ORIGINAL JUL CLERK OF COURT SUPREME COURT 0F OHIO. Plaintiff-Appellee, CASE NO: 0. Defendant-Appellaiit.

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1 ORIGINAL IN THE OHIO SUPREME COURT DEBORAI-I LEITER -vs- Plaintiff-Appellee, CASE NO: PENTAIR PUMP GROUP, INC., et al. Defendant-Appellaiit. On Appeal from the Ashland County, Ohio Court of Appeals, Fifth Appellate District (Case No. 08-COA-032) MEMORANDUM IN SUPPORT OF JURISDICTION OF DEFENDANT-APPELLANT PENTAIR PUMP GROUP, INC. Amy S. Thomas ( ) (Counsel of Record) Paulette M. Ivan ( ) REMINGER CO. LPA 65 East State Street - 4th Floor Columbus, Ohio Telephone Facsimile athoinas@re.minger.com pivan(^a remin g er.cotn Attorneys for Defendant-Appellant Pentair Pump Group, Inc. Mark Adams ( ) Adams and Gast LLC 1110 Beecher Crossing North, Suite D Columbus, Ohio Attorneyfor Plaintiff-Appellee Deborah Leiter Stuart Saferin Assistant Attorney General Workers' Compensation Section 615 West Superior Street - 11`h Floor Cleveland, Ohio Attorney for Defendant Ohio Bureau of Workers' Compensation CD JUL CLERK OF COURT SUPREME COURT 0F OHIO

2 TABLE OF CONTENTS TABLE OF CONTENTS...2 EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST...3 STATEMENT OF THE CASE AND FACTS ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW...8 Proposition of Law No. I When the Industrial Commission decides that a claimant may not present a new claim for a specific injury because the claimant had been receiving benefits for that injury under a pre-existing workers' compensation claim (even if the Commission precluded the new claim on statute of limitations grounds), the claimant may not appeal that decision to the conunon pleas court under R.C because such a decision involves the extent of the ctaimant's disability and not the right to participate in the Ohio workers' compensation system. CONCLUSION...14 PROOF OF SERVICE

3 EXPLANATION OF WHY THIS CASE IS ONE OF PUBLIC OR GREAT GENERAL INTEREST This case presents a question of public and great general interest because it involves one of the most fundamental questions in Ohio workers' compensation law-whether a particular decision of the Ohio Industrial Commission constitutes a denial of the right to participate in the workers' compensation system, which the claimant may appeal to the common pleas court, or presents a decision on the extent of disability, requiring the claimant to pursue mandamus relief. Further, the issues involved impact numerous groups within Ohio-employers, employees, the Ohio Bureau of Workers' Compensation, the Ohio Industrial Commission, and the conunon pleas courts. Although past decisions of this Court have addressed the "right to participate" versus "extent of disability" question, this case presents this Court with an as-of-yet unresolved factual scenario. Specifically, this Court should accept jurisdiction in this case to determine whether a decision of the Industrial Commission fmding that a claimant may not pursue a new claim for a specific injury when the claimant had been receiving benefits for that injury under a pre-existing workers' compensation claim presents a right to participate question or an extent of disability question. This case also provides this Court the opportunity to consider the impact of an Industrial Commission decision precluding a claimant from pursuing a new claim for an injury for which she had been receiving benefits on statute of limitations grounds. This Court significantly addressed the right to participate versus extent of disability question nine years ago, in State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, Ohio-73. In Liposchak, this Court announced a narrow holding, seemingly limiting the application of R.C 's right to appeal to the common pleas court only to decisions deciding "whether the injury, disease, or death resulted from employment." Id. at 280 ("Thus, under our most recent precedent, any issue other than whether the injury, disease, or death 3

4 resulted from employment does not constitute a right-to-participate issue."). However, despite this Court's clear announcement in Liposchak limiting R.C appeals to the sole question regarding "whether the injury, disease, or death resulted from employment," Ohio's Courts of Appeals have decided that claimants may appeal other issues to the common pleas courts under R.C See, e.g., Ortiz v. G&S Metal Prods. Co., Cuyahoga App , 2009-Ohio-1781 at (holding that trial court had subject matter jurisdiction where Industrial Commission decision denied further treatment for claimant's left wrist sprain because the decision "effectively barred Ortiz from further participation in the fund for his claim"). Examination of lower Ohio appellate court decisions reflects a continued confusion regarding the general framework for determining whether a case presents a right to appeal issue under R.C or whether it presents an extent of disability case. This Court should accept this case to revisit the difficult question presented by the statutory jurisdictional limitation imposed by R.C While the Court of Appeals determined that the seemingly clear-cut statute of limitations issue resolved this case, an analysis of the facts of this case in light of this Court's past decisions confinns that this case is far from clear-cut. While the Court of Appeals summarily decided that the Industrial Commission's reliance on statute of limitations ground rendered this matter appealable, an examination of the actual facts confirms that this case really involved the extent of disability. Claimant and Pentair, a self-insuring employer, agreed that Pentair would compensate Plaintiff for an injury claimant alleged in 2004 in an earlier 2001 workers' compensation claimboth parties believed that the 2004 issue was merely a continuation of Plaintiffs prior 2001 claim. Pentair paid Plaintiffs medical bills and compensation for the injury at issue in 2004 under the 2001 claim. Eventually, Claimant decided that she could obtain greater compensation 4

