COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72292 JAMES R. ANTORINO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : HILLSIDE DAIRY, : : Defendant-Appellee : : -and- : : JAMES CONRAD, ADMINISTRATOR, : BUREAU OF WORKERS' COMPENSA- : TION AND THE INDUSTRIAL : COMMISSION OF OHIO, : : Defendants-Appellants : DATE OF ANNOUNCEMENT OF DECISION : MARCH 5, 1998 CHARACTER OF PROCEEDING: : Civil appeal from : Common Pleas Court : Case No. 248699 JUDGMENT : VACATED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: Jeffrey M. Decile JAMES C. AYERS LAW OFFICE 165 N. High Street Columbus, Ohio 43215 -2- For defendant-appellee, Aubrey B. Willacy Hillside Dairy Co.: WILLACY, LoPRESTI & MARCOVY 700 Western Reserve Building 1468 West Ninth Street Cleveland, Ohio 44113 For defendants-appellants, Q. Albert Corsi James Conrad, Administrator, Mark E. Mastrangelo Bureau of Workers' Compen- Assistant Attorney Generals sation and the Industrial 12th Floor, State Office Building Commission of Ohio: 615 West Superior Avenue Cleveland, Ohio 44113-1899 -3- NAHRA, J.: The Administrator of the Bureau of Workers' Compensation and Industrial Commission of Ohio, appellant, appeals a judgment in favor of appellee, Hillside Dairy Company. Appellee was granted judgment in an appeal of an award of benefits to its employee, James Antorino. Antorino was injured while employed by appellee in 1984 and a workers' compensation claim was allowed for injuries to his low back. In 1986, Antorino applied for further benefits under his 1984 claim. In 1993, the Industrial Commission found that the payment of temporary total disability benefits to Antorino for the period of July 24, 1986 to November 20, 1991 was proper. From this order, both Antorino and appellee filed an appeal to the Court of Common Pleas of Cuyahoga County. Antorino's appeal was dismissed and appellee's appeal continued. The Industrial Commission's order provided in pertinent part: The Hearing Officers find that there is no medical evidence in file [sic] to substantiate the employer's allegation that the claimant suffered intervening injuries in 1986 which were of such magnitude that they broke the chain of causation between the incident upon which this claim is predicated and the claimant's present disability. The Hearing Officers have read the transcripts in file containing claimant's testimony relative to separate incidents occurring sometime in 1986. However, the Hearing Officers conclude that the claimant's opinion that he has sustained a separate injury uncorroborated by medical proof is not evidence that the claimant sustained an intervening injury of such magnitude to break the chain of causation between his present disability and the injury in this claim. Appellant's first assignment of error reads: -4- I. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ACCEPTING APPELLANT'S APPEAL OF AN INDUSTRIAL COMMISSION ORDER AND DENYING THE CLAIMANT'S ORIGINAL ALLOWANCE WHERE NO SUBJECT MATTER JURISDICTION EXISTED TO APPEAL THE ORIGINAL ALLOWANCE. Appellant argues that the trial court did not have jurisdiction to hear appellee's appeal where it did not contest the award of benefits to Antorino in 1984 as the award of benefits from 1986 through 1991 was not an order from which appellee could appeal to the court of common pleas. In Felty v. AT&T Technologies, Inc. (1992), 65 Ohio St.3d 234, 602 N.E.2d 1141, the syllabus states: 1. Only decisions reaching an employee's right to participate in the workers' compensation system because of a specific injury or occupational disease are appealable under R.C. 4123.519. 2. Once the right of participation for a specific condition is determined by the Industrial Commission, no subsequent rulings, except a ruling that terminates the right to participate, are appealable pursuant to R.C. 4123.519. (Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175, followed.) R.C. 4123.512, formerly R.C. 4123.519, 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 employment was made if the exposure occurred outside the state. *** In this case the Industrial Commission found that there was no medical evidence to support appellee's claim that Antorino's condition in 1986 was a result of any cause other than the injury -5- allowed in 1984. Appellant argues the common pleas court did not have jurisdiction to hear an appeal because the Industrial Commission order appealed was a decision as to the extent of disability. In Felty, the court stated that appeals of Industrial Commission orders to a court of common pleas are to be allowed only where a decision finalizes an employee's claim , claim being defined as the employee's right to participate or continue to participate in the Workers' Compensation system. 65 Ohio St.3d at 239-40, 602 N.E.2d at 1145-46. The court further stated that: [R]equests by a litigant for additional activity in a case, for temporary suspension of a claim, or for one of the myriad interlocutory orders the commission may issue in administering a case are not claims. For example, a decision by the commission to allow or deny additional compensation for a previously allowed condition is not appealable because it goes to the extent of the injury - - there is no new claim. Id. (Emphasis added)(Citations omitted); see also, State ex rel. Bosch v. Indus. Comm. (1982), 1 Ohio St.3d 94, 438 N.E.2d 415, syllabus. The Industrial Commission determined that Antorino's injury in 1986 was not caused by a condition other than the 1984 injury. Accordingly, the common pleas court erred by exercising jurisdiction over appellee's appeal as no new claim existed. For these reasons, we vacate the trial court's orders and dismiss appellee's action. Appellant's second assignment of error is rendered moot by our resolution of the first assignment of error and will not be addressed. See, App.R. 12(A)(1(c). -6- This cause is vacated for proceedings consistent with this opinion. Costs to be divided equally between defendant-appellee, Hillside Dairy, and defendants-appellants, James Conrad, Administrator, Bureau of Workers' Compensation and the Industrial Commission of Ohio. 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. BLACKMON, A.J., and ________________________________ JOSEPH J. NAHRA ROCCO, J., CONCUR. 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 .