Gilbrath v. Autozone, Inc.

[Cite as Gilbrath v. Autozone, Inc., 2014-Ohio-2347.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
JACKSON COUNTY

TERRY L. GILBRAITH, :

Plaintiff-Appellant, : Case No. 13CA1

vs. :

AUTOZONE, INC., et al., : DECISION AND JUDGMENT ENTRY

Defendants-Appellees. :

_________________________________________________________________

APPEARANCES:

COUNSEL FOR APPELLANT: C. Russell Canestraro, Agee, Clymer, Mitchell & Laret, 226
North Fifth Street, 5th Floor, Columbus, Ohio 43215

COUNSEL FOR APPELLEE
BUREAU OF WORKERS’
COMPENSATION: Michael Dewine, Ohio Attorney General, and Patsy A.
Thomas, Ohio Assistant Attorney General, 150 East Gay
Street, 22nd Floor, Columbus, Ohio 43215

COUNSEL FOR APPELLEE
AUTOZONE STORES, INC.: John C. Albert, Crabbe, Brown & James, LLP, 500 South
Front Street, Suite 1200, Columbus, Ohio 43215

_________________________________________________________________

CIVIL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED: 5-27-14
ABELE, P.J.

{¶ 1} This is an appeal from a Jackson County Common Pleas Court judgment that

granted motions to dismiss for lack of subject matter jurisdiction filed by AutoZone Stores, Inc.,

and the Bureau of Workers’ Compensation (BWC), defendants below and appellees herein.
[Cite as Gilbrath v. Autozone, Inc., 2014-Ohio-2347.]
{¶ 2} Terry L. Gilbraith, plaintiff below and appellant herein, assigns the following

error for review:

“THE INDUSTRIAL COMMISSION’S 9/23/2010 DECISION
HAS INDICATED THAT PLAINTIFF’S RIGHT TO
PARTICIPATE IN THE OHIO BUREAU OF WORKERS’
COMPENSATION SYSTEM HAS NOT BEEN TERMINATED.
HOWEVER, FOR ALL PRACTICAL PURPOSES, THERE IS
NO VEHICLE IN LAW OR EQUITY THAT REESTABLISHES
A CAUSAL CONNECTION ONCE BROKEN. THE
INDUSTRIAL COMMISSION IS BOUND BY ITS ORDERS
WHICH PREVIOUSLY FOUND THE CAUSAL CONNECTION
TO PLAINTIFF’S INDUSTRIAL INJURY HAS BEEN
SEVERED. SUBSEQUENT ORDERS THAT HOLD THAT IT
IS NOT ARE ILLUSIONARY.”

{¶ 3} On February 12, 2003, appellant sustained a work-related injury. He received

workers’ compensation for “lumbar sprain; aggravation of pre-existing herniated nucleus

pulposus L4-L5.” On May 10, 2008, appellant sustained a non-work-related injury while

shoveling in his yard. Appellant’s doctor subsequently certified that appellant was temporarily

totally disabled beginning on May 12, 2008 due to “lumbar sprain and aggravation of

pre-existing herniated disc L5-S1.”

{¶ 4} On June 11, 2008, appellant filed a C-86 motion requesting temporary total

disability (TTD) compensation. On July 23, 2008, a district hearing officer (DHO) denied

appellant’s motion. The DHO determined that appellant was not temporarily totally disabled

due to the allowed conditions in his 2003 workers’ compensation claim. The DHO found that

the May 10, 2008 injury was an intervening injury and that appellant’s period of disability

following the intervening injury was not causally related to the allowed conditions in his claim.

The DHO observed: “The C-84 reports * * * do not certify the claimant as being disabled due to

the disc condition at L4-5. Instead, Dr. Kincaid refers to the presence of a non-allowed
JACKSON, 13CA1 3

herniated disc at L5-S1 (and not to any herniated disc at L4-5).” Appellant appealed the DHO’s

decision to a staff hearing officer (SHO).

{¶ 5} On August 20, 2008, the SHO affirmed the DHO’s decision. The SHO found

that appellant requested TTD for conditions that were not allowed in his workers’ compensation

claim. The SHO determined that “the medical evidence does not document the allowed

conditions independently render the injured worker temporary totally disabled.” The SHO

stated: “It is the further order that the injured worker sustained an intervening injury on

05/10/2008 that broke the chain of causation to the original injury in this claim. * * * Dr.