5 if the Industrial Commission would allow her to pursue a sperate 2004 claim-she would receive compensation at the more favorable 2004 rates rather than the 2001 rates. However, Plaintiff attempted to pursue this new claim more than two years after the injury she claimed. Thus, the Industrial Commission determined that it lacked jurisdiction under R.C However, the Industrial Commission also expressly noted that Plaintiff had already received benefits for the injury under her 2001 claim. Thus, while the Industrial Commission may have relied on the statute of limitations to conclude that it lacked jurisdiction, the hidustrial also confirmed the fundamental jurisdictional question precluding an appeal under R.C that the injury "resulted from employment," a fact that was never disputed as Plaintiff had already received benefits. The mere reliance on statute of limitations grounds does not render this a right to participate case. This Court should accept jurisdiction to confirm that consideration under R.C will not place form over substance. Pentair urges this Court to accept discretionary jurisdiction to confirm that the right to participate appeal does not apply to a claim denied where the injured worker has already received benefits for the injury for which the injured worker sought to pursue a new claim-even if the denial hinged on statute of limitations. Ohio's employers, employees, hearing officers, and courts require further clarification of the right to participate versus extent of disability question. This Case presents this Court with a perfect opportunity to provide this much-needed clarification and amplification of this Court's prior holdings. For these reasons, Pentair urges this Court to accept jurisdiction in this case. STATEMENT OF FACTS AND THE CASE On January 22, 2001, Plaintiff Debra Leiter sustained an injury to her left shoulder in the course and scope of her employment with Defendant Pentair Pump Group, Inc. ("Pentair"). 5

6 (Kristy Nebergall Affidavit at 2). Plaintiff Leiter filed a First Report of Injury (FROI-1) with the Ohio Bureau of Worker's Compensation ("BWC"), which assigned her claim number (Id.). Her claim was recognized for the conditions of a sprained left shoulder/arm, bursitis of the left shoulder, left shoulder impingement syndrome. (Id. at 3). The self-insuring employer also certified the claim for superior labral anterior/posterior (SLAP) tear of the left shoulder. Plaintiff received medical treatment and disability benefits for this claim. (Id.). On November 18, 2004, Plaintiff completed another FROI-1, alleging that an incident took place two days prior, during the scope and in the course of her employment with Pentair. (Id. at 4, ex. B). Like Leiter's 2001 claim, her 2004 claim also related to her left shoulder. (Id. at 4). After receiving Plaintiff Leiter's 2004 FROI-1, Kristy Nebergall, Pentair's Human Resources Administrator, undertook an investigation of the claim. (Id. at 5). As part of her investigation, Ms. Nebergall contacted Plaintiff's physician of record, Dr. Gourley of Ashland AIMS to determine whether the 2004 incident represented a new injury to Plaintiffs left shoulder or a continuation of her prior injury under the 2001 claim. (Id.). During their November 16, 2004 discussion, Dr. Gourley advised Ms. Nebergall that he concluded that the injury was a continuation of Ms. Leiter's prior injury. (Id.). Shortly thereafter, on December 14, 2004, Dr. Gourley completed a C-9 Physician's Request for Medical Services form, seeking to "reactivate old claim # " for Ms. Leiter's November 2004 injury. (Id. at 6, ex. C). Pentair, as self-insuring employer, approved the C-9 on December 29, (Id.) On January 4, 2005, Ms. Nebergall met with Plaintiff Leiter to discuss her claim. (Nebergall Aff at 7). During the meeting, Ms. Nebergall and Plaintiff discussed Pentair's consideration of the 2004 claim as a re-activation of the 2001 claim. (Id.). Plaintiff Leiter voluntarily signed a statement confirming and memorializing the fact that she did not intend to

