Ochs v. Bur. of Workers' Comp.Ochs v. Bur. of Workers' Comp.
JUDGMENT: AFFIRMED
Administrative Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-654804
RELEASED: May 13, 2010
ATTORNEYS FOR APPELLANTS
Robert C. Ochs
Jesse M. Schmidt
Robert C. Ochs Co., L.P.A.
55 Public Square, Suite 1414
Cleveland, OH 44113
ATTORNEYS FOR APPELLEES
Richard Cordray
Ohio Attorney General
BY: Nancy Q. Walker
Assistant Attorney General
615 Superior Avenue, West
11th Floor
Cleveland, OH 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Appellant, Robert Ochs, executor of the estate of decedent William D. Ochs, appeals from the judgment of the Cuyahoga County Court оf Common Pleas, granting summary judgment to appellee, Administrator, Ohio Bureau of Workers’ Compensation. For the reasons that follow, we affirm the decision of the trial court.
{¶ 2} As a result of a work-related injury suffered on July 12, 1960, William Ochs filed for workers compensation bеnefits with the Ohio Bureau of Workers’ Compensation (“BWC“). His claim, assigned BWC number 384394-22, was allowed for “lumbrosacral syndrome and possibly a torn left medial meniscus superimposed upon changes resultant from his remote hemiparesis.” In 1974, Ochs was granted total permanent disability benefits under this claim. He continued to receive these benefits until he passed away on September 28, 2005, at the age of 87. The cause of death was bronchopneumonia following bilateral knee replacement surgery.
{¶ 3} On September 29, 2006, appellant filed a claim with BWC seeking: 1) death allowance, 2) payment of bills, 3) scheduled loss/loss of use — left and right legs, and 4) compensation accrued at death. The BWC denied the claim, and appellant appealed the denial to the Industrial Commission (“Commission“). A hearing was held on November 20, 2007 before a staff hearing officer. The hearing officer denied appellant‘s claim for
{¶ 4} On January 16, 2008, the Commission issued its final decision denying appellant‘s appeal of the staff hearing officer‘s order. On March 25, 2008, appellant noticed an appeal to the Cuyahoga County Court of Common Pleas, pursuant to
{¶ 5} On July 29, 2009, the trial court granted appellee summary judgment on appellant‘s claims. Appellant now appeals from this order and raises a single assignment of error for review claiming thаt the trial court erred in granting summary judgment since genuine issues of material fact remained to be decided.
{¶ 6} We review the granting of summary judgment under a de novo standard. We afford no deference to the trial court‘s decision and independently review the record to determine whether summary judgment is appropriate. Grafton v. Ohio Edison Co. (1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Summary judgment is appropriate if (1) no genuine issue of any material fact remains, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and construing the 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. Duncan v. Mentor City Council, 105 Ohio St.3d 372, 374, 2005-Ohio-2163, 826 N.E.2d 832, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 364 N.E.2d 267.
{¶ 7} Appellee moved for summary judgment on the grounds that: 1) there are no dependents or surviving spouse and therefore no one with standing to assert a claim for death benefits, and 2) the claims for accrued compensation and unpaid bills do not involve a “right to participate” issue and therefore the denial of these claims is not appealable to the court of common pleas.
Payment of Bills and Loss of Use of Legs Claim
{¶ 8}
{¶ 9} Direct appeal to the common pleas court is the most limited form of judicial review of the Commission‘s decisions because there is no inherent right to appeal workers’ compensation matters. Felty v. AT & T Technologies, Inc. (1992), 65 Ohio St.3d 234, 237, 602 N.E.2d 1141. “The only action by the commission that is appealable * * * is this essential decision to grant, to deny, or to terminate the employee‘s participаtion or continued participation in the system.” Id. at 239. Under
{¶ 10} Decisions that relаte to the extent of the injury are not appealable to the common pleas court. Felty at 237, citing Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175, paragraph one of the syllabus. “The Industrial Commission‘s decision to grant or deny additional benefits under an existing claim does not determine the worker‘s right to pаrticipate in the State Insurance Fund, and therefore is not subject to appeal * * *.” State ex rel. Evans v. Indus. Comm. of Ohio, 64 Ohio St.3d 236, 1992-Ohio-8, 594 N.E.2d 609, paragraph two of the syllabus. However, an order that permanently forecloses further benefits under a claim that has been filed is appealable. Id.
{¶ 11} At the time of his death, William Ochs was participating and receiving permanent total disability benefits under claim number 384394-22 for allowed medical conditions relating to the back and knee injury suffered in 1960. Appellant‘s September 29, 2006 motion alleged aggravation of these mеdical conditions, and sought to amend the original claim to allow payment for additional medical conditions, and for new treatments including knee
{¶ 12} Contrary to appellant‘s assertion, the September 2006 request is not a “new” claim. It is a request for additional benefits under the existing claim. The Commission‘s ruling did not affect Ochs‘s right to participate in the workers’ compensation system, it only affected the determination of the extent and nature of his disability and denied him additional benefits under his claim. Had Ochs lived, the ruling would not have permanently foreclosed future benefits under the claim. He would have continued to participate for his original allowed condition and could have filed subsequent requests for additional benefits under that claim. It was Ochs‘s death that ended his participation in the fund. Therefore, the ruling disallowing the request cannot be characterized as a “decision to grant, to deny, or to tеrminate the employee‘s participation or continued participation in the system.” Felty v. AT & T Technologies, Inc., 65 Ohio St.3d at 239. Accordingly, the ruling of the Commission was not appealable to the court of common pleas.
Death Benefits and Accrued Benefits
{¶ 13} Appellant argues that under
{¶ 14} The Ohio Supreme Court has held that payment of death benefits from the Workers’ Compensation Fund is allowed where the injury directly causes the death, or where an injury is the proximate cause of the acceleration of death. Oswald v. Connor (1985), 16 Ohio St.3d 38, 40, 476 N.E.2d 658; Weaver v. Indus. Comm. (1932), 125 Ohio St. 465, 181 N.E. 894. Under
{¶ 15} Appellant argues that funeral expenses and the medical expenses incurred prior to Ochs‘s death are not “death benefits,” but rather “accrued compensation” to which the estate is entitled to claim under
{¶ 16} Under
{¶ 17} Unlike an order denying death benefits under
{¶ 18} Appellant relies upon the case of State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 2000-Ohio-73, 737 N.E.2d 519. In that case, the brother of a deceased worker filed an action in mandamus to obtain accrued unpaid benefits under
{¶ 19} Liposchak is readily distinguishable from the instant case. The issue in the casе before us is not whether the estate is entitled to recover benefits under
{¶ 20} Accordingly, the trial court lacked jurisdiction to consider appellant‘s claims. Just as in Liposchak, the estate‘s remedy lies not in judicial review, but in mandamus.1
{¶ 21} Appellant‘s single assignment of error is overruled.
Judgment affirmed.
It is ordered that appellees recover of appellants their costs herein taxed.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County 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.
MELODY J. STEWART, PRESIDING JUDGE
MARY J. BOYLE, J., and
JAMES J. SWEENEY, J., CONCUR