Felty v. AT&T Technologies, Inc.

OPINIONS OF THE SUPREME COURT OF OHIO

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Felty, Appellee, v. AT&T Technologies, Inc. et al.,

Appellants.

[Cite as Felty v. AT&T Technologies, Inc. (1992), Ohio

St.3d .]

Workers' compensation -- Decision by Industrial Commission not

to suspend an employee's claim under R.C. 4123.53 and Ohio

Adm.Code 4123-3-12 is not appealable to the court of

common pleas -- Decisions appealable under R.C. 4123.519.

1. 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.

2. Once the right of participation for a specific condition is

determined by the Industrial Commission, no subsequent

rulings, except a ruling that terminates the right to

participate, are appealable pursuant to R.C. 4123.519.

(Afrates v. Lorain [1992], 63 Ohio St.3d 22, 584 N.E.2d

1175, followed.)

(No. 91-1710 -- Submitted September 22, 1992 -- Decided

December 16, 1992.)

Appeal from the Court of Appeals for Franklin County, Nos.

90AP-1294 and 90AP-1341.

This case focuses on whether an Industrial Commission

decision to deny an employer's request to suspend an employee

from participation in the workers' compensation system is

appealable to the common pleas court.

Appellee, Pearl Felty, an employee of appellant AT&T

Technologies ("AT&T"), suffered a work-related injury in

January 1976. The Industrial Commission ("commission")

recognized Felty's workers' compensation claim and AT&T, a

self-insured employer, paid compensation and related benefits.

Immediately after the injury, for a period of approximately one

year, Felty was treated by Dr. Alan Longert.

In September 1985, some years after she stopped seeing

Longert, Felty filed a request with the Bureau of Workers'

Compensation to change her treating physician to Dr. Walter

Hauser. AT&T wrote to Hauser to notify him that it accepted

the change and asked that he send to AT&T a report of his

medical findings and a proposed course of treatment. AT&T sent

a copy of the letter to Felty's attorney, Stanley R. Jurus.

Jurus wrote back to AT&T to ask that the company "not

correspond" with Hauser. Felty wrote to the commission and

expressly revoked all prior medical releases she had executed.

When AT&T wrote to Jurus to ask that Felty sign a new medical

release, Jurus refused.

AT&T responded by filing a motion with the commission to

"indefinitely suspen[d]" Felty's participation in the workers'

compensation system "pursuant to 4121-3-12, Industrial

Commission Rules and Section 4123.53, Rev. Code pending the

claimant's willingness to abide by" the requirements now found

in Ohio Adm.Code 4123-19-03(L)(4). The district hearing

officer suspended Felty's claim and the regional board of

review affirmed.

Felty appealed the regional board's decision to the

commission. The commission vacated the regional board's order

and denied AT&T's motion requesting suspension of Felty's

claim. In doing so, the commission cited this court's decision

in State ex rel. Holman v. Dayton Press, Inc. (1984), 11 Ohio

St.3d 66, 11 OBR 256, 463 N.E.2d 1243.

AT&T then filed a notice of appeal to the Franklin County

Court of Common Pleas pursuant to R.C. 4123.519. Felty filed a

motion to dismiss AT&T's appeal; she argued that the court did

not have subject matter jurisdiction because the commission's

decision was not appealable under R.C. 4123.519. The court

denied Felty's motion and granted summary judgment in favor of

AT&T. The court ruled that the commission's reliance on the

Holman case was erroneous and ordered the commission to suspend

Felty's claim.

The court of appeals reversed. It held that the

commission's decision was not appealable pursuant to R.C.

4123.519. The court wrote that once a claim is allowed, the

question of whether a claim should be suspended until a

claimant complies does not go to the employee's right to

participate. The cause was remanded to the trial court to be

dismissed.

The cause is now before this court upon the allowance of

motions to certify the record.

Michael J. Muldoon, for appellee Pearl Felty.

Porter, Wright, Morris & Arthur and Charles J. Kurtz III,

for appellant AT&T Technologies, Inc.

Lee I. Fisher, Attorney General, Gerald H. Waterman and

Cordelia A. Glenn, Assistant Attorneys General, for appellant

Administrator, Bureau of Workers' Compensation.

Wright, J. This appeal concerns the question of which

Industrial Commission decisions may be appealed to the courts

of common pleas. R.C. 4123.519(A) provides that 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 * * *." We

have interpreted this provision narrowly to mean that "[t]he

only decisions reviewable pursuant to R.C. 4123.519 are those

decisions involving a claimant's right to participate or to

continue to participate in the [State Insurance] [F]und."

Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175,

paragraph one of the syllabus.