7 pursue a new claim and instead that the 2004 claim was a re-activation of her 2001 claim. (Id. at 8, ex. D). After this time, Plaintiff Leiter continued to receive treatment and benefits related to the November 2004 injury under the 2001 claim. (Id. at 9). This included a diagnostic arthroscopic procedure to her left shoulder on August 5, 2005, for which she was diagnosed with a SLAP lesion. (Id. at 12). On February 12, 2007, Plaintiff filed a motion under claim number to request additional claim allowances for a degenerative AC joint and SLAP lesion of the left shoulder. (Id. at 14). At the hearing held before the District Hearing Officer of the Industrial Commission on Apri19, 2007, Plaintiff s counsel dismissed the request for the SLAP lesion. (Id. at 15). However, on April 23, 2007, Plaintiff filed the FROI-1 form that she had completed on November 18, 2004, alleging she sustained the SLAP lesion as a new injury on November 16, (Id. at 16). The Industrial Conunission dismissed the application, holding that the statute of limitations contained in R.C barred her claim. Plaintiff filed a notice of appeal and complaint with the Ashland County Court of Common Pleas against Pentair and the Administrator of the Ohio Bureau of Workers' Compensation and pursuant to R.C on January 17, Both Pentair and the BWC filed answers to Plaintiff Leiter's complaint. On July 23, 2008, Plaintiff Leiter filed a Motion for Partial Summary Judgment. On July 28, 2008, Pentair filed a Motion for Summary Judgment. On August 26, 2008, Pentair filed a Memorandum in Opposition to Plaintiff's Motion for Partial Summary Judgment. On that same day, Plaintiff filed her Memorandum in Opposition to Pentair's Motion for Summary Judgment. On September 15, 2008, the trial court entered its Judgment Entry granting Pentair's Motion for Summary Judgment, finding that the Court lacked subject matter jurisdiction to adjudicate 7

8 Plaintiff Leiter's appeal of the Industrial Commission decision because it involved the extent of disability rather than the right to participate. Plaintiff Leiter filed a timely appeal to Ashland County Court of Appeals, Fifth Appellate District on September 29, Following briefing and oral argument, the Court of Appeals, on May 27, 2009, issued a decision and Judgment Entry reversing and remanding the decision of the trial court. Leiter v. Pentair Pump Group, Inc., Ashland App. 08-COA-35, 2009-Ohio-2528 (May 27, 2009). The Court of Appeals concluded that the trial court had jurisdiction to hear Plaintiff's appeal because the Industrial Commission's decision relied upon the two-year statute of limitations contained in R.C Id. at 32. The Court of Appeals determined that claimants must challenge hidustrial Commission decisions involving statute of limitations by way of appeal under R.C Id. Pentair now timely files this Notice of Appeal for Discretionary Jurisdiction with this Court and urges this Court to accept jurisdiction to address the important issues presented. ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW PROPOSITION OF LAW NO. 1: When the Industrial Commission decides that a claimant may not present a new claim for a specific injury because the claimant had been receiving benefits for that injury under a pre-existing workers' compensation claim (even if the Commission precluded the new claim on statute of limitations grounds), the claimant may not appeal that decision to the common pleas court under R.C because such a decision involves the extent of the claimant's disability and not the right to participate in the Ohio workers' compensation system. A common pleas court lacks jurisdiction under R.C to hear an appeal of a Bureau of Workers' Compensation decision determining that a claimant may not maintain a new claim for a specific injury where the claimant had been receiving benefits for that injury under a pre-existing workers' compensation claim even if the Industrial Commission based its decision on statute of limitations grounds. R.C only vests the Ohio common pleas courts with 8

9 jurisdiction to hear appeals involving a claimant's right to participate in the workers' compensation system. R.C provides in pertinent part that: "The claimant or the employer may appeal an order of the industrial commission made under division (E) of section of the Revised Code in any injury or occupational disease case, other than a decision to the extent of disability, to the court of common pleas of the county in which the injury was inflicted..." R.C (emphasis added). This Court's past decisions interpreting R.C confirm that an extraordinarily limited set of circumstances permit appeal to a court of common pleas. In State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 2000-Ohio-73, this Court reiterated the jurisdictional limits R.C imposes: "Under R.C , claimants and employers can appeal Industrial Commission orders to a common pleas court only when the order grants or denies the claimant's right to participate. Determinations as to the extent of a claimant's disability, on the other hand, are not appealable and must be challenged in mandamus." Id. at (citations omitted). Despite the straightforward rule, this Court has recognized that "distinguishing between appealable right-to-participate orders and nonappealable extent-of-disability orders, as we must do in this case, has never been easy." Id. at 279. Thus, courts must assess the circumstances of each case within the parameters of R.C to determine whether a particular decision constitutes an appealable right-to-participate order or a nonappealable extent-of-disability order. In Liposchak, this Court held that "[t]he only right-to-participate question that is appealable is whether an employee's injury, disease, or death occurred in the course of and arising out of his or her employment." Id. at 279. The Court explained the crux of appealability of these issues thusly: 9

