COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69825 : DELORES EVANS : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION : VISITING NURSE ASSOCIATION, ET AL. : : Defendants-Appellees : : DATE OF ANNOUNCEMENT AUGUST 8, 1996 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 292843 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellant: MARGARET A. WEGENER, ESQ. PAUL J. CRISTALLO, ESQ. Berger & Kirchschenbaum Company 1919 E. 13th Street Cleveland, Ohio 44114 For Defendants-Appellees MICHAEL N. CHESNEY, ESQ. Visiting Nurse Association: COLLEEN P. BATTLE, ESQ. Thompson, Hine & Flory 3900 Society Center 127 Public Square Cleveland, Ohio 44114-1216 For Ohio Bureau of Workers' ALBERT Q. CORSI, ESQ. Compensation: Assistant Attorney General 12th Floor State Office Building 615 West Superior Avenue -2- Cleveland, Ohio 44113-1899 -3- PATRICIA ANN BLACKMON, P. J: Appellant, Delores Evans, appeals the dismissal of her administrative appeal in favor of appellees, Visiting Nurse Association, Barbara Knapic, Administrator of the Bureau of Workers' Compensation, and the Industrial Commission of Ohio. Evans assigns the following error for our review: THE TRIAL COURT ERRED IN GRANTING DEFENDANT- APPELLEE'S MOTION TO DISMISS WHEN OHIO LAW DOES NOT REQUIRE A CLAIMANT TO PURSUE FUTILE ADMINISTRATIVE REMEDIES. Having reviewed the record of the proceedings and the legal arguments presented by the parties, we affirm the decision of the Common Pleas Court. The apposite facts follow. Delores Evans filed a claim for Workers' Compensation benefits with the Industrial Commission of Ohio. A hearing was held before a District Hearing Officer. The officer found the Evan's injury did not arise out of the course of her injury and disallowed the claim. On appeal, the Staff Hearing Officer affirmed the District Officer's ruling. Evans directly appealed the decision of the Staff Hearing Officer to the Cuyahoga County Court of Common Pleas. Visiting Nurse Association moved to dismiss the appeal on the grounds that Evans failed to exhaust her administrative remedies because she failed to file an appeal with the Industrial Commission of Ohio before filing directly with the Court of Common Pleas. The motion was granted and this appeal followed. -4- In her sole assignment of error, Evans argues the common pleas court erred in dismissing her appeal because she failed to first appeal to the Industrial Commission of Ohio. Evans reasons an appeal to the Commission would have been futile and litigants need not exhaust administrative remedies if such an act would be futile. Therefore, the sole issue before this court is whether, as a matter of law, failure to appeal a decision of a Staff Hearing Officer to the industrial commission is a jurisdictional bar to an appeal to the Court of Common Pleas. Thus, this court's standard of review is de novo. R.C. Chapter 4123.511 and 4123.512 set forth the appeal process for Workers' Compensation claims. R.C. 4123.511(E) provides: "Upon the filing of a timely appeal of the order of the staff hearing officer issued under division (D) of this section, the commission shall determine whether to hear the appeal. ***If the commission determines not to hear the appeal, within fourteen days after the filing of the notice of appeal, the commission shall issue an order to that effect and notify the parties and their respective representatives in writing of that order.***" R.C. 4123.512(A) provides: "The claimant or the employer may appeal an order of the Industrial Commission made under division (E) of section 4123.511 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***." -5- Under the unequivocal language of R.C. 4123.511 and 4123.512, a party must appeal an adverse decision of a Staff Hearing Officer to the Industrial Commission, before it can seek review in the Common Pleas Court. Where a party fails to appeal the decision of a staff hearing officer to the Industrial Commission first, an appeal to the Common Pleas Court is properly dismissed. Arbar Corporation v. Wellmeier (Sept. 20, 1995), Hamilton App. No. 94- CA-99, unreported; Bentle v. Worthington Custom Plastics (Dec. 27, 1994), Warren App. No. CA94-08-069, unreported; Thomas v. Sloboda (Nov. 6, 1995), Crawford