[Cite as White v. Tomkins Industries, Inc., 2016-Ohio-8404.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




RUBY E. WHITE,

        PLAINTIFF-APPELLANT,                                   CASE NO. 1-16-46

        v.

TOMKINS INDUSTRIES, INC., ET AL.,                              OPINION

        DEFENDANTS-APPELLEES.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CV 2016 0357

                                      Judgment Affirmed

                          Date of Decision:        December 27, 2016




APPEARANCES:

        Thomas L. Reitz for Appellant

        Philip S. Heebsh for Appellees
Case No. 1-16-46



SHAW, P.J.

        {¶1} Plaintiff-appellant, Ruby E. White (“White”), brings this appeal from

the August 24, 2016, judgment of the Allen County Common Pleas Court granting

the motions to dismiss filed by defendants-appellees, Tomkins Industries, Inc., and

the Administrator of the Bureau of Workers’ Compensation.

                       Relevant Facts and Procedural History

        {¶2} On April 6, 2006, White was an employee of Tomkins Industries.

During the course of her employment she sustained a work-related injury involving

a “right knee cruciate ligament tear; right knee sprain; right knee medial meniscus

tear; [and] right knee osteoarthritis.” (Doc. 2, Ex. A). As a result of the injury,

White filed a claim for workers’ compensation and that claim was allowed. The

record indicates that White last sought treatment for her injury on August 8, 2012.

(Id.)

        {¶3} On August 5, 2015, White saw Dr. Gary Schniegenberg after White was

at a funeral and “ ‘passed out, [falling] directly * * * on her knees, which she was

told by her niece that she hit the knee directly and they heard a loud crack and

thought it was her head, but it was her knee hitting the concrete.’ ” (Id.) At her visit

with the doctor, White was having swelling and tenderness in her knee and it was

warm to the touch. (Id.)



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       {¶4} Subsequently,    White    filed a “Request for Medical Service

Reimbursement or Recommendation for Additional Conditions for Industrial Injury

or Occupational Disease” on December 9, 2015. (Doc. 2, Ex. B.).

       {¶5} On March 18, 2016, a District Hearing Officer issued an order denying

White’s request. The District Hearing Officer determined that, “[b]ased upon the

medical records previously cited * * * the requested medical services are not

reasonably related to and not necessary for treatment of the allowed conditions.”

(Doc. 2 Ex. A).

       {¶6} White appealed the District Hearing Officer’s decision and on May 4,

2016, a Staff Hearing Officer issued an order affirming the District Hearing

Officer’s order. The Staff Hearing Officer indicated that an independent medical

examination was conducted on White and the independent doctor “opined the

requested treatment to be the result of the intervening and unrelated incident.” (Doc.

2, Ex. B).

       {¶7} White appealed the District Hearing Officer’s decision to the Industrial

Commission and on May 24, 2016, the Industrial Commission rejected White’s

appeal.

       {¶8} On June 23, 2016, White filed a Petition and Complaint with the Allen

County Common Pleas Court against Tomkins Industries and Stephen Buehrer, an

Administrator with the Bureau of Workers’ Compensation, seeking the “right to


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participate in the benefits provided by the Workers’ Compensation Act[.]” (Doc.

No. 2)

         {¶9} On July 26, 2016, Tompkins Industries filed its answer. On July 28,

2016, the Administrator filed his answer.

         {¶10} On August 4, 2016, Tomkins Industries filed a motion to dismiss

pursuant to Civ.R. 12(B)(1), contending that the trial court lacked subject matter

jurisdiction to consider a claim that did not foreclose all future compensation under

White’s claim. Tomkins Industries contended that a decision regarding the extent

of a claimant’s disability was not appealable to the common pleas court; rather, only

a decision allowing or permanently foreclosing a claim was appealable pursuant to

well-settled caselaw. See Felty v. AT&T Techs, Inc., 65 Ohio St.3d 234, 240, 1992-

Ohio-60 (“Once the right of participation for a specific condition is determined by

the commission, no subsequent rulings, except a ruling that terminates the right to

participate, are appealable[.]”); Thomas v. Conrad, 81 Ohio St.3d 475, 1998-Ohio-

330; White v. Conrad, 102 Ohio St.3d 125, 2004-Ohio-2148. Tomkins Industries

argued that in this situation White was merely arguing to increase the extent of her

injury and that her original claim remained open, thus there was no permanent

foreclosure of White’s claim here.




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       {¶11} On August 10, 2016, the Administrator filed a motion joining Tomkins

Industries’ motion to dismiss for the reasons that Tomkins Industries had

articulated.

       {¶12} On August 15, 2016, White filed a memorandum contra to the

appellees’ motions to dismiss. White argued that she had actually effectively been

foreclosed from all future participation in the workers’ compensation fund and thus

her claim was appealable.

       {¶13} On August 22, 2016, Tompkins Industries filed a reply memorandum

in support of its motion to dismiss.

