The Revisiting of ORC 4123.512 Courtesy of Cuyahoga County
Ferguson v. State of Ohio CV-13-810584
“Pleadings shall be in accordance with the Rules of Civil Procedure…and provided that the claimant may not dismiss the complaint without the employer’s consent if the employer is the party that filed the notice of appeal to court pursuant to this section.”
A Court in Cuyahoga County has ruled that it is unconstitutional to prevent an Injured Worker/Plaintiff from dismissing his/her Complaint on an employer’s appeal.
Senate Bill 7 changed the rules in that a Plaintiff/Claimant can only dismiss his/her Complaint with the agreement of the employer. This was changed because the savings statute, allowed a Plaintiff to draw out three years of benefits on a dismissed Complaint while an Employer’s appeal was pending.
The Court held that the Legislature does not have the right to change the Civil Rules of Procedure as that is solely within their discretion and therefore, the Plaintiff’s due process, equal protection rights were violated. The Court also indicated that this rule change also violated a separation of powers. Plaintiff in Ferguson challenged the provision on the grounds that it violated her due process, violated her right to equal protection and violated the separation of powers.
This has been appealed to the Eighth District Court of Appeals and is pending briefs by the Plaintiff on 4/8/15.