Opinion
No. 39441
Decided March 30, 1966.
Workmen's compensation — Appeal by employee to Common Pleas Court — Employer not required to contest action — Administrator may contest claim and present testimony — Issues not disposed of by employer's failure to answer.
1. In an appeal under the provision of the Workmen's Compensation Act by an injured employee to the Court of Common Pleas from an adverse decision at the administrative level, the employer named in his claim by claimant is not required to contest the action since the administrator is also made a party by Section 4123.519 of the Revised Code and may contest the claim; and at the trial in the Court of Common Pleas the trial court must permit the administrator to present relevant and material testimony supporting his answer.
2. Where a jury is demanded in an appeal to the Court of Common Pleas under the provisions of the Workmen's Compensation Act, the trial court is required to hear all material and relevant evidence adduced by the parties. A failure of the named employer to answer to claimant's petition neither controls nor disposes of the issues in the case.
APPEAL from the Court of Appeals for Stark County.
This is an action arising from an appeal by an injured employee under the provisions of the Workmen's Compensation Act (Sections 4123.01 to 4123.99 of the Revised Code) to the Court of Common Pleas of Stark County from a final order of the Industrial Commission denying the claim of said injured employee to participate in the State Insurance Fund.
Plaintiff, James E. Taylor, the injured workman, alleges in his petition that on or about May 24, 1961, while in the employ of one Thomas Morris and while engaged in his said employment, plaintiff fell 10 or 12 feet from a ladder and received serious injuries as a result thereof; that he duly filed his claim with the Bureau of Workmen's Compensation for compensation and medical expenses, wherein he named the defendant Thomas Morris as his employer; and that the administrator, also a defendant, in a hearing at Canton, Ohio, denied the claim in an order reading as follows:
"This claim (11,267-27) came on to be heard this date upon the claimant's application filed on or about October 9, 1961. Together with other proof on file and upon consideration thereof, the administrator finds that * * * the claimant was not an employee of the within named employer on the date of his injury * * *."
Plaintiff alleges further that the Canton Regional Board of Review affirmed the order of the administrator, and that thereupon plaintiff filed his appeal to the Industrial Commission of Ohio on or about May 12, 1962, which entered the following order:
"It is ordered that the appeal filed April 6, 1962, by the claimant from the order made April 3, 1962, by the Canton Regional Board of Review be refused and that copies of this order be mailed this day to all interested parties."
The petition, after alleging that the order of the Industrial Commission was a final order, concludes the petition with the following prayer:
"Wherefore, plaintiff prays judgment against the defendant and asks that he be allowed to participate in the provisions of the Workmen's Compensation Act of the state of Ohio and for such other and further relief as he may be by law entitled."
Neither of the defendants the Industrial Commission or Thomas Morris filed an answer or other pleadings. The defendant administrator, through the Attorney General of Ohio, filed an answer which admits the authenticity and validity of the orders of the administrator, the Regional Board and the Industrial Commission as set out in the petition and then generally denies all other allegations.
The cause came on for trial before the Court of Common Pleas of Stark County. Plaintiff presented his evidence and rested and thereupon renewed his motion, originally made to the court at the beginning of the trial, for judgment against the defendant Thomas Morris for the reason that he failed to file an answer to plaintiff's petition or to plead otherwise.
Counsel for the Industrial Commission, thereupon and before the court passed on plaintiff's motion, moved the court for an order directing the jury to return a verdict for the defendants upon the ground that plaintiff did not offer sufficient evidence to establish that defendant Morris was the employer of plaintiff at the time of the occurrence.
The court denied the motion of the Industrial Commission and sustained the motion of plaintiff saying: "The court finds in favor of the plaintiff as against all of the defendants in this case," being the Industrial Commission, the Administrator of the Bureau of Workmen's Compensation and Morris. The court then gave permission to the administrator to proffer evidence in behalf of the defendants.
Judgment was entered by the Court of Common Pleas for the plaintiff.
The administrator appealed to the Court of Appeals for Stark County, which affirmed the judgment of the Court of Common Pleas, to the effect that the plaintiff is entitled to participate in the State Insurance Fund.
