Gregory v. Flowers

• Decision Date: 29 November 1972
• Docket Number: No. 71-782,71-782
• Citation: 61 O.O.2d 295,32 Ohio St.2d 48,290 N.E.2d 181
• Parties: , 61 O.O.2d 295 GREGORY, Appellee, v. FLOWERS, Administrator, Bureau of Workmen's Compensation, et al., Appellants.
• Court: Ohio Supreme Court

Page 48

32 Ohio St.2d 48

290 N.E.2d 181, 61 O.O.2d 295

GREGORY, Appellee, v. FLOWERS, Administrator, Bureau of Workmen's Compensation, et al., Appellants.

No. 71-782.

Supreme Court of Ohio.

Nov. 29, 1972.

Syllabus by the Court

1. Statutes of limitation are remedial in nature and may be generally classified as procedural legislation.

2. The statutory right to file an application for modification of an award, which right arose by operation of the workmen's compensation laws of this state, is a substantive right which accrues at the time of the claimant's injury.

3. When the retroactive application of a statute of limitation operates to destroy an accrued substantive right, such application conflicts with Section 28, Article II of the Ohio Constitution.

4. Where the last paragraph of R.C. § 4123.84, as amended December 11, 1967, and which provides that '(a)ny claim pending before the administrator of the Bureau of Workmen's Compensation, a board of review, the Industrial Commission, or a court on December 11, 1967, in which the remedy is affected by Section 4123.84 of the Revised Code shall be governed by the terms of this section,' operates to destroy an accrued substantive right which arose by virtue of the workmen's compensation laws of this state, such operation is unconstitutional and void.

Appellee, Lewis T. Gregory, while employed by appellant General Telephone Company of Ohio, fell from one of appellant's telephone poles, sustaining both neck and lower back injuries. The accident occurred in January 1959. Shortly thereafter, appellee filed an application for compensation with the Bureau of Workmen's Compensation for the neck injuries. The claim was allowed and compensation thereon was duly paid. At that time, the lower back injury was ignored by his doctor because '* * * we were so fearful of the neck area.'

By December 1967, however, the back injury necessitated appellee's further hospitalization. An extruded disc in the spinal canal was discovered and a laminectomy was performed.

In that regard, on June 5, 1968, appellee filed an application to reactivate and modify his original claim, to include the expenses arising out of the lower back injury.

The application was denied at the administrative level upon the ground that the back injury was unrelated to the neck injury. Upon appeal, the Court of Common Pleas, although finding that the back injury arose out of the 1959 accident, simultaneously with the neck injury, sustained appellants motion for summary judgment for the reason that appellee's application was not filed within two years of the injury as required by R.C. § 4123.84, as amended, effective December 11, 1967.

The Court of Appeals reversed, holding that amended R.C. § 4123.84 could not be applied retroactively so as to preclude appellee's recovery. The cause is now before this court pursuant to our allowance of appellants' motion to certify the record.

Howdyshell & Dodd, New Lexington, Robert J. Dodd, Jr., and Barkan, Barkan & Neff, Columbus, for appellee.

Power, Jones & Schneider and William R. White, Columbus, for appellant General Telephone Co. of Ohio.

William J. Brown, Atty. Gen., and I. Russell Suskind, Columbus, for appellant Jay C. Flowers, Administrator, Bureau of Workmen's Compensation.

HERBERT, Justice.

Section 35, Article II of the Ohio Constitution, authorizes the enactment of laws establishing, administering and regulating a state workmen's compensation fund. Under its provisions, such laws may determine both the 'terms and conditions upon which payment shall be made (from the fund).' In accordance with that language, the General Assembly enacted R.C. § 4123.84, which, until December 11, 1967, permitted the payment of compensation on meritorious claims against the fund, if '* * * within two years after the injury or death:

'(1) Written application has been made to the industrial commission or the bureau of workmen's compensation * * *.'

The General Assembly also enacted R.C. § 4123.52, which, prior to its amendment, effective December 11, 1967, provided:

'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 ten years from the last payment theretofore made of compensation or benefits awarded on account of injury or death, or ten years after the injury in cases in which no compensation ever has been awarded 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 ten year period in this section * * *.'

The effects of these two sections were examined in Kittle v. Keller (1967), 9 Ohio St.2d 177, 224 N.E.2d 751. The syllabus in that case states:

'An 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 4123.84, Revised Code which provides that claims for compensation for injuries are barred unless application is made to the Industrial Commission within two years after the injury, so long as such application for modification is filed within the ten-year period provided by Section 4123.52, Revised Code. (Paragraph two of the syllabus of State, ex rel. Kresge Co., v. Industrial Commission, 157 Ohio St. 62, 104 N.E.2d 450, approved and followed; State, ex rel. Bernhardt, v. Industrial Commission, 127 Ohio St. 582, 190 N.E. 224, overruled; and any portions of the per curiam opinion in Miller v. Spicer Mfg. Co., 159 Ohio St. 571, 113 N.E.2d 4, which are inconsistent with the syllabus in this case overruled.)'

Under Kittle v. Keller, appellee would be entitled to compensation from the state workmen's compensation fund, since he filed his original application within two years of his injury.

However, on December 11, 1967, the General Assembly enacted major amendments to R.C. § 4123.84 and R.C. § 4123.52. R.C. § 4123.84 was altered to bar all claims for compensation or benefits 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 workmen's compensation * * *.' (Emphasis added.)

Furthermore, the General Assembly prescribed that: 'Any claim pending before the administrator of the bureau of workmen's compensation, a board of review, the industrial commission, or a court on December 11, 1967, in which the remedy is affected by section 4123.84 of the Revised Code shall be governed by the terms of this section.' (Emphasis added.)

In amending R.C. § 4123.52, the General Assembly provided:

'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, 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 * * *.' 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.)

On the facts found below in the instant case, and under the interpretive decision in Kittle v. Keller, supra (9 Ohio St.2d 177, 224 N.E.2d 751), these amendments, especially those to R.C. § 4123.84, had the effect of destroying appellee's existing right to seek and be awarded compensation for his back injury.

Appellee contends that such a result is precluded by Section 28, Article II of the Ohio Constitution, which states:

'The General Assembly shall have no power to pass retroactive laws * * *.'

Despite the general nature of this provision, this court has long adhered to the accepted theory that its ban against retroactive legislation is applicable solely to substantive as opposed to remedial, laws. Rairden v. Holden (1864), 15 Ohio St. 207. ¹ Smith v. New York Central Rd. Co. (1930), 122 Ohio St. 45, 170 N.E. 637; State, ex rel. Slaughter v. Indus. Comm. (1937), 132 Ohio St. 537, 9 N.E.2d 505; State, ex rel. Crotty v. Zangerle (1938), 133 Ohio St. 532, 14 N.E.2d 932; State, ex rel. Holdridge v. Indus. Comm. (1967), 11 Ohio St.2d 175, 228 N.E.2d 621.

R.C. § 4123.84 is a statute of limitation. It prescribes a time limitation for certain rights of action which lie under R.C. Chapter 4123. See State ex rel. Carr v. Indus. Comm. (1935), 130 Ohio St. 185, 198 N.E. 480. By reason of that fact alone, it could be...