COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69970 MARIANNA WALCZAK, ET AL. : : Plaintiffs-Appellants : : JOURNAL ENTRY -vs- : AND : OPINION VAN DORN COMPANY, ET AL. : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION SEPTEMBER 26, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 286184 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiffs-Appellants: For Defendant-Appellee: BRIAN M. BARTKO, ESQ. ROBERT E. BLACKHAM, ESQ. White & Bartko Co., L.P.A. Roetzel & Andress 410 - S. Crittenden Building 75 East Market Street 1382 West Ninth Street Akron, Ohio 44308 Cleveland, Ohio 441113-1920 - 2 - JAMES M. PORTER, P.J., Plaintiff-appellant Marianna Walczak and the next of kin appeal from a summary judgment of the trial court entered in favor of defendant-appellee Van Dorn Company, a self-insured employer, denying plaintiffs' claim to death benefits under the Workers' Compensation Act. (R.C. 4123.59). Plaintiffs contended before the Industrial Commission that an allowed claim for an earlier back injury to the deceased employee ultimately led to surgery and an embolism which caused their husband's and father's death and sufficient evidence was presented to preclude summary judgment. We find no error and affirm for the reasons hereinafter stated. On September 3, 1987, decedent, Wesley Walczak, was injured on the job at Van Dorn lifting a box. He underwent surgery for a disc herniation at left L4-5. This resolved his problem and he returned to work at Van Dorn. His workers' compensation claim (No. 958578- 22) was recognized for that lumbar radiculopathy. Mr. Walczak continued to work with Van Dorn until December 3, 1990, when he was laid off with a disc herniation at right L3-4. On December 13, 1990, Mr. Walczak underwent surgery to correct that herniation and suffered a pulmonary embolism leading to his death. Plaintiffs subsequently filed a workers' compensation claim on Form C-2 for death benefits alleging the date of accident as September 3, 1987 and making reference to the previously allowed 1987 claim (No. 958578-22). The Bureau of Workers' Compensation did not assign a new claim number to the death benefits claim. - 3 - The District Hearing Officer denied the claim concluding "there is no proof on file to causally relate the death to the injury or occupational disease." The Staff Hearing Officer denied the appeal and affirmed. Appeal to the Industrial Commission was summarily denied. Plaintiffs appealed to the Common Pleas Court pursuant to R.C. 4123.512. Van Dorn claimed before the trial court that there was no evidence to establish the decedent's surgery in December 1990 was proximately caused or connected to the original accident of 1987 and filed a motion for summary judgment. In support of its motion, Van Dorn attached the affidavit of Timothy L. Gordon, M.D., a board-certified orthopedic specialist who examined decedent's medical records and file at the request of the Industrial Commission and the Bureau of Workers' Compensation. Dr. Gordon came to the conclusion that decedent's death was not caused by the 1987 industrial injury at Van Dorn. Plaintiffs filed an affidavit dated October 19, 1995 of the treating physician, Dr. Bhupinder S. Sawhny, a board certified neurologist which stated in pertinent part: * * * 2. On December 3, 1990 I was contacted by my patient Wesley Walczak who requested treatment of his lower back pain. 3. Mr. Wesley Walczak complained to me that he hurt his back at work as an Inspector Tester while moving something. 4. As a result of several tests, I recommended Mr. Walczak undergo a decompressive - 4 - laminectomy for a herniated disc. Surgery was performed on December 5, 1990 at Parma Community Hospital. 5. It is my professional opinion to a reasonable degree of medical certainty, Mr. Walczak's 1990 herniated disc was directly related to a traumatic injury due to a work accident. Over plaintiffs' opposition, the trial court granted Van Dorn's motion for summary judgment on November 16, 1995, stating as follows: Defendant Van Dorn Demag Co.'s motion for summary judgment is granted. Final. The affidavit of Dr. Sawhny indicating that "Mr. Walczak's 1990 herniated disc was directly related to a traumatic injury due to a work accident" is not sufficient to create a genuine issue of material fact as to whether Mr. Walczak's death was a direct and proximate result of his injury dated September 3, 1987. This timely appeal ensued. Plaintiffs' sole assignment of error states as follows: I. THE TRIAL COURT DEVIATED FROM THE LAW AND COMMITTED REVERSIBLE ERROR WHEN IT DENIED PLAINTIFFS-APPELLANTS' BASIC RIGHT TO A TRIAL BY GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. In the court below and on this appeal, plaintiffs have attempted to establish that the decedent sustained a new and distinct injury on December 3, 1990 and that the surgery of December 1990, leading to decedent's death, was a direct and proximate result of that injury. It appears, however, that this was never adjudicated by the Industrial Commission nor was there ever any evidence submitted before the Industrial Commission that - 5 - there was a work related injury in December 1990 which gave rise to the workers' compensation death claim. Furthermore, defendant, Van Dorn, contends that there was no competent evidence presented to the trial court that the surgery performed in December 1990 was necessitated by decedent's original industrial injury of September 3, 1987. The Application of Death Benefits (Form C-2) filed by plaintiffs alleged a date of accident of September 3, 1987 and listed Claim No. 958578-22 (the original claim) as giving rise to the claim of entitlement to death benefits under the Workers' Compensation Act. In the appeal filed by plaintiffs from the initial denial of this claim by the Industrial Commission, they listed Claim No. 958578-22 and a date of injury of September 3, 1987 as being the claim and injury date on which they were appealing. From our review of the record, we find no evidence presented to the Industrial Commission, or any other claim filed, that alleged that decedent's death was caused through surgery necessitated by a December 1990 work related injury. Under these circumstances, the only issue properly before the trial court was whether decedent's death was directly and proximately caused by his 1987 industrial injury. The jurisdiction of Common Pleas Courts over workers' compensation claims is limited to determining the right to participate in the fund and is invoked solely through an appeal under statutory authority. R.C. 4123.512; Felty v. A.T. & T. - 6 - Technologies, Inc. (1992), 65 Ohio St.3d 234, 237. In rejecting an attempt to obtain appellate review of a matter not adjudicated, the Ohio Supreme Court stated as follows in Rummel v. Flowers (1972), 28 Ohio St.2d 230, 236: We do not, however, accept, but specifically reject, appellee's theory that the order which by its terms passes only upon the question of extent of disability may be construed to embrace an unarticulated rejection of a disability for which no application for compensation has been filed. "The Industrial Commission, just as a court, speaks through its record." Simmons v. Industrial Comm. (1938), 134 Ohio St. 456, 13 O.O. 42. In Industrial Comm. v. Hogle (1923), 108 Ohio St. 363, it is provided in the second paragraph of the syllabus: "The Industrial Commission speaks by its record, and such final action, to be the basis of an appeal, must affirmatively appear upon the record of the proceedings of the commission." R.C. 4123.512 restricts the scope of the subject matter jurisdiction granted to Common Pleas Courts on appeal to those issues which were affirmatively recited by the Commission as having been heard and decided. An appellant may not "by-pass this administrative remedy and substitute judicial recognition of his alleged new disability." Rummel at 236. The Industrial Commission has a statutory obligation to set forth all issues decided before it within the four corners of every order. R.C. 4121.36. State ex rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481, 483. See, also, State ex rel. Fresh Mark, Inc. v. Mihm (1982), 65 Ohio St.3d 417, 420. In Miems v. - 7 - Lennox-Haldeman Co. (1964), 8 Ohio App.2d 226, this Court recognized that obligation and emphasized that: When a [party] appeals from an order of the Industrial Commission under Section 4123.519, Revised Code, it must be presupposed that the issue decided adversely to [that party] before the Industrial Commission is the only issue before the Court of Common Pleas. See, also, Brennan v. Young (1966), 6 Ohio App.2d. 175, 179; Brooks v. Brost Foundry (May 2, 1991), Cuyahoga App. No. 58065, unreported at 12; Vinkovic v. MacMillan Bloedel Containers (Dec. 15, 1983), Cuyahoga App. No. 46825, unreported at 9. The appellate process presumes that the matter appealed from was presented as a claim before the administrative agency and that the administrative process was exhausted before the appeal was instituted. As stated in Mull v. Jeep (1983), 13 Ohio App.3d 426, 428: This court has previously held that when an issue has not been raised and decided in the administrative process, the issue may not be raised for the first time on appeal to the court of common pleas. [Cites omitted.] To allow a claimant or employer to raise an issue for the first time in an appeal to the court of common pleas would frustrate the statutory system for having issues raised and decided through the administrative process. Id. See, also, Rummel at 236; McKenney v. Hillside Dairy Co. (Nov. 30, 1995), Cuyahoga App. No. 68392 at 7; Torres v. General Motors Corp. (Nov. 21, 1991), Cuyahoga App. No. 59122, unreported at 4; O'Bryant