[Cite as Beaumont v. Kvaerner N. Am. Constr., 2013-Ohio-5847.]


                                  IN THE COURT OF APPEALS

                              ELEVENTH APPELLATE DISTRICT

                                   TRUMBULL COUNTY, OHIO


DONALD A. BEAUMONT,                                   :          OPINION

                 Appellee,                            :
                                                                 CASE NO. 2013-T-0047
        - vs -                                        :

KVAERNER NORTH AMERICAN                               :
CONSTRUCTION,
                                                      :
                 Appellant,
                                                      :
        - vs -
                                                      :
ADMINISTRATOR, BUREAU OF
WORKERS’ COMPENSATION,                                :

                 Appellee.                            :


Administrative Appeal from the Trumbull County Court of Common Pleas, Case No.
2012 CV 2454.

Judgment: Affirmed.


Walter Kaufmann, Boyd, Rummell, Carach & Curry Co., L.P.A., Huntington Bank
Building, 4th Floor, P.O. Box 6565, Youngstown, OH 44501-6565 (For Appellee-
Donald A. Beaumont).

Sara L. Rose, Sara L. Rose, LLC, P.O. Box 188, Pickerington, OH                  43147 (For
Appellant-Kvaerner North American Construction).

Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street,
Columbus, OH 43215, and Brian R. Honen, Assistant Attorney General, Workers’
Compensation Section, 20 West Federal Street, 3rd Floor, Youngstown, OH 44503
(For Appellee-Administrator, Bureau of Workers’ Compensation).
CYNTHIA WESTCOTT RICE, J.

       {¶1}   Appellant, Kvaerner North American Construction, appeals the judgment

of the Trumbull County Court of Common Pleas, granting the motions to dismiss

Kvaerner’s counterclaim filed by appellees, Donald A. Beaumont and Administrator,

Bureau of Workers’ Compensation (“BWC”).          At issue is whether the statutory

procedure for prosecuting an employer appeal in a workers’ compensation action

precluded Kvaerner from asserting its appeal via a counterclaim. For the reasons that

follow, we affirm.

       {¶2}   On December 30, 2011, Beaumont sustained serious injuries while

working for Kvaerner, including two rib fractures, neck sprain, and thoracic sprain. He

filed a workers’ compensation claim with the BWC. Subsequently, the BWC allowed his

claim. On April 17, 2012, Beaumont filed a motion with the BWC, seeking recognition of

eight additional medical conditions. Kvaerner objected to all the requested additional

conditions. Following an administrative hearing, on August 6, 2012, the Staff Hearing

Officer (“SHO”) allowed Beaumont’s claim for two of his additional conditions involving

two herniated discs, but disallowed his claim for recognition of the remaining six

additional conditions.

       {¶3}   Both Beaumont and Kvaerner appealed the SHO’s decision to the

Industrial Commission, which on August 28, 2011, refused both appeals.

       {¶4}   Thereafter, Beaumont timely filed a notice of appeal of the SHO’s order

and the Industrial Commission’s order refusing further appeal in the common pleas

court. As required by statute, Beaumont also filed a complaint in the common pleas

court, requesting that the six additional medical conditions, which had been denied by




                                          2
the SHO, be allowed. Kvaerner did not file a notice of appeal in the trial court. Instead,

Kvaerner filed a counterclaim, challenging the SHO’s allowance of Beaumont’s two

additional medical conditions.

         {¶5}     Beaumont and the BWC both filed motions to dismiss Kvaerner’s

counterclaim. The trial court agreed with Beaumont and the BWC’s argument that R.C.

4123.512 implicitly prohibits the prosecution of an employer appeal via a counterclaim.

Further, the court concluded that, since Kvaerner did not file an appeal within the 60-

day period allowed by this statute, the court was without jurisdiction to consider it. The

court granted the motions and dismissed Kvaerner’s counterclaim. The trial court’s

judgment included the finding, pursuant to Civ.R. 54(B), that there is no just cause for

delay.

         {¶6}     Kvaerner appeals the trial court’s judgment, asserting the following for its

sole assignment of error:

         {¶7}     “The trial court committed prejudicial error in granting plaintiff-appellee,

Donald Beaumont and defendant-appellee, Administrator, Ohio Bureau of Workers’

Compensation’s motions to dismiss defendant-appellant Kvaerner’s counterclaim based

on its opinion that the court was without jurisdiction to consider the counterclaim.”