10 When the answer to [the course and scope] question is "no," all compensation, expenses, and awards of every kind must be denied because the commission has no jurisdiction in such cases. When the answer is "yes," the claimant has cleared the first hurdle, and then may attempt to establish his or her extent of disability. It follows that these claimants may qualify based either on the extent of their own disability or the extent to which they were legally dependent on the injured employee. But either way, the issue is no longer whether the commission has jurisdiction to award benefits in the employee's case; the question instead becomes how much the system must pay. Id. at Despite this Court's clear holding in Liposchak, the Court of Appeals in this case determined that Plaintiff could maintain an appeal before the common pleas court because the Industrial Commission based its denial of the claim on statute of limitations grounds. However, it is uncontested in this case that Plaintiff's injury occurred during the course of her employment with Pentair. Pentair and the Industrial Connnission acknowledged her right to participate in the workers' compensation program by allowing the 2001 claim. (Nebergall Af at 2). Pentair has paid all of Plaintiff's qualifying medical treatment and compensation benefits since the November 2004 incident out of the 2001 claim. (Id). Neither side challenges the fact that Plaintiff had a right to participate in the workers' compensation system. Rather, Plaintiff pursued a new claim merely to increase the amount of compensation she received-she wished to increase her compensation awards from those based on 2001 rates, to the more economicallyappealing 2004 compensation rates. This fact is dispositive, as once a claimant's right to participate in the fund for a specific condition has been determined, "any further determination by the commission as to the computation of compensation payable reflects the extent of disability, and not the existence, and is not appealable pursuant to R.C. [ ]." Beeler v. R.C.A. Rubber Co. (Ohio App. 9 Dist. 1989), 63 Ohio App.3d 174, 177 (emphasis added). After agreeing to re-activate Plaintiff's 2001 claim to handle this issue that arose in 2004, which both Plaintiff and Pentair understood was a continuation of this 2001 claim, Plaintiff accepted benefits 10

11 paid on her behalf by Pentair. Apparently, she wanted more. However, a desire for more certainly involves the extent of disability-benefits rather than the right to participate. Nonetheless, the Court of Appeals determined that the trial court did have jurisdiction because the Industrial Commission's determination that R.C 's two-year statute of limitations precluded Plaintiff from pursuing a new claim presented an issue that Plaintiff must challenge by way of appeal. The Court of Appeals relied on two Tenth Appellate District cases, State ex rel. General Elec. Co. v. Indus. Comm., Franklin App. No. 06AP-648, 2007-Ohio-3293 and State ex rel. Ellwood Eng. Casting Co. v. Indus. Comm., Franklin App. No. O1AP-1065, 2002-Ohio-3335, and this Court's decision in State ex rel. Hinds v. Indus. Comm., 84 Ohio St.3d 424, 1999-Ohio-472. In State ex rel. Hinds, this Court detennined in a two paragraph opinion that "where the commission, as here, has ruled that further participation is barred by R.C 's statute of limitations, that decision must be challenged by way of appeal." Id. at 425. The two Tenth District Court of Appeals decisions likewise provide little analysis regarding the statute of limitations issue and R.C In State ex rel. Ellwood Eng., 2002-Ohio-3335, the Magistrate hearing the claimant's mandamus case noted that the claimant could appeal her dependent death claim to the common pleas court if the Industrial Commission ruled the statute of limitations barred her claim because that decision "denied the right to participate in the workers' compensation system." See id. at The Court in State ex rel. General Elec., 2007-Ohio-3293, provided even less analysis. This decision involved a challenge to the Industrial Commission's reactivation of a claim after a two-year delay. Id. at 23. The Court mentioned the appeal to the common pleas court issue only in support of its observation that the Relator made no jurisdictional argument. Id. at 24 ("Relator has not raised such a jurisdictional 11

12 argument here, nor does it appear that relator could have because it is a matter that a common pleas court would ordinarily resolve on direct appeal."). Thus, the Ohio courts have minimal precedent addressing the impact of the Industrial Commission's reliance on a statute of limitations and the jurisdictional question regarding an appeal to the common pleas court. In this case, the mere fact that the Industrial Commission decision relied on the statute of limitations did not render the decision appealable as a right to participate case; instead, the decision involved Plaintiff's extent of disability. In the Staff Hearing Officer Decision dismissing Plaintiffs FROI-1, the Staff Hearing Officer noted "a lack of jurisdiction to adjudicate the FROI-I application filed 4/23/2007 on its merits as the claim is found to be untimely." Claim , Order (mailed Nov. 21, 2007). However, the Staff Hearing Officer's Decision specifically recognized that Plaintiff had been receiving benefits in the 2001 claim throughout. The Decision confirmed the factual background: While the initial FROI-1 application in this claim was filed with the self-insured employer on or about November 2004, the Staff Hearing Officer finds that the injured worker withdrew this FROI-1 application on 1/04/2005. In a signed statement by the injured worker dated 1/04/2005, the injured worker indicated that she was not pursuing a new claim but rather wished to reactivate her 1/22/2001 claim. This letter was the equivalent of a voluntary dismissal of the initial FROI-1 application. The self-insured employer subsequently reactivated the 2001 claim and treatment and temporary total disability compensation has been paid in the 2001 claim. Id. (emphasis in original). Thus, while the SHO decision does rely on the statute of limitations to determine that Plaintiff could not pursue the 2004 FROI-1, the Decision further confirms that the real issue at hand is the extent of disability regarding Plaintiff's claim. The Staff Hearing Officer specifically noted the undisputed fact that Plaintiff and Pentair agreed to reactivate her 2001 claim and that Pentair paid and Plaintiff accepted benefits under that claim for the specific injury for 12

