[Cite as Clendenin v. Girl Scouts of W. Ohio, 2015-Ohio-4506.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
AUDREY CLENDENIN, : APPEAL NO. C-140658
TRIAL NO. A-1305928
Plaintiff-Appellant, :
: O P I N I O N.
vs.
:
GIRL SCOUTS OF WESTERN OHIO,
:
Defendant,
:
and
:
ADMINISTRATOR, BUREAU OF
WORKERS’ COMPENSATION, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed from is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: October 30, 2015
Becker & Cade and Dennis A. Becker, for Plaintiff-Appellant,
Michael DeWine, Ohio Attorney General, and Thomas J. Straus, Assistant Attorney
General, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Appellant Audrey Clendenin appeals from the judgment of the
Hamilton County Court of Common Pleas dismissing for lack of subject-matter
jurisdiction her appeal of an order issued by the Industrial Commission of Ohio
(“commission”). The order terminated compensation and benefits for the
previously-allowed condition of substantial aggravation of preexisting
dermatomyositis upon a finding that it had abated, as contemplated by R.C.
4123.54(G).
{¶2} In a case involving an issue of first impression, we hold that because
the commission’s order terminated Clendenin’s right to participate in the workers’
compensation fund for the previously-allowed condition, R.C. 4123.512(A) vested the
court of common pleas with subject-matter jurisdiction to hear her appeal, even
though Clendenin continued to participate in the fund for other allowed conditions
arising out of the same accident. Therefore, we reverse the trial court’s judgment,
and remand the cause so that Clendenin may proceed with her appeal of the
commission’s decision.
I. Background Facts
{¶3} Clendenin was involved in a work-related accident in October 2008
while employed by the Girl Scouts of Western Ohio. She sought to participate in the
workers’ compensation fund for her injuries. Her case, assigned number 08-379860,
was allowed for multiple conditions, including right-shoulder-rotator-cuff tear, right-
bicep-tendon tear, substantial aggravation of preexisting right-shoulder tendonitis,
substantial aggravation of preexisting acromioclavicular-joint arthritis, substantial
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OHIO FIRST DISTRICT COURT OF APPEALS
aggravation of preexisting right-shoulder-labral tear, and substantial aggravation of
preexisting dermatomyositis, an autoimmune disorder.
{¶4} In March 2013, appellee Administrator, Bureau of Workers’
Compensation (“Bureau”) filed a C-86 motion requesting the abatement of
Clendenin’s condition of substantial aggravation of preexisiting dermatomyositis.
The matter was referred to a district hearing officer (“DHO”), who found, based on a
physician’s report, that the condition had returned to a level that would have existed
without the injury. The DHO ordered that “compensation and medical benefits
[were] no longer to be paid” for the allowed condition. The order did not affect the
other allowed conditions in the case numbered 08-379860.
{¶5} Clendenin unsuccessfully appealed the order administratively.
Clendenin then filed an appeal and complaint in the Hamilton County Court of
Common Pleas related to the abatement order. She pled that the condition identified
as substantial aggravation of preexisting dermatomyositis had not returned to
preinjury status and that compensation and benefits should continue to be paid for
the condition.
{¶6} The Bureau moved to dismiss the cause for lack of subject-matter
jurisdiction. The court granted the motion and dismissed the appeal. Clendenin now
appeals from that judgment. In her sole assignment of error, Clendenin argues that
the trial court erred by granting the Bureau’s motion to dismiss.
{¶7} We apply a de novo standard of review to the trial court’s granting of a
motion to dismiss under Civ.R. 12(B)(1) for lack of subject-matter jurisdiction. W. &
S. Life Ins. Co. v. Owens, 1st Dist. Hamilton No. C-140255, 2015-Ohio-1188, ¶ 8;
Peppers v. Meyer Builders-Douglas Homes, Ltd., 1st Dist. Hamilton No. C-030894,
2004-Ohio-5057, ¶ 15.