Vogelstein clearly states the injured worker sustained an intervening injury as the result of the

shoveling event on 05/10/2008.” The Industrial Commission refused appellant’s further appeal.

{¶ 6} On November 7, 2008, appellant appealed to the Jackson County Common Pleas

court. He later dismissed the appeal.

{¶ 7} On October 7, 2009, appellant filed a C-86 motion that requested the payment of

medical bills. On November 3, 2009, a DHO denied appellant’s motion. The DHO determined

that appellant “failed to satisfy his burden of proving that these treatments were reasonably

necessary and appropriate care for the allowed conditions in the claim.” The DHO explained:

i. “[S]eparate Staff Hearing Officers have held that the event of
05/10/2008 was an intervening injury which broke the chain of
causation to the original injury in this claim. The Injured Worker
has submitted no evidence that the treatments for which payment is
sought are based upon any new and changed circumstances.
Consequently, the medical evidence submitted by the Injured
Worker does not adequately document that the bills are for
treatments which are in any way different from treatments and
compensation which has previously been denied. While Dr.
Kincaid does certify that the treatments were for the Injured
Worker’s lumbar sprain and herniated nucleus pulposus at L4-5,
JACKSON, 13CA1 4

the conditions allowed in the claim, there has not been an adequate
demonstration that they do not arise out of the previously found
intervening incident, rather than the 2003 industrial injury.
Consequently, all of these bills are found not properly payable.”

{¶ 8} On December 9, 2009, a SHO affirmed the DHO’s order denying appellant’s

motion. The SHO agreed that appellant failed to show “that these treatments were reasonably

necessary and appropriate care to the allowed conditions under this claim.” The Industrial

Commission refused appellant’s further appeal.

{¶ 9} Appellant then re-filed his previously dismissed complaint and added the more

recent 2009 orders denying his motion for payment of medical bills. AutoZone subsequently

filed a motion to dismiss appellant’s complaint. AutoZone asserted that the trial court lacked

jurisdiction because the orders appellant attempted to appeal were not appealable under R.C.

4123.512.

{¶ 10} On April 5, 2010, the trial court overruled AutoZone’s motion to dismiss and

remanded the matter to the BWC. The court directed the BWC to clarify the effect of

appellant’s 2008 injury on his right to participate in the workers’ compensation fund for his 2003

injury.

{¶ 11} On September 23, 2010, the DHO clarified its prior order by stating:

“[Appellant]’s request for temporary total compensation for the period
05/12/2008 through 08/20/2008 (date of Staff Hearing Officer order) is
specifically denied. The District Hearing Officer finds that [appellant] has not
met his burden of proving that this disability for the period at issue is causally
related to the allowed conditions in the claim. The District Hearing Officer notes
that the C-84 Requests of Dr. Kincaid dated 05/19/2008 and 06/25/2008
specifically list the condition ‘herniated disc at L5-S1' which is a non-allowed
condition in the claim. Therefore, the District Hearing Officer finds that
[appellant]’s disability is not related to the allowed conditions in the claim.
As noted above the District Hearing Officer order of 07/23/2008 and the
JACKSON, 13CA1 5

Staff Hearing Officer order of 08/20/2008 denied [appellant]’s request for
temporary total compensation in part because of a finding that [appellant]
sustained an intervening injury on 05/10/2008. The District Hearing Officer
finds that the intervening injury of 05/10/2008 breaks the causal connection
between [appellant]’s disability and the allowed conditions in the claim only for
the period at issue which is from 05/12/2008 through 08/20/2008 (date of Staff
Hearing Officer order). However, this finding does not bar [appellant] from
requesting temporary total compensation from 08/21/2008 fo[r]ward. A request
for temporary total compensation from 08/21/2008 fo[r]ward must be considered
on the merits since circumstances may exist in the future which may render
[appellant] temporarily and totally disabled due to the allowed conditions in the
claim. The issue of the intervening injury may be a valid defense to any future
request for temporary total compensation.”

{¶ 12} On October 26, 2010, a SHO affirmed the DHO’s order and stated:

“It is the finding of the Staff Hearing Officer that [appellant] sustained an
intervening injury on 05/10/2008 while he was working in his back yard
shovelling [sic] dirt. This injury did not occur in the course of and arising out of
his employment. The disability almost immediately following this intervening
injury was due to the intervening injury of 05/10/2008. Therefore the request for
temporary total disability compensation from 05/12/2008 through 08/20/2008 is
denied in that the disability was not due to the allowed conditions in this industrial
claim.
However, for future issues a determination must be made as to whether
medical treatment or disability is due to the allowed conditions in the 02/12/2003
industrial injury or the intervening injury that occurred on 05/10/2008. This
determination may be made on any issue in the future regarding disability or
medical treatment and other issues in the claim.”

