{¶ 3} Thereafter, his wife, Karen Battin, learned that the accident caused her husband to suffer blindness in one eye. She then submitted a claim for workers' compensation due to this blindness on behalf of herself and her son, Reed Battin. Their claims were allowed after two appeals to this court by way of a visiting panel of judges. Battin v. Trumbull Cty., 11th Dist. No. 2002-T-0047,
{¶ 4} Then, on November 6, 2002, the Bureau of Workers' Compensation issued an order finding that Karen and her son had each been overpaid almost $30,000 because the 1985 maximum rate of $177 per week should have been used to calculate benefits rather than the 2000 rate. A District Hearing Officer and then a Staff Hearing Officer agreed that the 1985 rate should have been utilized. The Battins appealed to the Industrial Commission arguing that they should use the 1996 rate, which represents the dаte of death and discovery of lost vision, or in the alternative, the 1989 rate, which was claimed to be the year of the lost vision. On June 17, 2003, the Industrial Commission refused to hear the appeal.
{¶ 5} The Battins then filed an appeal and an accompanying comрlaint in the Trumbull County Common Pleas Court. The Administrator filed an answer and a motion to dismiss for lack of subject matter jurisdiction on the grounds that the trial court had no jurisdiction to hear an appeal of an issue that does not deal with the right to participate or to сontinue to participate. On July 2, 2004, the trial court granted the Administrator's motion and dismissed the case for lack of subject matter jurisdiction. The Battins filed notice of appeal to this court.
{¶ 6} That appeal revolved around the application of R.C.
{¶ 7} Hence, a decision to allow or deny additional compensation for a previously allowed condition is not appealable because it goes to the extent of the injury. Id. at ¶ 17, citingFelty at 239-240. An order concerning the right to offset disability payments, for instance, against compensation is not appealable. Id., citing Felty аt 240. This is because once the right of participation for a specific condition is determined, no subsequent rulings, except a ruling to terminate the right to participate, are appealable under R.C.
{¶ 8} We stated that "[a] decision affecting a claimant's compensation, once claimant's right to participate in the fund had previously been established, is a decision as to the extent of disability and is not appealable." Battin at ¶ 20, quotingState ex rel. Bosch v. Indus. Comm. (1982),
{¶ 9} We also noted appellate court case law holding that overpayment decisions that do not deal with the right to participate or to continue to participate are not appеalable by way of R.C.
{¶ 10} We concluded that a decision on the amount of overpayment due to the use of the wrong year's rate in a prior calculation is not a decision on the right to participate or to continue to participate. Id. at ¶ 23. Thus, the Industrial Commission's decision was not appealable under R.C.
{¶ 12} On September 21, 2004, pending the appeal in 2004-T-0102, the Battins filed a notice of appeal in the trial court (again under R.C.
{¶ 13} On October 26, 2004, the Administrator filеd a motion to dismiss the appeal on various grounds. Most importantly, he claimed that these overpayment and recoupment decisions do not deal with the right to participate and thus are not appealable under R.C.
{¶ 14} Thе Battins responded on May 18, 2005. In response to the res judicata argument, they urged that the issue is different because the prior issue was the amount of overpayment and the proper year's rate for calculation of benefits whereas the current issue dеals with the issue of whether an overpayment can be recouped through death benefits where the recoupment statute does not list death benefits as an option for recoupment. In response to the propriety of appealing the issuе under R.C.
{¶ 15} On June 3, 2005, our decision was released in 2004-T-0102. On June 6, 2005, the Administrator filed a reply in the current сase, reviewing our decision and explaining how it foreclosed the argument set forth by the Battins regarding the propriety of the appeal under R.C.
{¶ 16} On August 3, 2005, the trial court granted the Administrator's motion to dismiss the administrative appeal. The Battins filed timely notice of appeal resulting in the present appeal.
{¶ 18} "THE TRIAL COURT ERRED IN GRANTING DEFENDANTS/APPELLEES' MOTION TO DISMISS PLAINTIFFS/APPELLANTS' APPEAL AND COMPLAINT WHEN THE ISSUE PRESENTED WAS WHETHER THE INDUSTRIAL COMMISSION IS ENTITLED TO RECOUP AN OVERPAYMENT FROM DEATH BENEFITS."
{¶ 19} First, the Battins set forth basically the same argument they used in 2004-T-0102. That is, they urge that the issue regarding whether overpayment can be recouped through death benefits is not a decision as to the extent of disability. They do not distinguish our most recent Battin case, but seem to ignore it for purposes of this argument.
{¶ 20} True, the statute providing appellate rights from Industrial Commission decisions provides that appeal to the trial court can be taken from all decisions other than a decision as to the extent of the disability. R.C.
{¶ 21} Likewise, the issue herein regarding whether overpayment can be recouped through death benefits does not concern the right to partiсipate or to continue to participate. As such, the trial court did not have subject matter jurisdiction to hear the appeal filed from such Industrial Commission decision.
{¶ 22} In the alternative, the Battins point out that the recoupment statute, R.C.
{¶ 23} They rely on the portion of our prior Battin
decision that explained the three ways listed by the Supreme Court that one can seek judicial review of Industrial Commission orders. First, there is the direct appeal to a trial court under R.C.
{¶ 24} The Supreme Court continued:
{¶ 25} "Which procedural mechanism a litigant may choose depends entirely on the nature of the decision issued by the commission. Each of the three avenues for review is strictly limited; if the litigant seeking judicial review does not make the proper choice, the reviewing court will not have subject mаtter jurisdiction and the case must be dismissed." Felty,
{¶ 26} Thus, even though the appeal to the trial court under R.C.
{¶ 27} It is clear the complaint was filed as the R.C.
{¶ 28} Finally, we shall dispose of two other alternative arguments set forth in the Battins' appellate brief. They raised an argument concerning why the doctrine оf res judicata was inapplicable. For instance, the doctrine of res judicata cannot be raised in a Civ.R. 12(B) motion where the facts are not evident from the face of the complaint. And, the claim is not the same where the prior issue was the amоunt of overpayment and the current issue is whether overpayment can be recouped through death benefits. These arguments may have merit; however, we need not resort to a res judicata analysis where the trial court was permitted to propеrly dismiss the appeal based upon a lack of subject matter jurisdiction as set forth supra.
{¶ 29} We also note that the Battins have raised an argument responding to one of the Administrator's original grounds for seeking dismissal. That is, the Administrator initially contended that the Battins' cоmplaint seeking recovery of funds recouped from death benefits was a complaint for money damages that should have been filed in the Court of Claims. However, the Administrator's appellate brief concedes that this argument set forth in the trial court was invalid and contrary to Supreme Court law. See Santos v. Ohio Bur. of Workers' Comp.,
{¶ 30} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
Donofrio, P.J., concurs. Waite, J., concurs.