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OHIO FIRST DISTRICT COURT OF APPEALS
II. Analysis
{¶8} The issue in this case is whether Clendenin can appeal to the court of
common pleas the commission’s order determining that her preexisting condition of
dermatomyositis had returned to its preinjury status and that she may not receive
any compensation or benefits for that preexisting condition.
{¶9} It is not disputed that Clendenin had initially established her right to
participate for the preexisting condition as required under the statute. To participate
in Ohio’s workers’ compensation fund, a claimant must establish an “injury” as
defined by R.C. 4123.01(C). This statute specifies that an injury includes “any injury,
whether caused by external accidental means or accidental in character and result,
received in the course of, and arising out of, the injured employee’s employment.”
The subdivisions of R.C. 4123.01(C) qualify the definition of a compensable injury.
R.C. 4123.01(C)(4) provides that an injury does not include a condition that
preexisted an injury unless that preexisting condition is “substantially aggravated” by
the injury, as documented by certain objective evidence. Pflanz v. Lof, 1st Dist.
Hamilton No. C-100574, 2011-Ohio-2670, ¶ 11-12.
{¶10} But the Bureau contended that Clendenin’s condition had reverted to a
level that would have existed without the injury, and requested and received from the
commission an abatement order terminating compensation and benefits in
accordance with R.C. 4123.54(G). This statute provides that once the substantially-
aggravated preexisting condition “has returned to a level that would have existed
without the injury,” then “no compensation or benefits are payable” to the claimant.
The legislature added R.C. 4123.01(C)(4) and 4123.54(G) as part of Am.Sub.S.B. No.
7 in 2006.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶11} Clendenin sought to appeal the commission’s abatement order under
the authority provided in R.C. 4123.512(A). That statute provides limited
jurisdiction to the court of common pleas to review final decisions of the commission
that involve a claimant’s right to participate or to continue to participate in the fund.
Thomas v. Conrad, 81 Ohio St.3d 475, 477, 692 N.E.2d 205 (1998). Conversely,
determinations involving the extent of a claimant’s disability must be challenged in
mandamus. Felty v. A.T. & T. Technologies, Inc., 65 Ohio St.3d 234, 240, 602
N.E.2d 1141 (1992).
{¶12} The Thomas court explained this limit on the appellate jurisdiction of
the court of common pleas as follows:
“The only action by the commission that is appealable *
* * is this essential decision to grant, to deny, or to
terminate the employee’s participation or continued
participation in the system.” Felty at 239, 602 N.E.2d at
1145. Such appeals are limited to “whether an employee
is or is not entitled to be compensated for a particular
claim.” Id. “Only those decisions that finalize the
allowance or disallowance of a claim * * * are
appealable.” Id. at 240, 602 N.E.2d 1146.
Thomas at 478.
{¶13} The Bureau has never disputed that the abatement order forecloses
any future benefits or compensation for the substantial aggravation of preexisting
dermatomyositis. But the Bureau maintains that the abatement order did not
terminate Clendenin’s participation in the workers’ compensation fund, as she
continues to participate for the other approved conditions under the same case
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OHIO FIRST DISTRICT COURT OF APPEALS
number. As such, it contends, the order involved only the extent of her disability
and, therefore, the court of common pleas lacked jurisdiction to proceed with the
appeal. We cannot agree.
{¶14} The order terminates the right to participate for a “claim”—a specific
injury or medical condition. The Bureau’s argument fails because the Thomas and
Felty courts used the word “claim” when explaining what type of decision by the
commission is appealable—“those decisions that finalize the allowance or
disallowance of a claim.” Generally, in workers’ compensation parlance, a “claim” is
“ ‘simply the recognition of the employee’s right to participate in the fund for a
specific injury or medical condition.’ ” Starkey v. Builders Firstsource Ohio Valley,
L.L.C., 130 Ohio St.3d 114, 2011-Ohio-3278, 956 N.E.2d 267, ¶ 14, quoting Ward v.