13 which Plaintiff sought to pursue a new claim. The Court of Appeals' analysis places form over substance in analyzing R.C Moreover, allowing Plaintiff to maintain a R.C appeal before the common pleas court ignores the reality of the claim situation. The simple fact is that, unlike the claimants in the cases where the commission denied benefits for untimely filing, Plaintiff has been receiving benefits all along. Pentair has paid all of claimant's medical bills and paid claimant compensation-however, it did so out of the 2001 claim. Plaintiffs desire to receive benefits out of the later (and more lucrative) 2004 claim presents a quintessential extent of disability case-rather than a right to participate case. In fact, commentary in Liposchak suggests that this case involves extent of disability rather than right to participate. Liposchak examined the question of right to appeal under R.C by reference to this Court's earlier decisions in State ex rel. Ross v. Indus. Comm. (1998), 82 Ohio St.3d 411, 696 N.E.2d 585 (" Ross I"), and State ex rel. Ross v. Indus. Comm. (1999), 84 Ohio St.3d 364, 703 N.E.2d 1276 (" Ross II "). This Court emphasized that Ross II further clarified the limitations on the right to participate appeal. As this Court noted, "Ross II went further, holding that when the commission finds merely that a particular type of employment caused an employee's injury, disease, or death, the employee's baseline right to participate has already been established and an order finding the wrong employer responsible is not appealable." Liposchak, 90 Ohio St. 3d at 280 (citing Ross II at ). Just as the determination that one employer must compensate an injured worker over other employers cannot be appealed into court, neither should the determination that a claimant must be compensated out of one claim versus another more recent claim be appealable. 13

14 CONCLUSION Pentair respectfully urges this Court to accept discretionary jurisdiction in this case. This case presents an issue of public and great general interest that will impact employers, employees, hearing officer, courts, and counsel throughout this State. Indeed, this case touches upon one of the most fundamental workers' compensation issues-whether a particular decision of the Industrial Commission presents a right to participate case or an extent of disability case. The Court of Appeals opted for form over substance in this matter when it determined that the Industrial Commission decision denying, on statute of limitations grounds, Plaintiff's new claim constituted a right to participate case. The actual facts of this case demonstrate that Plaintiff has already received benefits for the very injury for which she sought to certify a new claim- Plaintiff simply wanted more benefits. This is the quintessential extent of disability case. Accordingly, this Court should accept jurisdiction in this case to correct the Court of Appeals' erroneous application of law and clarify the current standard for right to participate versus extent of disability cases. Respectfully submitted, y S. Tomas ( ) Counspil' of Record) Paulette M. Ivan ( ) REMINGER CO. LPA 65 East State Street - 4th Floor Columbus, Ohio Telephone Facsimile athomas xeminser.com pivan@reminizer.com Attorneys for Defendant-Appellant Pentair Pump Group, Inc. 14

15 CERTIFICATE OF SERVICE The undersigned certifies that a true and accurate copy of the foregoing was served via U.S. Mail, postage pre-paid, on July 13, 2009 upon: Mark Adams Adams and Gast LLC 1110 Beecher Crossing North, Suite D Columbus, Ohio Attorneyfor Plaintiff-Appellant Deborah Leiter Stuart Saferin Assistant Attorney General Workers' Compensation Section 615 West Superior Street - 11th Floor Cleveland, Ohio Attorney for Defendant-Appellee B WC 15

16 DEBORAH LEITER Plaintiff-Appellant -vs- PENTAIR PUMP GROUP, INC. c, COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT 20USMA Y 27 P'r912: 49 JUDGES: Hon. John W. Wise, P.J. Hon. Julie A. Edwards, J. Hon. Patricia A. Delaney, J. Case No. 08-COA-032 Defendant-Appellee OPINION CHARACTER OF PROCEEDING: Appeal from the Ashland County Court of Common Pleas Case No. 08-CIV-027 JUDGMENT: REVERSED AND REMANDED DATE OF JUDGMENT ENTRY: APPEARANCES: For Plaintiff-Appellant: MARK A. ADAMS 261 W. Johnstown Rd. Columbus, OH For Defendant-Appellee: PAULETTE M. IVAN Capital Square Office Building 65 E. State St. - 4th Floor Columbus, OH STUART A. SAFERIN Workers Compensation Section 615 W. SuperiorAve. - 11lh Floor Cleveland, OH 44113

