[Cite as Petry v. Kilbarger Constr., Inc., 2012-Ohio-4355.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                               JUDGES:
DEREK E. PETRY                                         :       Hon. W. Scott Gwin, P.J.
                                                       :       Hon. William B. Hoffman, J.
                          Plaintiff-Appellee           :       Hon. Julie A. Edwards, J.
                                                       :
-vs-                                                   :
                                                       :       Case No. 2012-CA-13
KILBARGER CONSTRUCTION, INC.,                          :
ET AL                                                  :
                                                       :       OPINION
                     Defendant-Appellant




CHARACTER OF PROCEEDING:                                   Civil appeal from the Muskingum County
                                                           Court of Common Pleas, Case No.
                                                           CD2009-0400

JUDGMENT:                                                  Dismissed

DATE OF JUDGMENT ENTRY:                                    September 21, 2012

APPEARANCES:

For Derek Petry                                            For Kilbarger Construction

A.JAMES TSANGEOS                                           SARA ROSE
1810 – 36th Street NW                                      Box 188
Canton, OH 44709                                           Pickerington, OH 43147

For Bureau of Workers’ Compensation
LYDIA M. ARKO
150 East Gay Street, 22nd Floor
Columbus, OH 43215-3130
[Cite as Petry v. Kilbarger Constr., Inc., 2012-Ohio-4355.]


Gwin, P.J.

        {¶1}     Appellant, Kilbarger Construction, Inc. [“Kilbarger”] appeals from the

February 6, 2012 judgment entry of the Muskingum County Court of Common Pleas in

an action for workers’ compensation benefits for injuries resulting from an automobile

accident on November 14, 2007 ("Accident"). Appellees are Derek Petry [“Petry”] and

the Administrator of the Bureau of Workers’ Compensation, [“Bureau”].

                                       FACTS PROCEDURAL HISTORY

        {¶2}     Workers' Compensation claims were filed with the Bureau by Petry and his

co-workers, Nathan Hallowell, deceased father of Braxton Bailey, whose Guardian, Sue

McMasters, is appellee in Case CT2012-0011, ["McMasters"], and Robert Perry, who is

appellee in Case CT2012-0012, ["Perry"]. All were involved in the same automobile

accident on November 14, 2007. Kilbarger employed Petry, Hallowell, and Perry as

drilling riggers. The Industrial Commission (“IC”) allowed all three (3) claims. The IC

initially allowed Petry’s claim, designated as BWC Claim #07-890721, for the following

conditions:

                 1. 802.0 nasal bone fracture, closed

                 2. 802.6 right orbital blowout fracture

                 3. 802.4 right displaced zygomatic fracture

                 4. 810.02 left clavicle fracture

                 5. 807.02 left 3rd and 4th rib fractures

                 6. 880.03 lacerations left upper arm

                 7. 913.0 abrasions bilateral forearms

                 8. 890.0 abrasions bilateral hips/thighs
Muskingum County, Case No. 2012-CA-13                                                  3


      {¶3}   Kilbarger initiated this action by appealing, pursuant to R.C. 4123.512, the

order of the IC finding that Petry was entitled to participate in the Workers'

Compensation Fund for injuries resulting from the accident and that the accident

occurred while Petry was within the course and scope, and arose out of, his

employment with Kilbarger. As required by R.C. 4123.512, Petry timely filed his

complaint. Petry appealed the following two conditions disallowed by the IC:

             1. 847.1 thoracic sprain

             2. 847.2 lumbar sprain

      {¶4}   On September 21, 2010, the trial court consolidated the cases for

purposes of discovery and to determine all common questions of law. After discovery,

Kilbarger filed a motion for summary judgment, and Petry, as well as the other

appellees filed cross-motions for summary judgment.

      {¶5}   On December 5, 2011, the court issued a Findings and Decision, which

stated:

             In order for a Court to grant a motion for summary judgment, it must

      find that there is not a genuine issue of material fact. After reviewing the

      motions, the Court determines that there is not a genuine issue of material

      fact and that the Plaintiffs were within the scope of their employment at the

      time of the accident. Counsel for Plaintiffs shall prepare entries in

      conformity with this decision.

      {¶6}   On December 14, 2011, Kilbarger filed a "Motion for Relief from Judgment

or in the Alternative Motion for Findings of Fact and Conclusions of Law."
Muskingum County, Case No. 2012-CA-13                                                   4


        {¶7}   The trial court found there were no material issues of fact, that appellees

were within the course of their employment, and that the accident arose out of their

employment. The Court rendered separate judgment entries on behalf of each of the

Appellees.

