Charles W. Ellis v. General Electric Co. and James Conrad, Administrator, Bureau of Workers' Compensation
| Decision Date | 29 September 2000 |
| Docket Number | 00-LW-4380,C-990775 |
| Parties | CHARLES W. ELLIS, Plaintiff-Appellant v. GENERAL ELECTRIC COMPANY And JAMES CONRAD, ADMINISTRATOR, BUREAU OF WORKERS' COMPENSATION, Defendants-Appellees. APPEAL |
| Court | Ohio Court of Appeals |
Stewart Jaffy & Associates Co., LPA., Stewart R. Jaffy, Marc J Jaffy, and Alan D. Eakins, for Plaintiff-Appellant,
Dinsmore & Shohl, Gary E. Becker, and Brian P. Perry, for Appellee General Electric Company,
Betty Montgomery, Attorney General, John M. Williams and William D. Haders, Assistant Attorneys General, for Appellees Bureau of Workers' Compensation and Industrial Commission of Ohio.
Plaintiff-appellant Charles W. Ellis challenges the order of the court of common pleas granting the Civ.R. 12(B)(6) motion of his employer, General Electric Aircraft Engine Group (G.E.) because he had not timely appealed a June 16, 1998, order of the Industrial Commission within sixty days pursuant to R.C. 4123.512. Concluding that Ellis had failed to timely appeal the June 16, 1998, order, which had denied his motion for permanent total disability compensation (PTD) because no live claim existed, the trial court held that it lacked jurisdiction to consider the appeal. Ellis challenges the appealability of the June 16, 1998, order on two grounds: (1) the ex parte order of the staff hearing officer (SHO) of the Industrial Commission dismissing his application for PTD compensation did not constitute an order regarding his right to participate; and (2) a hearing to determine the date of injury for his occupational disease under the six-year limitation of former R.C. 4123.52 (H.B. No. 107, amended October 20, 1993) held that the injury was to be calculated from July 9, 1990, and this holding constituted an order as to the right to participate. Because we are persuaded that the SHO's order of March 3, 1999, denying PTD compensation did constitute a decision regarding Ellis's right to participate, we hold that the order did not deprive the court of common pleas of jurisdiction as a result of Ellis's alleged failure to file a timely appeal under R.C. 4123.512.
Ellis contracted occupational asthma, an occupational disease, in the course of and arising out of his employment with G. E. His condition was medically diagnosed on July 9, 1990. On October 23, 1990, he filed a claim for workers' compensation benefits and was assigned claim number OD41646-22. He continued to work until July 31, 1991, when he quit on account of his occupational asthma. On January 13, 1993, the Board of Review allowed his claim for the condition of occupational asthma. The order stated that no compensable lost time was associated with the claim. Ellis did not appeal, and thereafter he received no compensation benefits. Pursuant to the board's finding of no compensable lost time, his claim was treated as a "medical only" claim.
On September 3, 1996, more than six years after the date of the medical diagnosis of occupational asthma, Ellis filed an application with the Industrial Commission for PTD compensation, stating that the last day he had worked was July 31, 1991. He attached to his application a report, dated June 10, 1996, in which Dr. Margaret Atterbury stated that Ellis was unable to engage in sustained remunerative employment. A staff hearing officer (SHO) of the Industrial Commission dismissed Ellis's application for compensation for PTD compensation by an ex parte order, mailed June 16, 1998, stating the following:
It is hereby ordered that the claimant's IC-2 filed 9/3/96 be dismissed as claim 94-583551 has been disallowed. Therefore there is no live claim that warrants processing of the IC-2 Application for Permanent Total Disability filed 9/3/96.
Ellis did not appeal the SHO's order. Instead, he filed a request for reconsideration with the Industrial Commission. Reconsideration was denied without a hearing by an SHO on July 13, 1998.
Ellis then filed a C-86 motion requesting the Industrial Commission to exercise continuing jurisdiction under R.C. 4123.52 to reinstate his application for compensation for PTD, pursuant to R.C. 4123.52, by correcting his date of disability from July 9, 1990, the date of diagnosis, to July 31, 1991, the date he quit work on account of the occupational asthma. The district hearing officer conducted a hearing, noted that the Board of Review had found that there was no compensable lost time associated with the claim, and denied Ellis's motion, using the July 9, 1990, date of diagnosis to apply the six-year limitations period and holding that the period had expired on July 9, 1996. On January 28, 1999, an SHO affirmed the district hearing officer's order and determined that the date of disability initially determined by the board on January 13, 1993 was res judicata. When further appeal was refused by the Industrial Commission, Ellis appealed the January 28, 1999, decision of the SHO to the court of common pleas.