Kroger Co., 106 Ohio St.3d 35, 2005-Ohio-3560, 830 N.E.2d 1155, ¶ 10.
{¶15} Further, the Supreme Court has rejected an argument similar to the
one advanced now by the Bureau. See Zavatsky v. Stringer, 56 Ohio St.2d 386, 384
N.E.2d 693 (1978), paragraph three of the syllabus. Zavatsky involved in part the
issue of the claimant Zavatsky’s right to participate in the workers’ compensation
fund in the first instance. Id. at 387. The court determined that Zavatsky could
appeal from an order that allowed a claim for injury to the left elbow, but denied a
claim as to the low back and left leg arising from the same work place accident. Id.
at 387 and 404. The Supreme Court later reiterated this rule in Felty, where it stated
that “an order allowing a claim for one injury but denying a claim for two other
injuries arising out of the same accident is appealable.” Felty, 65 Ohio St.3d at 239,
602 N.E.2d 1141. The Bureau has not explained why this rule should not apply when
determining the appealability of an order terminating the right to participate, instead
of denying the right to participate in the first instance.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} To be appealable, an order terminating participation may involve
more than causation. The Bureau also maintains that the trial court lacks
jurisdiction because the abatement order does not involve the issue of whether the
injury, disease, or death resulted from employment, citing State ex rel. Liposchak v.
Indus. Comm., 90 Ohio St.3d 276, 280, 737 N.E.2d 519 (2000). In Liposchak, the
Supreme Court explained that the denial or grant of death benefits was not
appealable under R.C. 4123.512 unless the decision concerned the causal relationship
between injury, disease, or death and employment. Id. at 281. After Liposchak,
courts have held that an order involving the right to participate is not appealable
under R.C. 4123.512 unless the order involves the issue of causation related to the
employment. See, e.g., Benton v. Hamilton Cty. Edn. Serv. Ctr., 123 Ohio St.3d 347,
2009-Ohio-4969, 916 N.E.2d 778; Coder v. Ohio Bank, 145 Ohio App.3d 739, 764
N.E.2d 477 (3d Dist.2001).
{¶17} But the Supreme Court has clarified that Liposchak defines the issue
that may be appealed in a “right-to-participate case,” and not in a “right-to-continue-
participation case” such as this one. (Emphasis sic.) White v. Conrad, 102 Ohio
St.3d 125, 2004-Ohio-2148, 807 N.E.2d 327, ¶ 10. Moreover, the commission’s
abatement order can arguably be characterized as a decision involving the “in the
course of and arising out of her employment” inquiry. In essence, the commission
found that Clendenin’s condition, as it existed at the time of the Bureau’s R.C.
4123.54(G)-based motion, was not causally related to her 2008 work-related
accident. Therefore, the commission cut off future benefits and compensation for
the condition of substantial aggravation of the preexisting dermatomyositis.
{¶18} Ultimately, Clendenin’s right to participate in the fund for her claim
based on the condition of substantial aggravation of preexisting dermatomyositis had
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OHIO FIRST DISTRICT COURT OF APPEALS
already been established. Her right to appeal was thereafter limited to subsequent
rulings that affected her right to continue to participate for that claim. We conclude
that the abatement order did not involve the extent of her disability but, instead,
involved her right to continue to participate in the workers’ compensation fund for
the claim and was appealable, notwithstanding the fact that Clendenin is
participating for other conditions under the same case number.
III. Conclusion
{¶19} We sustain the assignment of error, because the trial court erred by
granting the Bureau’s motion to dismiss for lack of subject-matter jurisdiction.
Accordingly, we reverse the trial court’s judgment and remand the cause for
proceedings consistent with the law and this decision.
Judgment reversed and cause remanded.
HENDON, P.J., and MOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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Clendenin v. Girl Scouts of W. Ohio
Combined Opinion