         [Cite as Marshall v. Oncology/Hematology Care, Inc., 2014-Ohio-2253.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




KYM MARSHALL,                                    :          APPEAL NO. C-130659
                                                            TRIAL NOS. A-1206059
        Plaintiff-Appellant,                     :                     A-1206269

  vs.                                            :              O P I N I O N.

ONCOLOGY/HEMATOLOGY                    CARE, :
INC.,
                                                 :
  and
                                                 :
STEPHEN BUEHRER,
ADMINISTRATOR, BUREAU OF                         :
WORKERS’ COMPENSATION,
                                                 :
    Defendants-Appellees.




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 28, 2014



Brown, Lippert & Laite and David A. Laite, for Plaintiff-Appellant Kym Marshall,

Taft Stettinius & Hollister LLP and Andrew R. Thaler, for Defendant-Appellee
Oncology/Hematology Care, Inc.,

Michael DeWine, Ohio Attorney General, and David J. Fierst, Assistant Attorney
General, for Defendant-Appellee Administrator, Ohio Bureau of Workers’
Compensation.



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




SYLVIA S. HENDON, Presiding Judge.

       {¶1}   Plaintiff-appellant Kym Marshall has appealed from the trial court’s

entry granting summary judgment to her employer, Oncology/Hematology Care,

Inc., and the Ohio Bureau of Workers’ Compensation (“the defendants”), in the case

numbered A-1206059, and dismissing her complaint in the case numbered A-

1206269. Because Marshall provided no evidence establishing a causal connection

between her workplace injury and the conditions for which she sought participation

in the workers’ compensation fund in the case numbered A-1206059, we hold that

the trial court appropriately granted summary judgment to the defendants. We

further hold that the trial court did not err in dismissing Marshall’s complaint in the

case numbered A-1206269 because the decision of the Industrial Commission that

was appealed from did not grant or deny Marshall the right to participate in the

workers’ compensation fund and was not appealable under R.C. 4123.512.

                                Factual Background


       {¶2}   On February 18, 2010, while working for Oncology/Hematology Care

Inc., Marshall experienced intense pain in her neck after lifting a heavy mail bin.

Marshall filed a claim with the Bureau of Workers’ Compensation (“BWC”) seeking

to be allowed to participate in the workers’ compensation fund for the substantial

aggravation of preexisting degenerative disc disease of the cervical spine at C4-5, C5-

6, and C6-7. The Industrial Commission denied her claim, and Marshall appealed to

the court of common pleas in the case numbered A-1007058. While that case was

pending, Marshall underwent a surgical operation on her neck with Dr. Alfred Kahn.

Following the surgery, Dr. Kahn testified in a deposition that the workplace injury


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                      OHIO FIRST DISTRICT COURT OF APPEALS



suffered by Marshall had substantially aggravated her preexisting degenerative disc

disease at the vertebrae level of C7-T1. Dr. Kahn further testified that the injury had

not substantially aggravated her preexisting condition at the vertebrae levels of C4-5,

C5-6, and C6-7.

       {¶3}   As a result of Dr. Kahn’s opinion, Marshall sought to amend her

complaint to include coverage for the condition of substantial aggravation of

preexisting degenerative disc disease at C7-T1. The trial court denied Marshall’s

motion to amend because that specific injury had not first been administratively

raised before the Industrial Commission.           Marshall voluntarily dismissed her

complaint under Civ.R. 41(A). She then filed a second administrative claim with the

BWC, seeking participation in the workers’ compensation fund for the substantial

aggravation of her preexisting degenerative disc disease at C7-T1. She stated in her

claim that “[t]he injured worker requests this relief as the result of a clear mistake of

fact. On June 10, 2011, the injured worker underwent a surgical procedure on her

neck by Dr. Kahn who discovered that Ms. Marshall has suffered a substantial

aggravation of degenerative disc disease at C7-T1, instead of the previously requested

and adjudicated conditions of substantial aggravation of degenerative disc disease at

C4-5, C5-6, and C6-7.” The Industrial Commission denied Marshall’s claim after

finding that it did not have jurisdiction because allowance of that claim was currently

pending before the court of common pleas.

       {¶4}   Marshall appealed the Industrial Commission’s decision in two

separate complaints to the court of common pleas.           In the case numbered A-

1206059, Marshall generically sought to be allowed to participate in the workers’

compensation fund “for the accidental injuries she suffered” at her workplace. In the




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case numbered A-1206269, Marshall sought participation in the workers’

compensation fund “for the additional condition described as substantial aggravation

of pre-existing degenerative disc disease at C7-T1.”         These two cases were

consolidated in the court of common pleas.        The trial court granted summary

judgment to the defendants on the claims raised in the case numbered A-1206059,

and it granted a motion to dismiss the complaint in the case numbered A-1206269.

       {¶5}   Marshall has appealed, raising two assignments of error for our

review.

