Siembieda v. Coastal Pet Prods., Inc. ( 2013 )

[Cite as Siembieda v. Coastal Pet Prods., Inc., 2013-Ohio-1629.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
HALLE SIEMBIEDA
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Sheila G. Farmer, J.
-vs- :
:
COASTAL PET PRODUCTS, INC. : Case No. 2012-CA-00128
:
Defendant-Appellant :
and : OPINION
:
ADMINISTRATOR, BUREAU OF :
WORKERS’ COMPENSATION
Defendant-Appellee
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.2011CV03436
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 22, 2013
APPEARANCES:
For Bureau of Workers’ Compensation For Coastal Pet Products
SUSAN BERES DARRELL MARKIJOHN
Assistant Attorney General 4100 Holiday Street N.W., Ste. 101
th
615 W. Superior Avenue, 11 Floor Canton, OH 44718
Cleveland, OH 44113-1899
HALLE SIEMBIEDA
2500 Vine Street
Apartment 15
WDM, IA 50265
[Cite as Siembieda v. Coastal Pet Prods., Inc., 2013-Ohio-1629.]
Gwin, P.J.
{¶1} Appellant Coastal Pet Products, Inc. appeals from the June 6, 2012
judgment entry issued by the Stark County Court of Common Pleas.
Facts and Procedural History
{¶2} In September of 2009, appellee Halle Siembieda worked at Coastal Pet
Products as a machine operator. Appellant is a self-insured employer. On September
8, 2009, appellee sustained an injury to her hands while working on a hole punch
machine. Appellee filled out and signed an “Employee Incident Report” on September
15, 2009. The incident report form was provided to her by appellant. Appellee stated
she filled out the report because it was required by appellant after an injury occurred,
not to file a workers’ compensation claim. Appellee did not intend to file a workers’
compensation claim because she did not need medical treatment at the time of the
injury and was managing the pain and numbness in her hands at the time she filed the
incident report.
{¶3} In the incident report, appellee stated she sustained the work-related
injury to her hands while working on the hole punch machine. There is a question on
the form specifically inquiring whether appellee intended to file a workers’ compensation
claim and appellee selected “don’t know” as her answer.
{¶4} On October 27, 2009, appellant’s third-party administrator filed the
Employee Incident Report and First Report of Injury (“FROI-1”) with the Bureau of
Workers’ Compensation (“BWC”). Appellee did not file the FROI-1. Appellant’s third-
party administrator completed, signed, and filed the FROI-1 with the BWC on behalf of
appellee, utilizing the information from the Employee Incident Report. The third party
Stark County, Case No. 2012-CA-00128 3
administrator electronically signed her own name, “Emily Taylor,” in the space labeled
“injured worker signature.”
{¶5} On December 1, 2009, a District Hearing Officer held a hearing regarding
the filed FROI-1. Appellee received notice of this hearing, requested the day of the
hearing off work, and obtained directions to the hearing location. However, she did not
appear at the hearing because she got lost and was forty-five minutes late for the
hearing. She did not notify the Industrial Commission she would not appear at the
hearing, but informed her boss the next day she did not attend the hearing. In an order
dated December 1, 2009, the District Hearing Officer disallowed the claim, finding there
was a lack of compensable diagnosis having been causally related to a compensable
mechanism of injury by a medical provider. It is unclear from the record whether any
evidence was taken at the hearing. Appellee did not appeal the December 1, 2009
order.
{¶6} On October 20, 2010, appellee filed a motion requesting the Industrial
Commission exercise continuing jurisdiction of the FROI-1 pursuant to R.C. 4123.52,
alleging a mistake of fact and law occurred because appellee did not complete or
execute the FROI-1.
{¶7} On December 10, 2010, a District Hearing Officer held a hearing and
concluded a mistake of law occurred because appellee had not executed the FROI-1.
The District Hearing Officer exercised the Industrial Commission’s continuing jurisdiction
and dismissed the FROI-1 that was filed on October 27, 2009. Appellant appealed the
order and a Staff Hearing Officer held a hearing on March 4, 2011. The Staff Hearing
Officer vacated the District Hearing Officer’s order and disallowed the claim. After
Stark County, Case No. 2012-CA-00128 4
appellee appealed the Staff Hearing Officer’s order, the Industrial Commission held a
hearing on July 12, 2011. The Industrial Commission found a mistake of fact and a
mistake of law occurred and dismissed the FROI-1 that was filed on October 27, 2009
because it was not signed by appellee. The order specifically states the “the claim is
neither allowed, nor disallowed.”