        {¶8}   In the case at bar, the judgment entry filed February 6, 2012 states, in

part:

               The Court finds that in applying the "totality of circumstances" test

        found in Lord v. Daugherty (1981), 66 Ohio St.2d 441, Plaintiff's

        automobile accident occurred within the course and scope, and arose out

        of, his employment with the Defendant on November 14, 2007. The Ohio

        Supreme Court in Buckman v. Cubby Drilling (1998), 81 Ohio St.3d 117,

        specifically decided that the "special hazard" exception to the "coming and

        going" rule applies to drilling industry workers.

               ***

               It is the Order of the Court that Plaintiff's Motion for Summary

        Judgment is SUSTAINED; and Defendant [Kilbarger Construction, Inc.'s]

        Motion for Summary Judgment is OVERRULED.

                                    ASSIGNMENT OF ERROR

        {¶9}   Kilbarger raises one assignment of error,

        {¶10} “I. THE TRIAL COURT ERRED IN GRANTING APPELLEE’S SUMMARY

JUDGMENT MOTION AND IN DENYING KILBARGER'S SUMMARY JUDGMENT

MOTION, BECAUSE APPELLEE’S ACCIDENT DID NOT ARISE OUT OF HIS

EMPLOYMENT.”
Muskingum County, Case No. 2012-CA-13                                                     5


                                            ANALYSIS

       {¶11} At the outset, this court must determine whether the trial court's decision is

a final, appealable order that vests this court with jurisdiction. Although not an issue

raised by either party, this court must address, sua sponte, whether there is a final

appealable order ripe for review. State ex rel. White vs. Cuyahoga Metro. Hous. Aut., 79

Ohio St.3d 543, 544, 1997-Ohio-366, 684 N.E.2d 72. Thus, we shall first consider

whether this court has jurisdiction over Kilbarger’s appeal.

       {¶12} To be final and appealable, an order must comply with R.C. 2505.02. R.C.

2505.02(B) provides the following in pertinent part:

              (B) An order is a final order that may be reviewed, affirmed,

       modified, or reversed, with or without retrial, when it is one of the

       following:

              (1) An order that affects a substantial right in an action that in effect

       determines the action and prevents a judgment;

              (2) An order that affects a substantial right made in a special

       proceeding or upon a summary application in an action after judgment.

       {¶13} Therefore, to qualify as final and appealable, the trial court's order must

satisfy the requirements of R.C. 2505.02, and if the action involves multiple claims

and/or multiple parties and the order does not enter a judgment on all the claims and/or

as to all parties, the order must satisfy Civ.R. 54(B) by including express language that

“there is no just reason for delay.” Internatl. Bhd. of Electrical Workers, Local Union No.

8 v. Vaughn Indus., L.L.C., 116 Ohio St. 3d 335, 879 N.E. 2d 187, 2007-Ohio- 6439, ¶
Muskingum County, Case No. 2012-CA-13                                                  6

7, citing State ex rel. Scruggs v. Sadler, 97 Ohio St.3d 78, 776 N.E.2d 101, 2002–Ohio–

5315, ¶ 5–7.

       {¶14} In the case at bar, the trial court found that the accident occurred within

the course and scope, and arose out of Petry’s employment with Kilbarger. However,

the trial court did not issue a finding on what injuries and or conditions Petry suffered

because of the accident.

       {¶15} Only decisions reaching an employee's right to participate in the Workers'

Compensation system because of a specific injury or occupational disease are

appealable under R.C. 4123.519. Felty v. AT&T Technologies, Inc., 65 Ohio St.3d 234,

602 N.E.2d 1141(1992), paragraph one of the syllabus. The Supreme Court has

wrestled meaning of the term “right to participate.”

       {¶16} “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, 594 N.E.2d 609(1992). The rule articulated in Evans

required further clarification,

               The confusion involves the meaning of the word “claim” in the

       above-quoted syllabus of Evans. A “claim” in a workers' compensation

       case is the basic or underlying request by an employee to participate in

       the compensation system because of a specific work-related injury or

       disease. A decision by the commission determines the employee's right to

       participate if it finalizes the allowance or disallowance of an employee's

       “claim.”
Muskingum County, Case No. 2012-CA-13                                                 7

(Emphasis added.) Felty, 65 Ohio St.3d at 249, 602 N.E.2d 1141. In Felty the Court

explained,

             Thus, an order allowing a claim for one injury but denying a claim

      for two other injuries arising out of the same accident is appealable. A

      ruling that the claimant did not sustain any disability because of a work-

      related accident is also appealable.

