[Cite as Brown v. Bur. of Workers’ Comp., 2011-Ohio-3695.]


         Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 96209




                            EDWIN O. BROWN, JR.
                                                         PLAINTIFF-APPELLANT

                                                   vs.

          BUREAU OF WORKERS’ COMP., ET AL.
                                                         DEFENDANTS-APPELLEES




                                         JUDGMENT:
                                          AFFIRMED


                                 Civil Appeal from the
                        Cuyahoga County Court of Common Pleas
                                 Case No. CV-736193

        BEFORE:           Cooney, J., Kilbane, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: July 28, 2011
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ATTORNEYS FOR APPELLANT

Michael H. Gruhin
Gloria S. Gruhin
Gruhin & Gruhin
2000 Auburn Drive, 2nd Floor
Beachwood, Ohio 44122


ATTORNEYS FOR APPELLEES

For Greater Cleveland RTA

Sheryl King Benford
General Counsel G.C.R.T.A.

Lisa Anne Cottle
Associate Counsel
Greater Cleveland RTA
1240 West 6th Street
Cleveland, Ohio 44113

For Bureau of Workers’ Compensation

Michael Dewine
Ohio Attorney General
30 East Broad Street
State Office Tower
Columbus, Ohio 43215

Michael J. Zidar
Assistant Attorney General
Workers’ Compensation Sect.
615 W. Superior Ave., 11th Floor
Cleveland, Ohio 44113
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COLLEEN CONWAY COONEY, J.:

       {¶ 1} Plaintiff-appellant, Edwin O. Brown, Jr. (“Brown”), appeals the trial court’s

judgment dismissing his complaint against defendant-appellee, the Greater Cleveland Regional

Transit Authority (“RTA”).    Finding no merit to the appeal, we affirm.

       {¶ 2} In 1995, while employed by RTA, Brown sustained a work-related injury to his

left knee.   Brown’s workers’ compensation claim was approved.        After attempting to return

to work, Brown took full disability leave in 1997.           Brown managed his injury with

“self-treatment and over the counter medications” for the last 13 years.

       {¶ 3} In 2010, Brown’s orthopedic doctor submitted a request to reactivate Brown’s

1995 claim in order to cover medical treatments.       The request was denied by RTA.       The

claim proceeded to a hearing by the Ohio Industrial Commission (“OIC”).        The OIC district

hearing officer denied Brown’s claim, finding that the proposed treatment was “not related to

the allowed conditions in this claim.”     Brown appealed this decision, and the matter was

heard by a staff hearing officer, who also affirmed the denial.

       {¶ 4} Brown then filed an appeal and a complaint in the court of common pleas,

naming both RTA and the Administrator of the Ohio Bureau of Workers’ Compensation.

RTA filed a motion to dismiss pursuant to Civ.R. 12(B)(1), claiming that the trial court lacked

subject matter jurisdiction over Brown’s claim because R.C. 4123.512 precludes an appeal
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from a decision of the OIC relating to questions of “extent of disability.”    The court granted

the motion.

         {¶ 5} It is from this dismissal that Brown now appeals, raising one assignment of

error.

         {¶ 6} In his sole assignment of error, Brown argues that the trial court erred in

granting RTA’s motion to dismiss.      Brown claims that the denial of his claim constitutes a

complete bar to all future treatment and, therefore, a termination of his right to participate in

the workers’ compensation fund.      RTA argues that the trial court committed no error in

dismissing Brown’s claim because it was not allowed under R.C. 4123.512(A).

         {¶ 7} We apply a de novo standard of review to the trial court’s granting of a motion

to dismiss under Civ.R. 12(B)(1) for lack of subject matter jurisdiction.     See Internatl. Total

Serv., Inc. v. Garlitz, Cuyahoga App. No. 90441, 2008-Ohio-3680, ¶6, citing Dzina v. Avera

Internatl. Corp., Cuyahoga App. No. 86583, 2006-Ohio-1363, and Madigan v. Cleveland,

Cuyahoga App. No. 93367, 2010-Ohio-1213, ¶20, citing Perrysburg Twp. v. Rossford, 103

Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶5.       Under this standard of review, we must

independently review the record and afford no deference to the trial court’s decision.

Herakovic v. Catholic Diocese of Cleveland, Cuyahoga App. No. 85467, 2005-Ohio-5985.

         {¶ 8} R.C. 4123.512(A) provides that a:
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         “claimant * * * may appeal an order of the industrial commission made under division
         (E) of section 4123.511 of the Revised Code in an injury or occupational disease case,
         other than a decision as to the extent of disability to the court of common pleas of the
         county in which the injury was inflicted * * *.”

         {¶ 9} Thus, an injured worker may only appeal a decision involving the “right to

participate” in the workers’ compensation fund.      See White v. Conrad, 102 Ohio St.3d 125,

2004-Ohio-2148, 807 N.E.2d 327, at ¶10-13; State ex rel. Liposchak v. Indus. Comm. (2000),

90 Ohio St.3d 276, 278-279, 737 N.E.2d 519; Felty v. AT&T Technologies, Inc. (1992), 65

Ohio St.3d 234, 239, 602 N.E.2d 1141.

         {¶ 10} The only right-to-participate question that is subject to judicial review is

“whether an employee’s injury, disease, or death occurred in the course of and arising out of

his or her employment.”      Liposchak at 279; Felty, paragraph two of the syllabus; Afrates v.

Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175, paragraph one of the syllabus; State ex rel.

Evans v. Indus. Comm. (1992), 64 Ohio St.3d 236, 594 N.E.2d 609.          An OIC decision that

pertains to the extent of the claimant’s disability is not appealable to the court of common

pleas.    Such a decision must be challenged in an action for mandamus. Liposchak; Thomas

v. Conrad (1998), 81 Ohio St.3d 475, 477, 692 N.E.2d 205; Felty, paragraph two of the

syllabus. “Once the right of participation for a specific condition is determined * * *, no

subsequent rulings, except a ruling that terminates the right to participate, are appealable * *
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*.”   (Emphasis added.) Felty v. AT&T Technologies, Inc. (1992), 65 Ohio St.3d 234, 602

N.E.2d 1141, paragraph two of the syllabus.

         {¶ 11} An order terminates an employee’s right to participate when the order

permanently forecloses the employee from receiving any further benefits under the recognized

claim.    Id. at 239.

         “Ordinarily, an order regarding payment or authorization of specific medical treatment
         deals with the extent of the employee’s disability and does not foreclose the employee
         from receiving further compensation under the recognized claim.” Ballinger v.
         Conrad (2000), Cuyahoga App. No. 76969, Blackmon, J., dissenting.

         {¶ 12} However, an order that permanently forecloses further benefits under a claim

that has been filed is appealable. Evans, paragraph two of the syllabus.

         {¶ 13} In the instant case, Brown argues that the decision to deny his request for

coverage of certain treatments, a request that would reactivate his 1995 dormant claim,

effectively terminates his right to participate in the fund.    However, in Evans, the Ohio

Supreme Court explicitly held:

         “The Industrial Commission’s refusal to reactivate benefits under an existing claim
         does not finalize the disallowance of the employee’s claim because that decision does
         not foreclose all future compensation under that claim. For this reason, the Industrial
         Commission’s decision to deny or grant additional benefits under a previous 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. at 240.

         {¶ 14} In addition, the Ohio Supreme Court found in Felty that:
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       “[R]equests by a litigant for additional activity in a case, for temporary suspension of a
       claim, or for one of the myriad interlocutory orders the commission may issue in
       administering a case are not ‘claims.’ For example, a decision by the commission to
       allow or deny additional compensation for a previously allowed condition when there
       is no new condition is not appealable because it goes to the extent of the injury —
       there is no new claim.” Id. at 239.

       {¶ 15} Brown relies on a Sixth District case, Newell v. TRW, Inc. (2001), 145 Ohio

App.3d 198, 762 N.E.2d 419, to support his claim that the denial terminated his right to

participate.   In Newell, the claimant was denied further medical treatment because the

hearing officer found that “there [was] no need for treatment relative to the residuals of the * *

* industrial injury,” and the temporary total disability was denied.     The Newell court held

that this finding barred Newell from all future participation.     Thus, the court held that the

common pleas court had jurisdiction to hear the claimant’s appeal.

       {¶ 16} Similarly, in Ortiz v. G & S Metal Products Co., Cuyahoga App. No. 91811,

2009-Ohio-1781, this court found that the trial court erred in dismissing a workers’

compensation claim in which the hearing officer determined that Ortiz “no longer needed

treatment” for his pre-existing injury to his wrist and thus foreclosed him from further

benefits.

       {¶ 17} However, Brown’s reliance on Newell and Ortiz is misplaced because his case

is factually distinguishable.   Brown’s OIC denial does not contain any language that indicates
                                             8

“no need for treatment” and that would permanently bar his participation in the workers’

compensation fund.    Brown’s OIC denial stated, in pertinent part:

       “District Hearing Officer finds the requested treatment is not reasonably related and/or
       medically necessary for treatment of the allowed condition in this claim based upon the
       addendum report of Dr. Levy date 04/05/2010.

       “District Hearing Officer further denies the C-9 dated 04/19/2010 requesting
       retroactive authorization for reactivation of claims, including payment of the
       11/09/2009 office visit, as the 11/09/2009 visit and subsequent treatment to the left
       knee is not related to the allowed conditions in this claim.”

       {¶ 18} Pursuant to Evans, we find that the language of Brown’s denial does not

constitute a complete termination of his participation in the fund.   Moreover, Brown did not

allege a new injury in his attempt to reactivate his pre-existing claim.   The language of the

denial clearly illustrates that the commission’s decision did not terminate Brown’s entire

claim, but merely denied coverage for the specific treatment.   Having denied coverage of that

medical treatment, there was no reason to reactivate his claim.        This denial in no way

prevents Brown from filing subsequent requests for coverage and if/when those requests are

reasonably related to and/or medically necessary, his claim will be reactivated.    See Ochs v.

Bur. of Workers’ Comp., Cuyahoga App. No. 93824, 2010-Ohio-2103, appeal not allowed,

126 Ohio St.3d 1586, 2010-Ohio-4542, 934 N.E.2d 357. Brown’s denial was based purely

on an “extent of injury” issue that is not appealable to the court of common pleas under R.C.

4123.512.   Thus, the trial court committed no error in dismissing the complaint.
                                          9

     {¶ 19} Accordingly, Brown’s sole assignment of error is overruled.

     Judgment affirmed.

     It is ordered that appellees recover of appellant costs herein taxed.

     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MARY EILEEN KILBANE, A.J., and
SEAN C. GALLAGHER, J., CONCUR
