[Cite as McKenzie v. Meijer, Inc., 2017-Ohio-1495.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




DEANNA MCKENZIE,                                      :

        Plaintiff-Appellant,                          :   CASE NO. CA2016-09-061

                                                      :        OPINION
    - vs -                                                      4/24/2017
                                                      :

MEIJER, INC., et al.,                                 :

        Defendants-Appellees.                         :



       CIVIL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                          Case No. 2016 CVD 00715



Clements, Taylor, Butkovich & Cohen, Edward Cohen, 125 East Court Street, Suite 800,
Cincinnati, Ohio 45202, for plaintiff-appellant

Dinsmore & Shohl LLP, Brian P. Perry, 225 East Fifth Street, Suite 1900, Cincinnati, Ohio
45202, for defendant-appellee, Meijer, Inc.


        PIPER, J.

        {¶ 1} Plaintiff-appellant, Deanna McKenzie, appeals a decision of the Clermont

County Court of Common Pleas, granting a motion to dismiss filed by defendants-appellees,

Meijer, Inc., et. al.

        {¶ 2} McKenzie worked for Meijer, and in 2001, sustained a work-related injury to her

hand and arm. McKenzie was permitted to participate in the workers' compensation system

for a claim of a lacerated right hand, reflex sympathetic dystrophy of the right upper
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extremity, and depressive disorder. In 2015, McKenzie requested a scheduled loss award for

a complete loss of the use of her right upper arm. At that time, Meijer arranged for McKenzie

to be placed under surveillance.

         {¶ 3} On the morning of a scheduled independent medical examination, McKenzie

intimated that she was not able to drive because her reflex sympathetic dystrophy was flaring

up and she could not come to the appointment. While the appointment was canceled, the

surveillance was not. A surveillance video taken that day shows McKenzie driving to a store,

going shopping, and using both of her arms to lift and carry bags from the store. After the

surveillance video was shared with McKenzie's attorney, she withdrew her request for the

scheduled loss award.

         {¶ 4} McKenzie thereafter filed a request for authorization of 16 chiropractic

treatments, which was denied by Meijer based on an independent medical examination that

was conducted sometime after the surveillance video was taken. After Meijer denied the

request, the matter was referred to the Industrial Commission for a hearing. The hearing

officer also denied the request. McKenzie then filed an appeal from the hearing officer's

denial with an Industrial Commission Staff Hearing Officer, who affirmed the denial of the

chiropractic treatments.

         {¶ 5} Within the decision affirming the denial, the hearing officer found that the

treatments were not medically reasonable or appropriate given McKenzie's allowed

conditions, and that the treatments were not medically necessary. McKenzie filed an appeal

from the Industrial Commission's decisions with the Clermont County Court of Common

Pleas.

         {¶ 6} In response to McKenzie's appeal to the common pleas court, Meijer filed a

motion to dismiss for lack of jurisdiction. Meijer argued that the statute granting appellate

rights was inapplicable because the Industrial Commission's orders were specific to decisions

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involving the extent of disability issues rather than the right to participate in the workers'

compensation system.       The common pleas court granted Meijer's motion to dismiss.

McKenzie now appeals the common pleas court's decision, raising the following assignment

of error.

        {¶ 7} THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION TO

DISMISS.

        {¶ 8} McKenzie argues in her assignment of error that the common pleas court erred

in dismissing her appeal for lack of jurisdiction.

        {¶ 9} Meier filed its motion to dismiss according to Civ.R. 12(B)(1) and (6) asserting

that either the common pleas court lacked jurisdiction or McKenzie had not stated a claim for

which relief could be granted. The common pleas court granted the motion based on Civ.R.

12(B)(1), finding that it lacked subject matter jurisdiction over McKenzie's appeal.

        {¶ 10} We conduct a de novo review of a common pleas court's decision on a motion

to dismiss a complaint for lack of subject matter jurisdiction pursuant to Civ.R. 12(B)(1). Bla-

Con Indus. v. Miami Univ., 12th Dist. Butler No. CA2006-06-127, 2007-Ohio-785. This

review involves a determination of whether the complaint raised any cause of action

cognizable by the forum in which it was filed. Id.