{¶ 13} Appellant sought further appeal to the industrial commission. Appellant

contended that the SHO’s October 26, 2010 decision failed to clarify the effect of the 2008

intervening injury. The commission refused appellant’s further appeal and stated that the SHO’s

October 26, 2010 order remained in effect.

{¶ 14} On April 22, 2011, appellant filed a complaint in the common pleas court and

requested that he be allowed to participate in the workers’ compensation fund. Appellant also

filed an appeal from the commission’s decision. In his complaint, appellant alleged that the
JACKSON, 13CA1 6

commission “made a specific finding of there being an intervening injury that breaks the causal

connection in this claim. Therefore this matter is no longer a mere extent of disability issue, but

rather a right to participate.” Appellant thus requested that he be allowed to continue to

participate in the workers’ compensation fund.

{¶ 15} Appellees subsequently filed separate Civ.R. 12(B)(1) motions to dismiss the

complaint and appeal due to a lack of subject matter jurisdiction. In the motion, the appellees

argued that the trial court lacked subject matter jurisdiction because appellant’s appeal did not

involve his right to participate in the workers’ compensation fund.

{¶ 16} On March 12, 2013, the trial court granted the motions to dismiss. The court

determined that the commission’s decision did not terminate appellant’s right to participate in the

workers’ compensation fund, but rather found that “the 2008 injury was a non-compensable

injury unrelated to [appellant]’s employment.” This appeal followed.

{¶ 17} In his sole assignment of error, appellant argues that the trial court erred by

granting appellees’ motions to dismiss. Appellant contends that the trial court wrongly

determined that it lacked subject matter jurisdiction under R.C. 4123.512. Appellant asserts that

the commission’s decision terminated his right to participate in the workers’ compensation fund,

and, thus, that R.C. 4123.512 provides the trial court with jurisdiction over the matter.

Appellant argues that the DHO’s 2010 finding that his May 10, 2008 injury was an intervening

injury that broke the chain of causation means that the commission effectively terminated his

right to participate. Appellant contends that the finding that the May 10, 2008 intervening injury

broke the chain of causation is a finding that he no longer has the right to participate in the

workers’ compensation fund for the 2003 injury. Appellant additionally asserts that the SHO’s
JACKSON, 13CA1 7

decision that he can still prove causation in the future is illusory, because the DHO’s finding that

the intervening injury broke the chain of causation between his original work-related injury and

his May 2008 period of disability equates to a finding that he can never establish a chain of

causation between his original work-related injury and any subsequent injuries or periods of

disability. Appellant thus claims that because the DHO found that the intervening injury broke

the chain of causation between his industrial injury and his 2008 disability, the commission’s

decision involves his right to participate.

{¶ 18} Appellees assert that the decision did not involve appellant’s right to participate in

the workers’ compensation fund. Appellees argue that the only appealable order is one that

finalizes the allowance or disallowance of a workers’ compensation claim. They thus contend

that because the order leaves open the possibility that appellant could seek future benefits under

the claim, the order does not finalize the allowance or disallowance of appellant’s claim.

A

STANDARD OF REVIEW

{¶ 19} When a trial court rules on a Civ.R. 12(B)(1) motion to dismiss for lack of

subject-matter jurisdiction, the court must determine whether the claim raises any action

cognizable in that court. State ex rel. Bush v. Spurlock, 42 Ohio St.3d 77, 80, 537 N.E.2d 641

(1989). A trial court may grant the motion to dismiss only if the claim fails to raise any issue

cognizable in that court. An appellate court that reviews a trial court’s judgment regarding a

motion to dismiss for lack of subject-matter jurisdiction must determine, as a matter of law,
JACKSON, 13CA1 8

whether the trial court erred by holding that the claim did not state any action cognizable in that

court. Milhoan v. E. Local School Dist. Bd. Of Edn., 157 Ohio App.3d 716, 2004-Ohio-3243,

