Ohio: “Consent Provision” Regarding Employer-Initiated Appeals is Constitutional

The Supreme Court of Ohio, reversing the Eighth District Court of Appeals, held the state’s “consent provision” [see Ohio Rev. Code § 4123.512(D)], which allows an employee to dismiss an employer-initiated appeal only with the consent of the employer, is constitutional. Under Ohio law, while an employer may appeal a determination by the Industrial Commission that an employee has the right to participate in the workers' compensation fund, and although it is the employer who files the appeal in the common pleas court, the employee is nevertheless designated as the plaintiff. The court of appeals had ruled, inter alia, that the state’s General Assembly, which established the process in § 4123.512 for appealing a right-to-participate determination, could not control how those appeals progressed procedurally. Indeed, the court of appeals said the consent provision conflicted with Civ. R. 41(A)(1)(a), and thus infringed upon the Supreme Court's constitutionally granted power under Article IV, Section 5(B) of the Ohio Constitution to set procedural rules for claims brought in Ohio. The Supreme Court disagreed, stressing that there was no conflict between the statute and the Civil Rules—and thus no separation-of-powers concern—where the Civil Rules by their own terms deferred to statutory law. The Civil Rules allowed the General Assembly to implement procedural rules in “special statutory proceedings.” Those statutes took precedence when they rendered the Civil Rules inapplicable. The Court stressed that an Ohio Rev. Code § 4123.512 appeal was such a special statutory proceeding.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s%20Workers’%20Compensation%20Law%20" target="_blank">Larson’s Workers’ Compensation LawLarson’s%20Workers’%20Compensation%20Law%20" target="_blank"> (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Ferguson v. State of Ohio, 2017-Ohio-7844 (Sept. 28, 2017)

See generally Larson’s Workers’ Compensation Law, § 124.08.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law