{¶8} Appellee filled out a second “Employee Incident Report” on March 24,
2010, alleging the same injury on the same hole punch machine with a new date of
injury. Appelle testified she decided to file a claim with the BWC through the “Employee
Incident Report” in 2010 because the pain and numbness in her hands got increasingly
worse and she sought medical attention for her injury. This claim is currently pending
with the Industrial Commission.
{¶9} Appellant filed its notice of appeal of the Industrial Commission’s order on
October 27, 2011. Appellee filed her Complaint in the Stark County Court of Common
Pleas on November 30, 2011. Appellee filed a motion to dismiss the employer’s appeal
pursuant to Civil Rule 12(B)(1) on April 16, 2012, arguing the trial court lacked
jurisdiction pursuant to R.C. 4123.512. The trial court granted appellee’s motion to
dismiss on June 6, 2012, finding it did not have jurisdiction pursuant to R.C. 4123.512.
{¶10} Appellant filed an appeal of the trial court’s June 6, 2012 judgment entry
dismissing the employer’s appeal and raises the following assignment of error on
appeal:
{¶11} “THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION TO
DISMISS AND FINDING THAT THE COURT LACKED JURISDICTION TO HEAR
APPELLANT’S CASE.”
Stark County, Case No. 2012-CA-00128 5
{¶12} The trial court granted appellee’s motion to dismiss pursuant to Civil Rule
12(B)(1) for lack of subject matter jurisdiction. The standard of review for dismissal for
want of subject matter jurisdiction pursuant to Civil Rule 12(B)(1) is whether any cause
of action cognizable by the forum has been raised in the complaint. Prosen v. Dimora,
79 Ohio App.3d 120, 606 N.E.2d 1050 (1992); State ex rel. Bush v. Spurlock, 42 Ohio
St.3d 77, 537 N.E.2d 641 (1989). This determination involves a question of law that we
review de novo. Shockey v. Fouty, 106 Ohio App.3d 420, 666 N.E.2d 304 (1995).
Under a de novo analysis, we must accept all factual allegations of the complaint as
true, and all reasonable inferences must be drawn in favor of the nonmoving party.
Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991).
{¶13} R.C. 4123.512(A) provides a claimant or an employer may appeal a
decision of the industrial commission or of its staff hearing officer * * * in any injury or
occupational disease case, other than a decision as to the extent of disability, to the
court of common pleas. The Supreme Court of Ohio has narrowly interpreted R.C.
4123.512 and concluded the “only decisions reviewable pursuant to R.C. 4123.519 [now
4123.512(A)] are those decisions involving a claimant's right to participate or to continue
to participate in the fund.” Afrates v. Lorain, 63 Ohio St.3d 22, 584 N.E.2d 1175 (1992).
The Supreme Court of Ohio further clarified that “the only action by the commission that
is appealable under R.C. 4123.519 is this essential decision to grant, deny, or to
terminate the employee’s participation or continued participation in the system.” Felty v.
AT&T Technologies, Inc., 65 Ohio St.3d 234, 239, 602 N.E.2d 1141 (1992). This
interpretation is consistent with the “goal of creating a workers’ compensation system
that operates largely outside the courts.” Id.Stark County, Case No. 2012-CA-00128 6
{¶14} In State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 737 N.E.2d
519 (2000), the court clearly defined the issues that are appealable under R.C.
4123.512 and stated, “* * * any issue other than whether the injury, disease, or death
resulted from employment does not constitute a right-to-participate issue.” 90 Ohio
St.3d at 279. The court specifically concluded, “we refuse to obscure the rule that R.C.
4123.512 permits only those appeals that concern whether the employee’s injury,
disease, or death occurred in the course of and arising out of his or her employment.”
Id. at 281.
{¶15} Appellant first argues the common pleas court has jurisdiction because the
Industrial Commission’s order effectively determines appellee’s right to participate. We
disagree. The Supreme Court of Ohio determined that not all decisions by the Industrial
Commission involve the right to participate in the workers’ compensation fund. Felty, 65
Ohio St.3d 234, 602 N.E.2d 1141 (1992) (holding the Industrial Commission’s decision
not to suspend an employee’s claim does not reach her right to participate in the fund
and therefore, the commission’s decision is not appealable to the common pleas court);
State ex rel. Liposchak, 90 Ohio St.3d 276, 737 N.E.2d 519 (holding the denial of a
claim for death benefits was not appealable to the common pleas court where the issue
did not concern the causal connection between injury, disease, or death and
employment); Afrates v. Lorain, 63 Ohio St.3d 22, 584 N.E.2d 1175 (1992) (holding a
non-final order setting the matter for further hearing cannot be appealed under R.C.
