{¶ 2} This case was initiated as an administrative appeal to the common pleas court from an order of the Industrial Commission of Ohio. Wean filed the administrative appeal in order to challenge the right of a claimant, Calliope C. DeVengencie, to *2 participate in the Workers' Compensation Fund. At one time, DeVengencie worked for Wean in his retail automotive refinishing products business. The trial court did not reach the merits of Wean's administrative appeal, because the case was dismissed for lack of subject matter jurisdiction. We likewise hold that the order in question is not one that is appealable to the common pleas court.
{¶ 3} DeVengencie filed a claim for compensation with the Bureau of Workers' Compensation, asserting that she was an employee of Wean's, and also asserting that she had contracted an occupational disease, to wit, occupational asthma, while working for Wean.
{¶ 4} Her claim was disallowed by the Administrator of the Bureau of Workers' Compensation. She then appealed this disallowance to a district hearing officer. A hearing was held on her claim. The district hearing officer denied her right to participate in the fund, because she could not sustain her burden of proof to establish that her disease was contracted as a result of exposure to chemicals at Wean's place of employment. However, she was found to be an employee of Wean's and not an independent contractor.
{¶ 5} Her next appeal was to a staff hearing officer of the Industrial Commission of Ohio. Her claim was denied there as well. Finally, she appealed to the Industrial Commission of Ohio, which refused to hear her appeal. She did not appeal the ruling of the Industrial Commission of Ohio to the common pleas court.
{¶ 6} Wean also filed administrative appeals, but his appeals were denied. His administrative appeals were filed on the basis that DeVengencie was an independent *3 contractor and not an employee. The final administrative order was issued by the Industrial Commission of Ohio, which refused to hear his appeal.
{¶ 7} Wean's notice of appeal to the common pleas court appealed the order of the Industrial Commission of Ohio refusing to hear his appeal. He named as parties the Administrator of the Bureau of Workers' Compensation and DeVengencie.
{¶ 8} Pursuant to Civ.R. 12(B)(1) and (6), the Administrator filed a motion to dismiss Wean's appeal, arguing that R.C.
{¶ 9} The Administrator's additional argument in his motion to dismiss asserted that Wean had not substantially complied with the filing requirements of R.C.
{¶ 10} The trial court granted the Administrator's motion to dismiss on April 19, 2006. Wean has timely appealed the trial court's order to this court.
{¶ 11} In this court, Wean argues that the common pleas court does have subject matter jurisdiction pursuant to R.C.
{¶ 12} "The trial court erred as a matter of law to the substantial prejudice of appellant when it dismissed appellant's appeal which was brought under R.C.
{¶ 13} The trial court's determination of a motion to dismiss filed pursuant to Civ.R. 12(B)(1), as well as this court's standard of review may be summed up as follows:
{¶ 14} "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. * * * The Ohio Supreme Court has further noted that the `trial court is not confined to the allegations of the complaint when determining its subject-matter jurisdiction pursuant to a Civ.R. 12(B)(1) motion to dismiss, and it may consider material pertinent to such inquiry.' * * * We apply de novo review to the trial court's decision on a motion to dismiss for lack of subject matter jurisdiction."1
{¶ 15} We are asked to determine if R.C.
{¶ 16} R.C.
{¶ 17} "(A) The claimant or the employer may appeal an order of the industrial commission made under division (E) of section
{¶ 18} Wean asserts that the plain language of the statute would grant him a right of appeal to the common pleas court, as long as he is not appealing the extent of disability. However, the Fourth Appellate District has explained the decisions of the Supreme Court of Ohio, which grant a narrow and limited scope of the right to appeal to the common pleas court from an order of the Industrial Commission:
{¶ 19} "R.C.
{¶ 20} "A direct appeal to the common pleas court pursuant to R.C.
{¶ 21} In further explaining the narrow and limited scope of the right to appeal from an order of the Industrial Commission that pertains to an employee's right to participate in the workers' compensation system, the Supreme Court of Ohio has on two occasions limited an employer's right to appeal from an Industrial Commission order.
{¶ 22} In Thomas v. Conrad,6 the court "addressed the issue of whether an employer has a right to appeal, under R.C.
{¶ 23} "The party who does not prevail — at the time the workers' compensation claim is either granted or terminated — has the right to appeal per R.C.
{¶ 24} Thus, in the Thomas case, the Supreme Court of Ohio "held that the right to appeal an order concerning termination lies only with a claimant whose right is terminated."9 Likewise, that court stated that an employee who was denied the right to participate is the only person who has a right to appeal the order of denial.10 We note that, in the instant case, DeVengencie's right to participate was denied, but she has chosen not to appeal such denial to the common pleas court.
{¶ 25} In 2004, the Supreme Court of Ohio reaffirmed its previous holding in the Thomas case and stated that "the right to appeal an order concerning termination lies only with a claimant whose right is terminated."11
{¶ 26} Though DeVengencie was denied the right to participate in the worker's compensation system instead of having such right terminated, we can perceive no difference as it affects the employer's right to appeal to the common pleas court. Numerous decisions from the Supreme Court of Ohio, some of which have been cited here, stand for the proposition that the right to appeal is narrow and limited. Further, though it was not part of the holding of the Thomas case, that court stated that only the employee whose right to participate has been denied has the right to appeal from an adverse order.12
{¶ 27} We conclude that, whether the employee's right to participate in the workers' compensation system has been denied or terminated, only the employee has a right of appeal to the common pleas court under R.C.
{¶ 28} In light of our analysis of the issue of subject matter jurisdiction concerning Wean's appeal to the common pleas court, we do not need to reach the issue of whether he complied with the formalities of R.C.
{¶ 29} The assignment of error is without merit.
{¶ 30} The judgment of the trial court is affirmed.
MARY JANE TRAPP, J., concurs, COLLEEN MARY OTOOLE, J., dissents.