The trial court concluded, "[T]he Staff Hearing Officer's June 16, 1998 order denying plaintiff's claim constituted a decision regarding the plaintiff's right to participate and was only properly appealable to a respective common pleas court." Because Ellis had not appealed that order within sixty days as provided by R.C. 4123.512, the trial court concluded that it did not have jurisdiction.
STANDARD OF REVIEW FOR CIV.R. 12(B)(6)
In the consideration of a motion to dismiss for failure to state a claim under Civ.R. 12(B)(6), the factual allegations of the complaint must be presumed true and all reasonable inferences drawn in favor of the plaintiff. See Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753, 756. Dismissal by the trial court is appropriate only when it appears beyond doubt from the complaint that no set of facts in support of the claim can be proved entitling the plaintiff to relief. See O'Brien v. University Community Tenants Union (1975), 42 Ohio St.3d 242, 327 N.E.2d 753, syllabus. Dismissal of a complaint for failure to state a claim presents only legal issues and is reviewed de novo on appeal. See Witcher v. Fairlawn (1996), 113 Ohio St.3d 214, 216, 680 N.E.2d 713, 714.
This appeal presents an issue that appears to be of first impression: whether the SHO's March 3, 1999, order refusing appeal from the SHO's order of January 25, 1999, that had denied Ellis's C-86 motion to change the date of onset was an appealable order under R.C. 4123.512.
The filing of a notice of appeal within sixty days in the court of common pleas, as provided by R.C. 4123.512, is a jurisdictional requirement attended by a duty of strict compliance. See Skiba v. Connor (1983), 5 Ohio St.3d 147, 449 N.E.2d 775. Decisions and orders going to a claimant's right to participate or to continue to participate must be appealed to the court of common pleas. See State ex rel. Hinds v. Indus. Comm. (1999), 84 Ohio St.3d 424, 704 N.E.2d 1222.
The text of the SHO's June 16, 1998, ex parte order is internally ambiguous. It does not state that claim OD41646-22, the claim at issue, had expired, but rather that Ellis's September 3, 1996, application for PTD compensation was dismissed as "claim 94-583551" was disallowed. The error in the order was that there was no live claim because the SHO had dismissed an application for PTD compensation. Unless the text of the order specified that claim OD41646-22 was disallowed, it did not constitute a decision regarding Ellis's right to participate.
To facilitate an appeal, R.C. 4123.522 provides that a claimant is entitled to written notice of any order or decision. Implicit in that guarantee is the assumption that the notice will be adequate to provide meaningful review of the issues. For the same reason that the supreme court requires decisions of Boards of Review or the Industrial Commission to articulate the evidence relied on for sufficiency review, see State ex rel. Mitchell v. Robbins & Myers (1983), 6 Ohio St.3d 481, 483, 453 N.E.2d 721, 724, erosion of the statutory right of appeal should not be permitted by narrow construction of internally ambiguous administrative orders. Any ambiguity should be resolved in favor of the claimant consistent with this state's public policy, announced by the General Assembly in R.C. 4123.95, of construing the law liberally in favor of injured employees. See Jacobs v Teledyne, Inc. (1988), 39 Ohio St.3d 168, 171, 529 N.E.2d 1255, 1259.
The text of the ex parte order of June 16, 1998, not only mistakenly refers to "claim 94-583551" instead of claim number OD41646-22, but differs notably from the SHO's orders of December 17, 1998, and January 25, 1999, by its silence concerning Ellis's right to appeal. Furthermore, the SHO's order of March 3, 1999, unlike the ex parte order of June 16, 1998, advised him of his right to appeal to the court of common pleas within sixty days, as required by R.C. 4123.512. Admittedly, no statute requires the Industrial Commission to inform a claimant of the right to appeal, but if it deemed the ex parte order to be appealable, the Industrial Commission should have followed its customary procedure and informed Ellis of his right to appeal.
G.E argues that Ellis was put on notice that claim number OD41646-22 was a dead claim because the order's caption made reference to claim OD41646-22 next to "claim number" and "claim heard." In Morris v. Children's Hospital Medical Ctr. (1991), 73 Ohio App.3d 437, 441, 597 N.E.2d 1110, 1112, we said, As R.C. 4123.512(D) provides that the Rules...
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