17 Ashland County, Case No. 08-COA Delaney, J. { 1} Plaintiff-Appellant, Deborah Leiter appeals the September 15, 2008 judgment entry of the Ashland County Court of Common Pleas granting summary judgment in favor of Defendant-Appellee, Pentair Pump Group, Inc. The facts giving rise to this appeal are as follows. { 2} On January 22, 2001, Appellant sustained an injury to her left shoulder in the course and scope of her employment with Appellee. Appellee is a self-insuring employer. Appellant filed a First Report of Injury, or FROI-1, with the Ohio Bureau of Workers Compensation ("BWC"), which assigned her claim number ("2001 claim"). The Industrial Commission recognized Appellant's claim for the conditions of a sprained left shoulderlarm, bursitis of the left shoulder and left shoulder impingement syndrome. { 3} On November 16, 2004, Appellant injured her left shoulder while lifting and handling a 45-pound impeller in the course and scope of her employment with Appellee. Appellant completed a FROI-1 and company accident report on November 18, 2004 and submitted them to Appellee. { 4} Appellant began medical treatment on her left shoulder, with the resulting medical bills paid by Appellee. On January 4, 2005, Appellee's Human Resources Administrator met with Appellant to discuss her 2004 claim. On that date, Appellant signed a statement that stated, "I am not pursing a new claim for the 11/16/04 date of injury but a re-activation of my 1/22/01 claim." The statement is signed and dated by Appellant.

18 Ashland County, Case No. 08-COA { 5} Appellant underwent a diagnostic arthroscopic procedure to her left shoulder on August 5, As a result of the surgery, the physician diagnosed Appellant with a superior labral anterior-posterior lesion, referred to as a SLAP lesion or tear. Appellee paid the medical bills for Appellant's surgery. { 6} On February 12, 2007, Appellant filed a motion with the Industrial Commission under her 2001 claim to request additional claim aliowances for a degenerative AC joint and SLAP lesion of the left shoulder. At the hearing before the District Hearing Officer of the Industrial Commission on April 9, 2007, Appellant dismissed the request for the SLAP lesion. {17} On April 23, 2007, Appellant filed a FROI-1 with the BWC, alleging she sustained the SLAP lesion as a new injury on November 16, The matter came on for hearing before the District Hearing Officer on September 17, In its record of proceedings mailed on September 19, 2007, the District Hearing Officer dismissed Appellant's FROI-1 filed on April 23, 2007 because he found the claim was time barred by the two-year statute of limitations pursuant to R.C Under this statute, the District Hearing Officer stated the Industrial Commission did not have jurisdiction to adjudicate the claim. { 8} The matter was then heard before a Staff Hearing Officer of the Industrial Commission. The Staff Hearing Officer affirmed the decision of the District Hearing Officer, finding a lack of jurisdiction to adjudicate the April 23, 2007 FROI-1 application on its merits as the claim was untimely filed under the dictates of R.C {19} Appellant then brought an R.C appeal of the Industrial Commission's ruling in the Ashland County Court of Common Pleas. On July 23, 2008,

19 Ashland County, Case No. 08-COA Appellant filed a motion for partial summary judgment, arguing she was entitled to judgment as a matter of law on the issue of whether Appellant's April 23, 2007 FROI-1 was timely filed under R.C Appellee filed an opposition to Appellant's partial motion for summary judgment and its own motion for summary judgment, arguing the trial court did not have subject matter jurisdiction over the appeal because it involved a question about Appellant's extent of disability, not right to participate in the workers' compensation program. In the alternative, Appellee argued that Appellant's April 23, 2007 FROI-1 application was barred by the two-year statute of limitations found in R.C {$10} On September 15, 2008, the trial court granted summary judgment in favor of Appellee on its motion for summary judgment and dismissed Appellant's complaint. The trial court found that it lacked subject matter jurisdiction to adjudicate Appellant's appeal of the Industrial Commission's decision because it involved the extent of disability rather than the right to participate. The trial court did not address any other issues raised in Appellant's motion for partial summary judgment or Appellee's motion for summary judgment. { 11} It is from this decision Appellant now appeals. Appellant raises two Assignments of Error: { 12} "I. IN THIS WORKERS' COMPENSATION ACTION, THE TRIAL COURT ERRED IN GRANTING THE DEFENDANT-APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHERE THE CONCLUSION THAT THE COURT DID NOT HAVE THE JURISDICTION TO HEAR THIS CASE, DESPITE THE INDUSTRIAL COMMISSION'S DENIAL OF THE CLAIM IN ITS ENTIRETY ON A STATUTE OF LIMITATIONS

