Vandemark v. Southland Corp., 87-714

• Decision Date: 13 July 1988
• Docket Number: No. 87-714,87-714
• Citation: 38 Ohio St.3d 1,525 N.E.2d 1374
• Parties: VANDEMARK, Appellee, v. SOUTHLAND CORPORATION, Appellant.
• Court: Ohio Supreme Court

Page 1

38 Ohio St.3d 1

525 N.E.2d 1374

VANDEMARK, Appellee, v. SOUTHLAND CORPORATION, Appellant.

No. 87-714.

Supreme Court of Ohio.

Submitted Feb. 9, 1988.

Decided July 13, 1988.

Syllabus by the Court

A cause of action in tort may be stated where a self-insured employer fails to process a workers' compensation claim submitted to it by its employee and the employee is unable to personally file the claim because the statutory limitations period has expired. (Greenwalt v. Goodyear Tire & Rubber Co. [1955], 164 Ohio St. 1, 57 O.O. 57, 128 N.E.2d 116, paragraph two of the syllabus, overruled.)

During 1980, plaintiff-appellee, Harold Vandemark, was employed by defendant-appellant, Southland Corporation, as a laborer and handyman for its "7-Eleven Stores" in Dayton. On or about October 24, 1980, plaintiff sustained a work-related injury to his back which required surgery. Subsequently, plaintiff returned to work, but was laid off approximately six months later.

When plaintiff attempted to reopen his claim for workers' compensation benefits in 1985, he discovered that defendant had never filed his 1980 application for benefits with the Bureau of Workers' Compensation ("bureau"), but had instead paid plaintiff weekly benefits out of the proceeds of an employee health and accident group policy. Consequently, on October 8, 1985, plaintiff filed a complaint in the court of common pleas alleging the following:

"1. At all times material to this Complaint, Southland Corporation was doing business as the 7-Eleven Store at 6000 Philadelphia Drive, Dayton, Ohio.

"2. On or about October 24, 1980, while acting within the scope of his employment with Southland Corporation, Plaintiff incurred a work-related injury, requiring extensive surgery.

"3. Defendant failed to process Plaintiff's Application for Workers' Compensation Benefits and instead paid Plaintiff sickness and accident benefits under an employee group policy.

"4. Plaintiff became aware of Defendant's wrongful acts when his work-related injury became debilitating permanently to him and he sought legal advise [sic ] relative to filing for permanent disability.

"5. As a direct result of Defendant's wrongful acts, Plaintiff received less weekly benefits while off work due to his work-related injury.

"6. As a direct result of Defendant's wrongful acts, Plaintiff was required to return to work or be terminated causing Plaintiff to return to work before he was recuperated from his work-related injury and surgery thereby aggravating Plaintiff's injury, causing pain and suffering and further injury to the Plaintiff.

"7. Plaintiff has incurred medical bills and lost wages as a result of his work-related injury, all of which are required to be paid by the Defendant under the Workers' Compensation Statute.

"8. Plaintiff has become totally and permanently disabled as a result of his work-related injury, but is unable to apply for benefits because there is no record of Plaintiff's work-related injury with the Bureau of Workers' Compensation."

In his prayer for relief, plaintiff requested $300,000 compensatory damages and $100,000 in punitive damages.

Defendant answered and, thereafter, filed a motion for judgment on the pleadings pursuant to Civ.R. 12(C), as well as a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

While not determining the motion to dismiss, the trial court granted defendant's motion for judgment on the pleadings relying on this court's opinion in Greenwalt v. Goodyear Tire & Rubber Co. (1955), 164 Ohio St. 1, 57 O.O. 57, 128 N.E.2d 116, where it was held in paragraph two of the syllabus:

"Where an employer gratuitously offers to file for an employee a claim for workmen's compensation with the Industrial Commission and fails to file the claim within the time required by the statute of limitations, no right of action against the employer accrues to the employee, who, by reason of such failure of the employer, is unable to personally file the claim because the statutory period of limitation has expired."