App. No. 3-94-31, unreported. Thus, the failure to exhaust administrative remedies is a jurisdictional defect which deprives a Common Pleas Court of jurisdiction to hear an administrative appeal in a workers' compensation case. Arbar, supra. See, also, Nemazee v. Mt. Sinai Medical Ctr. (1990), 56 Ohio St.3d 109, 111. Although Evans failed to exhaust her administrative remedies, she argues such an appeal was not a jurisdictional bar because it would have been futile. In support of this proposition, she relies on State, ex rel. Cotterman v. St. Marys Foundry (1989), 46 Ohio St.3d 42. In St. Marys Foundry, the Supreme Court of Ohio held a person need not exhaust his administrative remedies before filing a writ of mandamus if such an act would be futile. Id. at 44. While the holding in St. Marys Foundry clearly applies to mandamus actions involving workers' compensation matters, it does not extend to the administrative appeal process. -6- The jurisdiction of the Court of Common Pleas to hear administrative appeals in workers' compensation cases is statutory in origin. LTV Steel Co. v. Gibbs (Feb. 1, 1996), Cuyahoga App. No. 69068, unreported. "Courts of Common Pleas do not have inherent jurisdiction in workmen's compensation cases but only such jurisdiction as is conferred on them under the provisions of the Workmen's Compensation Act." Breidenbach v. Mayfield (1988), 37 Ohio St.3d 138 at 140, quoting Jenkins v. Keller (1966), 6 Ohio St.2d 122 at paragraph four of the syllabus. Under the statutory scheme set forth in R.C. 4123.511 and 4123.512, the appellate jurisdiction of the Court of Common Pleas is limited to appeals from orders of the Industrial Commission. Evans also relies upon Resolution No. R94-1-6 of the Industrial Commission of Ohio. In pertinent part, it provides: THEREFORE BE IT RESOLVED that the Industrial Commission will permit appeals to be heard from orders of Staff Hearing Officers issued under Division (D) of Section 4123.511 of the Ohio Revised Code where: (1) The Commission determines the appeal presents issues for which the Commission desires to set policy or precedent or presents an unusual legal, medical, or factual question that the Commission members desire to hear. (2) There exists newly discovered evidence which by due diligence could not have been discovered and filed by the appellant prior to the date of the hearing held under Division (D) of Section 4123.511 of the Ohio Revised Code.*** (3) There is the possible existence of fraud in the claim. BE IT FURTHER RESOLVED that if the Industrial Commission determines not to hear the appeal within fourteen days after filing notice of appeal, the Commission shall issue an order to that effect and provide written notification to the parties and their respective representatives. -7- Although the aforementioned resolution merely sets forth Industrial Commission policy and is not in any way binding upon this court, it is consistent with R.C. 4123.511. In both the Resolution No. R94-1-6 and R.C. 4123.511, the determination of whether the Industrial Commission will hear an appeal from the order of a Staff Hearing Officer is not a decision for either of the parties, but is a decision to be made by the Industrial Commission. Simply put, whether an appeal from the order of a Staff Hearing Officer to the Industrial Commission is futile is a decision to be made by the Industrial Commission exclusively. In this case, Evans failed to appeal the order of the Staff Hearing Officer to the Industrial Commission. Therefore, the Court of Common Pleas lacked jurisdiction to review the order of the Staff Hearing Officer. Unless and until the Industrial Commission reviews the order of a Staff Hearing Officer or declines to review such an order, the Court of Common Pleas lacks jurisdiction to review the order on appeal. See R.C. 4123.511 and 4123.512. Accordingly, Evans' appeal to the Court of Common Pleas was properly dismissed for lack of jurisdiction. Judgment affirmed. -8- It is ordered that Appellees recover of Appellant their 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. Exceptions. NAHRA, J., and O'DONNELL, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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- .