         [Cite as Clendenin v. Girl Scouts of W. Ohio, 2015-Ohio-4506.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



AUDREY CLENDENIN,                                 :          APPEAL NO. C-140658
                                                             TRIAL NO. A-1305928
        Plaintiff-Appellant,                      :

                                                  :              O P I N I O N.
  vs.
                                                  :
GIRL SCOUTS OF WESTERN OHIO,
                                                  :
    Defendant,
                                                  :
  and
                                                  :
ADMINISTRATOR,  BUREAU                      OF
WORKERS’ COMPENSATION,                            :

         Defendant-Appellee.                      :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: October 30, 2015


Becker & Cade and Dennis A. Becker, for Plaintiff-Appellant,

Michael DeWine, Ohio Attorney General, and Thomas J. Straus, Assistant Attorney
General, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Judge.

       {¶1}   Appellant Audrey Clendenin appeals from the judgment of the

Hamilton County Court of Common Pleas dismissing for lack of subject-matter

jurisdiction her appeal of an order issued by the Industrial Commission of Ohio

(“commission”).      The order terminated compensation and benefits for the

previously-allowed    condition    of   substantial    aggravation    of   preexisting

dermatomyositis upon a finding that it had abated, as contemplated by R.C.

4123.54(G).

       {¶2}   In a case involving an issue of first impression, we hold that because

the commission’s order terminated Clendenin’s right to participate in the workers’

compensation fund for the previously-allowed condition, R.C. 4123.512(A) vested the

court of common pleas with subject-matter jurisdiction to hear her appeal, even

though Clendenin continued to participate in the fund for other allowed conditions

arising out of the same accident. Therefore, we reverse the trial court’s judgment,

and remand the cause so that Clendenin may proceed with her appeal of the

commission’s decision.

                              I. Background Facts

       {¶3}   Clendenin was involved in a work-related accident in October 2008

while employed by the Girl Scouts of Western Ohio. She sought to participate in the

workers’ compensation fund for her injuries. Her case, assigned number 08-379860,

was allowed for multiple conditions, including right-shoulder-rotator-cuff tear, right-

bicep-tendon tear, substantial aggravation of preexisting right-shoulder tendonitis,

substantial aggravation of preexisting acromioclavicular-joint arthritis, substantial




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                       OHIO FIRST DISTRICT COURT OF APPEALS



aggravation of preexisting right-shoulder-labral tear, and substantial aggravation of

preexisting dermatomyositis, an autoimmune disorder.

       {¶4}      In March 2013, appellee Administrator, Bureau of Workers’

Compensation (“Bureau”) filed a C-86 motion requesting the abatement of

Clendenin’s condition of substantial aggravation of preexisiting dermatomyositis.

The matter was referred to a district hearing officer (“DHO”), who found, based on a

physician’s report, that the condition had returned to a level that would have existed

without the injury. The DHO ordered that “compensation and medical benefits

[were] no longer to be paid” for the allowed condition. The order did not affect the

other allowed conditions in the case numbered 08-379860.

       {¶5}      Clendenin   unsuccessfully       appealed   the   order   administratively.

Clendenin then filed an appeal and complaint in the Hamilton County Court of

Common Pleas related to the abatement order. She pled that the condition identified

as substantial aggravation of preexisting dermatomyositis had not returned to

preinjury status and that compensation and benefits should continue to be paid for

the condition.

       {¶6}      The Bureau moved to dismiss the cause for lack of subject-matter

jurisdiction. The court granted the motion and dismissed the appeal. Clendenin now

appeals from that judgment. In her sole assignment of error, Clendenin argues that

the trial court erred by granting the Bureau’s motion to dismiss.

       {¶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. W. &

S. Life Ins. Co. v. Owens, 1st Dist. Hamilton No. C-140255, 2015-Ohio-1188, ¶ 8;

Peppers v. Meyer Builders-Douglas Homes, Ltd., 1st Dist. Hamilton No. C-030894,

2004-Ohio-5057, ¶ 15.



