[Cite as Marshall v. Oncology/Hematology Care, Inc., 2014-Ohio-2253.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

KYM MARSHALL,

 Plaintiff-Appellant, 

 vs. 

ONCOLOGY/HEMATOLOGY CARE, 

INC., 

 and 

STEPHEN BUEHRER, 

ADMINISTRATOR, BUREAU OF 

WORKERS’ COMPENSATION, 

 Defendants-Appellees. 

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APPEAL NO. C-130659 

TRIAL NOS. A-1206059 

 A-1206269 

 O P I N I O N.

 

Civil Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: May 28, 2014 

Brown, Lippert & Laite and David A. Laite, for Plaintiff-Appellant Kym Marshall, 

Taft Stettinius & Hollister LLP and Andrew R. Thaler, for Defendant-Appellee 

Oncology/Hematology Care, Inc., 

Michael DeWine, Ohio Attorney General, and David J. Fierst, Assistant Attorney 

General, for Defendant-Appellee Administrator, Ohio Bureau of Workers’ 

Compensation. 

Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS 

2

SYLVIA S. HENDON, Presiding Judge. 

{¶1} Plaintiff-appellant Kym Marshall has appealed from the trial court’s 

entry granting summary judgment to her employer, Oncology/Hematology Care, 

Inc., and the Ohio Bureau of Workers’ Compensation (“the defendants”), in the case 

numbered A-1206059, and dismissing her complaint in the case numbered A1206269. Because Marshall provided no evidence establishing a causal connection 

between her workplace injury and the conditions for which she sought participation 

in the workers’ compensation fund in the case numbered A-1206059, we hold that 

the trial court appropriately granted summary judgment to the defendants. We 

further hold that the trial court did not err in dismissing Marshall’s complaint in the 

case numbered A-1206269 because the decision of the Industrial Commission that 

was appealed from did not grant or deny Marshall the right to participate in the 

workers’ compensation fund and was not appealable under R.C. 4123.512. 

Factual Background 

{¶2} On February 18, 2010, while working for Oncology/Hematology Care 

Inc., Marshall experienced intense pain in her neck after lifting a heavy mail bin. 

Marshall filed a claim with the Bureau of Workers’ Compensation (“BWC”) seeking 

to be allowed to participate in the workers’ compensation fund for the substantial 

aggravation of preexisting degenerative disc disease of the cervical spine at C4-5, C5-

6, and C6-7. The Industrial Commission denied her claim, and Marshall appealed to 

the court of common pleas in the case numbered A-1007058. While that case was 

pending, Marshall underwent a surgical operation on her neck with Dr. Alfred Kahn. 

Following the surgery, Dr. Kahn testified in a deposition that the workplace injury 
OHIO FIRST DISTRICT COURT OF APPEALS 

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suffered by Marshall had substantially aggravated her preexisting degenerative disc 

disease at the vertebrae level of C7-T1. Dr. Kahn further testified that the injury had 

not substantially aggravated her preexisting condition at the vertebrae levels of C4-5, 

C5-6, and C6-7. 

{¶3} As a result of Dr. Kahn’s opinion, Marshall sought to amend her 

complaint to include coverage for the condition of substantial aggravation of 

preexisting degenerative disc disease at C7-T1. The trial court denied Marshall’s 

motion to amend because that specific injury had not first been administratively 

raised before the Industrial Commission. Marshall voluntarily dismissed her 

complaint under Civ.R. 41(A). She then filed a second administrative claim with the 

BWC, seeking participation in the workers’ compensation fund for the substantial 

aggravation of her preexisting degenerative disc disease at C7-T1. She stated in her 

claim that “[t]he injured worker requests this relief as the result of a clear mistake of 

fact. On June 10, 2011, the injured worker underwent a surgical procedure on her 

neck by Dr. Kahn who discovered that Ms. Marshall has suffered a substantial 

aggravation of degenerative disc disease at C7-T1, instead of the previously requested 

and adjudicated conditions of substantial aggravation of degenerative disc disease at 

C4-5, C5-6, and C6-7.” The Industrial Commission denied Marshall’s claim after 

finding that it did not have jurisdiction because allowance of that claim was currently 

pending before the court of common pleas. 

{¶4} Marshall appealed the Industrial Commission’s decision in two 

separate complaints to the court of common pleas. In the case numbered A1206059, Marshall generically sought to be allowed to participate in the workers’ 

compensation fund “for the accidental injuries she suffered” at her workplace. In the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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case numbered A-1206269, Marshall sought participation in the workers’ 

compensation fund “for the additional condition described as substantial aggravation 

of pre-existing degenerative disc disease at C7-T1.” These two cases were 

consolidated in the court of common pleas. The trial court granted summary 

judgment to the defendants on the claims raised in the case numbered A-1206059, 

and it granted a motion to dismiss the complaint in the case numbered A-1206269. 

{¶5} Marshall has appealed, raising two assignments of error for our 

review. 

Summary Judgment 

{¶6} In her first assignment of error, Marshall contends that the trial court 

erred in granting summary judgment to the defendants on her claims raised in the 

case numbered A-1206059. We review a trial court’s grant of summary judgment de 

novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). 

