COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68563 JOHN KARLOWICZ, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION DIE-MATIC CORPORATION, ET AL., : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 12, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 265546 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Michael J. Duber BENTOFF & DUBER 230 Leader Building Cleveland, Ohio 44114 For defendant-appellant, David R. Cook Die-Matic Corporation: 714 Superior Building Cleveland, Ohio 44114 For defendant-appellees, Edward S. Jerse Wes Trimble, Administrator Assistant Attorney General Bureau of Workers' Compensa- 615 W. Superior Avenue tion and Industrial Commission State Office Building of Ohio: 12th Floor Cleveland, Ohio 44113-1899 Keith E. Blaha Terminal Tower 50 Public Square Suite 400 Cleveland, Ohio 44113 -3- NAHRA, J.: Appellant, Die-Matic Corporation, is appealing the trial court's grant of summary judgment in favor of appellee, John Karlowicz. For the following reasons, we affirm. Appellee was injured on a punch press on the premises of Die- Matic Corporation. Appellee's answers to appellant's interrogatories stated appellee stuck his hand in the press to clear scraps, and the press came down on his hand. A district hearing officer of the Industrial Commission of Ohio found that appellee was injured in the course of and arising out of employment. The hearing officer found the employer was The Reserves Network Temporary Service. He allowed the appellee's claim for amputation of the left middle and ring fingers, and partial amputation of the left little finger. The Regional Board of Review subsequently modified the hearing officer's order by finding that appellant, Die-Matic Corporation, was the employer, not The Reserves Network. The hearing officer's order was affirmed in all other respects. Appellant appealed the decision of the Regional Board to the Industrial Commission. The Industrial Commission denied the appeal. Appellant then appealed the Industrial Commission's decision in the Court of Common Pleas of Cuyahoga County, Ohio, pursuant to R.C. 4123.512. The trial court granted appellee's motion for summary judgment because there were no genuine issues of material fact which the trial court had subject matter jurisdiction to determine. -4- Appellant's first and second assignments of error are inter- related and will be discussed together. They state: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT, DIE-MATIC CORPORATION IN GRANTING THE MOTION OF PLAINTIFF-APPELLEE, JOHN KARLOWICZ, FOR SUMMARY JUDGMENT. II. THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT DIE-MATIC CORPORATION IN GRANTING THE MOTION OF PLAINTIFF-APPELLEE, JOHN KARLOWICZ FOR SUMMARY JUDGMENT WHEN THERE WAS A MATERIAL QUESTION OF FACT AS TO WHETHER JOHN KARLOWICZ HAD SUSTAINED AN INJURY IN THE COURSE OF AND ARISING OUT OF EMPLOYMENT. Summary judgment is appropriate upon a demonstration (1) that there is no genuine issue of material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, Civ.R. 56(C). Appellant contends there are genuine issues of material fact as to whether appellee was an employee, whether Die-Matic was appellee's employer and whether appellee sustained an injury in the course of and arising out of his employment. The trial court did not have subject matter jurisdiction over the issue of which entity was appellee's employer. When a party directly appeals a decision of the Industrial Commission, pursuant to R.C. 4123.512 (formerly R.C. 4123.519), the common pleas court only has jurisdiction over those decisions involving a claimant's -5- right to participate in the State Insurance Fund. Afrates v. Lorain (1992), 63 Ohio St.3d 22, Felty v. AT&T Technologies, Inc. (1992), 65 Ohio St.3d 234. The decision that one employer rather than another employer is the employer for worker's compensation purposes does not involve the claimant's right to participate in the fund. Finn v. Precision Cutoff (Feb. 24, 1995), Lucas App. No. L-94-165, Dunbar Mechanical, Inc. v. Bradford (Dec. 17, 1993), Lucas App. No. L-93-002, unreported, Moore v. National Castings (Sept. 3, 1993), Lucas App. No. L-92-331, unreported. The employee is still entitled to participate no matter which employer is assessed with the claim. Id. The trial court lacked subject matter jurisdiction on the issue of who was the employer, so this issue is not a genuine issue of material fact. Based on the evidence in this case, reasonable minds could only conclude that appellee was an employee. Appellee's answers to interrogatories indicate that he was acting in the service of another, and fit the definition of employee set out in R.C. 4123.01(A)(1)(b). The interrogatories stated that at the time of the injury, appellee was instructed or directed by employees of appellant or Reserve Network. Appellee was working on a machine owned by appellant. There is no evidence appellee had any control over the manner of means of performing the work. Reasonable minds could only conclude that appellee was an employee, not an independent contractor. See Bostic v. Connor (1988), 37 Ohio St.3d 144. -6- The answers to interrogatories show that the injury occurred when appellee was removing scrap from the press. Appellee was performing obligations of the employment contract, or at least was engaged in activity reasonably incidental to work. See Williams v. Martin Marietta Energy Sys., Inc. (1994), 99 Ohio App.3d 520, 526, see Kohlmayer v. Keller (1970), 24 Ohio St.2d 10. Thus, appellee acted in the course of his employment. Id. The injury had a causal connection to the employment and thus arose out of appellee's employment. See Fisher v. Mayfield (1990), 49 Ohio St.3d 275. Appellant submitted no evidence showing appellee was not acting in the course of his employment or that the injury did not arise from appellee's employment. Reasonable minds could only conclude that appellee was an employee and sustained injury in the course of and arising out of his employment. The trial court had no subject matter jurisdiction to determine which employer should be assessed with appellee's claim. There are no genuine issues of material fact and appellee was entitled to judgment as a matter of law. Accordingly, these assignments of error are overruled. The decision of the trial court is affirmed. -7- It is ordered that appellee recover of appellants 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. PATTON, C.J., and HARPER, J., CONCUR. JOSEPH J. NAHRA 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 journalization, at which time .