[Cite as Bryant v. Alliance Tubular Prods., L.L.C., 2015-Ohio-5325.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

SCOTT A. BRYANT                                             JUDGES:
                                                            Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellant                                 Hon. William B. Hoffman, J.
                                                            Hon. John W. Wise, J.
-vs-
                                                            Case No. 2015CA00047
ALLIANCE TUBULAR PRODUCTS,
LLC, ET AL.
                                                            OPINION
        Defendants-Appellees




CHARACTER OF PROCEEDING:                               Appeal from the Stark County Court of
                                                       Common Pleas, Case No. 2014CV02132


JUDGMENT:                                              Reversed and Remanded

DATE OF JUDGMENT ENTRY:                                December 14, 2015

APPEARANCES:

For Plaintiff-Appellant                                For Defendant-Appellee

FRANK L. GALLUCCI, III.                                EDWARD D. MURRAY
Plevin & Gallucci Co., L.P.A.                          MATTHEW R. HUNT
55 Public Square, Suite 2222                           Krugliak, Wilkins, Griffiths
Cleveland, Ohio 44113                                  & Dougherty Co., L.P.A.
                                                       4775 Munson St., N.W.
                                                       P.O. Box 36963
                                                       Canton, Ohio 44735

For Plaintiff-Appellant                                For Defendant-Appellee

PAUL W. FLOWERS                                        SCOTT W. JOHNSON
Paul W. Flowers Co., L.P.A.                            Workers’ Compensation Section
Terminal Tower, 35th Floor                             20 West Federal Street, 3rd Floor
50 Public Square                                       Youngstown, Ohio 44503
Cleveland, Ohio 44113
Stark County, Case No. 2015CA00047                                                       2

Hoffman, J.


      {¶1}    Plaintiff-appellant Scott A. Bryant ("Bryant" or "employee") appeals the

February 24, 2015 Judgment Entry entered by the Stark County Court of Common Pleas

which granted defendant-appellee Alliance Tubular Products, LLC's ("ATP" or

"employer") motion to dismiss.

                          STATEMENT OF THE FACTS AND CASE

       {¶2}   On November 4, 2013, Bryant was employed by ATP. Bryant alleged he

suffered an injury via First Report of Injury filed December 16, 2013, with the Ohio Bureau

of Worker's Compensation. Therein, Bryant identified an injury to his right ankle which

was twisted while walking on uneven pavement.          ATP, who is self-insured, denied

Bryant's claim.

       {¶3}   On May 9, 2014, the District Hearing Officer ("DHO") denied Bryant's claim

in its entirety. In the Record of Proceedings, the DHO specifically noted "Prior to the

hearing on the merits the counsel for the injured Worker indicated he is not requesting

the condition of "RIGHT FOOT/ANKLE SPRAIN." Yet, despite that notation, the DHO

went on to indicate Bryant alleged an injury on November 4, 2013, when he twisted his

ankle on uneven pavement while operating an overhead crane. The DHO further noted

Bryant has complained of discomfort from being on his feet for long periods of time as

noted in the treatment notes of Leslie Niehaus, DPM. The DHO also relies on the medical

report of Dennis Glazer, M.D. dated April 4, 2014.

       {¶4}   Bryant appealed the DHO's order to the Staff Hearing Officer ("SHO"). The

SHO denied Bryant's appeal.
Stark County, Case No. 2015CA00047                                                        3


       {¶5}   The Record of Proceedings in front of the SHO noted Bryant testified to

walking on uneven concrete and having twisted his right ankle. The SHO further noted

Bryant had an extensive prior history of right ankle problems as a result of a motor vehicle

accident in August, 2011. The SHO elaborated on that history. The SHO also relied upon

the medical report of Dr. Glazer wherein Dr. Glazer indicated he did not find sufficient

evidence of a new right ankle condition. The SHO did not indicate Bryant was not

requesting the condition of "RIGHT FOOT/ANKLE SPRAIN."

       {¶6}   The Industrial Commission of Ohio denied further review.

       {¶7}   Bryant filed his notice of appeal and complaint in the Stark County Court of

Common Pleas requesting he be entitled to participate in the Worker's Compensation

Fund for the medical condition of "right ankle sprain." ATP filed a motion to dismiss

asserting the condition of "right foot/ankle sprain" had not been adjudicated before the

Ohio Industrial Commission.

       {¶8}   The trial court granted ATP's motion via judgment entry filed February 24,

2015. It is from that judgment entry Bryant prosecutes this appeal, assigning as error:

       “I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY DISMISSING THE

COMPLAINT IN THIS ADMINISTRATIVE APPEAL FOR FAILURE TO STATE A

POTENTIALLY MERITORIOUS CLAIM FOR RELIEF.”

       {¶9}   The parties agree this Court's standard of review is de novo.

       {¶10} In Ward v. Kroger Co., 106 Ohio St. 3d, 2005-Ohio-3560, the Ohio Supreme

Court held "the claimant in an R.C. 4123.512 appeal may seek to participate in the

Worker's Compensation Fund only for those conditions that were addressed in the

administrative order from which the appeal is taken." Id., ¶at 17 (emphasis added).
Stark County, Case No. 2015CA00047                                                       4


      {¶11} ATP argues because the DHO order indicated Bryant would not be pursuing

the condition of "right foot/ankle sprain," Bryant did not pursue this condition before the

Ohio Industrial Commission and therefore is precluded from appealing that condition to

the common pleas court based upon the holding of the Ward court.

      {¶12} We find ATP's argument unpersuasive. Although the DHO noted Bryant's

counsel’s pre-hearing statement, it seems apparent to us based upon the Record of

Proceedings, the DHO nevertheless considered and rejected Bryant's allegation of having

a twisted [right] ankle due to his history of a prior serious motor vehicle accident and

based upon the medical report of Dr. Glazer finding no new right ankle condition. The

SHO's Record of Proceedings elaborates on Bryant's extensive history of right ankle

problems in affirming the decision of the DHO.

      {¶13} We find the condition of "right ankle sprain" was “addressed” in the

administrative order from which Bryant's appeal was taken.

      {¶14} Bryant's sole assignment of error is sustained.
Stark County, Case No. 2015CA00047                                                   5


      {¶15} The judgment of the Stark County Court of Common Pleas is reversed and

the matter remanded to that court for further proceedings according to this Opinion and

the law.

By: Hoffman, J.

Gwin, P.J. and

Wise, J. concur
