COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61321 : BENJAMIN STUPI : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : FORD MOTOR COMPANY, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT OCTOBER 15, 1992 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 199800 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: BENJAMIN SHEERER FRED J. POMPEANI 614 Superior West Assistant Attorney Gen. Suite 1242 State Office Tower 12th Fl Cleveland, Ohio 44113 615 W. Superior Avenue Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: This appeal originates from a decision by the Cuyahoga County Court of Common Pleas that it lacked subject matter jurisdiction over an administrative appeal from the Industrial Commission and raises the question: when is an Industrial Commission's order appealable to the Court of Common Pleas? The record of this case revealed that after Benjamin Stupi plaintiff-appellant, hereinafter Appellant filed his administrative appeal, Ford Motor Company defendant-appellee, hereinafter Appellee moved to dismiss the appeal. Appellee argued that the facts raised by Appellant were limited to the extent of his disability and not to his right to participate in the Workers' Compensation Fund. Appellant opposed the motion on the grounds that his second injury was not a recurrence of a previously allowed claim, but a new claim. The trial court granted Appellee's motion, and Appellant filed this appeal. Because we find that Appellant's administrative appeal to the Common Pleas Court raised the issue of his right to participate in the Workers' Compensation Fund, the trial court's granting of Appellee's motion is reversed and the cause remanded. The facts of this case are as follows: Appellant injured his neck for the first time on March 7, 1979, while he was on the job at Appellee's company. He filed a Workers' Compensation claim, which was allowed. Eight years later on February 7, 1987, Appellant, while on the job at Appellee's company, suffered a neck injury when he climbed a ladder, hit his head on a guardrail, and fell to the -3- ground. Appellant filed a Workers' Compensation claim, and the District Hearing Officer issued the following order: The District Hearing Officer finds claimant is alleging an injury of 2/13/87. [sic] The District Hearing Officer further finds that the 2/13/87 [sic] claimant did not suffer a new injury but rather a recurrence of the injury allowed in claim 674697-22 and orders claim 996267-22 be combined into claim 574597-22. Claimant's C-50 application is construed as a C-85-A and is allowed. It is important to note the record of this case lacks facts establishing whether Appellant was undergoing continuing treatment for the injury he sustained on March 7, 1979. In challenging the trial court's decision Appellant assigns the following error: THE COURT OF COMMON PLEAS ERRED IN FINDING THAT IT LACKED JURISDICTION OVER THE SUBJECT MATTER OF THE PLAINTIFF-APPELLANT'S APPEAL FROM THE ORDER OF THE INDUSTRIAL COMMISSION OF OHIO. The question before this court is whether Appellant may appeal the Industrial Commission's decision to the Court of Common Pleas, which held that the second work injury to the same body part was not a new injury, but rather a recurrence of the previously allowed injury claim and further held that the previous claim should be reactivated. Because we conclude that the Industrial Commission's decision is one other than on the extent of disability, Appellant may appeal the Industrial Commission's decision to the Court of Common Pleas. We base this -4- decision on the following holding of the Supreme Court in Gilbert v. Midland-Ross Corp. (1981), 67 Ohio St.2d 267: "A decision to reactivate a previously allowed claim now dormant, when there has been an intervening trauma, is, in effect, a decision going to claimant's right to participate in the fund for an injury or impairment not previously claimed or passed upon and is appealable." In this case, the February 7, 1987 accident had not been previously claimed or passed upon. Furthermore, the previously allowed claim was dormant, and the intervening trauma occurred eight years after the first accident. Therefore, the Commission's decision raised questions of causation rather than extent of disability, when the Commission concluded that the February 7, 1987 accident was not a new injury, but a recurrence of the March 7, 1979 accident. When a Commission's decision raises issues of causation, the Supreme Court has held that these decisions raise issues addressing the right to participate in the fund. State, ex rel. Anchor, Inc., v. Indus. Comm. (1988), 40 Ohio St.3d 50. In Gilbert, the Supreme Court held that to "interpret the Commission's orders as merely extending the period of disability *** ignores the fact that Appellant Gilbert was not disabled and not receiving any benefits at the time of second injury." Id. at 271. Likewise, as in this case, there was an intervening trauma resulting in a second injury, and Appellant filed a C-50 asserting a new claim. The District Hearing Officer converted the C-50 to C-85(A) and held that the second injury was not a new claim. The very nature of the Hearing Officer's -5- decision raised the issue: was the injury new or a recurrence of the original disability? Since the Hearing Officer's decision was that the injury was not a new claim, Appellant was denied the right to participate in a new disability benefit period. Appellee argues that Gilbert is inapposite because the claimant in Gilbert did not claim aggravation or increase severity of the injury. The Gilbert line of cases do not fall or stand on the issue of aggravation or of increase severity. In Gilbert the Supreme Court held that "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." Id. at 171. Nevertheless, Appellee argues if the case is merely aggrava- tion of an injury and no intervening trauma exists, the decision is one of extent of disability and not appealable. State ex rel. Roope v. Indus. Comm. (1982), 2 Ohio St.3d 97. In Roope there was no new injury resulting from an intervening trauma. In fact, the claimant had aggravated a job related injury while he was at home. Furthermore, in Roope, the claimant's doctor concluded that the injury was a recurrence of his previous condition. Interestingly, in Roope the employer sought to have the claim declared a new claim in order to avoid the mandamus, arguing that claimant Roope had an adequate remedy at law, the right to appeal to the Common Pleas Court. Finally, the Supreme Court distinguished its decision in Roope from Gilbert on the grounds -6- that there was no intervening trauma. Thus, we decline to apply Roope to the facts of this case because to do so would ignore the fact that Appellant was injured a second time while on the job eight years after the previous claim. We also note that in a separate concurrence, Judge Krupansky held that the employer in Roope had a right to appeal because the Commission's decision addressed the issue of causation. Finally, we are not persuaded that Gray v. Budd (1985), 27 Ohio App.3d 178 applies to this case, or that we differ in our reasoning from that of Gray. In Gray the court was controlled by the following dictates: "Whether the claimant has ever returned to work after the original injury and whether the second injury occurred at home." See p. 183. In the case before us, the second injury occurred on the job eight years after the original injury; therefore, when the Industrial Commission reactivated the original claim its decision passed on the question of causation and resulted in denial of right to participate in the Workers' Compensation Fund at the 1987 Commission rates, which is appealable. The fact that the same body part was the subject of the injury in this case and also in Gray is not controlling. The issue was what caused the injury. Accordingly, we hold that Gilbert applies to this case. Thus, a worker who returns to work for the same employer after having sustained a compensable injury, and then sustains a second injury may appeal the Commission's decision. -7- Judgment reversed and remanded. It is, therefore, considered that said Appellant recover of said Appellee his costs herein. It is ordered that a special mandate be sent to said 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. Exceptions. NAHRA, P.J., and SPELLACY, J., CONCUR. PATRICIA A. BLACKMON JUDGE 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 journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .