[Cite as Antoun v. Shelly Co., 2017-Ohio-4387.]



                           STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

RONALD R. ANTOUN                                  )
                                                  )
        PLAINTIFF-APPELLEE                        )
                                                  )         CASE NOS. 2016 MA 0040
VS.                                               )                   2016 MA 0042
                                                  )
THE SHELLY COMPANY, et al.                        )                 OPINION
                                                  )
        DEFENDANTS-APPELLANTS                     )

CHARACTER OF PROCEEDINGS:                         Civil Appeal from the Court of Common
                                                  Pleas of Mahoning County, Ohio
                                                  Case No. 13 CV 3228

JUDGMENT:                                         Reversed and remanded.
                                                                         -2-



APPEARANCES:
For Plaintiff-Appellee                    Attorney Frank Gallucci, III
                                          Attorney Fred Papalardo, Jr.
                                          55 Public Square, Suite 2222
                                          Cleveland, Ohio 44113

                                          Attorney Paul Flowers
                                          Terminal Tower, 35th Floor
                                          55 Public Square
                                          Cleveland, Ohio 44113

For Defendant-Appellant, The Shelly Co.   Attorney Kelly Johns
                                          11 Federal Plaza Central, Suite 1200
                                          Youngstown, Ohio 44503

For Defendant, Ohio Bureau of Workers' Attorney Lisa Reid
Compensation                           Assistant Attorney General
                                       Workers' Compensation Section
                                       20 West Federal Street, 3rd Floor
                                       Youngstown, Ohio 44503



JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Carol Ann Robb


                                          Dated: June 16, 2017
[Cite as Antoun v. Shelly Co., 2017-Ohio-4387.]
DeGENARO, J.

        {¶1}     Defendants-Appellants, the Shelly Company and the Administrator of
the Ohio Bureau of Workers' Compensation, appeal the trial court judgment granting
Plaintiff-Appellee, Ronald Antoun's motion to dismiss without prejudice Antoun's
administrative appeal pursuant to Civ. R. 41, without the company's consent. As the
Company's and BWC's assigned error is meritorious, the judgment of the trial court is
reversed and the case remanded for further proceedings.
        {¶2}     While Antoun was working he was involved in a vehicle accident on
September 17, 2012. Antoun's workers' compensation claim was initially allowed for
cervical sprain/strain and lumbar sprain/strain, and later additionally allowed by the
Industrial Commission for cervical disc displacement C5-C6.          On November 14,
2013, the Company appealed the Industrial Commission decision allowing Antoun's
claim for cervical disc displacement to the common pleas court.
        {¶3}     Two years later, following the completion of discovery and several trial
continuances as a result of Antoun changing attorneys three times and his separately
pending personal injury case, on December 21, 2015, Antoun filed a motion to
voluntarily dismiss his complaint, which he based on alternative grounds. Curiously,
he first relied on Civ. R. 41(A)(1)(a), which governs notices of dismissal and does not
require judicial action, relying on Ferguson v. State, 8th Dist. No. 102553, 2015-Ohio-
4499, noting that the Eighth District held that R.C. 4123.512(D) was unconstitutional,
but Antoun made no argument to support that contention. Second, Antoun relied
upon Civ. R. 41(A)(2) as the basis for his motion; that subsection of the rule controls
motions for dismissal. The company did not consent to the dismissal of the
administrative appeal and opposed Antoun's motion.
        {¶4}     Although it was the Company's appeal, a unique rule governs workers'
compensation administrative appeals. After the employer files a notice of appeal with
the Industrial Commission, the claimant must file a complaint with the common pleas
court. R.C. 4123.512. Further, the appeal to the common pleas court is a complete
de novo review which permits the parties to introduce new evidence, and the burden
remains on the claimant to justify the award, regardless of which party is appealing.
                                                                                -2-