(Citations omitted.) 65 Ohio St.3d at 239, 602 N.E.2d 1141.

      {¶17} In Zavatsky v. Stringer, 56 Ohio St. 2d 386, 384 N.E. 2d 693(1978), the

court discussed the appealability of decisions which denied or granted a claim on the

basis that it was not due to a compensable injury,

             In that case, one of the claimants was denied compensation for

      some, but not all, of his medical conditions arising from an industrial

      accident on the basis that the disallowed conditions were not the result of

      or related to the allowed injury. In our review of prior decisions on that

      issue, we summarized that “* * * a denial of a claim on the basis that the

      claimant's disability is not due to a compensable injury is equivalent to the

      denial of the claim on a ‘jurisdictional ground.’ * * *” (Citations omitted.)

      Zavatsky, supra, at 393, 10 O.O. 3d at 507, 384 N.E. 2d at 698. We also

      stated in reference to Carpenter v. Scanlon (1958), 168 Ohio St. 139, 5

      O.O.2d 386, 151 N.E.2d 561, that “ * * * so far as the claimant is

      concerned, his rights to appeal a decision denying compensation, or

      additional compensation, on the ground that the disabling condition which

      was the subject of the claim was not the result of a compensable injury,
Muskingum County, Case No. 2012-CA-13                                                   8


      were in no way affected by the repeal in 1955 of R.C. 4123. 51, and the

      enactment of R.C. 4123. 519.” (Emphasis added.) Zavatsky, supra, at

      394, 10 O.O. 3d at 508, 384 N.E. 2d at 699. Thus, we held that the

      Industrial Commission's decision which denied claimant “the right to

      participate in the workers' compensation fund for injury to a specific part or

      parts of the body involving loss or impairment of bodily functions on the

      basis that such was or was not the result of a compensable injury, is a

      decision other than one as to the extent of disability and * * * may be

      appealed * * *.” Id. at paragraph one of the syllabus.

Cook v. Mayfield, 45 Ohio St.3d 200, 204-205, 543 N.E.2d 787(1989).

      {¶18} In the case at bar, after the trial court sustained Petry’s motion for

summary judgment and overruled Kilbarger’s motion for summary judgment, the court

continued,

             The only issue remaining is the injuries sustained by [Petry] in the

      accident that should be allowed in this claim.

             [Petry] shall serve Requests for Admissions upon [Kilbarger] as to

      whether one or more of the ten (10) conditions should be allowed in this

      claim...If any of the conditions are in dispute, the Court grants leave for the

      filing of summary judgment motions with supporting memoranda within

      twenty-one(21) days of the filing of this Order....
Muskingum County, Case No. 2012-CA-13                                                 9


                                          CONCLUSION

       {¶19} In the case at bar, the trial court has not determined Petry’s right to

participate in the Workers’ Compensation system because of a specific injury or

occupational disease. Therefore, there is no final appealable order as Petry’s right to

participate for a specific injury or injuries remains pending.

       {¶20} Accordingly, this Court does not have jurisdiction to entertain Kilbarger's

appeal.

       {¶21} This appeal is dismissed for lack of jurisdiction.



By Gwin, P.J.,

Hoffman, J., and

Edwards, J., concur




                                               _________________________________
                                               HON. W. SCOTT GWIN


                                               _________________________________
                                               HON. WILLIAM B. HOFFMAN


                                               _________________________________
                                               HON. JULIE A. EDWARDS




WSG:clw 0813
[Cite as Petry v. Kilbarger Constr., Inc., 2012-Ohio-4355.]


             IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


DEREK E. PETRY                                           :
                                                         :
                             Plaintiff-Appellee          :
                                                         :
                                                         :
-vs-                                                     :       JUDGMENT ENTRY
                                                         :
KILBARGER CONSTRUCTION,                                  :
INC., ET AL                                              :
                                                         :
                                                         :
                         Defendant-Appellant             :       CASE NO. 2012-CA-13




       For the reasons stated in our accompanying Memorandum-Opinion, this appeal is

dismissed for lack of jurisdiction. Costs to appellant.




                                                             _________________________________
                                                             HON. W. SCOTT GWIN


                                                             _________________________________
                                                             HON. WILLIAM B. HOFFMAN


                                                             _________________________________
                                                             HON. JULIE A. EDWARDS
