[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
2 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
3 OHIO FIRST DISTRICT COURT OF APPEALS
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
4 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.
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[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
2 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
3 OHIO FIRST DISTRICT COURT OF APPEALS
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
4 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
5 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.
6 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.