Id.
       {¶5}   The trial court granted Antoun's motion to voluntarily dismiss the
complaint without elaboration, merely referring to Civ.R. 41(A)(1)(a) rather than
Civ.R. 41(A)(2). Also, there was no discussion or mention of Ferguson.
                          Workers' Compensation System
       {¶6}   Some context before addressing the issue on appeal is beneficial.
Ohio's workers' compensation system is a statutory scheme, the fundamental
purpose of which is, inter alia to protect injured workers and employers from losses
because of workplace accidents, to compensate injured workers and ensure
employers pay premiums that reasonably correspond with the risk they present to the
system. See State ex rel. Superior Foundry, Inc. v. Indus. Comm. of Ohio, 168 Ohio
St. 537, 542, 156 N.E.2d 742 (1959). Those premiums are based upon the nature of
the work performed by the employees and the employer's experience rating. Id. The
employer's experience rating is determined by the type of claims filed and their safety
record. Id. The experience period for each claim is typically five years. Id.
       {¶7}   The State cannot charge a claim to an employer's risk account until
there is a final determination of the claimant's right to benefits. R.C. 4123.512(H);
Arth Brass & Aluminum Castings, Inc., 104 Ohio St.3d 547, 2004-Ohio-6888, 820
N.E.2d 900, ¶37. The State must also reimburse an employer for an increase in
premiums due to an improper charge to a risk account. Id. Thus, if a claim is initially
allowed administratively, but later denied in the appeal process, the employer will be
repaid for any costs incurred on the claim, including costs related to benefit payments
and increased experience rates. Id. This is because the claimant continues to collect
benefits during the pendency of the appeal process in the courts.
       {¶8}   If either party wants to challenge a final order of the Industrial
Commission, a notice of appeal begins the process under R.C. 4123.512. This vests
jurisdiction in the common pleas court.     But regardless of which party appeals, the
claimant is always in the procedural posture as the plaintiff and the employer as the
defendant. Therefore, the claimant must file a complaint stating why they are entitled
                                                                             -3-


to benefits or to continue to receive benefits.   Even if the employer initiated the
appeal, without any reference to the administrative hearings, the claimant must, "in
effect, re-establish his workers' compensation claim to the satisfaction of the common
pleas court even though the claimant has previously satisfied a similar burden at the
administrative level." Zuljevic v. Midland-Ross Corp., 62 Ohio St. 2d 116, 118, 403
N.E.2d 986 (1980).
 Appealing Employer Consent to Dismissal of Workers' Compensation Appeal
      {¶9}   BWC and the Company assert in their sole assignment of error:

      The trial court erred in granting plaintiff's motion to dismiss his
      complaint without the required R.C. 4123.512(D) consent of the
      appealing employer in this employer-initiated workers' compensation
      appeal.

      {¶10} The so-called Consent Provision states in pertinent part:

      The 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. 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.

R.C. 4123.512(D) (Emphasis added).
      {¶11} At issue in this appeal is the interplay between the R.C. 4123.512(D)
Consent Provision and Civ.R. 41, which must be examined through the lens of Civ.R.
1(C). While a claimant has control over the fate of their own appeal when they
                                                                                             -4-


challenge an Industrial Commission determination and choose to voluntarily dismiss
pursuant to Civ.R. 41, such is not the case for the employer.                      Even when the
employer appeals, the claimant is still the plaintiff who files the complaint in the
common pleas court. Thus, Civ.R. 41 vests the claimant with control over the fate of
the employer's appeal.          Hence, the question before us is whether a claimant's
attempt to voluntarily dismiss the employer's appeal pursuant to Civ.R. 41(A)
subparts (1) and/or (2) are prohibited by the R.C. 4123.215(D) Consent Provision.
This is an issue of first impression in this district.
        {¶12} Antoun's motion to dismiss alternatively sought dismissal pursuant to
Civ. R. 41(A)(1) and (A)(2).          Antoun filed his contradictory pleading─a notice of
dismissal which does not require judicial action and alternatively a motion seeking an
order of dismissal by the trial court─in order to advocate the adoption by the trial
court of the rationale articulated in Ferguson, supra. Antoun reasoned that because
the Eighth District held in a declaratory judgment appeal that the R.C. 4123.215(D)
Consent Provision was unconstitutional, he was no longer precluded from filing a
notice of dismissal pursuant to Civ.R. 41(A)(1).                Secondarily, Antoun sought a
dismissal order from the court pursuant to Civ.R. 41(A)(2), but merely citied to the
rule without articulating any argument in support.               This was likely an attempt to
persuade the trial court in this case to extend the holding in Ferguson to subpart
(A)(2); in the underlying workers' compensation administrative appeal in Ferguson,
the claimant moved to dismiss the employer's appeal pursuant to Civ.R. 41(A)(2),
which the employer opposed and the trial court denied.1 The administrative appeal
proceedings in the underlying workers' compensation case were stayed pending
resolution of the Ferguson declaratory judgment proceedings.
        {¶13} However, on appeal, Antoun concedes the Consent Provision does
preclude a claimant's unilateral voluntary dismissal pursuant to Civ.R. 41(A)(1) of an
employer's administrative appeal, citing Thorton v. Montville Plastics & Rubber, Inc.,

1 In Ferguson, the basis of the claimant's motion to voluntarily dismiss pursuant to Civ.R.41(A)(2) was
two-fold; he needed surgery and his expert was not available; however, the claimant did not seek a
continuance, opting to seek dismissal instead.
                                                                                -5-


121 Ohio St.3d 124, 2009-Ohio-360, 902 N.E.2d 482, ¶ 14 (2009) (R.C. 4123.512(D)
ended claimant's ability to unilaterally dismiss administrative appeal complaint in an
employer appeal; employer must consent).          Moreover, he has abandoned his
constitutional challenge to the Consent Provision relative to subpart (A)(1).
       {¶14} Instead, Antoun contends there is an important distinction between a
unilateral subpart (A)(1) dismissal which does not require judicial action, and a court
order granting a motion for voluntary dismissal pursuant to subpart (A)(2). Antoun
maintains that because he alternatively sought an order from the trial court voluntarily
dismissing his complaint pursuant to Civ. R. (A)(2), this is judicial action rather than
his unilateral action and thus not precluded by the Consent Provision.          Antoun
continues to challenge the constitutionality of the Consent Provision relative to
subpart (A)(2), but limits his argument to separation of powers.
       {¶15} BWC and the Company defended the constitutionality of R.C.
4123.512(D) in the trial court and on appeal, advancing due process, equal
protection and separation of powers arguments, and contending that voluntary
dismissals of an employer appeal by a claimant under Civ.R. 41(A)(1) and (2) both
require employer consent.
       {¶16} Thus, we have before us an issue of statutory and rule interpretation as
well as constitutional issues. Because we can resolve this appeal based upon the
language in R.C. 4123.512(D), Civ.R. 41(A) and Civ.R. 1(C) without considering
constitutional arguments, we will decline to address the latter. "[W]hen a case can be
decided on other than a constitutional basis, we are bound to do so." State ex rel.
Crabtree v. Ohio Bur. of Workers' Comp., 71 Ohio St.3d 504, 507, 644 N.E.2d 361
(1994); In re D.S., 148 Ohio St.3d 390, 2016-Ohio-7369, 71 N.E.3d 223, ¶ 13 (2016);
Watkins v. Dept. of Youth Servs., 143 Ohio St.3d 477, 2015-Ohio-1776, 39 N.E.3d
1207, ¶ 7 (2015); State v. Swidas, 133 Ohio St.3d 460, 2012-Ohio-4638, 979 N.E.2d
254, ¶ 14 (2012); Burton v. United States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed.
482 (1905) ("It is not the habit of the Court to decide questions of a constitutional
nature unless absolutely necessary to a decision of the case.")
                                                                                   -6-


       {¶17} With few exceptions, the Rules of Civil Procedure prevail over
conflicting state statutes so long as the subject of regulation is procedural. However,
when the legislature approves broad rules for court process, courts must not read
into that assent a legislative delegation to the courts to change the public policy of
this state. Krause v. State, 31 Ohio St.2d 132, 145, 285 N.E.2d 736 (1972), overruled
on other grounds, Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St.2d 31,
426 N.E.2d 784 (1981).
       {¶18} The Ohio Supreme Court has promulgated a rule of construction for the
civil rules that defines their scope, and specifically excludes the application of the civil
rules in limited circumstances. "These rules, to the extent that they would by their
nature be clearly inapplicable, shall not apply to procedure. . . in all other special
statutory proceedings. . ." Civ. R. 1(C)(8). A civil rule is clearly inapplicable " 'only
when [its] use will alter the basic statutory purpose for which the specific procedure
was originally provided in the special statutory action.' " Price v. Westinghouse Elec.
Corp., 70 Ohio St. 2d 131, 133, 435 N.E.2d 1114 (1982), quoting State ex rel.
Millington v. Weir (10th Dist. 1978), 60 Ohio App.2d 348, 349, 397 N.E.2d 770, 772.
Thus, we must undertake a three-step inquiry pursuant to Civ R. 1(C)(8): First, is
there any conflict between the rule and the statute? If so, is a workers' compensation
appeal a special statutory proceeding? If so, is the civil rule clearly inapplicable?
       {¶19} With respect to the first inquiry, Civ.R. 41 vests a plaintiff with the power
to voluntarily dismiss their complaint with or without judicial action, and without the
defendant's consent in both instances. R.C. Chapter 4123 identifies the claimant as
the plaintiff in a workers' compensation administrative appeal, even when the
employer files the appeal. Conversely, the Consent Provision of R.C. 4123.512(D)
provides: "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." Thus, the rule and statutory language conflict.
       {¶20} Turning to the second inquiry, a workers' compensation administrative
appeal is a special proceeding. Myers v. Toledo, 110 Ohio St.3d 218, 2006-Ohio-
                                                                                 -7-


4353, 852 N.E.2d 1176, ¶ 16 (2006).            "R.C. 4123.512 is a special statutory
proceeding that creates a unique situation in which the party commencing the action
is not presenting a claim for relief." Robinson v. B.O.C. Grp., 81 Ohio St.3d 361, 366,
691 N.E.2d 667 (1998).
       {¶21} With respect to the third inquiry, Civ.R. 1(C)(8) provides that a civil rule
shall not apply to special statutory proceedings to the extent that it would "by its
nature be clearly inapplicable." A civil rule is clearly inapplicable when its application
"will alter the basic statutory purpose for which the specific procedure was originally
provided in the special statutory action." Price at 133. Thus, we will measure the
pertinent language of the Consent Provision against Civ.R. 41(A)(1) and (2) in turn.
       {¶22} Regarding a notice of dismissal, "a plaintiff, without order of court, may
dismiss all claims asserted by that plaintiff against a defendant by . . . filing a notice
of dismissal . . . unless [there is] a counterclaim which cannot remain pending for
independent adjudication by the court[.]" Civ.R. 41(A)(1)(a) (emphasis added).
Importantly, the Ohio Supreme Court held the Consent Provision prevented a
claimant from unilaterally dismissing an employer's administrative appeal.       Thorton,
¶ 14. We reach the same conclusion. A notice of dismissal is a unilateral action as it
does not require judicial action; dismissal is accomplished by the claimant merely
filing the notice. Further, the counterclaim referenced in Civ.R. 41(A)(1)(a) is akin to
the employer's administrative appeal; if the claimant-plaintiff dismisses the complaint,
the employer's administrative appeal cannot remain pending for adjudication because
it was dismissed.    As an aside, it is debatable whether Antoun filed a notice of
dismissal pursuant to Civ.R. 41(A)(1)(a), given that he moved for dismissal in the
alternative.
       {¶23} We next direct the third inquiry of Civ.R. 1(C)(8) to Antoun's motion to
voluntarily dismiss. "[A] claim shall not be dismissed at the plaintiff's instance except
upon order of the court and upon terms and conditions as the court deems proper.
Civ.R. 41(A)(2) (emphasis added). Where a claimant-plaintiff's motion for voluntary
dismissal of the employer-defendant's appeal is opposed and granted, it is a
                                                                               -8-