         {¶8}     The trial court’s construction of statutes and the court’s determination of its

subject matter jurisdiction involve questions of law, which we review de novo. State v.

Phillips, 11th Dist. Trumbull No. 2008-T-0036, 2008-Ohio-6562, ¶11 (construction of

statutes); State v. Rode, 11th Dist. Portage No. 2010-P-0015, 2011-Ohio-2455, ¶14

(jurisdiction).




                                                 3
       {¶9}   Under its assignment of error, Kvaerner asserts three principal arguments.

First, Kvaerner argues that, by filing his notice of appeal from the order of the Industrial

Commission, Beaumont appealed the order in its entirety and his appeal thus vested

the trial court with subject matter jurisdiction over all issues raised in the Commission’s

order, including the two additional conditions allowed by the SHO. We do not agree.

       {¶10} In the landmark case of Mims v. Lennox-Haldeman Co., 8 Ohio App.2d

226 (8th Dist.1964), the Industrial Commission allowed the employee’s back injury, but

denied his heart condition. The employee’s notice of appeal stated he appealed the

Industrial Commission’s order. His notice did not specify that he was appealing the

disallowed heart condition. The employer did not file a notice of appeal. At trial, the jury

found in favor of the employee regarding his heart condition. With respect to the issues

raised by the employee’s notice of appeal, the Eighth District held: “In an appeal under

Section [4123.512], Revised Code, by [an employee] from an adverse decision of the

Industrial Commission, the issue decided adversely to the claimant is the only issue

before the Court of Common Pleas.” Id. at syllabus. The Eighth District explained:

       {¶11} A special proceeding of this type under the statute whereby a trial

              de novo is provided for in the Court of Common Pleas regarding the

              question of participation or continued participation in the State

              Insurance Fund cannot be paralleled with a law and fact appeal to

              the Court of Appeals. Statutes of this nature must be liberally

              construed in favor of employees seeking the benefit. Section

              4123.95, Revised Code. When [an employee] appeals from an

              order of the Industrial Commission under Section [4123.512],




                                             4
              Revised Code, it must be presupposed that the issue decided

              adversely to the [employee] before the Industrial Commission is the

              only issue before the Court of Common Pleas. To say one is

              appealing the portion of an order that is favorable to him defies

              reason.    In the instant case, the only way the question of

              participation regarding the back injury could be adjudicated would

              be for the employer to take an appeal from the order of the

              Industrial Commission. This the employer did not do. (Emphasis

              added.) Mims, supra, at 228-229.

       {¶12} Mims has been cited with approval by many courts, including the Supreme

Court of Ohio, and has never been overruled or criticized. The Supreme Court of Ohio

subsequently cited with approval the foregoing holding of the Eighth District in Mims in

Ward v. Kroger Co., 106 Ohio St.3d 35, 2005-Ohio-3560, ¶8.

       {¶13} Further, in McClarty v. Herzog, 8th Dist. Cuyahoga Nos. 57238, 57283,

1990 Ohio App. LEXIS 2835 (Jul. 12, 1990), the plaintiff won a legal malpractice verdict

against his former attorney. The plaintiff argued he was denied three years of disability

benefits due to his attorney’s failure to timely file an appeal of a hearing officer’s

decision. On appeal, the plaintiff’s attorney argued that one party does not have to file a

notice of appeal to contest adverse portions of a hearing officer’s decision if another

party has filed such notice, because, in his view, one notice of appeal opens all issues

for review. The plaintiff’s attorney argued that, because the employer had filed a notice

of appeal, the plaintiff was not required to file his own notice of appeal. The Eighth

District disagreed and held: “The general rule is that a party who does not file a notice of




                                             5
appeal ‘cannot oppose the final judgment on appeal, or attack it to enlarge his own

rights or lessen the rights of his adversary,’ despite the fact that the adversary has filed

a notice of appeal.” Id. at *9, quoting Kaplysh v. Takieddine, 35 Ohio St.3d 170, 175

(1988). Significantly, Kvaerner does not attempt to distinguish or even address Mims or

McClarty.

       {¶14} Thus, contrary to Kvaerner’s argument, Beaumont’s appeal encompassed

only that part of the SHO’s order that was adverse to him, i.e., the denial of his request

for recognition of six of his eight additional medical conditions.      The only way the

question of participation regarding the two additional conditions that the SHO had

allowed could be adjudicated in the common pleas court would be for Kvaerner to take

an appeal from the SHO’s order. This Kvaerner did not do. Mims, supra.