v. Indust. Comm. (June 30, 1993), Lucas App. No. L-92-103, unreported at 5. - 8 - In the instant case, the Commission's Orders reflect that the only issue heard and decided was whether or not decedent's surgery in December 1990 and subsequent death were related to his 1987 industrial injury claim. That being so, the trial court and this Court are limited to reviewing this sole issue. We find, based on the evidence presented, the trial court did not err in granting summary judgment for the defendant. An appeal from the Industrial Commission to the Court of Common Pleas, pursuant to R.C. 4123.512, is a de novo determination on issues of both law and fact. Zulgevic v. Midland Ross Corp. (1980), 62 Ohio St.2d 116, 118; Grant v. Ohio Dept. of Liquor Control (1993), 86 Ohio App.3d 76, 81; Lewis v. The Cleveland Clinic Foundation (Aug. 31, 1995), Cuyahoga App. No. 68056, unreported at 2. Therefore, no deference is given to the Industrial Commission's decision and the claimant is not limited to the evidence it presented to the Commission. Grant, supra at 81; Marcum v. Barry (1991), 76 Ohio App.3d 536, 539; Paschall v. Mayfield (July 3, 1991), Cuyahoga App. No. 58748, unreported. Under Civ. R. 56, summary judgment is proper when: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to the party against whom the motion for summary judgment is made. - 9 - State, ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511; Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327. It is well settled that the party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists for trial. Celotex Corp. v. Catrett (1987), 477 U.S. 317, 330; Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115. Doubts must be resolved in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358-59. In Dresher v. Burt (1996), 75 Ohio St.3d 280, the Supreme Court of Ohio modified the summary judgment standard as was applied under Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108. Presently, under the new standard, "*** the moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact or a material element of the nonmoving party's claim." Dresher at 296. The nonmoving party then has a reciprocal burden of specificity and cannot rest on mere allegations or denials in the pleadings. Dresher at 295-96. The nonmoving party must set forth "specific facts" by the means listed in Civ. R. 56(C) showing that a "triable issue of fact" exists. Mitseff v. Wheeler (1988), 38 Ohio St.3d 112, 115; Chaney v. Clark Cty. Agricultural Soc. (1993), 90 Ohio App.3d 421, 424. - 10 - This Court reviews the lower court's granting of summary judgment de novo. Brown v. Scioto Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711 ("We review the judgment independently and without deference to the trial court's determination"). An appellate court reviewing the grant of summary judgment must follow the standards set forth in Civ. R. 56(C). "The reviewing court evaluates the record *** in a light most favorable to the nonmoving party. *** [T]he motion must be overruled if reasonable minds could find for the party opposing the motion." Saunders v. McFaul (1990), 71 Ohio App.3d 46, 50; Link v. Leadworks Corp. (1992), 79 Ohio App.3d 735, 741. We find on a review of the record that the trial court properly granted summary judgment for the defendant Van Dorn. At the request of the Industrial Commission and during the administrative process, Dr. Timothy L. Gordon, a medical doctor, board-certified and specializing in orthopedics, examined decedent's medical records and workers' compensation file in an effort to make an assessment as to whether or not decedent's industrial injury of 1987 was the cause of his surgery and subsequent death in December 1990. Dr. Gordon specifically opined in his affidavit that: * * * 14. It is my professional opinion to a reasonable degree of medical certainty that Mr. Walczak underwent a left L4 hemilaminectomy and discectomy on October 28, 1987 for a herniated L4-5 disc that was compressing the left L5 root. It is my further opinion that his - 11 - symptoms related to this nerve root compression. The radiographic work-up after the 1987 event revealed no disc herniation at the L3-4 level. This is the level that surgery was subsequently performed on in December, 1990. 15. In fact, on December 3, 1990, Mr. Walczak underwent a decompressive laminectomy with L3 disc excision for low back pain radiating to the right lower extremity. This condition was unrelated to any work-related injury. * * * 21. It is my professional opinion based upon my training, experience and my review of all relevant medical records pertaining to this claim that the surgery performed for the herniated disc at L3-4 to the right was not related to the 1987 industrial injury involving a herniated L4-5 disc to the left. 22. The L3-4 disc herniation is a separate process and was unrelated to the L4-5 disc herniation which occurred as a result of the Claimant's 1987 work-related injury. 23. Therefore, it is my professional opinion, to a reasonable degree of medical certainty, that the surgery performed in 1990 was unrelated to the 1987 process and unrelated to any work- related injury of record which Mr. Walczak was involved in. The burden was on plaintiffs to come forward with evidence to contradict or rebut these conclusions. In order to establish a right to workers' compensation benefits for harm or death arising from an accidental injury, it is necessary for plaintiffs to show by a preponderance of the evidence that a direct and proximate causal relationship existed between a work-related injury and the harm or death. Randall v. Mihm (1992), 84 Ohio App.3d 402, 406; Bellia v. General Motors Corp. (Oct. 19, 1995), Cuyahoga App. No. - 12 - 68489, unreported at 5. The record reveals that plaintiffs failed to present such evidence. Plaintiffs could not simply rest on the allegations of their pleadings. Expert testimony was essential to support the causal relationship. Medical evidence is necessary to establish causation where the subsequent disability involves complex medical problems outside the knowledge of laymen or jurors. Boewe v. Ford Motor Co. (1992), 94 Ohio App.3d 270, 281. As stated in Stacey v. Carnegie-Illinois Steel Corp. (1951), 156 Ohio St. 205, 210: Under the decisions of this court, where an issue in a case involves a question of scientific inquiry which is not within the knowledge of lay witnesses or members of the jury, expert testimony is required to furnish the answers and, if the issue relates to causal connection between an injury and a subsequent physical condition which involves only a scientific inquiry, such causal connection must be established by the testimony of medical witnesses competent to testify on the subject and the proof in such case must establish a probability and not a mere possibility of such causal connection. See, also, Drakulich v. Industrial Commission (1940), 137 Ohio St. 82, paragraph two of syllabus; Aiken v. Industrial Commission (1944), 143 Ohio St. 113, syllabus. The trial court herein properly ruled under summary judgment standards that plaintiffs' evidence was insufficient to create a disputed issue of fact, and stated: The Affidavit of Dr. Sawhny indicating that Mr. Walczak's 1990 herniated disc was directly related to a traumatic injury due to a work accident is not sufficient to create a genuine issue of material fact as to whether Mr. - 13 - Walczak's death was a direct and proximate result of his injury dated September 3, 1987. We agree with this conclusion. Also, plaintiffs' expert report by Dr. Tucker fails to provide sufficient evidence that Mr. Walczak's death was the result of his injury on September 3, 1987. In fact, it was Dr. Tucker's opinion that "[i]t was this failure of diagnosis and the failure of treatment that is the causal and proximate cause of Mr. Walczak's death." Tucker did not mention any work-related injury as the cause of the death. Plaintiffs' sole assignment of error is overruled. Judgment affirmed. - 14 - It is ordered that appellee recover of appellants its 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 Court of Common Pleas 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. DYKE, J., CONCURS. KARPINSKI, J., CONCURS WITH SEPARATE OPINION. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69970 : MARIANNA WALCZAK, ET AL. : : : Plaintiffs-Appellants : : CONCURRING v. : : OPINION VAN DORN COMPANY, ET AL. : : : Defendant-Appellee : : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 26, 1996 KARPINSKI, J., CONCURRING: I concur in the majority opinion but write separately to clarify a point. Both sides presented evidence that Decedent's death is traceable to injuries of 1990. Yet the Industrial Commission order which was appealed to the common pleas court addresses solely a death benefit claim in BWC Claim No. 958578-22 arising from an injury in 1987, not a 1990 injury. Both the dependents' application for death benefits and the dependents' appeal to the Regional Board list the date of injury as - 2 - September 3, 1987. The brief attached in support of the latter, however, asserts a work-related injury occurring in 1990. The record does not indicate whether dependents ever filed a separate death claim for a 1990 injury. Under the circumstances, we do not address whether the notice requirement for a 1990 injury was ever met for dependents to file a new death claim with the Bureau and proceed under the alternative theory that decedent's death arose from a work-related incident in 1990, rather than 1987. The only question before the common pleas court was whether decedent's death can be attributed to the 1987 injury. Since there were no medical experts to testify that decedent's death is .