4123.512).
{¶16} In this case, the ruling by the commission does not determine appellee’s
right to participate and specifically states the claim is “neither allowed, nor disallowed.”
Stark County, Case No. 2012-CA-00128 7
The decision by the commission does not prohibit appellee from receiving benefits and
likewise does not permit appellee to receive workers’ compensation benefits. The
commission’s decision does not finalize the allowance or disallowance of the
employee’s claim. Appellant potentially could succeed on their appeal in the 2010 claim
and the Industrial Commission may ultimately disallow the claim by appellee for the
injury to her hands. Given the language by the commission that the claim was “neither
allowed, nor disallowed,” there is no decision as to whether appellee’s injury occurred in
the course of and arising out of her employment.
{¶17} Based upon the holdings in the Felty, Afrates, and Liposchak cases, we
find the commission did not grant, deny, or terminate the employee’s participation or
continued participation in the system.
{¶18} Appellant next argues the Industrial Commission used a procedural rule to
change the finality of a previous decision on appellee’s right to participate in the
workers’ compensation fund. Further, if the common pleas court does not have
jurisdiction over the commission’s decision, the employer is improperly deprived of the
December 1, 2009 order’s res judicata effect on future claims for the same injury. We
disagree.
{¶19} In Greene v. Conrad, the court determined when the BWC denies a claim
because applicant did not submit sufficient information to establish the claim or the
investigatory stage of the claim has not yet been completed, res judicata does not bar a
second claim for workers’ compensation benefits though the injury in the second claim
was the subject of a prior claim for benefits because the BWC failed to address the
merits of the first claim. 10th Dist. No. 96APE12-1780 (August 21, 1997). In
Stark County, Case No. 2012-CA-00128 8
subsequent cases, courts examined whether specific facts met the Greene test for a
claim on the merits. Godfrey v. Administrator, Bureau of Workers’ Compensation, 1st
Dist. No. C-061055, 2007-Ohio-5575 (stating Greene did not apply because the BWC
reviewed medical records during the first claim); Faierman v. Conrad, 12th Dist. Nos.
CA2003-10-271, CA2003-10-272, 2004-Ohio-6319 (holding that when applicant did not
provide medical records, the decision was not adjudication on the merits of applicant’s
claim); Cremeans v. Contact Indus., Inc., 5th Dist. No. 2012-CA-45, 2012-Ohio-5874(holding Greene was not applicable when applicant filed medical evidence that did not
support her claim the injury was related to the alleged accident and failed to supplement
the evidence when given the opportunity to do so) .
{¶20} In this case, there is no dispute that appellee did not appeal the Industrial
Commission’s order of December 1, 2009. However, we do not agree with appellant
that the lack of jurisdiction to appeal to the common pleas court improperly denies them
a res judicata defense to appellee’s second claim for the same injury.
{¶21} This case is analogous to the Greene and Faierman cases in which the
claimants did not submit medical records. The December 1, 2009 order of the District
Hearing Officer states the claim is disallowed “based on the lack of a compensable
diagnosis having been causally related to a compensable mechanism of injury by a
medical provider.” There is no evidence any medical records or medical evidence was
submitted to the hearing officer. Appellee did not seek medical treatment in September
of 2009 after the injury and returned to work immediately after the injury because the
pain and numbness in her hands did not prohibit her from working. Thus, there was no
medical evidence or records for appellee to submit to the hearing officer at the time of
Stark County, Case No. 2012-CA-00128 9
the hearing because the injury did not become unmanageable to appellee and
necessitate treatment until 2010. Appellee admitted she did not attend the hearing
because she got lost and was forty-five minutes late. However, appellee specifically
stated she did not intend to file a workers’ compensation claim in September of 2009.
She filled out the incident report because it was appellant’s policy that an employee
must fill out the incident form when an injury occurred.
{¶22} Accordingly, because the December 1, 2009 order was not on the merits,
the lack of jurisdiction by the common pleas court does not improperly deny appellant a
res judicata defense to appellee’s second claim.
{¶23} Appellant finally argues the Industrial Commission’s exercise of continuing
jurisdiction pursuant to R.C. 4123.52 involves an individual’s right to participate or
continue to participate and can be appealed to the common pleas court. We disagree.
