Clementi v. Wean United, Inc.

• Decision Date: 09 November 1988
• Docket Number: No. 87-1671,87-1671
• Citation: 530 N.E.2d 909,39 Ohio St.3d 342
• Parties: CLEMENTI, Appellee, v. WEAN UNITED, INC., Appellant; Mayfield, Admr., et al., Appellees.
• Court: Ohio Supreme Court

Page 342

39 Ohio St.3d 342

530 N.E.2d 909

CLEMENTI, Appellee, v. WEAN UNITED, INC., Appellant; Mayfield, Admr., et al., Appellees.

No. 87-1671.

Supreme Court of Ohio.

Submitted June 7, 1988.

Decided Nov. 9, 1988.

Syllabus by the Court

R.C. 4123.84 requires a claimant to file a motion for an additional allowance within two years of the time the claimant knew or should have known of the additional condition.

Tablack, Wellman & Jeren and John A. Jeren, Jr., Youngstown, for appellee Gregory Clementi.

Vorys, Sater, Seymour & Pease, F. Daniel Balmert, Jo Ann F. Wasil, Cleveland, and Russell P. Herrold, Jr., Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., and Diane J. Karpinski, Columbus, for appellees James L. Mayfield, Adm'r, Bureau of Workers' Compensation, and Indus. Com'n.

MOYER, Chief Justice.

The sole issue presented in this case is whether the two-year notice requirement under R.C 4123.84(A)(1) bars an additional claim for a "flow-through" or residual psychiatric condition under the Industrial Commission's continuing jurisdiction to modify orders pursuant to R.C. 4123.52. We have defined a "flow-through" or "residual injury" as "one developing in a body part not originally alleged per R.C. 4123.84(A)(1)." Dent v. AT & T Technologies, Inc. (1988), 38 Ohio St.3d 187, 527 N.E.2d 821. For the following reasons, we hold that the two-year notice requirement under R.C. 4123.84(A)(1) does bar such an additional claim for a "flow-through" or residual psychiatric condition.

R.C. 4123.84 provides in pertinent part:

"(A) In all cases of injury or death, claims for compensation or benefits for the specific part or parts of the body injured shall be forever barred unless, within two years after the injury or death:

"(1) Written notice of the specific part or parts of the body claimed to have been injured has been made to the industrial commission or the bureau of workers' compensation.

" * * *

"(B) * * *

" * * *

"The commission has continuing jurisdiction as set forth in section 4123.52 of the Revised Code over a claim which meets the requirement of this section, including jurisdiction to award compensation or benefits for loss or impairment of bodily functions developing in a part or parts of the body not specified pursuant to division (A)(1) of this section, if the commission finds that the loss or impairment of bodily functions was due to and a result of or a residual of the injury to one of the parts of the body set forth in the written notice filed pursuant to division (A)(1) of this section." (Emphasis added.)

R.C. 4123.52 provides in pertinent part:

"The jurisdiction of the industrial commission over each case shall be continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion, is justified. No such modification or change nor any finding or award in respect of any claim shall be made with respect to disability, compensation, dependency, or benefits, after six years from the date of injury in the absence of the payment of compensation for total disability under section 4123.56 of the Revised Code, or wages in lieu of compensation in a manner so as to satisfy the requirements of section 4123.84 of the Revised Code, except in cases where compensation has been paid under section 4123.56, 4123.57, or 4123.58 of the Revised Code, then ten years from the date of the last payment of compensation or from the date of death, nor unless written notice of claim for the specific part or parts of the body injured or disabled has been given as provided in section 4123.84 or 4123.85 of the Revised Code, and the commission shall not make any such modification, change, finding, or award which shall award compensation for a back period in excess of two years prior to the date of filing application therefor. This section does not affect the right of a claimant to compensation accruing subsequent to the filing of any such application; provided such application is filed within the applicable time limit as provided in this section." (Emphasis added.)

Wean United argues that the flow-through or residual condition of "generalized anxiety disorder" was barred because Clementi failed, for at least five years after the condition first manifested itself, to file an application for allowance. The trial court agreed and stated that since R.C. 4123.84 requires that a claim be filed within two years after the injury, when a new condition is discovered which flows from an original injury, a claim for the new condition must be made within two years from the discovery thereof. The court of appeals, however, citing dicta in Repan v. Connor (Nov. 18, 1985), Belmont App. No. 85-B-19, unreported, reversed. "R.C. 4123.84(A)(1) * * * applies only to initial date injuries and not to residual or flow through injuries." Repan v. Connor, supra.