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                                    II. Analysis

       {¶8}   The issue in this case is whether Clendenin can appeal to the court of

common pleas the commission’s order determining that her preexisting condition of

dermatomyositis had returned to its preinjury status and that she may not receive

any compensation or benefits for that preexisting condition.

       {¶9}   It is not disputed that Clendenin had initially established her right to

participate for the preexisting condition as required under the statute. To participate

in Ohio’s workers’ compensation fund, a claimant must establish an “injury” as

defined by R.C. 4123.01(C). This statute specifies that an injury includes “any injury,

whether caused by external accidental means or accidental in character and result,

received in the course of, and arising out of, the injured employee’s employment.”

The subdivisions of R.C. 4123.01(C) qualify the definition of a compensable injury.

R.C. 4123.01(C)(4) provides that an injury does not include a condition that

preexisted an injury unless that preexisting condition is “substantially aggravated” by

the injury, as documented by certain objective evidence.       Pflanz v. Lof, 1st Dist.

Hamilton No. C-100574, 2011-Ohio-2670, ¶ 11-12.

       {¶10} But the Bureau contended that Clendenin’s condition had reverted to a

level that would have existed without the injury, and requested and received from the

commission an abatement order terminating compensation and benefits in

accordance with R.C. 4123.54(G). This statute provides that once the substantially-

aggravated preexisting condition “has returned to a level that would have existed

without the injury,” then “no compensation or benefits are payable” to the claimant.

The legislature added R.C. 4123.01(C)(4) and 4123.54(G) as part of Am.Sub.S.B. No.

7 in 2006.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶11} Clendenin sought to appeal the commission’s abatement order under

the authority provided in R.C. 4123.512(A).           That statute provides limited

jurisdiction to the court of common pleas to review final decisions of the commission

that involve a claimant’s right to participate or to continue to participate in the fund.

Thomas v. Conrad, 81 Ohio St.3d 475, 477, 692 N.E.2d 205 (1998). Conversely,

determinations involving the extent of a claimant’s disability must be challenged in

mandamus. Felty v. A.T. & T. Technologies, Inc., 65 Ohio St.3d 234, 240, 602

N.E.2d 1141 (1992).

       {¶12} The Thomas court explained this limit on the appellate jurisdiction of

the court of common pleas as follows:

              “The only action by the commission that is appealable *

              * * is this essential decision to grant, to deny, or to

              terminate the employee’s participation or continued

              participation in the system.” Felty at 239, 602 N.E.2d at

              1145. Such appeals are limited to “whether an employee

              is or is not entitled to be compensated for a particular

              claim.”    Id.   “Only those decisions that finalize the

              allowance or disallowance of a claim * * * are

              appealable.” Id. at 240, 602 N.E.2d 1146.

Thomas at 478.

       {¶13} The Bureau has never disputed that the abatement order forecloses

any future benefits or compensation for the substantial aggravation of preexisting

dermatomyositis.      But the Bureau maintains that the abatement order did not

terminate Clendenin’s participation in the workers’ compensation fund, as she

continues to participate for the other approved conditions under the same case



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                      OHIO FIRST DISTRICT COURT OF APPEALS



number. As such, it contends, the order involved only the extent of her disability

and, therefore, the court of common pleas lacked jurisdiction to proceed with the

appeal. We cannot agree.

       {¶14} The order terminates the right to participate for a “claim”—a specific

injury or medical condition. The Bureau’s argument fails because the Thomas and

Felty courts used the word “claim” when explaining what type of decision by the

commission is appealable—“those decisions that finalize the allowance or

disallowance of a claim.” Generally, in workers’ compensation parlance, a “claim” is

“ ‘simply the recognition of the employee’s right to participate in the fund for a

specific injury or medical condition.’ ” Starkey v. Builders Firstsource Ohio Valley,

L.L.C., 130 Ohio St.3d 114, 2011-Ohio-3278, 956 N.E.2d 267, ¶ 14, quoting Ward v.