813 N.E.2d 692 (4th Dist.).

B

WORKERS’ COMPENSATION APPEALS

{¶ 20} “’Courts of Common Pleas do not have inherent jurisdiction in workmen’s

compensation cases but only such jurisdiction as in 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, 916 N.E.2d 778, ¶7, quoting Jenkins v. Keller, 6 Ohio St.2d 122,

216 N.E.2d 379 (1966), paragraph four of the syllabus. R.C. 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, 602 N.E.2d 1141 (1992). R.C. 4123.512(A)

limits courts of common pleas 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

Ohio Supreme Court 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, 807 N.E.2d 327, ¶¶10-13; State ex rel. Liposchak

v. Indus. Comm., 90 Ohio St.3d 276, 279, 737 N.E.2d 519 (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; Thomas v. Conrad, 81 Ohio St.3d 475, 477,

692 N.E.2d 205 (1998).

{¶ 21} The only right-to-participate question that is subject to judicial review is
JACKSON, 13CA1 9

“‘whether an employee’s injury, disease, or death occurred in the course of and arising out of his

or her employment.’” Benton at ¶8, quoting State ex rel. Liposchak v. Indus. Comm., 90 Ohio

St.3d 276, 279, 737 N.E.2d 519 (2000); Felty, paragraph two of the syllabus; State ex rel. Evans

v. Indus. Comm., 64 Ohio St.3d 236, 594 N.E.2d 609 (1992); Afrates v. Lorain, 63 Ohio St.3d

22, 584 N.E.2d 1175 (1992), paragraph one of the syllabus. “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.” Evans at

paragraph one of the syllabus. The decision must “foreclose all future compensation under that

claim.” 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.’” White at ¶13; Felty, 65

Ohio St.3d at 240; Zavatsky v. Stringer, 56 Ohio St.2d 386, 384 N.E.2d 693 (1978), paragraph

one of the syllabus (“An order of the Industrial Commission which either denies or allows a

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, thus, * * * may be appealed to the Court of Common Pleas * * *.”). Thus,

“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. State ex rel. Roope v. Indus. Comm.
(1982), 2 Ohio St.3d 97, 2 OBR 649, 443 N.E.2d 157 (mandamus held to be the
proper remedy).”
JACKSON, 13CA1 10

Felty, 65 Ohio St.3d at 239-240.

{¶ 22} In the case at bar, appellant does not disagree that only a decision that finalizes the

allowance or disallowance of a claim is appealable. Instead, appellant argues that the

commission’s decision effectively finalized the disallowance of his claim by finding that the

intervening injury broke the chain of causation.1 He contends that the break in causation means

that he is permanently foreclosed from seeking future benefits under the claim, regardless of the

language in the DHO and SHO decisions stating that he may seek future benefits. We do not

agree.

{¶ 23} Appellant’s argument rests primarily upon Greenwalt v. American Standard, Inc.,

131 Ohio App.3d 600, 723 N.E.2d 167 (7th Dist. 1998). In Greenwalt, the court determined that

the commission’s decision involved the claimant’s right to participate in the fund when the

commission found that “the intervening injury * * * broke the causal connection between his

harm and/or disability and his original work-related injury.” While at first glance this statement

1
We observe that the DHO used the language indicating that the intervening injury broke the chain of causation between the
original work-related injury and appellant’s May 2008 disability. The SHO’s 2010 order never states that the May 2008
injury broke the chain of causation. R.C. 4121.35(C) states that the SHO’s order is the commission’s order that is subject to
appeal under R.C. 4123.512. 4121.35(C) reads:

The decision of a staff hearing officer under division (D) of section 4123.511 of the Revised Code
is the decision of the commission for the purposes of section 4123.512 of the Revised Code unless the
commission hears an appeal under division (E) of section 4123.511 of the Revised Code.

The statute suggests, therefore, that the SHO’s order–and not the DHO’s order–is the order we should review to ascertain
whether it involves appellant’s right to participate. Neither party, however, has enlightened this court as to whether the
SHO’s order displaces the DHO’s finding. Thus, we presume, as the parties do, that the DHO’s finding remains in full force
and effect.
JACKSON, 13CA1 11

appears to support appellant’s argument, an examination of the underlying facts and analysis

shows that Greenwalt is not dispositive of the case at bar. In Greenwalt, the claimant suffered a

work-related injury on April 6, 1992 and received workers’ compensation. The claimant later

injured himself when he slipped and fell while stepping out of a bath tub. He then requested

payment of medical treatment and TTD. The commission denied the request. The DHO stated:

