[Cite as Cremeans v. Contact Industries, Inc., 2012-Ohio-5874.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                              JUDGES:
KATHY CREMEANS                                        :       Hon. W. Scott Gwin, P.J.
                                                      :       Hon. William B. Hoffman, J.
                        Plaintiff-Appellant           :       Hon. Julie A. Edwards, J.
                                                      :
-vs-                                                  :
                                                      :       Case No. 2012-CA-45
CONTACT INDUSTRIES, INC. AND                          :
ADMINISTRATOR, BUREAU OF                              :
WORKERS' COMPENSATION                                 :       OPINION

                     Defendant-Appellee




CHARACTER OF PROCEEDING:                                  Administrative appeal from the Richland
                                                          County Court of Common Pleas, Case No.
                                                          11CV979

JUDGMENT:                                                 Affirmed

DATE OF JUDGMENT ENTRY:                                   December 10, 2012

APPEARANCES:

For Plaintiff-Appellant                                   For Defendants-Appellees

ANDREW D. FUCHS                                           MICHAEL DEWINE
580 South High Street, Ste 200                            Ohio Attorney General
Columbus, OH 43215                                        KEVIN J. REIS
                                                          Assistant Attorney General
                                                          150 East Gay Street, 22nd Floor
For Contact Industries, Inc.                              Columbus, OH 43215-3130
JOHN TARKOWSKY
3 North Main Street, Ste 500
Mansfield, OH 44902
[Cite as Cremeans v. Contact Industries, Inc., 2012-Ohio-5874.]


Gwin, P.J.

         {¶1}    Plaintiff-appellant Kathy Cremeans appeals a judgment of the Court of

Common Pleas of Richland County, Ohio, which dismissed her appeal taken from a

decision of appellee Bureau of Workers’ Compensation denying her benefits.               Her

employer is appellee Contact Industries, Inc. Appellant assigns a single error to the trial

court:

         {¶2}    “I. THE TRIAL COURT ERRED IN HOLDING THAT PLAINTIFF-

APPELLANT FAILED TO FILE A SECOND CLAIM APPLICATION.”

         {¶3}    The trial court outlined the procedural history of this case in its judgment

entry of May 18, 2012. The court found in her first report of injury appellant alleged she

was injured while performing repetitive work on May 3, 2010.            Her alleged injuries

included a sprain of her neck, of her shoulder/arms, and of her elbow/forearm. Her first

injury report was filed on October 11, 2010, over five months after the injury. The

record also indicates appellant did not seek treatment for the injury until October 6,

2010.

         {¶4}    On November 4, 2010, the Bureau disallowed appellant’s claim, noting

appellant’s doctor had stated he had seen appellant in his office for the same

complaints starting “at the end of last year”. The Bureau’s decision also noted appellant

had not submitted medical evidence to support a causal relationship between the

accident and the alleged injury, in spite of the fact that medical information was

requested on October 26, 2010 and October 29, 2010. The Bureau found appellant had

not met her burden of proof.
Richland County, Case No. 2012-CA-45                                                    3


       {¶5}   The decision also contained a notice that the decision would become final

unless the appellant filed a written appeal within fourteen days of her receipt of the

notice. Appellant did not file a timely appeal from this decision.

       {¶6}   On February 1, 2011, appellant filed an administrative C-86 motion, which

brought the matter before the Ohio Industrial Commission. On April 2, a district hearing

officer found appellant’s claim should be disallowed. Appellant filed an appeal of that

order and a staff hearing officer issued a decision on May 25, 2011, finding the claim

must be disallowed. Both the district hearing officer and the staff hearing officer stated

appellant’s claim was denied on the merits of the medical and other evidence. They also

found appellant’s claim was not a second claim because appellant failed to establish

the criteria set forth in Industrial Resolution R-98-1-02 and Greene v. Conrad, 10th Dist.

No. 96APE12-1780, 1997WL476703 (August 21, 1997).

       {¶7}   The trial court entered summary judgment, finding as a matter of law

appellant was not entitled to participate in the Workers’ Compensation Fund.

       {¶8}   Generally, in reviewing an administrative body’s decision on its merits, the

Court of Common Pleas examines the record and determines whether the agency’s

decision is unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported

by the preponderance of substantial, reliable and probative evidence. R.C. 2506.02.

The court presumes the decision of the administrative agency is reasonable and valid.

Community Concerns Citizens, Inc. v. Union Township Board of Zoning Appeals, 66

Ohio St. 3d 452, 456, 613 N.E. 2d 580 (1993).

