Perry v. Kilbarger Constr., Inc.

2012 Ohio 4354

• Court: Ohio Court of Appeals
• Decided: September 21, 2012
• Docket: 2012-CA-12
• Status: Published

Opinion

[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.