The issue in this case is whether a decision by the

commission not to suspend an employee's claim under R.C.

4123.53 and Ohio Adm.Code 4123-3-12 is appealable to the court

of common pleas. We hold that it is not.

I

This is another in a line of cases in which this court has

struggled to explain litigants' right to judicial review of

decisions by the Industrial Commission. Since 1955, when R.C.

4123.519 was enacted by the General Assembly, this court has

decided dozens of cases directly involving R.C. 4123.519.

Recently three of these cases have been overrruled in

well-intentioned attempts to settle the law. See State ex rel.

Evans v. Indus. Comm. (1992), 64 Ohio St.3d 236, 594 N.E.2d 609

(overruling Gilbert v. Midland-Ross Corp. [1981], 67 Ohio St.2d

267, 21 O.O.3d 168, 423 N.E.2d 847); Afrates v. Lorain, supra

(overruling State ex rel. O.M. Scott & Sons Co. v. Indus. Comm.

[1986], 28 Ohio St.3d 341, 28 OBR 406, 503 N.E.2d 1032, and

Seabloom Roofing & Sheet Metal Co. v. Mayfield [1988], 35 Ohio

St.3d 108, 519 N.E.2d 358). Regrettably, even these attempts

have failed to provide the workers' compensation bar with the

clear direction it must have to effectively and efficiently

conduct its practice.1 Hence, we attempt to clarify our recent

decisions in light of the present controversy.

II

Litigants may seek judicial review of commission rulings

in three ways: by direct appeal to the courts of common pleas

under R.C. 4123.519,2 by filing a mandamus petition in this

court or in the Franklin County Court of Appeals,3 or by an

action for declaratory judgment pursuant to R.C. Chapter

2721.4 Which procedural mechanism a litigant may choose

depends entirely on the nature of the decision issued by the

commission. Each of the three avenues for review is strictly

limited; if the litigant seeking judicial review does not make

the proper choice, the reviewing court will not have subject

matter jurisdiction and the case must be dismissed.

The most limited form of judicial review of commission

decisions is by direct appeal to the common pleas court.

Because the workers' compensation system was designed to give

employees an exclusive statutory remedy for work-related

injuries, "a litigant has no inherent right of appeal in this

area * * *." Cadle v. Gen. Motors Corp. (1976), 45 Ohio St.2d

28, 33, 74 O.O.2d 50, 52, 340 N.E.2d 403, 406. Therefore, a

party's right to appeal workers' compensation decisions to the

courts is conferred solely by statute. Id.

R.C. 4123.519 states that only two parties, claimants and

employers, may appeal decisions of the commission. These two

parties may appeal a decision rendered in "any injury or

occupational disease case, other than a decision as to the

extent of disability * * *." R.C. 4123.519(A). Read

literally, the statute leads to the overbroad rule pronounced

in O.M. Scott & Sons Co.: "any order of the commission may be

appealed to the court of common pleas by either party unless

the order pertains to the extent of disability." Id., 28 Ohio

St.3d at 343, 28 OBR at 408, 503 N.E.2d at 1034 (overruled by

Afrates, supra). This rule, however, improperly expanded the

limited role the courts are to have in the workers'

compensation system. This was in large part because the role

of the commission and the system itself became far more complex

than the drafters of R.C. 4123.519 could have foreseen. "Clear

though [R.C. 4123.519] may have seemed to the drafters thereof,

the myriad complications of industrial injury, and legislative

and administrative efforts to justly cope therewith" led

litigants from the commission to the courts "to resolve ensuing

conflicts and uncertainties." State ex rel. Campbell v. Indus.

Comm. (1971), 28 Ohio St.2d 154, 155, 57 O.O.2d 397, 397-398,

277 N.E.2d 219, 220.

The courts simply cannot review all the decisions of the

commission if the commission is to be an effective and

independent agency. Unless a narrow reading of R.C. 4123.519

is adhered to, almost every decision of the commission, major

or minor, could eventually find its way to the common pleas

court. Thus, a long line of cases, with only a few deviations

along the way,5 led to the formulation of this now-settled

precept: The only decisions of the commission that may be

appealed to the courts of common pleas under R.C. 4123.519 are

those that are final and that resolve an employee's right to

participate or to continue to participate in the State

Insurance Fund. Afrates, supra, paragraph one of the syllabus;

Zavatsky v. Stringer (1978), 56 Ohio St.2d 386, 10 O.O.3d 503,

384 N.E.2d 693, paragraph one of the syllabus. This narrow

rule is consistent with the goal of creating a workers'

compensation system that operates largely outside the courts.

