COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70924 JOHN D. ROWE, SR., : : Plaintiff-Appellant : : JOURNAL ENTRY vs. : and : OPINION WASHINGTON CONSTRUCTION, ET AL., : : Defendants-Appellees : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 13, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Common Pleas Court : Case No. 298754 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: Bernard Redfield 950 Standard Building Cleveland, Ohio 44113 For defendants-appellees: Mary Ann O. Rini Assistant Attorney General 615 W. Superior Avenue 12th Floor State Office Tower Cleveland, Ohio 44113 -2- NAHRA, J.: Appellant, John D. Rowe, appeals the dismissal of his administrative appeal from a decision of the Ohio Industrial Commission. The court granted the Industrial Commission's motion to dismiss the case pursuant to Civ.R. 12(B)(1) in that the court did not have the subject matter jurisdiction to hear appellant's appeal. In 1995, appellant was awarded permanent and total disability compensation from January 20, 1994 upon a previously allowed claim for injuries sustained in 1985. Appellant claims his permanent and total disability should have started in 1990 rather than in 1994. He had applied for and was denied permanent and total disability benefits in 1991. Appellant's sole assignment of error reads: I. THE COURT OF COMMON PLEAS ERRED IN GRANTING APPELLEE'S MOTION TO DISMISS APPELLANT'S ADMINISTRATIVE APPEAL FROM THE OHIO INDUSTRIAL COMMISSION IN THAT THE COURT RULED THAT APPELLANT'S APPEAL WAS ONE INVOLVING THE EXTENT OF DISABILITY PURSUANT TO SECTION 4123.512 OF THE OHIO REVISED CODE AND THEREFORE STRICTLY PROHIBITS THE COURT'S AUTHORITY OF JUDICIAL REVIEW. The right to appeal a decision of the Industrial Commission is limited by R.C. 4123.512 (former R.C. 4123.519) which provides in part: (A) 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 or in which the contract of employment was made if the injury occurred outside the state, or in which the contract of -3- employment was made if the exposure occurred outside the state. *** (Emphasis added.) This section has been interpreted by the Ohio Supreme Court to mean that "[o]nly decisions reaching an employee's right to participate in the workers' compensation system because of a specific injury are appealable under R.C. 4123.519." Felty v. AT&T Technologies, Inc. (1992), 65 Ohio St.3d 234, 602 N.E.2d 1141, syllabus paragraph 1; see, Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175, syllabus paragraph 1. The Ohio Supreme Court has held that "the Industrial Commission's decision to grant or deny additional benefits under an existing claim does not determine the worker's right to participate in the State Insurance Fund, and is not subject to appeal pursuant to R.C. 4123.519." Evans v. Industrial Commission (1992), 64 Ohio St.3d 236, 594 N.E.2d 609, syllabus paragraph 2. Appellant argues that the court has jurisdiction to hear his appeal because he was denied the right to participate in the system prior to the date the Industrial Commission granted him benefits. In this case, appellant is participating in the workers' compensation system. He attempts to have the courts review the Industrial Commission's decision as to when he was eligible for further benefits under his previously allowed claim. The Industrial Commission's determination as to when appellant became eligible to receive permanent and total disability benefits is a decision which encompasses the extent of his disability as a -4- grant of additional benefits under an existing claim, not the right to participate in the system. Accordingly, the dismissal of the administrative appeal was proper. Judgment affirmed. -5- 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. PORTER, P.J., and SPELLACY, J., CONCUR. JOSEPH J. NAHRA 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 .