COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59666 LUCIOUS C. FIELDS : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION FISHER BODY DIVISION, G.M.C. CORP. : : : Defendant-Appellee : : DATE OF ANNOUNCEMENT DECEMBER 12, 1991 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 167963 JUDGMENT: Reversed and remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE GENERAL MOTORS CORPORATION: Alan I. Goodman Aubrey Willacy Gross, Goodman & Associates LoPresti & Willacy 50 Public Square 1468 West Ninth Street Terminal Tower Western Reserve Building Suite 1326 Suite 700 Cleveland, Ohio 44113 Cleveland, Ohio 44113 FOR PATRICK MIHM, ADMINISTRATOR, BUREAU OF WORKERS' COMPENSATION: Steven L. Sterner Assistant Attorney General 1200 State Office Building 615 Superior Avenue, West Cleveland, Ohio 44113 - 1 - ANN McMANAMON, P.J.: Lucious Fields ("the employee") injured his back in 1979 while working at the Fisher Body Division of the General Motors Corporation ("the employer"). He filed a workers' compensation claim which was allowed for "lower back strain syndrome." Nearly eight years later, in July 1987, the employee applied to re-activate the claim and sought compensation for physiotherapy treatments for his back. The district hearing officer awarded benefits for ten treatments. The Cleveland Regional Board of Review and the Industrial Commission affirmed the award, and the employer appealed to the Cuyahoga Court of Common Pleas. The employee moved to dismiss the appeal on the jurisdictional ground that the Industrial Commission decision related only to the "extent of disability" and, thus, was not appealable pursuant to R.C. 4123.519. The common pleas court overruled the motion and set the case for trial. When the employee informed the court he would not present any evidence at trial, the court entered judgment for the employer. In his sole assignment of error, the employee challenges the court's denial of his motion to dismiss. We find his argument meritorious and reverse. - 2 - R.C. 4123.519 provides in pertinent part: "(A) The claimant or the employer may appeal a decision of the industrial commission or of its staff hearing officer made pursuant to division (B)(6) of section 4121.35 of the Revised Code in any injury or occupational disease case, other than a decision as to the extent of disability, to the court of common pleas of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state, or in which the contract of employment was made if the exposure occurred outside the state. ***." In applying this statute, the Supreme Court has held that, "*** a claimant's right to participate in the fund is appealable; however, a decision which merely extends the period of time for which a claimant will receive benefits concerns the extent of disability and is not appealable." State, ex rel. Roope, v. Indus. Comm. (1982), 2 Ohio St. 3d 97, 99, citing Gilbert v. Midland-Ross Corp. (1981), 67 Ohio St. 2d 267, paragraph one of the syllabus. In opposing the motion to dismiss, the employer claimed that the employee sustained non-work related injuries to his back sometime after 1979 and that these intervening injuries proximately caused his current symptoms. It was the employer's position that the Industrial Commission decision did not merely extend benefits but rather determined the employee's right to participate in the fund. The employer relies upon Gilbert v. Midland Ross, supra. - 3 - In Gilbert, the employee sustained an injury at work after returning from a period of disability caused by a previous work- related injury. The employer filed a new claim for the second injury and also applied to reactivate the old claim. The Industrial Commission denied the new claim but ordered the earlier claim reactivated. The Supreme Court held that the Commission's order was appealable and that the claim for compensation of the second injury after returning to work: "*** began a new period of disability and therefore a renewed right to participate. This is not the same as merely extending an existing period of disability. It is the temporal separateness of the periods of disability, coupled with the intervening trauma, which makes this case different from those in which an additional award of benefits was held to implicate only the extent of disability." Gilbert, supra, at 271-272. Before applying Gilbert to this case, we note that a complete record of the administrative proceedings was neither provided to the trial court nor to this court. The only documents before the common pleas court and this court are the orders of the district hearing officer, the regional board of review and the Industrial Commission. These orders are based on an express finding "that this claim has been previously allowed for: lower back strain syndrome." The Industrial Commission's order further provides that, in September 1986, almost one year before the employee moved to reactivate his claim, he received a 5% permanent partial disability increase because his "physical condition had increased symptomatology related to the allowed - 4 - injury." Although not in the record, the parties do not dispute that the employee returned to work after the 1979 injury. Finally, we do not know from the limited record before us whether the employer argued the issue of proximate cause during the administrative proceedings. Like the employee in Gilbert, employee Fields apparently returned to work after his 1979 injury. Gilbert, however, involved an employee who sustained a second work-related injury. We find this distinction crucial in light of the Supreme Court's subsequent decision in Roope, supra. The employee in Roope suffered an exacerbation of a previous injury while at home, and applied to reactivate his previous industrial claim. The Commission denied benefits, prompting the employee to challenge the ruling in a mandamus action. The Supreme Court found the action in mandamus proper since the employee had no right to appeal the Industrial Commission's ruling. In distinguishing Gilbert, supra, the court stated: "*** In that action [Gilbert], the claimant suffered an injury at work after returning from a period of disability for a previous work-related injury. He filed a new claim for the second injury and sought to reactivate the earlier claim. Here, claimant suffered an exacerbation at home of his previous injury, and filed a motion for modification of the compensation order in the 1978 injury claim. There were not two separate work-related accidents or accident claims, as in Gilbert. That decision emphasized that when an intervening trauma arising from a second industrial accident results in an attempt to reactivate an earlier, dormant claim, the worker seeks, in effect, a decision granting the right to participate for an injury or impairment not previously claimed or passed upon." Roope, supra, at 100. - 5 - As in Roope, the instant case does not involve a second work-related injury. Employee Fields applied only to reactivate his original claim and to obtain further medical treatments for the original back injury. Nothing in the Industrial Commission order indicates it was reviewing the employee's right to participate in the fund due to a second work related injury. Furthermore, the employer did not claim the alleged intervening injuries were work-related. In light of Roope, we find the Commission's order related only to the "extent of disability" and was not appealable under R.C. 4123.519. Accord Gray v. Budd Co. (1985), 27 Ohio App. 3d 178. Thus, the trial court erred in denying the motion to dismiss. We reject the employer's argument that the trial court's decision, nonetheless, could be affirmed because the Industrial Commission's order allegedly permits treatment from an unlicensed health care provider in violation of Ohio Adm. Code Sections 4121-17-03, 4121-17-04 and 4121.17-12(C). As we previously discussed, the Industrial Commission's order involves only the extent to which the employee may participate in the Workers' Compensation Fund and is not appealable. Roope, supra. The specific benefit awarded -- "ten treatments of physiotherapy of low back pain by Dr. Kay" --is a part of this determination and not separately reviewable on appeal by the trial court or this court. State, ex rel. Campbell v. Indus. Comm. (1971), 28 Ohio St. 2d 154. - 6 - Accordingly, the employee's assignment of error is sustained. The judgment of the trial court is reversed, cause remanded for entry of judgment for employee and a hearing on attorney fees pursuant to R.C. 4123.519. See Wickline v. Ohio Bell Tel. Co. (1983), 9 Ohio App. 3d 32. Judgment reversed and remanded. - 7 - It is ordered that appellant recover of appellee his costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J., AND HARPER, J., CONCUR. PRESIDING JUDGE ANN McMANAMON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .