         [Cite as Smith v. SOCI Petroleum, Inc., 2017-Ohio-7224.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



BRIAN D. SMITH,                                   :         APPEAL NO. C-160477
                                                            TRIAL NO. A-1504181
        Plaintiff-Appellant,                      :
                                                                    O P I N I O N.
  vs.                                             :

SOCI PETROLEUM, INC.,                             :

    and                                           :

SARAH D. MORRISON,                                :
ADMINISTRATOR OF THE OHIO
BUREAU OF WORKERS’                                :
COMPENSATION,

         Defendants-Appellees.                    :


Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 16, 2017

Nager, Romaine & Schneiberg Co. L.P.A., Jerald A. Schneiberg, Jennifer L. Lawther
and Daniel A. Kirschner, for Plaintiff-Appellant,

Beirne & Wirthlin Co. L.P.A. and James A. Grant, for Defendant-Appellee Soci
Petroleum, Inc.,

Michael DeWine, Ohio Attorney General, and Barbara L. Barber, Assistant Attorney
General, for Defendant-Appellee Administrator, Ohio Bureau of Workers’
Compensation.
                        OHIO FIRST DISTRICT COURT OF APPEALS



M ILLER , Judge.

        {¶1}    Plaintiff-appellant Brian Smith filed a workers’ compensation claim after

sustaining injuries when he fell getting out of a truck while an employee of Soci

Petroleum, Inc., (“Soci”). Smith claims that the trial court erred when it dismissed his

claim because he failed to file a statutorily required petition. We affirm the trial court’s

judgment.

        {¶2}    After appealing to the Industrial Commission, Smith’s workers’

compensation claim was allowed for several injuries. Soci appealed the Industrial

Commission’s decision to the trial court pursuant to R.C. 4123.512.          Once a notice of

appeal is filed with the court of common pleas, the claimant has an affirmative duty to

file a petition containing a statement of facts demonstrating a claim to participate in the

workers’ compensation fund within 30 days. R.C. 4123.512(D). The claimant then bears

the burden of demonstrating his right to participate in the worker’s compensation fund

by a preponderance of the evidence regardless of any Industrial Commission decision.

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

982 N.E.2d 666, ¶ 17.

        {¶3}    Soci served Smith with its notice of appeal by certified mail in August

2015 and regular mail in December 2015. He failed to file his petition at any time.1 A

trial court may permit a claimant to file out of time. Singer Sewing Machine Co. v.

Puckett, 176 Ohio St. 32, 36-37, 197 N.E.2d 353 (1964). “The law does not, however,

permit a claimant to disregard with impunity his statutory obligation to timely prosecute

his [workers’ compensation] claim.” Zuljevic v. Midland-Ross Corp., 62 Ohio St.2d 116,




1 We note that in a motion for reconsideration Smith argues that he never received the notice of
appeal and that the signature on the certified mail was not his. The record does not reflect
whether the trial court has decided Smith’s motion, and that motion is not the subject of this
appeal.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



119, 403 N.E.2d 986 (1980). In Zuljevic, the Ohio Supreme Court applied Civ.R.

41(B)(1) where the claimant had failed to timely file his petition under R.C. 4123.512(D).

Id. When Soci filed its motion to dismiss, Smith had not made an appearance, nor had

he requested leave of court to file his petition out of time. The record indicates that

Smith received the notice of appeal to the trial court, Soci’s motion to dismiss, and

notices of case management conferences and the motion-to-dismiss hearing. Whether

to dismiss a case for lack of prosecution is within the sound discretion of the trial court.

Pembaur v. Leis, 1 Ohio St.3d 89, 90, 437 N.E.2d 1199 (1982); see Civ.R. 41(B)(1).

Where the properly served claimant has failed to appear, failed to oppose the motion to

dismiss, and failed to attend any motion hearing or case management conference,

dismissal is not an abuse of discretion.

       {¶4}    Smith argues the trial court erred because it did not sua sponte notify

him that his claim would be dismissed absent a showing of good cause. Civil Rule

41(B)(1) provides that the court may dismiss an action or claim if the plaintiff fails to

prosecute his claim “after notice to the plaintiff’s counsel.” Smith did not have counsel

during the pendency of this case in the common pleas court, but Soci served its motion

to dismiss on Smith via regular mail on February 16, 2016. See Perotti v. Ferguson, 7

Ohio St.3d 1, 3, 454 N.E.2d 951 (1983) (finding that the dismissal notice required by

Civ.R. 41(B)(1) must be sent to a pro se party directly). That motion explained that

Smith had a statutory obligation to file his petition within 30 days of the employer’s

notice of appeal to the common pleas court, the trial court has discretion to dismiss a

claimant’s action when that claimant fails to comply with that 30-day requirement, and

the trial court may dismiss an action under Civ.R. 41(B)(1) if a plaintiff fails to

prosecute a case. Soci’s motion to dismiss was sufficient to put Smith on notice that the

case could be dismissed if he did not file his petition. See Sazima v. Chalko, 86 Ohio



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                      OHIO FIRST DISTRICT COURT OF APPEALS



St.3d 151, 156, 712 N.E.2d 729 (1999). Accordingly, the court was under no obligation

to further notify Smith that his claim could be dismissed.

         {¶5}   Smith invites us to compel the Bureau of Workers’ Compensation to file

the petition on behalf of a claimant where the claimant fails to comply with this

affirmative duty. No such requirement exists, and we will not create one. Because

Smith had not appeared or participated in the case in any way, the trial court did not

abuse its discretion when it dismissed his claim. See R.C. 4123.512; Civ.R. 41(B)(1);

Zuljevic at 120. We overrule the assignment of error and affirm the judgment of the trial

court.

                                                                      Judgment affirmed.

C UNNINGHAM , P.J., and M YERS , J., concur.


Please note:
The court has recorded its own entry on the date of the release of this opinion.




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