       {¶15} Thus, Beaumont’s notice of appeal did not vest the trial court with

jurisdiction to address Kvaerner’s appeal of the SHO’s allowance of Beaumont’s two

additional conditions.

       {¶16} Second, Kvaerner argues that, because R.C. 4123.512(D) provides that

pleadings filed subsequent to the complaint shall be filed in accord with the Rules of

Civil Procedure, it was entitled to pursue its appeal of the SHO’s order via a

counterclaim. It therefore argues the trial court erred in finding that R.C. 4123.512

implicitly forbids the prosecution of an employer appeal via a counterclaim. Again, we

do not agree.

       {¶17} Civ.R. 1(C) provides that, to the extent that the Ohio Rules of Civil

Procedure would be clearly inapplicable, they shall not apply to special statutory

proceedings. Workers’ compensation appeals are special statutory proceedings. Mims,




                                             6
supra, at 228; Harsco Corp. v Bishop, 12th Dist. Madison No. CA2000-12-052, 2001

Ohio App. LEXIS 4453, *6 (Oct. 1, 2001).

        {¶18} R.C. 4123.512 sets forth the procedure for appealing a final decision of a

staff hearing officer or the Industrial Commission. That section provides in pertinent

part:

        {¶19} (A) The [employee] or the employer may appeal an order of the

              industrial commission * * * to the court of common pleas * * *. * * *

              Like appeal may be taken from an order of a staff hearing officer * *

              * from which the commission has refused to hear an appeal. The

              appellant shall file the notice of appeal with a court of common

              pleas within sixty days after the date of the receipt of the order

              appealed from * * *. The filing of the notice of appeal with the court

              is the only act required to perfect the appeal.

        {¶20} * * *

        {¶21} (D) The [employee] shall, within thirty days after the filing of the

              notice of appeal, file a [complaint] 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. Further

              pleadings shall be had in accordance with the Rules of Civil

              Procedure * * *. (Emphasis added.)

        {¶22} Thus, the employer is required to file a notice of appeal in order to assert

its appeal of an order of a staff hearing officer or the Industrial Commission. Moreover,




                                             7
nothing in R.C. 4123.512 suggests that an employer can assert its appeal via a

counterclaim rather than a notice of appeal. As a result, R.C. 4123.512(A) implicitly

prohibits the employer from circumventing the statutory process by asserting its appeal

via a counterclaim. Because Kvaerner did not file a notice of appeal, it was prohibited

by R.C. 4123.512 from prosecuting its appeal via a counterclaim.

       {¶23} Further, after the notice of appeal is filed, the employee has the

affirmative duty to file a complaint containing a statement of facts supporting a cause of

action to participate or to continue to participate in the workers’ compensation fund and

setting forth the basis for the trial court’s jurisdiction, regardless of the employee’s

success or failure at the administrative level. Zuljevic v. Midland-Ross Corp., 62 Ohio

St.2d 116, 118 (1980).      Thus, whether the employee or employer files a notice of

appeal, the employee has the duty to file the complaint.

       {¶24} “The purpose of the [complaint] is to give orderliness to the appellate

proceeding.” Id. This is because the employee has both the burden of going forward

with the evidence and the burden of proof at the de novo trial before the common pleas

court. Zuljevic, supra, citing Swift & Co. v. Wreede, 110 Ohio App. 252, 254 (3d

Dist.1959). Further, it is the employee’s right and responsibility to open and close the

trial in the common pleas court. Swift, supra. Thus, where an employer appeals an

unfavorable administrative decision to the common pleas court, the employee is

required to re-establish his entitlement to participate in the workers’ compensation fund,

although the employee previously satisfied a similar burden at the administrative level.

Zuljevic, supra; Swift, supra.




                                            8
       {¶25} If an employer was permitted to prosecute an appeal of an order of a staff

hearing officer or the Commission via a counterclaim, the employer would have the

burden of proof. Civ.R. 8(A); McGee v. Lohr, 10th Dist. Franklin No. 74AP-114, 1974

Ohio App. LEXIS 3014, *12 (Sep. 10, 1974). This would disrupt the orderliness of the

appeal as it would result in a reversal of the statutorily-defined roles of employer and

employee in a workers’ compensation appeal. As noted above, it is the employee who

always has the burden to prove his or her entitlement to participation in the fund.

