Gradwell v. AS Helbig Constr. Co. (1989)

Our plain-English summary of Gradwell v. AS Helbig Constr. Co. (Ohio Court of Appeals, June 7, 1989).

Mary Jane Gradwell sought workers' compensation death benefits after her husband, James Gradwell, died on December 31, 1984. He had been diagnosed with malignant mesothelioma from asbestos exposure. Her application named A.S. Helbig Construction Co. as his last employer and listed W.G. Lockhart Construction Co. as another employer in his last five years. A hearing officer and the board of review found the death was from an occupational disease and allowed participation in the state fund. Helbig appealed to the trial court, and Mrs. Gradwell later joined Lockhart and W.E. Plechaty Co. as necessary parties. The trial court then dismissed them, finding the claims barred by the two-year limitations period in R.C. 4123.85. The court of appeals reversed. Following the Ohio Supreme Court's decision in State ex rel. Burnett v. Indus. Comm., it held that a claimant may add employers at the trial court level even after the limitations period has run, because the appeal is a trial de novo about the right to participate in the fund. The court noted the procedural oddities this creates but applied the Supreme Court's rule. The case was remanded.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Ohio Court of Appeals
• Decided: June 7, 1989
• Citation: 62 Ohio App. 3d 197
• Docket: No. 13942
• Stage: Appeal from motion to dismiss
• State: Ohio

Outcome. The court of appeals reversed the trial court's dismissal of W.G. Lockhart Construction Co. and W.E. Plechaty Co. and held that the widow, Mary Jane Gradwell, could join them as parties in her workers' compensation death-benefits appeal.

What the court held. Under State ex rel. Burnett v. Indus. Comm., a claimant in a de novo workers' compensation appeal may add additional employers as parties at the trial court level, even after the two-year limitations period has expired.

Issues decided: Employer and Contractor Liability, and Workers' Compensation, Statute of Limitations, Trial Procedure and Discovery.

The people and their exposure

• James Gradwell: mesothelioma; died

The defendants

• A.S. Helbig Construction Co. (employer)
• W.G. Lockhart Construction Co. (employer)
• W.E. Plechaty Co. (employer)
• Ohio Industrial Commission (government)

Later decisions citing this one

One later decision in our library cites this one:

• State EX rel. Abex Corp./electro Alloys Div. v. Indus. Comm. OF Ohio (Ohio Court of Appeals, 10th Appellate District, 2005). The court granted a limited writ of mandamus for the employer Abex/Electro Alloys, ordering the Industrial Commission to vacate its finding that Abex was the sole liable employer, notice the claimant's other former employers, and issue an amended order on employer liability, while leaving the mesothelioma claim allowance undisturbed.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

62 Ohio App.3d 197 (1989)

GRADWELL, ADMR., Appellant,

v.

A.S. HELBIG CONSTRUCTION COMPANY et al., Appellees.[*]

No. 13942.

Decided June 7, 1989.

Court of Appeals of Ohio, Summit County.

[*198] David A. Sierleja and Robert E. Sweeney, for appellant.

Anthony J. Celebrezze, Jr., Attorney General, and William N. O'Neill, Assistant Attorney General, for appellee Industrial Commission.

John N. Childs, Michael A. Tramonte and J. William Petro, for appellees A.S. Helbig Construction Co. etal. Per Curiam.

Appellant, Mary Jane Gradwell, appeals from the order of the trial court dismissing appellees, W.G. Lockhart Construction Co. and W.E. Plechaty Co. from the action. We reverse and remand.

This case began as a claim for death benefits filed by appellant with the Ohio Bureau of Workers' Compensation on June 11, 1985, following the death of her husband, James Gradwell. James, who had been diagnosed as suffering from malignant mesothelioma as a result of having been exposed to asbestos, died on December 31, 1984.

Appellant's application for death benefits named A.S. Helbig Construction Co. as James' last employer. The application also listed W.G. Lockhart Construction Co. as one of James' employers during the five years preceding his death. The district hearing officer found that James' death was the result of an occupational disease and determined that appellant was entitled to participate in the state fund. The Canton Regional Board of Review affirmed the district hearing officer's decision. A.S. Helbig's appeal from this order was refused by the Industrial Commission.

A.S. Helbig appealed the board of review's decision to the trial court. Appellant, as required by R.C. 4123.519, timely filed a petition showing a cause of action to continue participating in the Workers' Compensation Fund and named A.S. Helbig as James' employer. On October 5, 1987, appellant filed a motion to join W.E. Lockhart and W.E. Plechaty as necessary parties. The motion was granted.

[*199] On November 16, 1988, W.G. Lockhart filed a motion to dismiss, which was subsequently joined by W.E. Plechaty, for the reason that W.G. Lockhart had not been a party to the administrative proceedings. The trial court granted the motion to dismiss, ruling that appellants' claims against W.G. Lockhart and W.E. Plechaty were barred by the two-year statute of limitations prescribed in R.C. 4123.85.

Assignment of Error

"The trial court erred in granting defendants' motion to dismiss based on the running of the statute of limitations where claimant-appellant timely filed an application to participate in the Workers' Compensation fund with the Ohio Industrial Commission."

It is undisputed that appellant to attempted to join W.G. Lockhart and W.E. Plechaty as necessary parties more than two years after James' death. The Ohio Supreme Court, however, has recognized that a claimant may add additional employers for the first time at the trial court level, even after the limitations period has expired. State, ex rel. Burnett, v. Indus. Comm. (1983), 6 Ohio St.3d 266, 268, 6 OBR 332, 334, 452 N.E.2d 1341, 1343.

Burnett, a per curiam decision, involved a petition for writ of mandamus to compel the Industrial Commission to conduct an investigation to determine whether Burnett had been exposed to asbestos during any employment prior to his death. The Supreme Court held that a writ of mandamus would not issue because Burnett had an adequate remedy at law through appeal.

The Burnett court also stated:

"* * * The right at issue in the appeal is the right to participate in the state fund and not a claim directed against a particular employer. The appeal proceeding is a trial de novo and the Civil Rules apply. By discovery and joinder, the proper employers can be ascertained and made parties, if necessary." 6 Ohio St.3d at 268, 6 OBR at 334, 452 N.E.2d at 1343. Presumably the newly named employers would also have the right of discovery and the opportunity to contest in the trial de novo the claimant's right to participate in the fund.

Although we recognize the procedural anomalies created by Burnett, we must apply the law as pronounced by the Supreme Court. Accordingly, we hold that appellant may join W.G. Lockhart and W.E. Plechaty as parties.

The judgment of the trial court is reversed.

Judgment reversed.

MAHONEY, P.J., QUILLIN and REECE, JJ., concur.

[*] Reporter's Note: A motion to certify the record to the Supreme Court of Ohio was overruled in (1989), 45 Ohio St.3d 718, 545 N.E.2d 901.

Sources

• The opinion on Google Scholar
• Ohio asbestos laws
• Ohio asbestos exposure sites