The motion of the administrator to certify the record to this court was allowed because it raised significant questions of public interest pertaining to the functioning of the Workmen's Compensation Act and the program it administers.
Messrs. Zwick Unger and Mr. Leander P. Zwick, Jr., for appellee.
Mr. William B. Saxbe, attorney general, and Mr. Donald M. Colasurd, for appellants.
A ruling upon the third assignment of error will be dispositive of the controlling issue in this cause. This assignment of error appears in the opinion of the Court of Appeals in this language:
"The court (common pleas) erred in sustaining plaintiff's motion for a directed verdict at the conclusion of the plaintiff's case."
It is not necessary to set out an extended review of the testimony presented by the plaintiff at the trial or the testimony proffered by the administrator in support of his answer. Suffice it to say that the testimony presented by the plaintiff, if believed by a jury, would support a judgment for plaintiff. To the contrary, the testimony proffered by the administrator, if believed by a jury, would support a judgment for the defendant administrator.
In his claim the plaintiff named Morris as his employer at the time that he received his injury. Plaintiff's testimony tended to prove that Morris was, in fact, plaintiff's employer at the time of the occurrence, but the administrator's proffered testimony tended to prove that Morris was not plaintiff's employer at such time.
Section 4123.519 of the Revised Code provides, in part, that:
"Notice of appeal 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 appealed therefrom."
In a per curiam opinion in the case of Starr v. Young, Admr., Bureau of Workmen's Compensation, 172 Ohio St. 317, at page 318, referring to Section 4123.519, Revised Code, supra, it is said:
"* * * This is a special statute applying to appeals from decisions of the Industrial Commission and controls over general statutes covering appellate procedure. The above-quoted mandatory provisions are jurisdictional and must be strictly complied with."
The record presents a sharp conflict between the evidence presented and that proffered. The reconciliation of such conflict of the evidence was not for the court but was exclusively within the province of the jury. The trial court erred to the prejudice of the administrator by such invasion of the province of the jury.
The Court of Appeals, in its opinion affirming the judgment of the Court of Common Pleas, held that the failure of Morris, having been served with a copy of the petition, to answer or otherwise plead admitted that he was the named employer, and that this admission was conclusive and dispositive of the case. We cannot agree with that conclusion.
The Administrator of the Bureau of Workmen's Compensation has a dual duty and responsibility, (1) to liberally construe the statutes in behalf of the injured workman, and (2) to protect the State Insurance Fund from waste or improper expenditures.
The defendant Morris was present during the trial of the cause but did not take the witness stand to deny any of the proffered evidence that he was not the employer of plaintiff.
Section 4123.519 of the Revised Code does not require an employer to participate in the defense in the event of an appeal by an injured workman to the Court of Common Pleas. The statute, in part, reads as follows:
"The cost of any legal proceedings authorized by this section, including an attorney's fee to the claimant's attorney to be fixed by the trial judge in the event the claimant's right to participate or to continue to participate in the fund is established upon the final determination of an appeal, shall be taxed against the employer or the Industrial Commission if the Industrial Commission or the administrator rather than the employer contests the right of the claimant to participate in the fund. * * *"
It is the purpose and intendment of the Workmen's Compensation Act to protect the rights of the employee and also the integrity of the State Insurance Fund. In order that this goal be achieved in the case at bar, it was essential that testimony of the witnesses of both the plaintiff and the defendant administrator should have been submitted to the jury, and that body should have been permitted to determine the credibility of the witnesses, weigh the evidence and then return its verdict.
The Administrator of the Bureau of Workmen's Compensation is a proper party in an appeal such as presented in the case at bar. See Section 4123.519 of the Revised Code.
The same section provides that:
"* * * The court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in the fund upon the evidence adduced at the hearing of such action." (Emphasis added.)
It follows that the administrator should have been permitted to "adduce" the testimony to support his answer and the issues by him to be maintained.
The denial by the trial court of the administrator's right to present his evidence to the jury was prejudicial error.
The judgment of the Court of Appeals is reversed, and the cause remanded for further proceedings according to law.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, SCHNEIDER and BROWN, JJ., concur.