       {¶26} Moreover, the Supreme Court of Ohio held in Robinson v. B.O.C. Group,

81 Ohio St.3d 361 (1998), that an employer’s appeal of the decision of the Industrial

Commission is not analogous to a counterclaim. The Supreme Court stated:

       {¶27} A counterclaim is “[a] pleading that sets forth a claim for relief.”

               Civ.R. 8(A). * * * [A] notice of appeal filed by the employer pursuant

               to R.C. 4123.512 is no more a claim for relief than it is a request for

               affirmative relief or a demand for judgment.

       {¶28} Thus, as stated by the court of appeals, “* * * an employer’s appeal

               in a workers’ compensation case is not analogous to a counterclaim

               in a civil action.” Id. at 369.

       {¶29} For these reasons, Civ.R. 8(A), which authorizes a defendant to file a

counterclaim in a typical civil action, does not apply to workers’ compensation employer

appeals.

       {¶30}     Third, Kvaerner argues the trial court erred in finding that it was without

jurisdiction to consider Kvaerner’s counterclaim.        Kvaerner argues that, because

Beaumont timely filed his notice of appeal, his counterclaim was timely.           However,




                                                 9
Kvaerner misses the point. Beaumont and the BWC do not challenge the timeliness of

Kvaerner’s counterclaim. Instead, they challenge its right to file it under R.C. 4123.512

and the trial court’s jurisdiction to consider Kvaerner’s appeal in light of its failure to file

a notice of appeal.

       {¶31} Once again, Kvaerner argues that when Beaumont filed his notice of

appeal, the trial court acquired jurisdiction over all issues addressed in the

Commission’s order so it would not make sense for Kvaerner to file its own appeal.

However, this argument ignores the holdings in Mims, supra, that:                (1) when an

employee appeals from an order of the Industrial Commission, the only issue before the

common pleas court is the issue decided adversely to the employee by the Industrial

Commission, and that (2) the employer must file a notice of appeal for its challenge to

be adjudicated.

       {¶32} 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 civil action is commenced by filing a complaint

with the court * * *.”). However, in a workers’ compensation appeal:

       {¶33} Under Section [4123.512], Revised Code, the filing of a [complaint]

              is not jurisdictional. The filing of a notice of appeal with 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, 176 Ohio St. 32 (1964), paragraph two of the

              syllabus.




                                              10
       {¶34} This court in Gdovichin v. Geauga Cty. Highway Dept., 90 Ohio App.3d

805 (11th Dist.1993) likewise held the filing of the complaint does not satisfy the sole

jurisdictional requirement. Id. at 808-809. Rather, this court in Gdovichin held that the

jurisdictional requirements of R.C. 4123.512 are satisfied solely by the filing of a notice

of appeal. Id. at 807-808.

       {¶35} Thus, the timely filing of a notice of appeal with the court of common pleas

is the only act required to perfect the appeal and vest jurisdiction in the common pleas

court. Singer, supra. Because Kvaerner did not file a notice of appeal, it failed to vest

the trial court with jurisdiction to adjudicate its challenge to the allowance by the SHO of

Beaumont’s two additional medical conditions.

       {¶36} We therefore hold that the trial court did not err in dismissing Kvaerner’s

counterclaim for lack of jurisdiction.

       {¶37} For the reasons stated in this Opinion, appellant’s assignment of error is

not well taken. It is the order and judgment of this court that the judgment of the

Trumbull County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, J., concurs,

DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.

                               _______________________


DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.


       {¶38} The issue before this court is whether a party to a workers’ compensation

appeal under R.C. 4123.512 may raise issues through a counterclaim filed pursuant to




                                            11
Civil Rule 13(A). Contrary to the majority’s position, neither the statute nor case law

prohibit a party from “asserting its appeal via a counterclaim.” Supra at ¶ 22. In fact,

there is precedent to the contrary.

       {¶39} In a workers’ compensation appeal, the claimant is required to “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). “Further

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.” (Emphasis

added.) Id.

       {¶40} Since the statute expressly states that, subsequent to the filing of the

complaint, “[f]urther pleadings shall be had in accordance with the Rules of Civil

Procedure,” it is reasonably inferred that such pleadings include a counterclaim, as

provided for in Civil Rule 13(A).

       {¶41} In Himmel v. CompuServe Inc., 10th Dist. Franklin No. 98AP-1297, 1999

Ohio App. LEXIS 3432 (July 27, 1999), the claimant argued that the trial court

improperly granted judgment on a subrogation issue raised in the employer’s

counterclaim, since the court did not have jurisdiction over the counterclaim. Id. at 4.