        {¶ 11} According to R.C. 4123.512(A), a claimant has the right to appeal a decision of

the Industrial Commission regarding permission to participate in the workers' compensation

system, but cannot file an appeal if the issue involves "a decision as to the extent of

disability."   "Any issue other than whether the injury, disease, or death resulted from

employment does not constitute a right-to-participate issue." State ex rel. Liposchak v. Indus.

Comm'n., 90 Ohio St.3d 276, 280 (2000).

        {¶ 12} A decision regarding the extent of a claimant's disability is not appealable to

the common pleas court, but instead must be challenged in an action for mandamus.

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Thomas v. Conrad, 81 Ohio St.3d 475 (1998). As such, the Ohio Supreme Court has

determined that appeals initiated from Industrial Commission extent-of-disability findings are

to be dismissed by the court of common pleas for lack of subject matter jurisdiction. Id.

However, a claimant can appeal a decision of the Industrial Commission to "terminate the

employee's participation or continued participation in the system." Id. at 478.

       {¶ 13} As such, McKenzie now claims that the Industrial Commission's denial of her

chiropractic services was tantamount to terminating her continued participation in the

workers' compensation system. We disagree. Instead, McKenzie's request for chiropractic

services was merely a request for a specific type of medical treatment, and the denial of such

was based on the extent of her injury. The denial of chiropractic services did not, however,

terminate McKenzie's participation in the workers' compensation system.

       {¶ 14} We find the case at bar very similar to one decided by the Fourth District Court

of Appeals in which the court affirmed a decision finding a lack of subject matter jurisdiction

where the appellant appealed the Industrial Commission's denial of his request for

chiropractic treatment. Plashek v. Ryan, 4th Dist. Scioto No. 08CA3230, 2008-Ohio-5973.

Therein, the court recognized that a decision of the Industrial Commission does not

determine an employee's right to participate in the workers' compensation system "unless the

decision finalizes the allowance or disallowance of the employee's claim." Id. at ¶ 12. The

court went on to quote the Ohio Supreme Court for the proposition that '"the Industrial

Commission's decision to grant or deny additional benefits under an existing claim does not

determine the worker's right to participate in the State Insurance Fund, and is not subject to

appeal pursuant to * * * R.C. 4123.519."' Id., quoting State ex rel. Evans v. Indus. Com. of

Ohio, 64 Ohio St.3d 236 (1992), paragraph two of the syllabus.

       {¶ 15} Based on relevant Ohio Supreme Court precedent, therefore, the Fourth

District concluded, "appellant cannot appeal the decision to deny him additional benefits for

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chiropractic treatment under a previously allowed claim. The decision does not permanently

foreclose appellant from receiving further benefits under the claim. Rather, it only denies him

benefits for this particular treatment." Ryan at ¶ 14.

       {¶ 16} Like Ryan, the record sub judice indicates that the common pleas court lacked

jurisdiction to consider the appeal where denial of a request for chiropractic services did not

permanently foreclose McKenzie from receiving further benefits from her existing claim, but

rather, only denied her benefits for the particular treatment of chiropractic services.

       {¶ 17} McKenzie asserts that the denial of the chiropractic services has the "practical

effect" of terminating her involvement in the workers' compensation system because the

Industrial Commission relied on the surveillance video and an independent doctor's report

indicating that medial services are no longer necessary. However, such an assertion is not

supported by the record where the Industrial Commission neither terminated McKenzie's right

to participate in the workers' compensation system nor adopted the doctor's suggestion that

no further medical services were necessary for McKenzie. While the Staff Hearing Officer

relied on information within the doctor's report, it did not change the status of McKenzie's

claim. As such, the Staff Hearing Officer's denial of chiropractic services had no impact on

McKenzie's right to participate in the workers' compensation system. Instead, the denial of

chiropractic services was limited to the extent of McKenzie's disability, which is not

appealable to the common pleas court.

       {¶ 18} The common pleas court properly determined that it lacked jurisdiction to

determine an appeal based on an extent-of-disability issue. Therefore, McKenzie's single

assignment of error is overruled.

       {¶ 19} Judgment affirmed.


       HENDRICKSON, P.J., and M. POWELL, J., concur.



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