“Temporary total compensation for the period from 11/21/96 to 3/3/97, inclusive,
is denied. The District Hearing Officer finds that claimant sustained an
intervening injury on or about 11/20/96 when he slipped and fell getting out of the
bath tub. * * * [T]he District Hearing Officer concludes that this 11/20/96 injury
broke the causal connection between claimant’s harm and/or disability and his
work injury of 4/6/92.”
On appeal to the common pleas court, the court determined that the decision did not

involve the claimant’s right to participate and dismissed the appeal. The claimant then appealed

to the Seventh District Court of Appeals and asserted that the decision involved his right to

participate because “the effect of the commission’s order was to permanently foreclose him from

receiving any further benefits for the claim he filed for the original work-related accident.” Id.

at 605. The claimant argued that the commission’s finding that “the intervening injury * * *

broke the causal connection between his harm and/or disability and his original work-related

injury” effectively terminated his right to participate. The appellate court agreed and determined

that “a complete reading of the commission’s order indicates that it was finalizing the allowance

or disallowance of appellant’s claim.” Id. at 606. The court explained:

“In this case, the commission’s order did not state that it was denying
appellant benefits from a specific date and thereafter. However, the order did
state that the intervening accident and the resultant injury broke the causal
connection between appellant’s current harm/disability and his original
work-related injury.
* * * * The order stated that the intervening accident and the resultant
injury broke the causal connection between appellant’s current harm and/or
JACKSON, 13CA1 12

disability and his original work-related injury. Consequently, the commission’s
order effectively forecloses appellant from receiving any further benefits under the
claim he filed for the original work-related accident.”

Id. at 606.

{¶ 24} We, however, believe that Greenwalt is distinguishable from the case sub judice.

In Greenwalt, the order did not explicitly state that the claimant could seek future benefits, while

in the case sub judice the commission expressly stated that appellant could seek future benefits

under his original claim. Here, the commission expressed a clear intent that it was not finalizing

the allowance of appellant’s claim. Its finding that the intervening injury broke the chain of

causation between appellant’s original work-related injury and his May 2008 disability does not

negate the clear expression of its intent.

{¶ 25} For this same reason, we reject appellant’s argument that Thomas v. Conrad,

supra, requires us to conclude that the finding that the intervening injury broke the chain of

causation necessarily equates to a termination of appellant’s claim. In Thomas, the employer

sought to terminate the employee’s claim after the employee suffered non-work-related injuries

in a dog attack. The commission denied the employer’s request to terminate the employee’s

claim. The employer then sought to appeal the commission’s decision. The employer asserted

that because it “framed its motion in terms of terminating the right to participate, then logically

the Industrial Commission’s denial of its motion constitutes an order that involves the right to

continue to participate in the fund.” Id. at 478. The Ohio Supreme Court disagreed with the

employer and explained:

“The issue that the Industrial Commission had to resolve in order to rule
on [the employer]’s motion was the effect of the dog attack on Thomas’s allowed
injuries. The staff hearing officer found that the subsequent injuries caused by
JACKSON, 13CA1 13

the dog were different from Thomas’s allowed conditions * * * and that any
treatment for the subsequent injuries was not to be paid by workers’
compensation. Thus, the injuries from the dog attack were not sufficient to break
the causal connection between Thomas’s current complaints and her work-related
injuries so as to end [the employer]’s responsibility for Thomas’s allowed claim.
There was no other change in the status of her claim. Thomas’s right to
participate remained undisturbed. As a result, the staff hearing officer’s order
involved Thomas’s extent of disability, not her right to participate, that right
having already been determined.”

Id.

{¶ 26} In the case at bar, just as in Thomas, the commission considered the effect the

shoveling incident had on appellant’s allowed injuries. The commission found that appellant’s

shoveling injuries were different than his allowed conditions and thus denied his request for

compensation for the ensuing disability. The DHO additionally found that the shoveling

incident broke the chain of causation between appellant’s May 2008 disability and his

work-related injury, but notably, did not find that this break ended the employer’s responsibility

for his allowed claim. Thus, even though the DHO found a break in causation, the commission

did not otherwise change the status of appellant’s claim. The commission left appellant’s right

to participate open. Because the commission left appellant’s right to participate open and did

not expressly terminate it, we do not find that Thomas requires us to conclude that the finding of

a break in causation means that the order necessarily and effectively terminated his right to

participate.

