Perry v. Kilbarger Constr., Inc.
2012 Ohio 4354
Ohio Ct. App.2012Background
- Kilbarger Construction, Inc. appeals a Jan. 27, 2012 trial court order in a workers’ compensation case involving Perry and others from a Nov. 14, 2007 accident.
- Industrial Commission initially allowed Perry’s and co-workers’ claims for multiple injuries arising from the same accident.
- The trial court consolidated related cases for discovery and summary judgment disposition.
- The court granted Perry’s motion for summary judgment and denied Kilbarger’s, concluding the workers’ compensation claims were within the course and scope of employment.
- The trial court found Perry’s accident within the course and scope and arising out of employment but did not determine specific injuries; it reserved issues for later admissions and potential additional summary judgment filings.
- The appellate court later dismissed Kilbarger’s appeal for lack of a final, appealable order because Perry’s right to participate for specific injuries remained unresolved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court’s order is final and appealable | Perry’s right to participate for a specific injury is determined. | Kilbarger argues final order granted/denied summary judgment on all issues. | Court lacks jurisdiction; no final appealable order exists. |
| Whether Perry’s accident arose out of employment | Accident fell within course and scope and special hazards apply. | Disputed whether specific injury determinations have been resolved. | Resolved within course and scope; but right to participate pending; not final. |
Key Cases Cited
- Buckman v. Cubby Drilling, 81 Ohio St.3d 117 (Ohio 1998) (special hazard exception to coming-and-going rule applied to drilling workers)
- Evans v. Indus. Comm., 64 Ohio St.3d 236 (Ohio 1992) (finality requirement for right to participate in claim; Evans clarifies ‘claim’ concept)
- Felty v. AT&T Technologies, Inc., 65 Ohio St.3d 234 (Ohio 1992) (appealability of partial allowance/denial of multiple injuries arising from same accident)
- Zavatsky v. Stringer, 56 Ohio St.2d 386 (Ohio 1978) (denial of compensation on basis not due to compensable injury is appealable; jurisdictional ground)
- Carpenter v. Scanlon, 168 Ohio St. 139 (Ohio 1958) (rights to appeal denial of compensation may survive repeal of 4123.51; scope of appealability)