensation payments. According to an affidavit filed by BWC,

Petty’s claim for benefits was allowed on November 30, 2011.

       {¶ 4} In addition to her claim for workers’ compensation benefits, Petty also filed

a personal injury action against Rayford. On June 25, 2012, Petty settled her personal

injury claims against Rayford for $65,000. As part of the settlement, Petty agreed to

execute a release in Rayford’s favor. Petty’s counsel verbally notified BWC of the

settlement on July 18, 2012. A follow-up letter setting forth the terms of the settlement

was sent to BWC on July 30, 2012. On June 19, 2013, BWC paid out a lump sum benefit

to Petty in an amount totaling $10,849.86.

       {¶ 5} On January 23, 2014, BWC filed its complaint in the present action. In the

complaint, BWC asserted a claim for subrogation pursuant to R.C. 4123.93 and 4123.931

against Petty and Rayford. BWC alleged that Petty and Rayford were jointly and

severally liable for its benefit payments totaling $11,119.86 in light of Petty’s settlement




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of her personal injury claim against Rayford. Following discovery, BWC filed a motion

for summary judgment on January 8, 2015. In response, Petty and Rayford each filed

oppositions to BWC’s motion, and Rayford filed a cross-motion for summary judgment.

       {¶ 6} In the cross-motion, Rayford argued that BWC was not entitled to

subrogation pursuant to R.C. 4123.93 or 4123.931 because Petty was not a “claimant” at

the time she executed the release agreement. Although Rayford acknowledged that Petty

filed an application for benefits with BWC prior to the date of the settlement, she asserted

that Petty was not a claimant as that term was defined in our decision in Ohio Bur. Of

Workers’ Comp. v. Dernier, 6th Dist. Lucas No. L-10-1126, 2011-Ohio-150, since Petty

was not yet “qualified to be chosen” to receive payment of such benefits. Rayford urged

that BWC did not make a benefit payment to Petty until “long after the appellees had

entered a settlement agreement.” For that reason, Rayford insisted that BWC was not

entitled to subrogation, and sought the dismissal of the complaint.

       {¶ 7} After reviewing the competing motions, the trial court issued its decision on

December 7, 2015, in which it denied BWC’s motion for summary judgment, granted

Rayford’s cross-motion for summary judgment, and dismissed the action with prejudice.

BWC’s timely appeal followed.

                                B. Assignment of Error

       {¶ 8} On appeal, BWC assigns the following error for our review:




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              The trial court erred in granting defendant/appellee’s cross-motion

       for summary judgment and overruling plaintiff/appellant’s motion for

       summary judgment.

                                       II. Analysis

       {¶ 9} In its sole assignment of error, BWC argues that the trial court erroneously

granted Rayford’s cross-motion for summary judgment.

       {¶ 10} We review summary judgment rulings de novo, applying the same standard

as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572

N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671

N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate where (1) no

genuine issue as to any material fact exists; (2) the moving party is entitled to judgment

as a matter of law; and (3) reasonable minds can come to but one conclusion, and

viewing the evidence most strongly in favor of the nonmoving party, that conclusion is

adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d

64, 66, 375 N.E.2d 46 (1978).

       {¶ 11} In this case, BWC contends that it was entitled to subrogation under R.C.

4123.931. R.C. 4123.931 provides, in relevant part:

              (A) The payment of compensation or benefits pursuant to this

       chapter or Chapter 4121., 4127., or 4131., of the Revised Code creates a

       right of recovery in favor of a statutory subrogee against a third party, and

       the statutory subrogee is subrogated to the rights of a claimant against that




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       third party. The net amount recovered is subject to a statutory subrogee’s

       right of recovery.

              ***

              (G) A claimant shall notify a statutory subrogee and the attorney

       general of the identity of all third parties against whom the claimant has or

       may have a right of recovery, except that when the statutory subrogee is a

       self-insuring employer, the claimant need not notify the attorney general.

