Lewis v. Trimble

• Decision Date: 23 July 1997
• Docket Number: No. 95-2427,95-2427
• Citation: 680 N.E.2d 1207,79 Ohio St.3d 231
• Parties: LEWIS, Appellant, v. TRIMBLE, Admr., Bureau of Workers' Compensation, et al., Appellees.
• Court: Ohio Supreme Court

Page 231

79 Ohio St.3d 231

680 N.E.2d 1207

LEWIS, Appellant, v. TRIMBLE, Admr., Bureau of Workers' Compensation, et al., Appellees.

No. 95-2427.

Supreme Court of Ohio.

Submitted March 5, 1997.

Decided July 23, 1997.

SYLLABUS BY THE COURT

1. R.C. 4123.84 requires that written notice of the specific part or parts of the body claimed to have been injured must be given within two years of the time the claimant knew or should have known of the nature and seriousness of the residual or "flow-through" condition and its causal relation to his or her industrial injury. (Clementi v. Wean United, Inc. [1988], 39 Ohio St.3d 342, 530 N.E.2d 909, modified.)

2. A self-insured employer makes a conclusive determination to allow a claim for a residual or "flow-through" condition when it accepts the condition as part of the claim, even where such acceptance occurs after the limitations period set forth in R.C. 4123.84 has run. (State ex rel. Baker Material Handling Corp. v. Indus. Comm. [1994], 69 Ohio St.3d 202, 631 N.E.2d 138, paragraph one of the syllabus, followed.)

On May 31, 1987, claimant-appellant, Carles B. Lewis, received an injury in the course of, and arising out of, his employment with appellee, Dayton Power & Light Company, a self-insured employer ("employer"). An application for benefits was filed with the Bureau of Workers' Compensation and the claim was allowed for "recurrent right ventral hernia." Thereafter, compensation and benefits were paid by the employer for this condition.

On October 1, 1987, claimant filed an application for Social Security disability benefits with the Department of Health and Human Services. In conjunction with those proceedings, a psychological evaluation was conducted by William R. Arnold, Ph.D., on March 24, 1988, at the request of claimant's counsel. Dr. Arnold's primary diagnosis was that claimant suffers from "Adjustment Disorder with depressed mood moderate," noting that "the current anxiety and depressive symptoms are primarily reactive to his deteriorating physical status."

On February 25, 1992, claimant filed a motion with the Industrial Commission of Ohio ("commission") requesting that "the instant claim be additionally recognized for the [psychological] condition of dysthymia pursuant to Dr. Arnold's report of September 6, 1990." Claimant filed another motion on August 5, 1992, requesting an allowance for major depression and panic disorder with agoraphobia.

In response to claimant's motions, the employer had claimant examined by Dr. Richard H. Clary, M.D. In his report, dated September 25, 1992, Dr. Clary noted that claimant "saw a psychologist, Dr. Arnold in 1988 for Social Security disability and * * * that since he has been unable to work in 1987, he has felt anxious and depressed." Dr. Clary opined that claimant "has been suffering from major depression and panic disorder for over 2 years * * *. [His] psychiatric problems are permanent at this time and he is unable to return to his former employment."

On November 16, 1992, the employer filed a motion which stated:

"Now comes the employer and indicates that they [sic ] will accept the condition diagnosed by Dr. Clary as indicated in the attached report. The employer further requests that an order be placed in the claim indicating that as a result of the conditions in this claim including the accepted depression, the claimant's condition is permanent."

The employer alleges that subsequent to filing this motion, it discovered the existence and content of Dr. Arnold's 1988 report rendered in conjunction with the proceedings on claimant's request for Social Security disability benefits. It claims that "[w]hen the allowance issue was first heard by the District Hearing Officer, * * * the statute of limitations defense [i.e., that claimant's request for an additional allowance was time-barred under R.C. 4123.84] was raised. The defense was asserted at each administrative level thereafter." Claimant does not dispute these allegations.

The claim was allowed administratively for the condition "major depression and panic disorder with agoraphobia," and thereafter appealed to the Greene County Court of Common Pleas. After the filing of cross-motions for summary judgment, the trial court found that claimant's claim for additional psychological conditions is barred by the two-year limitations period set forth in R.C. 4123.84.

The court of appeals affirmed the judgment of the trial court, finding that the employer "is not estopped from asserting that the [claimant's] claim is time-barred under R.C. 4123.84 although it may have acquiesced in [claimant's] claim after the limitation period expired because the limitation period invokes the subject matter jurisdiction of the Industrial Commission." (Emphasis sic.)

The cause is now before this court pursuant to the allowance of a discretionary appeal.

E.S. Gallon & Associates and James R. Piercy, Dayton, for appellant.

Dunlevey, Mahan & Furry, Gary W. Auman, William H. Barney, III and William P. Allen, Dayton, for appellee Dayton Power & Light Company.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy and Marc J. Jaffy, Columbus, urging reversal for amici curiae, Ohio AFL-CIO and Ohio Academy of Trial Lawyers.

ALICE ROBIE RESNICK, Justice.

This appeal raises two important issues under Ohio's workers' compensation law. The first issue involves the application and requirements of R.C. 4123.84 with regard to "flow-through" or residual medical conditions. The second issue is whether a self-insured employer who accepts a "flow-through" or residual condition as allowed, after the two-year limitations period set forth in R.C. 4123.84 has run, has conclusively granted that condition as part of the claim.

I R.C. 4123.84 and Residual Conditions

R.C. 4123.84 ¹ provides "(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;

" * * *

"(3) In the event the employer is a self-insuring employer, one of the following has occurred:

"(a) Written notice of the specific part or parts of the body claimed to have been injured has been given to the commission or bureau * * *;

" * * *

"(C) 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."

R.C. 4123.52 provides:

"No 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 * * * 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 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 the application is filed within the time limit provided in this section."

In Clementi v. Wean United, Inc. (1988), 39 Ohio St.3d 342, 530 N.E.2d 909, this court sought to interpret the relationship between R.C. 4123.84 and 4123.52, and concluded that "[t]he 1967 amendments to R.C. 4123.84 [H.B. No. 268, 132 Ohio Laws, Part I, 1432-1433, effective December 11, 1967] and 4123.52 apparently were made to expand the notice requirements and therefore the statute of limitations requirements to residual or flow-through conditions." Id. at 346, 530 N.E.2d at 913. We held that "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." Id. at syllabus.

Claimant does not challenge Clementi 's application of R.C. 4123.84's notice requirements to residual or "flow-through" conditions. Instead, claimant seeks a clarification of Clementi 's holding, particularly with reference to identifying those characteristics of a claimant's residual condition and his or her knowledge thereof which will cause the statutory period to start to run.

In considering claimant's request, it has become apparent that Clementi 's holding has generated substantial confusion. In a literal sense, Clementi seems to impose upon a claimant requirements that are either not imposed under R.C. 4123.84 or directly conflict with other statutory provisions and case law.

The syllabus in Clementi begins with the phrase: "R.C. 4123.84 requires a claimant to file * * *." However, R.C. 4123.84 requires only that "[w]ritten notice * * * has been made" or that "[w]ritten notice * * * has been given." R.C. 4123.84(A)(1) and (A)(3)(a). The operative language was the same under the 1967 amendments, and has remained unchanged through five subsequent amendments. 133 Ohio Laws, Part II, 1621; 136 Ohio Laws, Part I, 1173; 137 Ohio Laws, Part II, 3960-3961; 143 Ohio Laws, Part II, 3378; 145 Ohio Laws, Part II, 3185. In focusing its attention on a number of lower court decisions, the Clementi court overlooked former R.C. 4123.512(A) (now R.C. 4123.511[A] ), which expressly provided that "[i]f the administrator...