Kroger Co., 106 Ohio St.3d 35, 2005-Ohio-3560, 830 N.E.2d 1155, ¶ 10.

       {¶15} Further, the Supreme Court has rejected an argument similar to the

one advanced now by the Bureau. See Zavatsky v. Stringer, 56 Ohio St.2d 386, 384

N.E.2d 693 (1978), paragraph three of the syllabus. Zavatsky involved in part the

issue of the claimant Zavatsky’s right to participate in the workers’ compensation

fund in the first instance. Id. at 387. The court determined that Zavatsky could

appeal from an order that allowed a claim for injury to the left elbow, but denied a

claim as to the low back and left leg arising from the same work place accident. Id.

at 387 and 404. The Supreme Court later reiterated this rule in Felty, where it stated

that “an order allowing a claim for one injury but denying a claim for two other

injuries arising out of the same accident is appealable.” Felty, 65 Ohio St.3d at 239,

602 N.E.2d 1141. The Bureau has not explained why this rule should not apply when

determining the appealability of an order terminating the right to participate, instead

of denying the right to participate in the first instance.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} To be appealable, an order terminating participation may involve

more than causation.       The Bureau also maintains that the trial court lacks

jurisdiction because the abatement order does not involve the issue of whether the

injury, disease, or death resulted from employment, citing State ex rel. Liposchak v.

Indus. Comm., 90 Ohio St.3d 276, 280, 737 N.E.2d 519 (2000). In Liposchak, the

Supreme Court explained that the denial or grant of death benefits was not

appealable under R.C. 4123.512 unless the decision concerned the causal relationship

between injury, disease, or death and employment. Id. at 281. After Liposchak,

courts have held that an order involving the right to participate is not appealable

under R.C. 4123.512 unless the order involves the issue of causation related to the

employment. See, e.g., Benton v. Hamilton Cty. Edn. Serv. Ctr., 123 Ohio St.3d 347,

2009-Ohio-4969, 916 N.E.2d 778; Coder v. Ohio Bank, 145 Ohio App.3d 739, 764

N.E.2d 477 (3d Dist.2001).

       {¶17} But the Supreme Court has clarified that Liposchak defines the issue

that may be appealed in a “right-to-participate case,” and not in a “right-to-continue-

participation case” such as this one. (Emphasis sic.) White v. Conrad, 102 Ohio

St.3d 125, 2004-Ohio-2148, 807 N.E.2d 327, ¶ 10.         Moreover, the commission’s

abatement order can arguably be characterized as a decision involving the “in the

course of and arising out of her employment” inquiry. In essence, the commission

found that Clendenin’s condition, as it existed at the time of the Bureau’s R.C.

4123.54(G)-based motion, was not causally related to her 2008 work-related

accident. Therefore, the commission cut off future benefits and compensation for

the condition of substantial aggravation of the preexisting dermatomyositis.

       {¶18} Ultimately, Clendenin’s right to participate in the fund for her claim

based on the condition of substantial aggravation of preexisting dermatomyositis had



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                    OHIO FIRST DISTRICT COURT OF APPEALS



already been established. Her right to appeal was thereafter limited to subsequent

rulings that affected her right to continue to participate for that claim. We conclude

that the abatement order did not involve the extent of her disability but, instead,

involved her right to continue to participate in the workers’ compensation fund for

the claim and was appealable, notwithstanding the fact that Clendenin is

participating for other conditions under the same case number.

                                   III. Conclusion

       {¶19} We sustain the assignment of error, because the trial court erred by

granting the Bureau’s motion to dismiss for lack of subject-matter jurisdiction.

Accordingly, we reverse the trial court’s judgment and remand the cause for

proceedings consistent with the law and this decision.

                                               Judgment reversed and cause remanded.


HENDON, P.J., and MOCK, J., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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