The trial court correctly interpreted the relationship between R.C. 4123.84 and 4123.52. There are a number of courts of appeals decisions that have disposed of the issue presented by this appeal. Because they are persuasive, we will review them here. In Hall v. Diamond Internatl. Corp., supra, the claimant filed an application for workers' compensation benefits for an "anxiety and nervous condition" in 1979. The claimant argued that this condition was a residual or flow-through injury from a back injury for which he had already been compensated in 1975. The claimant further argued that because the "anxiety-nervous condition" was a new and changed condition flowing from the original injury with the passage of time, he was entitled to compensation for the new condition under R.C. 4123.52. The court of appeals disagreed, stating:

"A review of the record demonstates the 'anxiety-nervous condition' manifested itself three years prior to the filing of the claim. R.C. 4123.52, which provides for continuing jurisdiction in the Industrial Commission to modify or change former findings or orders, requires strict adherence to the two-year notice limitation of R.C. 4123.84 as to a claim for the specific part or parts of the body injured or disabled. The record clearly reveals that the 'anxiety-nervous condition' is an alleged injury or disability to a specific part or parts of the body other than the original back injury location, and the notice of the claim was not made until three years after its manifestation." Id. 24 Ohio App.3d at 203-204, 24 OBR at 327, 493 N.E.2d at 1371. The court of appeals in Hall v. Diamond Internatl. Corp., therefore, held that the trial court properly granted the employer's motion for summary judgment.

The same court of appeals reached the same conclusion in McCain v. Connor (May 28, 1986), Hamilton App. No. C-850525, unreported, a case in which the appellant filed a claim in 1981 for a psychological condition allegedly resulting from a work-related injury sustained in 1978. Noting that the condition was first manifested in 1979 and the claim was filed more than two years later, the court of appeals, citing Hall v. Diamond Internatl. Corp., supra, held that the claim was barred by the statute of limitations found in R.C. 4123.84.

The Montgomery County Court of Appeals in Brock v. Mayfield, supra, also held that a claimant must file an application for allowance of an additional condition which is due to and a result of, or a residual of, a previously allowed condition within two years of the time that the claimant first knew or should have known that the additional condition was due to and a result of, or a residual of, a previously allowed condition. The court of appeals stated: "[w]e believe that the notice provisions of R.C. 4123.52, unrestricted by [their] own terms as to type of injury, appl[y] to residual or 'flow-through' injuries as well as any other new conditions. The notice language involves R.C. 4123.84, which establishes a two-year period within which to file for the new condition." In Brock, the claimant was injured in 1979 in the course of and arising out of her employment. A claim was allowed for "torn medial meniscus of left knee" and "possible herniated nucleus pulposis at L-4, L-5." In 1983, the claimant filed a motion for allowance of the additional condition of "depressive reaction." Noting that the claimant admitted that she failed to file a motion for allowance of the "depressive reaction" claim within two years of the time she knew, or should have known, that the "depressive reaction" was due to, a result of, and/or residual of her industrial injuries sustained in 1979, the court of appeals held that her claim was barred by the statute of limitations. See, also, Snyder v. Mayfield, supra, and Horn v. Mayfield (Jan. 12, 1988), Montgomery App. No. CA 10468, unreported in which the Court of Appeals for Montgomery County again held that a claimant did not timely file a motion to have his industrial claim additionally recognized for a psychiatric condition when he failed to file the claim within two years of the time he knew or should have known of this additional condition. The Court of Appeals for Stark County reached a similar conclusion in Kirkbride v. Hoover Co. (June 9, 1986), Stark App. No. CA-6848, unreported.

Clementi cites this court's decision in Kittle v. Keller (1967), 9 Ohio St.2d 177, 38 O.O.2d 414, 224 N.E.2d 751, in support of his contention that his claim is not barred by the statute of limitations. In Kittle, this court held that "[a]n injured employee, who, after filing a claim within time and being awarded compensation or benefits, files an application for modification of that award more than two years after the original injury occurred in order to secure compensation for a subsequently developing disability directly caused by an injury sustained in the original accident but not described in the original application, is not barred of his right to continue to participate in the State Insurance Fund by virtue of Section...