See Nackley, Ohio Workers' Compensation Claims (1991) 162-163

("[p]ublic policy" favors this interpretation because otherwise

"common pleas courts could be burdened with de novo review--if

not full-blown jury trials--on every ministerial order in every

claim").

Notwithstanding the seemingly clear rule of Afrates and

Zavatsky, questions persisted concerning the types of decisions

that are appealable. The difficulty was the precise meaning of

the term "right to participate." See Harris, Ohio Supreme

Court Opinions, 7 Workers' Comp.J. of Ohio (Mar./Apr.1992) 33

("there remains a great deal of confusion surrounding the

language 'claimant's right to participate, or to continue to

participate'"). The meaning of this term was specifically

addressed in State ex rel. Evans v. Indus. Comm., supra.

In Evans, an employee aggravated an existing work-related

injury in a second accident not related to work. The

commission granted temporary total disability compensation for

the period leading up to the second accident, but denied

compensation for medical bills incurred after the second

accident. The employee filed a complaint in mandamus in the

court of appeals to challenge the commission's decision and the

court of appeals granted a writ. This court reversed. We held

that because the order of the commission "permanently

foreclose[d] Evans from receiving any further benefits under

the claim he filed," the order was appealable under R.C.

4123.519; the extraordinary remedy of mandamus was not

available because Evans had a remedy at law. Evans, 64 Ohio

St.3d at 240-241, 594 N.E.2d at 612. The rule we followed was

stated in paragraph one of the syllabus: "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." Thus, the commission's decision to deny Evans the

right to participate after a certain date because of an

intervening accident was a final appealable decision on the

employee's claim. Id. at 241, 594 N.E.2d at 612.

The rule articulated in Evans requires 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." The only action by the commission that is

appealable under R.C. 4123.519 is this essential decision to

grant, to deny, or to terminate the employee's participation or

continued participation in the system.

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. Zavatsky, supra. A ruling that the claimant

did not sustain any disability as a result of a work-related

accident is also appealable. Keels v. Chapin & Chapin, Inc.

(1966), 5 Ohio St.2d 112, 34 O.O.2d 249, 214 N.E.2d 428. And a

decision by the commission that a claimant's right to

participate is not barred by the limitations period prescribed

by R.C. 4123.52 is appealable. State ex rel. Consolidation

Coal Co. v. Indus. Comm. (1985), 18 Ohio St.3d 281, 18 OBR 333,

480 N.E.2d 807. These cases illustrate the rule that an appeal

to the common pleas court is limited to one decision: whether

an employee is or is not entitled to be compensated for a

particular claim.

In contrast, requests by a litigant for additional

activity in a case, for temporary suspension of a claim, or for

one of the myriad interlocutory orders the commission may issue

in administering a case are not "claims." For example, a

decision by the commission to allow or deny additional

compensation for a previously allowed condition when there is

no new condition is not appealable because it goes to the

extent of the injury--there is no new claim. State ex rel.

Roope v. Indus. Comm. (1982), 2 Ohio St.3d 97, 2 OBR 649, 443

N.E.2d 157 (mandamus held to be the proper remedy). An order

determining the employer's right to offset disability payments

against future compensation is not appealable. State ex rel.

McGinnis v. Indus. Comm. (1991), 58 Ohio St.3d 81, 568 N.E.2d

665 (mandamus held to be the proper remedy). Nor is a

claimant's request that permanent partial disability and

permanent total disability be paid concurrently appealable

under R.C. 4123.519. State ex rel. Murray v. Indus. Comm.

(1992), 63 Ohio St.3d 473, 588 N.E.2d 855 (mandamus held to be

the proper remedy).

An example highlights the distinction between appealable

and non-appealable decisions. An employee is involved in an

accident at work and injures her legs. She is totally disabled

and files an application for benefits. A decision by the

commission allowing or disallowing her claim is clearly

appealable under R.C. 4123.519. See Zavatsky, supra; Keels,

supra. Later, the employee develops severe depression as a

result of her injury. Again she applies for benefits, this

time to cover her treatment for depression. A decision by the

commission to allow or disallow this condition is also

appealable under R.C. 4123.519 for the reason that the

development of such a secondary condition would present a new

"claim" by the employee to participate in the fund. See

Weisenburger v. Central Foundry Div., Gen. Motors Corp. (1979),

60 Ohio St.2d 178, 14 O.O.3d 412, 398 N.E.2d 568; Davis v.

Connor (1983), 13 Ohio App.3d 174, 13 OBR 209, 468 N.E.2d 774.

The employer then attempts to offset its payments of total

disability compensation against the employee's disability

pension. The employee files a motion with the Bureau of

Workers' Compensation to prevent the employer from doing this.