{¶ 27} We believe that Evans, supra, supports our conclusion. In Evans, the court held

that the commission’s decision finalized the allowance of a claim when the order effectively

terminated the claimant’s right to participate in the fund. In Evans, the order stated:
JACKSON, 13CA1 14

“ * * * It is the finding of the District Hearing Officer that the claimant suffered
an intervening injury on or about 1-1-87, when he slipped and fell on ice. * * *
It is further the finding of the District Hearing Officer that the intervening injury
substantially aggravated the claimant’s pre-existing lumbosacral strain. That
finding is based on the apparent lack of medical treatment from 10-30-86 through
1-8-87.
{¶ 28} Therefore, medical bills incurred after 1-8-87 are denied.”

Id. at 237.

{¶ 29} In explaining why the order involved the claimant’s right to participate, the court

explained:

“In this case, the commission did more than simply refuse to grant
additional benefits for a specified time period. The hearing officer denied both
temporary total disability benefits after December 30, 1986 and ‘medical bills
incurred after 1-8-87.’ We understand this order to permanently foreclose Evans
from receiving any further benefits under the claim he filed for the original
accident that occurred at work on October 7, 1986. This flat prohibition of any
future benefits determines the claimant’s right to participate in the State Insurance
Fund and is subject to appeal * * *.”

Id. at 240-241; accord Potter v. General Motors Corp., 3rd Dist. Defiance No. 4-04-14,

2004-Ohio-5097, ¶14 (determining that order finding that “no compensation or treatment is to be

paid subsequent to 7/17/92 * * * constitutes a flat prohibition on any future recovery for the

injuries suffered in the work-related accident”).

{¶ 30} In the case sub judice, the commission did not do “more than simply refuse to

grant additional benefits for a specified time period.” Instead, the commission expressly refused

to grant additional benefits only for a specified time period and left the door open for appellant to

seek future benefits. Thus, unlike the order in Evans, the order in the case sub judice does not

flatly prohibit appellant from seeking future benefits. See Brown v. Ohio Bur. Of Workers’

Comp., 8th Dist. Cuyahoga No. 96209, 2011-Ohio-3695, ¶17 (rejecting argument that order
JACKSON, 13CA1 15

finalized claim when order did not “contain any language that indicate[d] ‘no need for treatment’

and that would permanently bar his participation in the workers’ compensation fund”); Martin v.

Louisiana Pacific Corp., 113 Ohio App.3d 332, 680 N.E.2d 1078 (9th Dist.1996) (determining

that the commission’s decision denying the claimant’s request for TTD for a specified time

period involved the extent of disability and not the right to participate).

{¶ 31} We find further support for our conclusion in Hazelwood v. Meijer, Inc., 5th Dist.

Richland No. 01-CA8-2 (Apr. 26, 2001). In Hazelwood, the claimant suffered a work-related

back injury and subsequently received workers’ compensation benefits for lumbar strain/sprain.

In 1999, the claimant sought temporary total disability and payment for treatment. The DHO

determined that the claimant’s 1999 back problems were not causally related to the lumbar

strain/sprain that was previously allowed, but instead resulted from an intervening accident. The

industrial commission affirmed and stated: “It appears the claimant may have had an

intervening accident on November 7, 1998, and therefore the current need for treatment does not

appear related to [the] August 18, 1996 injury.”

{¶ 32} The claimant appealed to the common pleas court. The court determined that the

commission’s decision involved the extent of the claimant’s disability and, thus, it lacked

jurisdiction to hear the appeal.

{¶ 33} On appeal to the Fifth District Court of Appeals, the claimant asserted that the

decision finding that an intervening injury “preclude[d] payment of future benefits and makes

this case an issue of right to participate, rather than extent of disability.” The appellate court

affirmed the trial court’s decision to dismiss the matter for lack of jurisdiction. In reaching its

conclusion, the court observed that the
JACKSON, 13CA1 16

“[Ohio] Supreme Court clearly emphasized that the only action by the
Commission that is appealable is the essential decision to grant, deny or to
terminate the employee’s continued participation in the Workers’ Compensation
system, and only those decisions finalizing allowance or disallowance of the claim
are appealable.”