20 Ashland County, Case No. 08-COA ARGUMENT, DID NOT, IN FACT, CONSTITUTE A DENIAL OF THE RIGHT TO PARTICIPATE IN THE OHIO WORKERS' COMPENSATION SYSTEM DESPITE SPECIFIC EVIDENCE OF A NEW INJURY THAT OCCURRED IN THE COURSE AND SCOPE OF PLAINTIFF-APPELLANT'S EMPLOYMENT WITH DEFENDANT- APPELLEE. (APPENDIX 1, ORDER GRANTING SUMMARY JUDGMENT) {113} "II. IN THIS WORKERS' COMPENSATION ACTION, THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF-APPELLANT'S MOTION FOR SUMMARY JUDGMENT BECAUSE, AS A MATTER OF LAW, THE EVIDENCE ESTABLISHED THAT DEFENDANT-APPELLEE, A SELF INSURED EMPLOYER UNDER THE WORKERS' COMPENSATION SYSTEM, HAD TIMELY NOTICE OF PLAINTIFF- APPELLANT'S ACCIDENT, AND THE BODY PART THAT SHE INJURED IN THE ACCIDENT." 1. { 14} Appellant argues in her first Assignment of Error the trial court erred in granting summary judgment in favor of Appellee and dismissing Appellant's complaint for lack of subject mafter jurisdiction over Appellant's R.C appeal. We agree. { 15} This appeal comes to this Court pursuant to Civ.R. 56. Summary judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211: {116} "Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (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

21 Ashland County, Case No, 08-COA appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, lnc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274." {117} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, tnc. (1987), 30 Ohio St.3d 35. { 18} "Under R.C , claimants and employers can appeal Industrial Commission orders to a common pleas court only when the order grants or denies a claimant's right to participate. Determinations as to the extent of a claimant's disability, on the other hand, are not appealable and must be challenged in mandamus." State ex rel. Liposchak v. lndus. Comm., 90 Ohio St.3d 276, , 2000-Ohio-73, 737 N.E.2d 519. {119} The trial court interpreted Appellant's appeal of the Industrial Commission decision to dismiss Appellant's April 23, 2007 FROI-1 application as an "extent-ofdisability" question, rather than a "rig ht-to-pa rtici pate" question. Differentiating between an appealable right-to-participate order and a nonappealable extent-of-disability order is difficult, but the Ohio Supreme Court attempted to clarify the determination in Liposchak, supra:

22 Ashland County, Case No. 08-COA { 20} "The only right-to-participate question that is appealable is whether an employee's injury, disease, or death occurred in the course of and arising out of his or her employment. (Citations omitted). When the answer to this question is 'no,' all compensation, expenses, and awards of every kind must be denied because the commission has no jurisdiction in such cases. Lewis v. Trimble (1997), 79 Ohio St.3d 231, 244, 680 N.E.2d 1207, 1217, citing 3 Larson, Workmen's Compensation Law (1996) to , Section When the answer is 'yes,' the claimant has cleared the first hurdle, and then may attempt to establish his or her extent of disability. It follows that these claimants may qualify based either on the extent of their own disability or the extent to which they were legally dependent on the injured employee. But either way, the issue is no longer whether the commission has jurisdiction to award benefits in the employee's case; the question instead becomes how much the system must pay. Zavatsky, 56 Ohio St.2d at 396, 10 0.O.3d at 509, 384 N.E.2d at 699." { 21} Appellee argued in its motion for summary judgment, and the trial court agreed, that there was no question of fact that Appellant was injured in the course and scope of employment. Appellee agreed with Appellant that she should be permitted to participate in the workers' compensation system for the injuries she incurred because of the November 16, 2004 accident. In fact, Appellee does not dispute Appellant's participation for the SLAP lesion discovered in 2005 and she is currently receiving benefits for that injury under the 2001 claim. A review of the trial court's judgment entry demonstrates that because the parties agreed on Appellant's right-to-participate, therefore the question must pertain to Appellant's extent-of-disability. Moreover, as has

23 Ashland County, Case No. 08-COA been previously stated, a trial court does not have jurisdiction over an extent-ofdisability order. { 22} A review of the Industrial Commission's order, however, shows that while Appellee may have agreed to Appellant's right to participate for her November 16, 2004 injury and resulting SLAP lesion, the Industrial Commission determined otherwise. The District Hearing Officer and Staff Hearing Officer stated in their orders that Appellants April 23, 2007 FROI-1 application was dismissed for lack of jurisdiction because it was untimely filed. The Staff Hearing Officer's order specifically states, "[t]he injured worker's re-filing of the FROI-1 application on 4/23/2007 is barred by the two-year statute of limitations under ORC " {1123} R.C (A) states in pertinent part, {1124} "In all cases of injury or death, claims for compensation or benefits for the specific part or parts of the body injured shall be forever barred unless, within two years after the injury or death: { 25} "(1) Written or facsimile notice of the specific part or parts of the body claimed to have been injured has been made to the industrial commission or the bureau of workers' compensation; {726} "(2) The employer, with knowledge of a claimed compensable injury or occupational disease, has paid wages in lieu of compensation for total disability; { 27} "(3) In the event the employer is a self-insuring employer, one of the following has occurred: { 28} "(a) Written or facsimile notice of the specific part or parts of the body claimed to have been injured has been given to the commission or bureau or the