       {¶14} On August 24, 2016, the trial court filed its judgment entry on the

matter, granting the motions to dismiss of Tompkins Industries and the

Administrator. The trial court reasoned that the Staff Hearing Officer’s decision

       did not find that the intervening and unrelated incident ended the
       employer’s responsibility for [White’s] allowed claim. The
       commission did not otherwise change the status of [White’s]
       claim. The commission left [White’s] right to participate open for
       the allowed conditions. Because the commission left [White’s]
       right to participate open and did not expressly terminate it, this
       Court does not conclude that the finding of an intervening and
       unrelated incident means that the order denying authorization for
       treatment necessarily and effectively terminated [White’s] right
       to participate.

(Doc. No. 13). Thus the trial court dismissed the case.

       {¶15} It is from this judgment that White appeals, asserting the following

assignment of error for our review.

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                   ASSIGNMENT OF ERROR
       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
       APPELLANT BY IMPROPERLY APPLYING R.C. 4123.512
       AND DISMISSING THE COMPLAINT FILED BY THE
       APPELLANT.

       {¶16} In her assignment of error, White argues that the trial court erred by

dismissing her complaint. Specifically, White contends that even though there was

no statement that her claim was barred from all future participation, she was

effectively barred from future benefits.

       {¶17} We review a trial court’s decision to grant a motion to dismiss de novo,

without any deference to the trial court. Richardson v. Indus. Comm., 2d Dist.

Montgomery No. 22797, 2009-Ohio-2548, ¶ 17, citing Howard v. Penske Logistics,

LLC, 9th Dist. Summit App. No. 24210, 2008-Ohio-4336, ¶ 7.

       {¶18} The Supreme Court of Ohio has stated that, “ ‘Courts of Common

Pleas do not have inherent jurisdiction in workmen’s compensation cases but only

such jurisdiction as is conferred on them under the provisions of the Workmen’s

Compensation Act.’ ” Benton v. Hamilton Cty. Educational Serv. Ctr., 123 Ohio

St.3d 347, 2009–Ohio–4969, ¶ 7, quoting Jenkins v. Keller, 6 Ohio St.2d 122,

(1966), paragraph four of the syllabus. Revised Code 4123.512 authorizes appeals

from industrial commission orders, but “only in limited circumstances.” Benton at

¶ 10, citing Felty v. AT & T Technologies, Inc., 65 Ohio St.3d 234, 238 (1992).




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       {¶19} Revised Code 4123.512(A) limits a common pleas court’s jurisdiction

to appeals from industrial commission orders “in any injury or occupational disease

case, other than a decision as to the extent of disability.” The Supreme Court of

Ohio has construed R.C. 4123.512(A) as limiting appeals to cases involving the

claimant's “right to participate” in the workers’ compensation fund. Benton at ¶ 8;

White v. Conrad, 102 Ohio St.3d 125, 2004–Ohio–2148, ¶¶ 10–13; State ex rel.

Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 279 (2000). A decision regarding

the extent of a claimant’s disability is not appealable to the common pleas court, but

instead, must be challenged in a mandamus action. Benton at ¶ 8, citing State ex

rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 278-279 (2000).

       {¶20} “An Industrial Commission decision does not determine an

employee’s right to participate in the State Insurance Fund unless the decision

finalizes the allowance or disallowance of the employee’s claim.” State ex rel.

Evans v. Indus. Comm., 64 Ohio St.3d 236 (1992), at paragraph one of the syllabus.

To be appealable, the decision must “foreclose all future compensation under that

claim.” (Emphasis added). Id. at 240. Thus, “[o]nce the right of participation for

a specific condition is determined by the Industrial Commission, no subsequent

rulings, except a ruling that terminates the right to participate, are appealable

pursuant to R.C. 4123.512.’ ” (Emphasis sic). White, supra, at ¶ 13, citing Felty,

65 Ohio St.3d at 240. Therefore,


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       requests 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.

Felty at 239-240, citing State ex rel. Roope v. Indus. Comm., 2 Ohio St.3d 97 (1982).

       {¶21} In this case, White argues that although the specific language was not

stated by any of the hearing officers or the industrial commission that her claim was

forever foreclosed, she was implicitly foreclosed due to the indication that she had

not received treatment in over three years for her knee and she was not granted

treatment for this new injury.

       {¶22} However, despite White’s arguments, there is no indication in our

record that White’s future claims were foreclosed. As the trial court stated in its

entry on the matter, the Industrial Commission left White’s right to participate in

the fund open and the status of her original claim was not changed. We see nothing

in this record that indicates there was a complete termination of White’s claim.

       {¶23} Therefore, under our de novo review, we cannot find that the trial court

erred in dismissing White’s claim for lack of jurisdiction. Accordingly, White’s

assignment of error is overruled.




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       {¶24} For the foregoing reasons White’s sole assignment of error is

overruled and the judgment of the Allen County Common Pleas Court is affirmed.

                                                           Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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