                                Summary Judgment


       {¶6}   In her first assignment of error, Marshall contends that the trial court

erred in granting summary judgment to the defendants on her claims raised in the

case numbered A-1206059. We review a trial court’s grant of summary judgment de

novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Summary judgment is appropriately granted when there exists no genuine issue of

material fact, the movant is entitled to judgment as a matter of law, and the evidence,

when viewed in favor of the nonmoving party, permits only one reasonable

conclusion that is adverse to the nonmoving party. State ex rel. Howard v. Ferreri,

70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994).

       {¶7}   In the case numbered A-1206059, Marshall appealed from the

Industrial Commission’s denial of her initial administrative claim, and she alleged

that she was entitled to participate in the workers’ compensation fund for the

accidental injuries that she suffered at work.         She relies on the Industrial

Commission’s statement in its decision that “[i]t is the finding of the Staff Hearing

Officer that Ms. Marshall did not meet the burden of proof establishing that she


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                     OHIO FIRST DISTRICT COURT OF APPEALS



sustained an injury during the course of and arising out of her employment.”

Marshall contends that because the Industrial Commission used the generic phrase

“an injury,” her participation in the fund is not limited to a specific condition and

may include any injury suffered, including the substantial aggravation of preexisting

degenerative disc disease at C7-T1.

       {¶8}   We are not persuaded. Despite the Industrial Commission’s use of the

phrase “an injury” when denying Marshall’s initial administrative claim, it is clear

that the only conditions before the Industrial Commission in Marshall’s first claim

were the substantial aggravation of preexisting degenerative disc disease to the

vertebrae levels of C4-5, C5-6, and C6-7. Marshall conceded this in her second

administrative claim filed with the BWC. The trial court’s jurisdiction in workers’

compensation cases is limited to those conditions that were initiated before and

determined by the Industrial Commission. Ward v. Kroger, 106 Ohio St.3d 35,

2005-Ohio-3560, 830 N.E.2d 1155, ¶ 9-10. Because the Industrial Commission’s

decision only pertained to the substantial aggravation of preexisting degenerative

disc disease at C4-5, C5-6, and C6-7, only these conditions were properly before the

trial court for review in the case numbered A-1206059.

       {¶9}   We hold that the trial court did not err in granting summary judgment

to the defendants on Marshall’s claims for participation in the fund for these

conditions.   The record contains no evidence establishing a causal connection

between Marshall’s workplace injury and the conditions for which she seeks

participation in the fund. In fact, Marshall’s expert specifically testified that her

workplace injury had not substantially aggravated her preexisting degenerative disc

disease at these particular vertebrae levels.   In the absence of any genuine issue of




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                     OHIO FIRST DISTRICT COURT OF APPEALS



material fact, the defendants were entitled to summary judgment. Marshall’s first

assignment of error is overruled.

                                    Motion to Dismiss


       {¶10} In her second assignment of error, Marshall argues that the trial court

erred in dismissing her complaint in the case numbered A-1206269. We review a

trial court’s ruling on a motion to dismiss de novo. Baker v. Greenlee, 1st Dist.

Hamilton No. C-110779, 2012-Ohio-3760, ¶ 5.

       {¶11} In the case numbered A-1206269, Marshall appealed from the

Industrial Commission’s ruling on her second administrative claim, and she sought

participation in the workers’ compensation fund for the substantial aggravation of

preexisting degenerative disc disease at the vertebrae level C7-T1. The Industrial

Commission had declined to address the merits of this claim after determining that it

had no jurisdiction to do so. Because the order of the Industrial Commission was not

appealable under R.C. 4123.512, we hold that the trial court properly dismissed

Marshall’s complaint.

       {¶12} Under R.C. 4123.512(A), a “claimant or the employer may appeal an

order of the industrial commission made under division (E) of section 4123.511 of the

Revised Code in any injury or occupational disease case.” But this statute has been

narrowly construed to allow only those decisions that grant or deny a claimant’s right

to participate in the fund to be appealed. Thomas v. Conrad, 81 Ohio St.3d 475, 477,

692 N.E.2d 205 (1998).         The Industrial Commission dismissed Marshall’s

administrative claim based on a lack of jurisdiction. Because the order did not grant

or deny Marshall the right to participate in the workers’ compensation fund, it was

not appealable under R.C. 4123.512.


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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} In further support of the trial court’s dismissal is the well-settled law

providing that workers’ compensation claims may not be initiated at the judicial

level. All claims for participation in the fund must be based on a specific injury and

initiated before the Industrial Commission. Ward, 106 Ohio St.3d 35, 2005-Ohio-

3560, 830 N.E.2d 1155, at ¶ 9-10. Here, the Industrial Commission determined that

it did not have jurisdiction to address whether Marshall was entitled to participate in

the fund for the substantial aggravation of preexisting degenerative disc disease at

C7-T1. Because this claim had never been administratively determined, the trial

court had no jurisdiction to address it for the first time on appeal.

       {¶14} The trial court did not err in dismissing Marshall’s complaint. The

second assignment of error is overruled, and the judgment of the trial court is

affirmed.

                                                                      Judgment affirmed.



DINKELACKER and DEWINE, JJ., concur.



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




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