COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72629 KAREN HARPER : : JOURNAL ENTRY Plaintiff-appellant : : AND vs. : : OPINION ORLANDO BAKING COMPANY, ET AL.: : Defendant-appellees : : : DATE OF ANNOUNCEMENT : MAY 7, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Civil appeal from : Court of Common Pleas : Case No. CV-306197 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellees: ALAN I. GOODMAN, ESQ. TERENCE K. O'BRIEN, ESQ. 620 Terminal Tower DONALD G. DRINKO, ESQ. 50 Public Square Crosby, Belock & O'Brien Cleveland, OH 44113 55 Public Square, #1475 Cleveland, OH 44113 STEVE P. DLOTT, ESQ. Assistant Attorney General 1200 State Office Bldg. 615 West Superior Avenue Cleveland, OH 44113-1899 PATTON, J. Plaintiff-appellant, Karen Harper, appeals the trial court's order granting defendant-appellee, Orlando Bakery Company's motion -2- for summary judgment. This case arises from an appeal of a decision of the Industrial Commission ( IC ) which denied plain- tiff's claim for workers' compensation arising out of a 1993 injury. The IC determined plaintiff's 1993 claim was not a new injury, but rather stemmed from an earlier injury to the same body part in 1981. On December 3, 1981 plaintiff injured her back picking up bread boards while working for defendant. Her claim was later recognized for fracture tip of terminal phalanx of right index finger and lumbosacral spine. As a result, she received temporary total benefits, medical benefits, and periodic medical treatment. On April 23, 1993, plaintiff re-injured her back while working for defendant. On May 18, 1993 she went to see Dr. Juan Hernandez, who, after performing a magnetic resonance imaging (MRI) on plaintiff, determined she was suffering from bulging disc L4 and L5 with canal stenosis present from L3-L5. On June 9, 1993 plaintiff filed a C85A form to reactivate her 1981 claim to authorize treatment including ultrasound, moist heat, TENS, iontophoresis, and dry whirlpool to back and right hand, once per week for twelve weeks. On June 24, 1994 the Bureau denied plaintiff's application to reactivate the claim since the treatment concerned non-allowed conditions. On July 11, 1994 plaintiff appealed the Bureau's denial of her application to reactivate the claim. Approximately a month later, on August 31, 1994 plaintiff filed a new application for payment of compensation and medical -3- benefits alleging, for the first time, a separate injury on April 23, 1993. On this application, plaintiff alleged that she suffered a bulging disc in her lower back, and also a strain and sprain of her lower back. As with the reactivation claim, Dr. Hernandez was listed as plaintiff's medical provider. On January 20, 1995 plaintiff filed a C-68 motion with the Bureau listing both the 1981 claim and the 1993 claim and requested the following relief: 1. To have the two claims heard together; 2. On claim no. 81-3379, to have the claim amended to include the condition of bulging discs at L4-5 with canal stenosis from L3-L5 if not otherwise to be allowed under claim 93-43192; 3. Under claim no. 93-43192, to have the claim allowed for lumbosacral sprain and/or aggravation of preex- isting lumbosacral sprain with bulging disc at L4- L5 with canal stenosis from L3-L5; and 4. To pay appropriate temporary total disability on either 81-33779 and/or 93-43192. (Emphasis added). On May 3, 1995 the Bureau denied plaintiff's January 20, 1995 C-68 motion requesting additional allowances. On September 15, 1995 the District Hearing Officer ( DHO ) of the Industrial Commission considered plaintiff's appeal concerning her January 20th consolidation claim and determined plaintiff should receive additional allowances for the bulging discs at L4-L5 with canal stenosis from L3-L5 for the 1981 claim, as well as medical treatments for plaintiff's lower back from June 1, 1993 through the present under the same claim. Furthermore, the DHO granted temporary total disability compensation from July 30, 1993 through November 20, 1993 in the 1981 claim as well. The order also affirmed the denial of the claim from 1993 stating claim 93- -4- 43192 is disallowed as a new claim. The District Hearing Officer finds that claimant's current condition is a continuation of the December 3, 1981 injury. Plaintiff timely appealed this decision but a staff hearing officer affirmed the September 15, 1995 order denying her claim for a separate injury. Plaintiff's subsequent appeal to the IC was also denied. Plaintiff then filed a notice of appeal and complaint to the court of common pleas alleging the right to be allowed to participate in the workers' compensation fund under the 1993 claim. On September 4, 1996 defendant, the Bureau of Workers' Compensation, and the IC, filed a joint motion for summary judgment arguing the trial court lacked jurisdiction over the matter because plaintiff was already participating in the workers' compensation fund for the requested additional allowances of bulging disc at L4- L5 with canal stenosis at L3-L5. This motion was granted on May 20, 1997 and plaintiff timely appealed, submitting a single assignment of error. Plaintiff sole assignment of error states as follows: THE LOWER COURT ERRED IN GRANTING THE APPELLEE'S MOTION FOR SUMMARY JUDGMENT. Plaintiff argues the order denying her 1993 claim foreclosed her from participating in the workers' compensation fund. She maintains even the reoccurrence of an injury to the same body part does not preclude participation in