This is not a "claim." The decision to grant the employee's

motion and deny the employer's right to offset is not

appealable to the common pleas court because it does not go to

the employee's right to participate in the fund. See Miraglia

v. B.F. Goodrich Co. (1980), 61 Ohio St.2d 128, 15 O.O.3d 163,

399 N.E.2d 1234.

As this example demonstrates, only those decisions that

finalize the allowance or disallowance of a claim -- in the

sense of a claim for a specific injury or occupational

disease--are appealable. Once the right of participation for a

specific condition is determined by the commission, no

subsequent rulings, except a ruling that terminates the right

to participate, are appealable pursuant to R.C. 4123.519.

III

This case does not involve a decision by the commission on

Pearl Felty's right to participate in the workers' compensation

system. The commission decision that spawned this appeal was

the denial of AT&T's November 20, 1985 motion to "indefinitely

suspen[d]" Felty's claim because she refused to allow AT&T

access to her medical records. AT&T did not ask the commission

to terminate Felty's nine-year participation in the system.

The decision by the commission was merely a response to AT&T's

request for action on the case; it was not a ruling on Felty's

right to participate. A decision not to suspend a claim is not

the same as a decision to grant or deny a claim. State ex rel.

Anderson v. Dept. of State Personnel (1979), 60 Ohio St.2d 106,

108, 14 O.O.3d 339, 340, 397 N.E.2d 1199, 1201.

Our judgment in this case is guided by our recent decision

in Afrates, supra. In Afrates, the administrator provisionally

allowed the employee's claim, stating that any objection must

be made within ten days of receipt of the order. The employer

did not object within ten days, but argued that it had not

received statutorily required notice of the administrator's

order. The commission ruled that the employer had not received

notice and granted the employer leave to file an objection. We

held that an appeal from this decision was improper because the

commission's ruling "was in no way one which finalized the

allowance (or disallowance) of Afrates's claim." 63 Ohio St.3d

at 27, 584 N.E.2d at 1179.

In this case, as in Afrates, the commission's decision did

not concern the allowance or diallowance of the employee's

claim. The case can be resolved through the use of a simple

syllogism: Only decisions reaching an employee's right to

participate in the system because of a specific injury or

occupational disease are appealable under R.C. 4123.519. The

Industrial Commission's decision not to suspend employee

Felty's claim does not reach Felty's right to participate in

the fund. Therefore the commission's decision is not

appealable.

IV

The judgment of the court of appeals that the trial court

lacked subject matter jurisdiction is affirmed. We express no

opinion on the merits of the commission's decision not to

suspend Felty's claim. The cause is remanded to the Franklin

County Court of Common Pleas to be dismissed.

Judgment affirmed

and cause remanded.

Moyer, C.J., Sweeney, Holmes and H. Brown, JJ., concur.

Douglas and Resnick, JJ., concur in the syllabus and

judgment only.

FOOTNOTES:

1 See State ex rel. Evans v. Indus. Comm. (1992), 64 Ohio

St.3d 236, 241, 594 N.E.2d 609, 613 (Resnick, J., dissenting)

(stating that the majority opinion "further confuse[s] this

area of the law"); Harris, Ohio Supreme Court Opinions, 7

Workers' Comp. J. of Ohio (Mar./Apr. 1992) 33 (stating that "a

great deal of confusion" remained after the Afrates decision).

All three attorneys who participated in oral arguments in this

case (each representing one of the three interested parties in

a workers' compensation case: claimants, employers, and the

Administrator) told the court of continuing uncertainty on this

issue.

2 See State ex rel. Consolidation Coal Co. v. Indus.

Comm. (1985), 18 Ohio St.3d 281, 18 OBR 333, 480 N.E.2d 807.

3 See State ex rel. Stafford v. Indus. Comm. (1989), 47

Ohio St.3d 76, 547 N.E.2d 1171; State ex rel. Eaton Corp. v.

Lancaster (1988), 40 Ohio St.3d 404, 534 N.E.2d 46; State ex

rel. Cook v. Zimpher (1983), 11 Ohio App.3d 187, 11 OBR 281,

463 N.E.2d 1274 (proper venue for mandamus action against

commission lies exclusively in Franklin County).

4 See State ex rel. Marks v. Indus. Comm. (1992), 63 Ohio

St.3d 184, 586 N.E.2d 109.

5 See, e.g., State ex rel. O.M. Scott & Sons Co. v.

Indus. Comm. (1986), 28 Ohio St.3d 341, 28 OBR 406, 503 N.E.2d

1032; Seabloom Roofing & Sheet Metal Co. v. Mayfield (1988), 35

Ohio St.3d 108, 519 N.E.2d 358.