The court of appeals rejected the argument: “The allowance of appellee’s counterclaim

comports with the object and purpose of Civ.R. 13(A) ‘to avoid a multiplicity of actions

and to achieve a just resolution by requiring in one lawsuit the litigation of all claims




                                           12
arising from common matters.’” (Citation omitted.) Id. at 6. Moreover, “a review of R.C.

Chapter 4123 does not show that appellee is barred from raising its counterclaim in the

present case.” Id.

      {¶42} Similarly, there are a plethora of other decisions demonstrating that the

courts allow various pleadings and motions provided for in the Civil Rules and

sanctioned by R.C. 4123.512(D). E.g., AMCA Internatl. Corp. v. Carlton, 10 Ohio St.3d

88, 90, 461 N.E.2d 1282 (1984) (default); Price v. Westinghouse Elec. Corp., 70 Ohio

St.2d 131, 132-133, 435 N.E.2d 1114 (1982) (summary judgment); Kuhn v. Schmidt

Bros., Inc., 6th Dist. Lucas No. L-07-1235, 2008-Ohio-1567, ¶ 10 (judgment on the

pleadings); Williams v. Harsco Corp., 94 Ohio App.3d 441, 446, 640 N.E.2d 1193 (3rd

Dist.1994) (amendment of the pleadings); Cunningham v. Gen. Motors Assembly Div.,

11th Dist. Trumbull No. 2928, 1981 Ohio App. LEXIS 14143, 6-7 (July 27, 1981)

(affirmative defenses).

       {¶43} The majority presents no convincing argument as to why, if Kvaerner must

file an answer to avoid default under the Civil Rules, it may not include a counterclaim in

its answer under the same Civil Rules.

       {¶44} The cases relied upon by the majority are distinguishable and/or

consistent with the pleading of a counterclaim. In Mims v. Lennox-Haldeman Co., 8

Ohio App.2d 226, 199 N.E.2d 20 (8th Dist.1964), the administrator of the bureau of

workers’ compensation sought to challenge the allowance of a condition in the

claimant’s appeal to the common pleas court based on the disallowance of another

condition. The court of appeals held that the administrator had no right of appeal under

the workers’ compensation statute and that the only issue to be decided was the issue




                                            13
raised in claimant’s petition (complaint). Id. at 229. Unlike the administrator in Mims,

Kvaerner is statutorily defined as a party to Beaumont’s appeal and has affirmatively

contested the allowance of a condition in a responsive pleading.           Mims has no

applicability in the present circumstances.

       {¶45} Likewise, the court of appeals in McClarty v. Herzog, 8th Dist. Cuyahoga

Nos. 57238 and 57283, 1990 Ohio App. LEXIS 2835 (July 12, 1990), rejected the

contention that “a notice of appeal from the decision of a district hearing officer to a

regional board of review opens all issues for review, and not just those issues adverse

to the appealing party.” (Emphasis sic.) Id. at 9. The issue in the present case is not

whether Beaumont’s notice of appeal opened all issues for review, a nonsensical

argument contrary to the provisions of the Civil Rules, but whether those rules allow a

party to raise claims by way of a counterclaim.          There is nothing in McClarty

inconsistent with this latter proposition.

       {¶46} Finally, the majority cites to Robinson v. B.O.C. Group, 81 Ohio St.3d 361,

691 N.E.2d 667 (1998), for the proposition that “an employer’s appeal in a workers’

compensation case is not analogous to a counterclaim in a civil action.” Id. at 369. This

language has no bearing on the issue of Kvaerner’s ability to counterclaim in the

present case, but only reflects the fact that a “R.C. 4123.512 appeal is by no means a

‘typical’ administrative appeal, but is a distinctive appeal with unique characteristics.”

Bennett v. Ohio Bur. of Workers’ Comp., 134 Ohio St.3d 329, 2012-Ohio-5639, 982

N.E.2d 666, ¶ 30. In a workers’ compensation appeal, the claimant must “establish,” de

novo, “his right to participate in the fund, including the injury-related and causation

aspects of his claim relevant to that question, in the common pleas court.” Id.




                                              14
      {¶47} Regardless of which party files the notice of appeal in a workers’

compensation appeal, the worker is the claimant/plaintiff and the employer is

necessarily in the position of the party that must file an answer. It is wholly appropriate

that the employer, per the Civil Rules, has the ability to raise issues by way of

counterclaim. Accordingly, I respectfully dissent and would reverse the judgment of the

court below.




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