The court determined that the commission’s decision

“determined only that [the claimant]’s current need for treatment was related to
the intervening incident, and was not causally related to the 1996 injury. The
decision did not terminate [the claimant]’s right to participate for the 1996 injury.
As noted by the district hearing officer, [the claimant] did not bring forth medical
evidence documenting that the 1996 injury necessitated the on-going medical
treatment and lost time from work for which he was seeking reactivation of the
claim, and temporary total disability compensation. However, the decision did
not terminate his right to participate for the 1996 injury, or for future treatment for
that injury, if he is able to medically demonstrate a causal connection. The
Commission did not hold that the intervening accident terminated all right to
benefits for the allowed claim.”

{¶ 34} Likewise, in the case at bar the commission determined that appellant’s disability

was related to the intervening incident and was not causally related to his prior work-related

injury. Even though the DHO determined that the intervening incident broke the chain of

causation between the work-related injury and appellant’s May 2008 disability, the commission

did not determine that the intervening accident terminated all right to benefits for the allowed

claim. Instead, the commission explicitly recognized that appellant could participate in the fund,

if he established a causal relation between his work-related injury and future medical treatment or

disability.

{¶ 35} Similarly, in Grant v. Ford Motor Co., 12th Dist. Clermont No. CA99-02-23 (Aug.

16, 1999), the court determined that a commission’s decision that finds a lack of a causal relation

between a prior work-related injury and the current medical complaint did not finalize the
JACKSON, 13CA1 17

claimant’s right to participate in the fund. In Grant, the claimant sought to reactivate a claim to

receive compensation for a condition not recognized in her initial claim. The commission

determined that the claimant’s treatment for the more recent condition was not causally related to

her original claim and thus denied the claim. The court explained:

“The staff hearing officer’s order does not imply that appellant may never
again recover for any injuries arising out of her 1991 injury. The order neither
states nor implies that appellant is fully healed or that appellant may never suffer
any disability due to her earlier lower back injuries. The staff hearing officer’s
order does not terminate appellant’s right to participate in the Fund. The order
finds only that appellant may not recover under her 1991 claim for the cervical
injuries she is now asserting.”

{¶ 36} In the case sub judice, the commission’s order likewise does not terminate

appellant’s right to participate in the fund. Instead, the commission’s order recognizes that the

disability appellant suffered after shoveling at home was not causally related to his work-related

injury. We recognize, however, that in the case at bar the DHO additionally found that the

shoveling incident broke the chain of causation between his work-related injury and his 2008

disability. Nevertheless, the commission’s order explicitly leaves appellant’s claim open for

future benefits.2

{¶ 37} Consequently, based upon our review of the foregoing authorities, we do not

believe that the commission’s order permanently forecloses appellant from participating in the

2
Assuming, arguendo, that the commission’s decision is internally inconsistent, none of the parties have requested that we
remand this matter to the commission to explain the apparent inconsistency. We note, however, that the trial court
remanded the matter once already for clarification and the remand orders are the subject of the present appeal. Thus, the
commission obviously was aware of the need for clarification and on remand, expressly stated that appellant was not
foreclosed from seeking future benefits.
JACKSON, 13CA1 18

fund for his 2003 work-related injury. The commission explicitly stated that its decision did not

permanently foreclose appellant from seeking future benefits under his claim. Instead, the

decision simply denied appellant’s request for compensation for a specific period of time. The

decision stated that appellant could be entitled to future benefits, provided he established a causal

relation between the work-related injury and any future medical treatment or disability. The

commission’s obvious intent is to leave appellant’s claim open for future benefits and not to

flatly prohibit appellant from seeking future benefits. Given the commission’s clear expression

of its intent, we cannot conclude, based upon the circumstances present in the case at bar, that the

order permanently forecloses appellant from participating in the fund for his 2003 injury. If and

when the commission determines that appellant is forever barred from participating in the fund

for his 2003 claim, then appellant may appeal under R.C. 4123.512. However, until that time,

appellant may not appeal the commission’s order.

{¶ 38} Accordingly, based upon the foregoing reasons, we hereby overrule appellant’s

sole assignment of error and affirm the trial court’s judgment.

JUDGMENT AFFIRMED.
[Cite as Gilbrath v. Autozone, Inc., 2014-Ohio-2347.]
JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellees recover of appellant the
costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Jackson County
Common Pleas Court to carry this judgment into execution.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Hoover, J.: Concurs in Judgment & Opinion
Harsha, J.: Concurs in Judgment Only

For the Court

BY:
Peter B. Abele
Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.