758 N.E.2d 232 | Ohio Ct. App. | 2001
Appellant sustained work-related injuries to her back on November 1, 1996, while employed with defendant-appellee, Federal Express Corporation. Thereafter, appellant filed a claim for benefits with appellee, Administrator of the Bureau of Workers' Compensation. The back injury claim was ultimately allowed.
On November 20, 1998, after having breast reduction surgery, appellant filed an administrative motion seeking breast reduction surgery as an additional condition in her back injury claim. A district hearing officer denied appellant's motion. The motion was also denied through administrative appeals to the staff hearing officer and the Industrial Commission. Appellant proceeded to appeal the Industrial Commission's final order by filing a notice of appeal to the trial court and setting forth the basis of her appeal through a complaint. Appellees filed motions to dismiss appellant's appeal for lack of subject matter jurisdiction, pursuant to Civ.R. 12(B)(1). The trial court granted appellees' motions and dismissed appellant's appeal.
Appellant appeals the trial court's decision, raising one assignment of error:
THE TRIAL COURT ERRED IN DISMISSING THE PLAIN-TIFF'S COMPLAINT PURSUANT TO OHIO CIVIL PROCEDURE RULE 12(B)(1) AS THE ISSUE BEFORE THE TRIAL COURT WAS THE RIGHT TO PARTICIPATE IN THE WORKERS' COMPENSATION ACT. PURSUANT TO ZAVATSKY VS. STRINGER (1978), 56 OHIO ST. 3d 286, [SIC] THE RIGHT TO PARTICIPATE ISSUE IS CLEARLY APPEALABLE TO THE COURT OF COMMON PLEAS PURSUANT TO OHIO REVISED CODE 4123.512.
In her single assignment of error, appellant contends that the trial court erred in dismissing her appeal for lack of subject matter jurisdiction. We disagree.
After a party files a Civ.R. 12(B)(1) motion to dismiss, the trial court must determine whether the complaint contains allegations of a cause of action that the trial court has authority to decide. Crestmont Cleveland Partnership v. Ohio Dept. of Health_ (2000),
As noted above, appellant appealed the Industrial Commission's order to the trial court. Under R.C.
Here, appellant contends that her request for funds to cover breast reduction surgery concerns a right to participate issue. In her brief, appellant asserts that the breast reduction surgery was needed because her former breast size was delaying the recovery of her back injury. In support of her contention that her request concerns a right to participate issue, appellant relies on Zavatsky v. Stringer (1978),
An order of the Industrial Commission, which either denies or allows a claimant the right to participate in the Workers' Compensation Fund for injury to a specific part or parts of the body involving loss or impairment of bodily functions on the basis that such was or was not the result of a compensable injury, is a decision other than one as to the extent of disability and, thus, * * * may be appealed to the Court of Common Pleas * * *. [Id., at paragraph one of the syllabus.]
Appellant contends that her request for breast reduction surgery funding concerns a right to participate issue under Zavatsky because she is asking that "a specific part or parts of her body" be included in her claim. However, the Ohio Supreme Court has recently expounded on the definition of the right to participate and 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." Liposchak, at 279.
Here, when appellant filed her complaint, she was required to plead all facts in support of her appeal, including pertinent jurisdictional facts. See R.C.
Thus, under Liposchak, appellant's request for funds to cover her breast reduction surgery does not concern an appealable right to participate issue; instead, the proper procedure would be a mandamus action. Accordingly, the trial court did not err in dismissing appellant's appeal for lack of subject matter jurisdiction. As such, we overrule appellant's single assignment of error and affirm the judgment of the trial court.
BRYANT, P.J., and DESHLER, J., concur.