[Cite as Perry v. Kilbarger Constr., Inc., 2012-Ohio-4354.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
ROBERT PERRY : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2012-CA-12
KILBARGER CONSTRUCTION, INC., :
ET AL :
: OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Civil appeal from the Muskingum County
Court of Common Pleas, Case No.CD2009-
0398
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: September 21, 2012
APPEARANCES:
For Robert Perry For Kilbarger Construction
JAMES AYERS SARA ROSE
165 N. High Street P.O. Box 188
Columbus, OH 43215 Pickerington, OH 43147
JOSEPH NAVIN
132 Reserve Drive
Granville, OH 43023
For Bureau of Worker’s Compensation
LYDIA M. ARKO
Attorney General’s Office
150 East Gay Street, 22nd Floor
Columbus, OH 43215
[Cite as Perry v. Kilbarger Constr., Inc., 2012-Ohio-4354.]
Gwin, P.J.
{¶1} Appellant, Kilbarger Construction, Inc. [“Kilbarger”] appeals from the
January 27, 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 Robert Perry [“Perry”] and
the Administrator of the Bureau of Workers’ Compensation, [“Bureau”].
FACTS PROCEDURAL HISTORY
{¶2} Workers' Compensation claims were filed with the Bureau by Perry and
his co-workers, Nathan Hallowell, deceased father of Braxton Bailey, whose Guardian,
Sue McMasters, is appellee in Case CT2012-0011, ["McMasters"], and Derek Petry,
appellee in Case CT2012-0013, ["Petry"], who were all 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 Perry’s claim, designated as BWC Claim #07-890751, for the following
conditions:
1. 847.0 sprain of neck
2. 847.2 sprain of lumbar region
3. 808.41 iliac wing fracture - right
4. 808.2 inferior/superior pubic rami fracture - right
5. 850.5 concussion w/coma NOS
6. 865.04 grade IV spleen laceration
{¶3} Kilbarger initiated this action by appealing, pursuant to R.C. 4123.512, the
order of the IC finding that Perry was entitled to participate in the Workers'
Muskingum County, Case No. 2012-CA-12 3
Compensation Fund for injuries resulting from the accident and that the accident
occurred while Perry was within the course and scope, and arose out of, his
employment with Kilbarger. As required by R.C. 4123.512, Perry timely filed his
complaint.
{¶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 Perry, 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."
{¶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.
Muskingum County, Case No. 2012-CA-12 4
{¶8} In the case at bar, the judgment entry filed January 27, 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-12 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-12 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 Perry’s employment with Kilbarger. However,
the trial court did not issue a finding on what injuries and/or conditions Perry 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-12 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-12 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.
(Emphasis sic.) 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 Perry’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 [Perry] in the
accident that should be allowed in this claim.
[Perry] shall serve Requests for Admissions upon [Kilbarger] as to
whether one or more of the six (6) 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-12 9
CONCLUSION
{¶19} In the case at bar, the trial court has not determined Perry’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 Perry’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 Perry v. Kilbarger Constr., Inc., 2012-Ohio-4354.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBERT PERRY :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
KILBARGER CONSTRUCTION, :
INC., ET AL :
:
:
Defendant-Appellant : CASE NO. 2012-CA-12
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