24 Ashland County, Case No. 08-COA employer has fumished treatment by a licensed physician in the employ of an employer, provided, however, that the furnishing of such treatment shall not constitute a recognition of a claim as compensable, but shall do no more than satisfy the requirements of this section; { 29} "(b) Compensation or benefits have been paid or furnished equal to or greater than is provided for in sections , to , and to of the Revised Code. { 31} It was the Industrial Commission's decision that Appellant did not have the right-to-participate for her 2004 claim pursuant to R.C It is from this order Appellant filed her R.C appeal with the court of common pleas. { 32} The issue before the trial court then is whether Appellant's April 23, 2007 FROI-1 application was barred by two-year statute of limitations under R.C It has been determined that the issue of whether the statute of limitations under R.C bars participation in the workers' compensation fund is one that can be resolved upon appeal to the common pleas court. State ex ret. General Electric Co. v. Indus. Comm., Franklin App. No. 06AP-648, 2007-Ohio-3293, at 24; State ex rel. Ellwood Eng. Casting Co. v. Indus. Comm., Franklin App. No. 01AP-1065, 2002-Ohio- 3335, at 62. The Ohio Supreme Court has also held that where the Industrial Commission rules that further participation in the workers' compensation fund is barred by R.C 's ten-year statute of limitations, that decision must be challenged by way of appeal. State ex rel. Hinds v. Indus. Comm., 84 Ohio St.3d 424, 425, Ohio-472, 704 N.E.2d 1222.

25 Ashland County, Case No. 08-COA { 33} Upon our de novo review of the record, we find the trial court does have jurisdiction to consider Appellant's appeal of the Industrial Commission's determination that Appellant's April 23, 2007 FROI-1 was untimely filed and barred by R.C Appellant's first Assignment of Error is therefore sustained. { 34} As the trial court dismissed Appellant's appeal upon the lack of subject matter jurisdiction, the trial court did not reach the merits of Appellant's or Appellee's arguments under their respective motions for summary judgments. As stated above, Appellee stated in its motion for summary judgment that if the trial court found that it did have subject matter jurisdiction to consider Appellant's appeal, Appellee then alternatively argued that Appellant's claim was barred by the two-year statute of limitations. Likewise, Appellant argued in her motion for partial summary judgment that her April 23, 2007 FROI-1 application was not barred by the statute of limitations. Specifically, R.C contains tolling provisions to the statute of limitations requirements for a self-insuring employer under R.C {135} Appellant raises these arguments in her second Assignment of Error, but we decline to consider these arguments for the first time on appeal. In Young v. University of Akron, 10th App. No. 06AP-1022, 2007-Ohio-4663, the Tenth District Court of Appeals stated, "Generally, appellate courts do not address issues which the trial court declined to consider." Id. at 22, citing Lakota Loc. School Dist. Bd. of Edn. v. Brickner (1996), 108 Ohio App.3d 637, 643, 671 N.E.2d 578, citing Bowen v. Kil-Kare, Inc. (1992), 63 Ohio St.3d 84, 89, 585 N.E.2d 384. See also, Warner v. Uptown- Downtown Bar (Dec. 20, 1996), Wood App. No. WD (appellate court declined to review argument made in summary judgment motion but not addressed by trial court's

26 Ashland County, Case No. 08-COA decision); Manda v. Stratton (Apr. 30, 1999), Trumbull App. No. 98-T-0018 (noting that it would be premature for appellate court to address claims of common law negligence that were not addressed by trial court, where trial court resolved summary judgment only on strict liability claims); Strafford Chase Apts. v. Columbus (2000), 137 Ohio App.3d 29, 33, 738 N.E.2d 20 (appellate court's independent review of summary judgment decision should not replace trial court's function of initially determining propriety of summary judgment). { 36} We therefore remand this mafter for the trial court to consider these arguments. Appellants' second Assignment of Error is overruled at this time. { 37} Accordingly, the judgment of the Ashland County Common Pleas Court is reversed and the matter is remanded for further proceedings consistent with this opinion. By: Delaney, J. Wise, P.J. and Edwards, J. concur. HON. PATRI^IA AJ ^ LANEY / HON. JOHN W. i_ z L vfn/`^ h^/ bn. JULIE A. EDWARDS PAD:kgb

27 IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO i FIFTH APPELLATE DISTRICT 2afly 01m 21 F^ DEBORAH LEITER Plaintiff-Appellant -vs- : JUDGMENT ENTRY PENTAIR PUMP GROUP, INC. Defendant-Appellee Case No. 08-COA-032 For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Ashland County Court of Common Pleas is reversed and remanded for further proceedings consistent with this opinion and judgment entry. Costs assessed to Appellee. J m # sa_-_az--