unilateral act prohibited by R.C. 4123.512(D) because it was made at the plaintiff's
instance.    Further, as it was granted contrary to R.C. 4123.512(D), it was not
dismissed upon proper terms and conditions as contemplated by Civ.R. 41(A)(2).
      {¶24} The Consent Provision is the specific procedure designed to prevent
workers' compensation claimants from unilaterally and unduly preempting the
resolution of the employer's appeal. The statute serves the stated legislative purpose
of timely resolving workers' compensation appeals, see R.C. 4123.512(I), as well as
the practical purpose of protecting State funds from abuse. Thus, the third inquiry of
Civ.R. 1(C)(8) dictates that the statute supersedes the rule. The Consent Provision
prohibits Antoun from pursuing dismissal pursuant to Civ.R. 41(A)(1) and (2); the rule
is clearly inapplicable as it alters the basic statutory purpose of the Consent
Provision.
      {¶25} Moreover, the Ohio Supreme Court has recognized that where a statute
specifically requires procedures different from the civil rules, the statute controls.
State ex rel. Fowler v. Smith, 68 Ohio St.3d 357, 360-1, 626 N.E.2d 950 (1994)
("[s]ince the paternity statutes specifically require a judgment regarding the existence
or nonexistence of the father-child relationship unless a compromise is reached
between the mother and the alleged father with approval of the court prior to a
judgment, the different procedure, according to R.C. 3111.08(A), supersedes the
voluntary dismissal provisions of Civ.R. 41(A).") In a similar vein, R.C. 4123.512(D)
supersedes Civ.R. 41(A), because the statute specifically requires the employer's
consent before its workers' compensation appeal can be dismissed by the claimant.
      {¶26} As a final observation, the language of the Consent Provision is akin to
language in Civ.R. 41(A)(1)(b) governing stipulated dismissals which requires
consent of both parties, as dictated by R.C. 4123.512(D). Accordingly, the trial court
erred by granting Antoun's motion to dismiss, and BWC and the Company's
assignment of error is meritorious.
      {¶27} In sum, when applying the rule of construction in Civ.R. 1(C)(8), we
hold that there is a direct conflict between Civ.R. 41 and R.C. 4123.512(D). A
                                                                             -9-


workers' compensation appeal is a special statutory proceeding; and, permitting a
claimant-plaintiff to voluntarily dismiss an employer appeal pursuant to Civ.R.
41(A)(1) and (2) in employer administrative appeals alters the basic statutory purpose
for which the Consent Provision was enacted, see R.C. 4123.512(I); thus, Civ.R. 41
is inapplicable. Accordingly, the trial court should not have granted Antoun's motion
for voluntary dismissal and Defendants-Appellants' sole assignment of error is
meritorious. The judgment of the trial court is reversed and this matter is remanded
for adjudication of the Company's administrative appeal on the merits.

Donofrio, J., dissenting; see dissenting opinion.

Robb, J., concurs.
                                                                               - 10 -


DONOFRIO, J. dissenting.

      I respectfully dissent to the majority’s opinion herein in that a plain reading of
R.C. 4123.512(D) requires that the trial court’s decision be affirmed. The so-called
Consent Provision states in pertinent part: “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”.   The statute clearly states “the claimant may not dismiss the
complaint” which clearly prohibits the claimant from filing a Civ. R. 41(A)(1)(a)
unilateral notice of voluntary dismissal without prejudice. In this case the trial court
granted a Civ. R. 41(A)(2) motion to dismiss without prejudice which I feel the statute
clearly does not address.     The court dismissed the action in this case, not the
claimant which Civ. R. 41(A)(1)(a) permits.