       No settlement, compromise, judgment, award, or other recovery in any

       action or claim by a claimant shall be final unless the claimant provides the

       statutory subrogee and, when required, the attorney general, with prior

       notice and a reasonable opportunity to assert its subrogation rights. If a

       statutory subrogee and, when required, the attorney general are not given

       that notice, or if a settlement or compromise excludes any amount paid by

       the statutory subrogee, the third party and the claimant shall be jointly and

       severally liable to pay the statutory subrogee the full amount of the

       subrogation interest. (Emphasis added.)

       {¶ 12} BWC asserts that it became vested with subrogation rights in March 2012,

when it made a payment of $100 for a medical expense incurred by Petty. Further,

because it is undisputed that Petty did not provide BWC with prior notice of her

settlement agreement, BWC argues that Petty and Rayford are jointly and severally liable

for the full amount of the subrogation interest, which includes “past, present, and




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estimated future payments of compensation, medical benefits, rehabilitation costs, or

death benefits, and any other costs or expenses paid to or on behalf of the claimant by the

statutory subrogee * * *.” R.C. 4123.93(D).

       {¶ 13} In response to BWC’s arguments, Rayford urges that BWC is not entitled

to subrogation in this case because Petty was not a “claimant” as of the date of the

settlement.1 Rayford relies upon our decision in Dernier, supra, as support for her

position.

       {¶ 14} In Dernier, we examined the statutory definition of “claimant” found in

R.C. 4123.93(A). Under that statute, a claimant is defined as “a person who is eligible to

receive compensation, medical benefits, or death benefits under this chapter or Chapter

4121., 4127., or 4131. of the Revised Code.” Construing this definition, we found that a

claimant is one who is presently eligible to receive benefits. Dernier, supra, 6th Dist.

Lucas No. L-10-1126, 2011-Ohio-150, at ¶ 31. Because Dernier’s (the employee)

application for workers’ compensation benefits had been rejected at the time of the

settlement, we found that she was not presently eligible to receive benefits and was

therefore not a claimant under R.C. 4123.93(A). Id. at ¶ 32.

       {¶ 15} Comparing the facts of Dernier to the facts in this case, we find that

Dernier is inapplicable. Notably, the uncontested evidence in the form of an affidavit

1
 Rayford also argues that the terms of the settlement agreement discharged her from any
causes of action arising out of the June 23, 2010 accident that gave rise to Petty’s claim
for workers’ compensation benefits. However, in light of the joint and several liability
imposed upon third parties under R.C. 4123.931(G), we find no merit to this argument.
Rather, we find that the settlement agreement, to which BWC was not a party, did not
extinguish BWC’s potential subrogation rights against Rayford.



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attached to BWC’s motion for summary judgment establishes that Petty’s application for

benefits was allowed on November 30, 2011, almost seven months prior to the

settlement. Moreover, the record establishes that a payment of $100 was made by BWC

three months before Petty settled her personal injury claims against Rayford.

       {¶ 16} Nonetheless, we find that a genuine issue of material fact exists as to the

nature of the aforementioned $100 payment. Rayford insists that this payment was “an

administrative payment for a review of Ms. Petty’s medical records to determine if she

was eligible for benefits.” On the contrary, BWC insists that the $100 payment was the

first benefit payment that BWC made to or on behalf of Petty. The documentary

evidence attached to the parties’ motions for summary judgment includes a “detailed HPP

medical billing history of claim” that lists the $100 payment, along with the date of

service and the name of the health care provider that received the payment, but it does not

specify the nature of the medical services provided. Because a genuine issue exists

regarding whether an actual benefit payment was made prior to the date of the settlement

agreement, we find that summary judgment was not proper in this case.

       {¶ 17} Accordingly, BWC’s sole assignment of error is well-taken. We remand

this matter to the trial court for resolution of the factual issue concerning whether BWC

made a benefit payment prior to the execution of the settlement agreement in this case.




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                                     III. Conclusion

       {¶ 18} For the foregoing reasons, the judgment of the Toledo Municipal Court is

reversed, and this matter is remanded for further proceedings consistent with this

decision. Rayford is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                               Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Stephen A. Yarbrough, J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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