Youghiogheny & Ohio Coal Co. v. Mayfield

Holmes, J. The specific issue presented is whether an employer’s appeal from an adverse ruling by the Industrial Commission is subject to dismissal due to the death of the employee during the pendency of the appeal. We hold that such appeal is not precluded by the employee’s death. R.C. 4123.519 provides an employer or a claimant with the opportunity to appeal certain adverse rulings by the commission. The appeal is initiated by filing a notice of appeal pursuant to the requirements set forth in the statute. Upon filing of the notice, jurisdiction of the claim vests in the court of common pleas. See Cadle v. General Motors Corp. (1976), 45 Ohio St. 2d 28 [74 O.O.2d 50], paragraph one of the syllabus; Smoliga v. Keller (1965), 3 Ohio App. 2d 250 [32 O.O.2d 366]. The appeal authorized by R.C. 4123.519 is unique in that it is considered a trial de novo. State, ex rel. Federated Dept. Stores, v. Brown (1956), 165 Ohio St. 521 [60 O.O. 486]; Crabtree v. Young (1965), 1 Ohio St. 2d 93, 95 [30 O.O.2d 335]; Zuljevic v. Midland-Ross (1980), 62 Ohio St. 2d 116, 118 [16 O.O.3d 140]; Smith v. Young (1963), 119 Ohio App. 176 [26 O.O.2d 405]; Jones v. Keller (1966), 9 Ohio App. 2d 210 [38 O.O.2d 217]. The burden of proof, as well as the burden of going forward, remains with the claimant. Swift & Co. v. Wreede (1959), 110 Ohio App. 252 [12 O.O.2d 240]; Smith v. Young, supra. This court recently stated that “* * * where an employer appeals an unfavorable administrative decision to the court the claimant must, in effect, reestablish 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, supra, at 118. [72] From this authority it is apparent that a claimant must again substantiate his claim in order to refute an employer’s appeal. If the claimant dies during the appellate process, he obviously cannot personally satisfy the required burden of proof. The appeal, however, should not be dismissed in favor of either party. This court is of the opinion that upon the employee’s death, the state of Ohio becomes a real party in interest to the litigation. R.C. 4123.519 provides that if an award of compensation is proved to be incorrect upon appeal, then the benefits improperly disbursed to a claimant will be charged against the state surplus fund as provided for in R.C. 4123.34(B). Thus, the employer recovers any amount of improperly paid benefits from the fund as opposed to the employee’s estate. In order to preserve the surplus fund, we believe the correct procedure is to permit the state, which is already a party to the appeal, to proceed in place of the claimant. This will provide the employer with its statutory right to appeal a decision of the commission and also allow the state an opportunity to protect the fund.3 Finally, counsel for the Administrator of the Bureau of Workers’ Compensation argue that a workers’ compensation claim abates upon the death of the claimant; therefore, the appeal should be dismissed in favor of the claimant. They cite Ratliff v. Flowers (1970), 25 Ohio App. 2d 113 [54 O.O.2d 213], as support for their argument. However, Ratliff is easily distinguished from the case sub judice. In Ratliff, the employee was initially granted benefits by the commission. He filed a second claim for additional compensation which was denied. The employee appealed the ruling but died prior to any disposition of his appeal. The court subsequently found that an employee must recover pursuant to his individual right under the workers’ compensation statutes, and that such right abates upon the death of the employee. While the Ratliff court held that death abates an employee’s cause of action, we do not believe the same is true for an appeal initiated by the employer. If we were to extend Ratliff to include the present situation, this court would violate the rationale behind R.C. 4123.519 and preclude an employer’s appeal through no fault of that party. We conclude, therefore, that an employer’s appeal pursuant to R.C. 4123.519 from an adverse ruling by the Industrial Commission is not subject to dismissal due to the death of the employee during the pendency of the appeal. Accordingly, in case No. 83-839, the judgment of the court of appeals is reversed and the cause is remanded to the court of common pleas in accor [73] dance with the holding of this court. In case No. 83-854, the judgment of the court of appeals is affirmed; however, the cause is remanded to the court of common pleas in accordance with the holding of this court. Judgments accordingly. W. Brown, Sweeney and Locher, JJ., concur. Celebrezze, C.J., C. Brown and J. P. Celebrezze, JJ., dissent. Footnotes [3] We decline to substitute a representative of the claimant’s estate to the appeal pursuant to Civ. R. 25, as the estate does not have an interest in the appeal due to the language of R.C. 4123.519.