       {¶9}   When the matter comes before us on the merits, we review the decision

of the Court of Common Pleas as to questions of law and must affirm the court’s
Richland County, Case No. 2012-CA-45                                                       4


decision unless the lower court abused its discretion in finding an administrative board’s

decision is supported by the evidence. Henley v. Youngstown Board of Zoning Appeals,

90 Ohio St. 3d 142, 147, 735 N.E. 2d 433 (2000).

       {¶10} Here, the trial court determined it had no jurisdiction over the matter

because the appeal was untimely and thus did not invoke the jurisdiction of the court.

This presents a question of law, and we review the matter de novo.          Koos v. Central

Ohio Cellular, Inc., 94 Ohio App. 3d. 579, 641 N.E. 2d 265 (8th Dist. 1994).

       {¶11} The trial court found appellant failed to appeal the initial denial of the claim

within the fourteen day period required by law. The court found it lacked subject matter

jurisdiction unless appellant’s failure to appeal can be excused pursuant to Greene,

supra. The Greene case held that the denial of a claim for failure to provide requested

information is not an adjudication of the claim on its merits. Under those circumstances,

a claimant’s subsequent filing is a second claim for the injury, rather than an appeal of

the initial denial.

       {¶12} The trial court found the Industrial Commission responded to the Greene

case by enacting Resolution 98-1-02, which essentially mirrors the holding in Greene.

       {¶13} The trial court found not only that appellant never filed a timely appeal

from the original decision, but also found neither party provided any evidence or

argument to the court that she ever filed a second claim application for the same

incident or accident. The court found appellant’s claims did not meet the Greene case’s

exception to the rule that a decision must be appealed within fourteen days or it

becomes final.
Richland County, Case No. 2012-CA-45                                                   5


       {¶14} Appellant asserts the November 8, 2010 denial of her claim was not on

the merits and for this reason, her C-86 constitutes a valid second claim under Greene.

The Bureau argues its decision was on the merits and appellant’s failure to file an

administrative appeal renders the matter res judicata.

       {¶15} The order of November 4, 2010 denying appellant’s claim states both that

appellant had failed to submit medical evidence to support a causal relationship

between the accident and the alleged injury, and also that the Bureau had requested

medical information on two occasions but appellant did not provide it.

       {¶16} The Industrial Commission found the matter was determined on its merits

because the denial was based upon the evidence appellant had presented, and the fact

she did not seek treatment until five months after the date of the injury.

       {¶17} In the Greene case, the injured worker presented no evidence in support

of her claimed injury. The Greene court found for this reason, the Bureau had not

reviewed the merits of her claim. We find this matter is not analogous to Greene. Here,

appellant filed medical evidence that did not support her claim the injury was related to

the alleged accident. The Bureau requested more information to give appellant the

opportunity to supplement the evidence with documentation showing she was entitled to

benefits. Appellant did not do so, and the Bureau denied her claim on its merits.

       {¶18} We find the trial court was correct in determining because appellant’s

claim was originally denied on the merits the Greene exception does not apply to her

subsequent administrative C-86 motion. Her present appeal was untimely and did not

invoke the jurisdiction of the common pleas court.

       {¶19} The assignment of error is overruled.
Richland County, Case No. 2012-CA-45                                             6


      {¶20} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Edwards, J., concur




                                          _________________________________
                                          HON. W. SCOTT GWIN


                                          _________________________________
                                          HON. WILLIAM B. HOFFMAN


                                          _________________________________
                                          HON. JULIE A. EDWARDS
WSG:clw 1101
[Cite as Cremeans v. Contact Industries, Inc., 2012-Ohio-5874.]


              IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


KATHY CREMEANS                                         :
                                                       :
                            Plaintiff-Appellant        :
                                                       :
                                                       :
-vs-                                                   :          JUDGMENT ENTRY
                                                       :
CONTACT INDUSTRIES, INC.                               :
AND ADMINISTRATOR,                                     :
BUREAU OF WORKERS'                                     :
COMPENSATION                                           :
                                                       :
                                                       :
                         Defendant-Appellee            :          CASE NO. 2012-CA-45




       For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Richland County, Ohio, is affirmed. Costs to appellant.




                                                           _________________________________
                                                           HON. W. SCOTT GWIN


                                                           _________________________________
                                                           HON. WILLIAM B. HOFFMAN


                                                           _________________________________
                                                           HON. JULIE A. EDWARDS
