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Kaiser v. Ameritemps Inc.2/10/1999
[Cite as Kaiser v. Ameritemps, Inc. (1999), ___ Ohio St.3d ___.]
Workers' compensation - Claimant may employ Civ.R. 41(A)(1)(a) to voluntarily dismiss an appeal to the court of common pleas brought by an employer under R.C. 4123.512.
A workers' compensation claimant may employ Civ.R. 41(A)(1)(a) to voluntarily dismiss an appeal to the court of common pleas brought by an employer under R.C. 4123.512.
Submitted October 27, 1998
Ameritemps, Inc., a temporary staffing agency, employed appellant, Paul E. Kaiser, as a warehouseman. While on assignment at Brown-Graves Lumber Company, Kaiser began experiencing pain in his hands and wrists, to the point where he could no longer continue the heavy hauling and lifting of window frames and doors that the job required. Kaiser was referred to three doctors, all of whom diagnosed him as suffering from carpal tunnel syndrome. Kaiser filed a claim with the Bureau of Workers' Compensation for bilateral carpal tunnel syndrome and was granted temporary total compensation on October 21, 1994. The allowance of his claim was affirmed at the district hearing officer and staff hearing officer levels. Ameritemps appealed the claim to the Industrial Commission, which refused to hear the appeal on September 22, 1995.
Ameritemps appealed the Industrial Commission's decision to the Summit County Court of Common Pleas. Thereafter, Kaiser timely filed his complaint as required by R.C. 4123.512. The parties engaged in discovery; however, Kaiser failed to show up at a scheduled deposition taken on September 3, 1996, and at a medical examination that was to be taken the next day. Kaiser told the court at a pretrial conference held on September 9, 1996 that he did not attend the deposition because he was caring for his sick mother and could not afford a medical expert at the time. On September 10, 1996, Kaiser filed a notice of voluntary dismissal pursuant to Civ.R. 41(A)(1)(a).
Ameritemps filed a motion for judgment in its favor due to Kaiser's non-appearance and failure to name an expert witness. The trial court granted Ameritemps's motion for judgment as a sanction against Kaiser for failure to prosecute and vacated Kaiser's voluntary dismissal. The court of appeals affirmed, holding that Kaiser could not voluntarily dismiss an appeal filed by an employer under Civ.R. 41(A)(1)(a). The court of appeals then certified that its decision was in conflict with decisions of the Eighth and Eleventh Appellate Districts.
The cause is now before this court upon our allowance of a discretionary appeal and upon our determination that a conflict exists.
The court of appeals certified the following issue for our determination: "May a Workers' Compensation claimant use Civ.R. 41(A)(1)(a) to voluntarily dismiss an appeal to the court of common pleas brought by an employer appealing an adverse decision by the Industrial Commission pursuant to R.C. 4123.512?" For the following reasons, we answer the certified question in the affirmative. A workers' compensation claimant may employ Civ.R. 41(A)(1)(a) to voluntarily dismiss an appeal to the court of common pleas brought by an employer under R.C. 4123.512.
Initially, appellant argues that this case should be dismissed because Ameritemps did not file a proper notice of appeal under R.C. 4123.511(F). R.C. 4123.511(F) provides that " very notice of an appeal from an order issued under divisions (B), (C), (D), and (E) of this section shall state the names of the claimant and the employer, the number of the claim, the date of the decision appealed from, and the fact that the appellant appeals therefrom."
In this case, Compliance Managemen
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