Robertson v. International Harvester Co.

486 N.E.2d 163, 21 Ohio App. 3d 42, 21 Ohio B. 45, 1984 Ohio App. LEXIS 12642
CourtOhio Court of Appeals
DecidedAugust 14, 1984
Docket1936
StatusPublished
Cited by5 cases

This text of 486 N.E.2d 163 (Robertson v. International Harvester Co.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robertson v. International Harvester Co., 486 N.E.2d 163, 21 Ohio App. 3d 42, 21 Ohio B. 45, 1984 Ohio App. LEXIS 12642 (Ohio Ct. App. 1984).

Opinion

Brogan, P.J.

This appeal arises from a judgment by the Common Pleas Court of Clark County, Ohio, in favor of the defendant-appellee International Harvester Company.

The matter presently before this court concerns a dispute over a claim for workers’ compensation benefits by plaintiff-appellant, Lesta Robertson, for a back injury allegedly occurring while at International Harvester’s worksite on August 7, 1973. The record reveals appellant filed her application for payment of compensation and medical benefits with the Bureau of Workers’ Compensation on April 3, 1981. This claim was initially denied on June 16, 1981 by a district hearing officer of the defendant-appellee Industrial Commission of Ohio on the grounds he lacked jurisdiction to hear the merits. This order was subsequently affirmed by the Dayton Regional Board of Review in an order dated October 29,1981. On appeal to the Industrial Commission of Ohio pursuant to R.C. 4121.35(B)(6), the two previous administrative orders were reversed.

The commission’s hearing officers found inter alia:

“It is further the finding of the Staff Hearing Officers that claimant’s appeal, filed December 15, 1981, be granted; that the order of the Dayton Regional Board of Review be vacated; that the District Hearing Officer did have jurisdiction to hear the merits of this claim; that the claim now be set for hearing on its merits before a District Hearing Officer.”

Pursuant to R.C. 4123.519, International Harvester Co. filed its notice of appeal from this order with the common pleas court. Appellant herein moved to dismiss the appeal on the ground it was an appeal from a decision “as to the extent of disability” and therefore not ap-pealable under R.C. 4123.519. In its order filed on August 15, 1983 the trial court overruled said motion, concluding the order appealed from was “based upon the statute of limitations and therefore is not a decision as to the extent of disability.”

The matter was subsequently set for jury trial on November 9, 1983. At the close of plaintiff’s case, International Harvester moved for a directed verdict on the ground that claimant had failed to comply with the two-year, written-notice-of-injury requirement of R.C. 4123.84. The trial court granted the motion concluding that:

“[T]he evidence is uncontradicted that the alleged injury occurred in 1973 and that plaintiff did not file a written application for the alleged 1973 injury with the industrial commission until 1981.
“Although the evidence is that plaintiff, at the time of the alleged injury, saw the defendant’s company physician and other doctors concerning the injury (allegedly to her back) there is no evidence upon which reasonable minds could come to more than one conclusion indicating that the industrial commission received notice, written or otherwise, that plaintiff was claiming an industrial injury to her back as a result of the 1973 incident she testified to until 1981.”

*44 From this judgment appellant has timely filed her notice of appeal to this court. On appeal she raises for our review two assignments of error, the first of which maintains:

“The trial court erred in overruling' the plaintiff-appellant’s motion to dismiss defendant-appellee’s appeal. The decision of the industrial commission was a decision as to the ‘extent of disability’ and therefore is not an ap-pealable order under Ohio Revised Code Section 4123.519.”

In the usual course of events, R.C. 4123.519 permits appeals to the court of common pleas from orders of the Industrial Commission on matters “other than a decision as to the extent of disability.” Talley v. Connor (March 18, 1982), Montgomery App. No. 7535, unreported. Hence, if a decision, by its own terms, concerns only the extent of disability, it is not appealable. Id. (citing Rummel v. Flowers [1972], 28 Ohio St. 2d 230 [57 O.O.2d 467]). Appellant has adopted the position that the order of the Industrial Commission was in fact such a non-appealable decision.

The critical issue presented for our determination therefore becomes one of jurisdiction, to wit: whether the decision of the commission was one “other than a decision as to the extent of disability.” In Zavatsky v. Stringer (1978), 56 Ohio St. 2d 386 [10 O.O.3d 503], the Ohio Supreme Court discussed and defined the disputed phrase. At paragraph two of the syllabus in Zavatsky the court stated:

“A determination of ‘extent of disability’ under R.C. 4123.519 presupposes that claimant has been allowed the ‘right to participate’ in the Workers’ Compensation Fund for injury to a specific part or parts of the body involving the loss or impairment of bodily functions. The decision of the Industrial Commission as to ‘extent of disability’ constitutes a determination of the basis for the computation of the compensation or benefits payable under the provisions of the workers’ compensation law for those losses or impairments of bodily functions allowed as compensable injuries.”

This case therefore narrows our inquiry to a determination whether the decision appealed to the common pleas court involved the right to participate in the fund or only the extent of such participation. Upon review of the record we are of the opinion the Industrial Commission’s decision addressed the former and was therefore properly appealable to the lower court.

By the very terms of the Industrial Commission’s decision it was a determination as to the jurisdiction of the district hearing officer to entertain the claim. As we perceive such jurisdictional determinations, they are targeted toward a claimant’s right to participate as opposed to the extent of her participation. Consequently, the commission’s decision was one “other than a decision as to the extent of disability.” We find support for our conclusion in Valentino v. Keller (1967), 9 Ohio St. 2d 173 [38 O.O.2d 412]. Therein the claimant sought to reinstate an old claim and the court was confronted with the issue of whether claimant had received treatment from a company doctor within the ten-year statute of limitations in R.C. 4123.52.

“Upon the motion of a claimant for reinstatement of his claim for workmen’s compensation benefits, which claim has been previously allowed, the Industrial Commission has the power to determine whether ten years has elapsed since the last compensation or benefits were received by the claimant. The commission’s determination of that question is a decision as to the claimant’s right to participate or to continue to participate in the fund. A determination of such question adversely to the applicant is jurisdictional and entitles the claimant to appeal to the Com *45 mon Pleas Court pursuant to the provisions of Section U123.519, Revised Code. ” (Emphasis added.) Valentino, at the syllabus.

The matter presently before us differs from Valentino in two respects. Initially, Valentino involved a motion of a claimant for reinstatement of a previously allowed claim.

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Bluebook (online)
486 N.E.2d 163, 21 Ohio App. 3d 42, 21 Ohio B. 45, 1984 Ohio App. LEXIS 12642, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-international-harvester-co-ohioctapp-1984.