{¶24} The Industrial Commission has authority to reconsider previous decisions
by a grant of continuing jurisdiction pursuant to R.C. 4123.52. However, the
commission’s continuing jurisdiction is not unlimited and can only be invoked in five
scenarios, including: (1) new and changed circumstances; (2) fraud; (3) clear mistake of
fact; (4) clear mistake of law; or (5) error by an inferior tribunal. State ex rel Nicholls v.
Indus. Comm. of Ohio, 81 Ohio St.3d 454, 692 N.E.2d 188. If a decision regarding
continuing jurisdiction does not determine the right to participate, it is not appealable to
the common pleas court. Benton v. Hamilton Co. Edu. Serv. Ctr., 123 Ohio St.3d 347,
2009-Ohio-4969, 916 N.E.2d 778 (2009) (holding the refusal by the commission to find
employee fraud in order to exercise continuing jurisdiction is not a right-to-participate
issue and the court of common pleas lacks jurisdiction to hear an appeal of the
Stark County, Case No. 2012-CA-00128 10
decision). There is no adequate remedy at law when an applicant or employer alleges
the commission improperly exercised continuing jurisdiction when the decision does not
determine the right to participate. State ex rel. Forrest v. Anchor Hocking Consumer
Glass, 10th Dist. No. 03AP-190, 2003-Ohio-6077. Accordingly, a challenge to the
commission’s exercise of continuing jurisdiction not deciding the right to participate is
not properly before a common pleas court, but the employer may file a complaint in
mandamus with the Tenth District Court of Appeals. Benton, 123 Ohio St.3d at 348, 916
N.E.2d 778; See also State ex rel. Walls v. Indus. Comm., 90 Ohio St.3d 192, 2000-
Ohio-51 (finding the commission’s decision to permit an employer to file a late appeal of
an order allowing the applicant workers’ compensation benefits is not appealable to the
common pleas court and is properly challenged in a writ of mandamus).
{¶25} Appellant cites Valentino v. Keller and State ex rel. Consolidation Coal v.
Indus. Comm. of Ohio, for the proposition that the commission’s decision to exercise
continuing jurisdiction can be appealed to the common pleas court. 9 Ohio St.2d 173,
224 N.E.2d 748 (1967); 18 Ohio St.3d 281, 480 N.E.2d 807 (1985). However, we find
these cases distinguishable from the instant case. The issue in these cases was
whether the statute of limitations barred claimants from participating in the state
insurance fund, effectively determining whether the claimants were barred from future
participation in the fund or granted the right to participate in the fund. In this case, when
the commission exercised its continuing jurisdiction, it determined there was a clear
mistake of law or fact because the FROI-1 was not completed or signed by appellee as
required by the Ohio Administrative Code. The commission specifically stated the claim
was “neither allowed, nor disallowed.” The decision of the commission to exercise
Stark County, Case No. 2012-CA-00128 11
continuing jurisdiction did not, as in Valentino, effectively bar the claimant from future
participation in the fund and did not, as in State ex. rel Consolidation Coal, effectively
permit appellee to participate in the fund.
{¶26} We agree with appellee’s position that appellant has the ability to
challenge the commission’s exercise of continuing jurisdiction in this case by filing a
mandamus action with the Tenth District Court of Appeals. As noted above, the
commission’s exercise of continuing jurisdiction did not grant or deny appellee the right
to participate or continue to participate. In a mandamus action in the Tenth District
Court of Appeals, appellant can challenge the commission’s exercise of continuing
jurisdiction and the court can determine whether the decision finding the FROI-1 had to
be signed and completed by appellee rather than appellant’s third-party administrator
was a mistake of law or fact sufficient to trigger continuing jurisdiction.
{¶27} Based on the foregoing, we find the trial court did not err in granting
appellee’s motion to dismiss the complaint. Appellant’s Assignment of Error is
overruled.
Stark County, Case No. 2012-CA-00128 12
{¶28} The judgment of the Stark County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Farmer, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER
WSG:clw 0402
[Cite as Siembieda v. Coastal Pet Prods., Inc., 2013-Ohio-1629.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
HALLE SIEMBIEDA :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
COASTAL PET PRODUCTS, INC. :
:
:
Defendant-Appellant : CASE NO. 2012-CA-00128
and :
:
ADMINISTRATOR, BUREAU OF :
WORKERS’ COMPENSATION :
:
Defendant-Appellee :
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Stark County Court of Common Pleas is affirmed. Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. WILLIAM B. HOFFMAN
_________________________________
HON. SHEILA G. FARMER