Conflicting court decisions regarding the injured worker’s right to dismiss employer’s appeal in court case.

In Ferguson v. State, 2015 Ohio 4499, the Court of Appeals for Ohio’s Eight District upheld the trial court decision granting an injured workers’ right to dismiss an employer’s appeal in an Ohio workers’ compensation case when the appeal was filed by the employer.  In 2006 the Ohio legislature amended O.R.C. section 4123.512.  This amendment eliminated the injured worker’s right under Rule 41 of the Ohio Rules of Civil Procedure to dismiss a case in common pleas court with the right to re-file it when the appeal was filed by the employer.   The court found this amendment to O.R.C. section 4123.512 was unconstitutional.  Click here to read the full version of the case  However, recently, in Antoun v. Shelly Co., 2016 Ohio 5392, the 7th District Court of Appeals found that the injured worker did not have the right to unilaterally dismiss the complaint when the employer filed the notice of appeal.  Click here to view the full version of the case.  This issue has yet to be decided by the Ohio Supreme Court.