the state fund as held in Stupi -5- v. Bureau of Workers Compensation, et al. (Oct. 15, 1992), Cuyahoga App. No. 61321. Defendant submits a dual argument in opposition to plaintiff's claims. First, defendant argues the basic issue is not the right to participate but the rate or level of compensation plaintiff will receive. This being true, defendant claims the rate or level of compensation is not an issue that is appealable. Second, defendant maintains plaintiff was given the exact participation she requested so she was not denied her right to participate. Appeals from the IC are properly brought pursuant to R.C. 4123.512, which states in pertinent part as follows: The claimant or the employer may appeal an order of the industrial commission made under division (E) of section 4123.511 [formerly division (B)(6) of section 4121.35] of the Revised Code in any injury or occupa- tional disease case, other than a decision as to the extent of disability, to the court of common pleas * * *. R.C. 4123.512(A). In Concord Foods, Inc. v. Ohio Bureau of Workers' Compensa- tion, (1996), 108 Ohio App.3d 675, 680, the court described the type of appeals permitted from an IC decision and stated: The Supreme Court previously granted similar wording in R.C. 4123.519 broad application to permit appeal of any decision except those concerning the extent of disability. Seabloom Roofing & Sheet Metal Co. v. Mayfield (1988), 35 Ohio St.3d 108, 110-111, 519 N.E.2d 358, 360-361, overruled by Afrates, supra; State ex rel. O.M. Scott & Sons Co. v. Indust. Comm. (1986), 28 Ohio St.3d 341, 343, 28 OBR 406, 408, 503 N.E.2d 1032, 1034, overruled by Afrates, supra. Of late, however, the court has narrowed the interpretation of this language to permit appeal of those ICO decisions that are final and that resolve an employee's right to participate or to continue to participate in the State Insurance Fund. Felty v. AT&T Technologies, Inc. (1992), 65 Ohio St.3d 234, 238, 602 N.E.2d 1141, 1145. Accord Afrates, 63 Ohio -6- St.3d 22, 584 N.E.2d 1175, at paragraph one of the syllabus. An appellate court's jurisdiction may not be invoked on direct appeal unless the ICO order finalizes the allowance or disallowance of the employee's claim. State ex rel. Evans v. Indus. Comm. (1992), 64 Ohio St.3d 236, 238, 594 N.E.2d 609, 611. Decisions subsequent to the disposition of the claimant's right to participation, save for the order terminating that right, are not appealable. Felty, 65 Ohio St.3d at 240, 602 N.E.2d at 1146. The Supreme Court in Evans specifically held a decision by the IC allowing or denying additional compensation for a previously allowed condition, when there is no new condition, goes to the extent of the injury and is therefore not appealable. Id., 65 Ohio St.3d at 239. Thus, construing the Court's opinions in Evans and Felty, it is clear that once the right to participate for a specific condition is determined by the IC, no subsequent rulings, except a ruling that terminates the right to participate, are appealable pursuant to R.C. 4123.519. Felty, at paragraph two of the syllabus. In the present case, plaintiff was injured in 1981 and again in 1993, both occurrences related to her lower back and took place while working for defendant. This is not disputed. After the injury in 1993, she filed a C85A form to have her 1981 claim reactivated. This request was denied. Next, she filed a motion with the Bureau requesting either the reactivation of her 1981 claim or the recognition of a new and separate claim for her injury in 1993. This request was also denied. On further appeal to the IC, her request for reactivation and amendment of the 1981 claim -7- including the new injuries was granted but recognition of the 1993 injury as a separate injury was denied. These facts reveal an interesting dilemma which is one of first impression for this court. In her January 20, 1995 motion, plaintiff requested both a reactivation of her prior 1981 claim and the recognition of her 1993 claim as a new or separate injury. The critical issue is whether the denial of the claim for a new or separate injury by the IC is appealable in light of the fact that the party is already receiving compensation for the injury as a result of a contemporaneously issued order which reactivated her prior claim. We believe such an order is not appealable. According to Felty the only IC decisions which are appealable are those which terminate the right to participate in the workers' compensation fund. Here, plaintiff's right to participate was not terminated. The IC order denied recognition of her 1993 injury as a new or separate injury but allowed her to participate in the fund for the exact same condition by allowing her to reactivate her earlier 1981 claim. Plaintiff was not denied the right to participate in the fund. Moreover, plaintiff initially only requested reactivation of her 1981 claim and it was only later that she asked for reactiva- tion of the 1981 claim or recognition of the 1993 injury as a separate claim. Plaintiff was granted the relief she requested. Therefore, the trial court was correct in granting summary judgment in favor of defendant and plaintiff's first assignment of error is overruled. -8- Judgment affirmed. -9- 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 direct ing 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. O'DONNELL, P.J. AND ROCCO, J., CONCUR. JUDGE JOHN T. PATTON 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 .