Summary judgment is appropriately granted when there exists no genuine issue of 

material fact, the movant is entitled to judgment as a matter of law, and the evidence, 

when viewed in favor of the nonmoving party, permits only one reasonable 

conclusion that is adverse to the nonmoving party. State ex rel. Howard v. Ferreri, 

70 Ohio St.3d 587, 589, 639 N.E.2d 1189 (1994). 

{¶7} In the case numbered A-1206059, Marshall appealed from the 

Industrial Commission’s denial of her initial administrative claim, and she alleged 

that she was entitled to participate in the workers’ compensation fund for the 

accidental injuries that she suffered at work. She relies on the Industrial 

Commission’s statement in its decision that “[i]t is the finding of the Staff Hearing 

Officer that Ms. Marshall did not meet the burden of proof establishing that she 
OHIO FIRST DISTRICT COURT OF APPEALS 

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sustained an injury during the course of and arising out of her employment.” 

Marshall contends that because the Industrial Commission used the generic phrase 

“an injury,” her participation in the fund is not limited to a specific condition and 

may include any injury suffered, including the substantial aggravation of preexisting 

degenerative disc disease at C7-T1. 

{¶8} We are not persuaded. Despite the Industrial Commission’s use of the 

phrase “an injury” when denying Marshall’s initial administrative claim, it is clear 

that the only conditions before the Industrial Commission in Marshall’s first claim 

were the substantial aggravation of preexisting degenerative disc disease to the 

vertebrae levels of C4-5, C5-6, and C6-7. Marshall conceded this in her second 

administrative claim filed with the BWC. The trial court’s jurisdiction in workers’ 

compensation cases is limited to those conditions that were initiated before and 

determined by the Industrial Commission. Ward v. Kroger, 106 Ohio St.3d 35, 

2005-Ohio-3560, 830 N.E.2d 1155, ¶ 9-10. Because the Industrial Commission’s 

decision only pertained to the substantial aggravation of preexisting degenerative 

disc disease at C4-5, C5-6, and C6-7, only these conditions were properly before the 

trial court for review in the case numbered A-1206059. 

{¶9} We hold that the trial court did not err in granting summary judgment 

to the defendants on Marshall’s claims for participation in the fund for these 

conditions. The record contains no evidence establishing a causal connection 

between Marshall’s workplace injury and the conditions for which she seeks 

participation in the fund. In fact, Marshall’s expert specifically testified that her 

workplace injury had not substantially aggravated her preexisting degenerative disc 

disease at these particular vertebrae levels. In the absence of any genuine issue of 
OHIO FIRST DISTRICT COURT OF APPEALS 

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material fact, the defendants were entitled to summary judgment. Marshall’s first 

assignment of error is overruled. 

Motion to Dismiss 

{¶10} In her second assignment of error, Marshall argues that the trial court 

erred in dismissing her complaint in the case numbered A-1206269. We review a 

trial court’s ruling on a motion to dismiss de novo. Baker v. Greenlee, 1st Dist. 

Hamilton No. C-110779, 2012-Ohio-3760, ¶ 5. 

{¶11} In the case numbered A-1206269, Marshall appealed from the 

Industrial Commission’s ruling on her second administrative claim, and she sought 

participation in the workers’ compensation fund for the substantial aggravation of 

preexisting degenerative disc disease at the vertebrae level C7-T1. The Industrial 

Commission had declined to address the merits of this claim after determining that it 

had no jurisdiction to do so. Because the order of the Industrial Commission was not 

appealable under R.C. 4123.512, we hold that the trial court properly dismissed 

Marshall’s complaint. 

{¶12} Under R.C. 4123.512(A), a “claimant or the employer may appeal an 

order of the industrial commission made under division (E) of section 4123.511 of the 

Revised Code in any injury or occupational disease case.” But this statute has been 

narrowly construed to allow only those decisions that grant or deny a claimant’s right 

to participate in the fund to be appealed. Thomas v. Conrad, 81 Ohio St.3d 475, 477, 

692 N.E.2d 205 (1998). The Industrial Commission dismissed Marshall’s 

administrative claim based on a lack of jurisdiction. Because the order did not grant 

or deny Marshall the right to participate in the workers’ compensation fund, it was 

not appealable under R.C. 4123.512. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶13} In further support of the trial court’s dismissal is the well-settled law 

providing that workers’ compensation claims may not be initiated at the judicial 

level. All claims for participation in the fund must be based on a specific injury and 

initiated before the Industrial Commission. Ward, 106 Ohio St.3d 35, 2005-Ohio3560, 830 N.E.2d 1155, at ¶ 9-10. Here, the Industrial Commission determined that 

it did not have jurisdiction to address whether Marshall was entitled to participate in 

the fund for the substantial aggravation of preexisting degenerative disc disease at 

C7-T1. Because this claim had never been administratively determined, the trial 

court had no jurisdiction to address it for the first time on appeal. 

{¶14} The trial court did not err in dismissing Marshall’s complaint. The 

second assignment of error is overruled, and the judgment of the trial court is 

affirmed. 

Judgment affirmed. 

DINKELACKER and DEWINE, JJ., concur. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.