Thorton v. Montville Plastics & Rubber, Inc., Slip Opinion No. 2009‐Ohio‐360
In Ohio, both the injured worker and the employer have the right to file a notice of appeal to the court of common pleas from a final decision of the Industrial Commission addressing an injured workers’ right to participate in the benefits of the Workers’ Compensation Act. Uniquely, the injured worker is always the plaintiff and, therefore, always bears the burden of proof, regardless of who filed the appeal. Until 2006, the injured worker, as the plaintiff, had the right to all of the benefits and protections afforded a plaintiff under the Ohio Rules of Civil Procedure, including the right to voluntarily dismiss the complaint once, without prejudice, even if the employer filed the original notice of appeal.
In an effort to eliminate this anomaly and make other changes to the Ohio Workers’ Compensation Act, the legislature enacted Senate Bill 7 in the spring of 2006. The entire bill was to take effect in June 2006. However, a referendum petition was filed seeking to revoke certain portions of the bill, including the provision that prohibits the injured workers’ ability to voluntarily dismiss the complaint when an employer filed the appeal. As a result, those portions of the bill subject to the referendum were not effective in June 2006 with the uncontested provisions. Rather, when the referendum petitions failed, the Ohio Bureau of Workers’ Compensation interpreted relevant case law and declared that those portions of Senate Bill 7 subject to the referendum took effect October 11, 2006. In Thorton v. Montville Plastics & Rubber, Inc., Slip Opinion No. 2009-Ohio-360, the Supreme Court disagreed with the Bureau’s interpretation and held that the effective date for those provisions subject to the referendum is August 25, 2006. The Court also held that all of the changes, with one exception, apply prospectively to claims with dates of injury, death or diagnosis on or after the effective date.
Under Senate Bill 7, changes were made that prohibited an injured worker from voluntarily dismissing the complaint filed in an employer’s appeal to court without the employer’s express consent. The primary issue in Thorton, involved whether that change applied to claims where the injury arose prior to the effective date of the changes. The employer argued that the law in effect on the date of the dismissal was controlling. However, the Supreme Court disagreed and held that the change was prospective only and applied to claims with dates of injury, death or diagnosis on or after the effective date based upon information from the General Assembly expressing its intent that all of the changes be prospective, except for one change which deals with payments of compensation during a court appeal.
As part of its analysis the Supreme Court also found that the effective date of those provisions subject to the referendum petition was August 25, 2006 and not October 11, 2006. Prior to Thorton, claims arising between August 25, 2006 and October 11, 2006 were interpreted under the pre-Senate Bill 7 laws by the Ohio Bureau of Workers’ Compensation. Some of these changes may be significant. For example, a claim arising under the Senate Bill 7 change, is subject to new compensability rules for pre-existing conditions. In order to be compensable, the injured worker must show that the pre-existing condition was substantially aggravated by way of documented objective findings. A mere symptomatic aggravation is no longer compensable. On the other hand, prior to Senate Bill 7, a mere worsening, no matter how slight, is compensable. As a result, careful review should be made of all industrial claims with dates of injury, death or diagnosis between August 25, 2006 and October 11, 2006 to ensure that proper consideration is given to these and other statutory changes.
Should you wish to be provided with a copy of the opinion or want to discuss this or any other issue relating to workers’ compensation, please do not hesitate to contact one of our statewide Workers’ Compensation Practice Group attorneys.