Upon appeal, the court of appeals reversed and remanded the cause for further proceedings. The appellate court found that the pleadings do not affirmatively show that plaintiff's action was time-barred by the statute of limitations, and that the allegations made by plaintiff were such that plaintiff may be able to prove a set of facts that would entitle him to a recovery. The court of appeals distinguished the Greenwalt case (albeit in one respect erroneously, when it opined that the employer in Greenwalt was not self-insured) and made the following observation:

"Noticeably, the Greenwalt case has been the subject of considerable commentary, and in Delamotte v. [Midland Ross] Corporation [ (1978) ], 64 Ohio App.2d 159 [, 18 O.O.3d 117, 411 N.E.2d 814], it was suggested that the seemingly unjust result in the case prompted the amendment of R.C. 4123.74 so as to narrow the class of losses to which the exclusivity provision of the statute would apply. In that case, the court proceeded to hold that R.C. 4123.74 does not exempt an employer from civil liability for fraudulently withholding information from an employee. More recently, in the case of Egan v. National Distillers [ (1986) ], 25 Ohio St.3d 176 [, 25 OBR 243, 495 N.E.2d 904], it was recognized that the dissents in the Greenwalt case helped to provide the groundwork for the 'intentional tort' exception articulated in Blankenship v. Cincinnati Milacron [Chemicals (1982) ], 69 Ohio St.2d 608 [, 23 O.O.3d 504, 433 N.E.2d 572]. Because of factual distinctions, Blankenship does not overrule Greenwalt, but neither does it exempt from its holding an employer's conduct which has the effect of depriving an employee of workers' compensation benefits. See Balyint v. Arkansas Best Freight System [, Inc. (1985) ], 18 Ohio St.3d 126 [, 18 OBR 188, 480 N.E.2d 417]."

In addition, the appellate court held that none of the arguably relevant statutes of limitations necessarily bars plaintiff's action, and that the defendant, as a self-insurer, had a duty under R.C. 4123.35, as elucidated by Ohio Adm.Code 4121-9-03(M)(10) [now renumbered (L)(10) ], to process plaintiff's 1980 claim for benefits and make the appropriate notifications of its determination.

The cause is now before this court upon the allowance of a motion to certify the record.

Sambol & Associates and MaryLee Gill Sambol, Trotwood, for appellee.

Bieser, Greer & Landis and David F. Rudwall, Dayton, for appellant.

SWEENEY, Justice.

The defendant-appellant contends that plaintiff has failed to state a claim for relief, and that under Greenwalt, supra, the injured employee is solely responsible for the filing of his workers' compensation claim. Defendant submits that the instant action is barred under R.C. 4123.84 by the lapse of more than two years from the date of the injury.

Plaintiff-appellee argues that defendant, as a self-insured employer, ¹ was ultimately responsible for the submission of his claim to the bureau under former Ohio Adm.Code 4121-9-03(K), once plaintiff had submitted his claim to the employer. Plaintiff asserts that he did all that was required in order to submit a claim for work-related injuries to a self-insured employer, and that it was logical for him to believe that he was being paid workers' compensation benefits after his injury since he completed an application for benefits and submitted the same to his employer. Plaintiff further argues that defendant's statute-of-limitations defense is irrelevant because the instant complaint seeks redress for the employer's breach of duty in not submitting his claim to the bureau; it does not seek workers' compensation benefits.

In reviewing the allegations of plaintiff's complaint, it should be noted that the allegation charging that the injury was aggravated by defendant's premature return-to-work order states no redressable cause of action. Plaintiff does not allege intentional conduct in this regard, and any aggravation of his injuries caused by his return to work was sustained in the course of his employment. Therefore, with respect to this particular allegation, the employer is immune from suit pursuant to R.C. 4123.74.

Notwithstanding the foregoing determination, we do not believe that R.C. 4123.74 provides immunity to defendant-employer with respect to the essential allegations set forth in plaintiff's complaint for the simple reason that the remaining allegations do not seek entitlement to workers' compensation benefits. In view of plaintiff's complaint, we agree with the conclusion of the court of appeals that the central cause alleged herein falls outside the scope of the workers' compensation statutes. The injury alleged in this regard is not a physical injury sustained in the course of employment; rather, it is in the nature of a financial injury that resulted from the employer's alleged failure to process a workers' compensation claim back in 1980. The injury alleged in plaintiff's complaint occurred when plaintiff discovered that defendant had not processed the prior claim. The failure of defendant to do so precludes plaintiff from "re-opening" his prior claim since the bureau has no prior claim to re-open.

R.C. 4123.35 was amended in 1977 (136 Ohio Laws, Part I, 1075, 1133, 1135) to require the Industrial Commission to adopt rules establishing a minimal level of performance as a criterion for an employer to gain permission to self-insure in the area of workers' compensation. The adopted rules embodied in the Ohio Administrative Code provided that the self-insured employer notify the Bureau of Workers' Compensation as to recognized medical conditions within thirty days of submission of the claim. Ohio Adm.Code 4121-9-03(M)(10).

Since the instant action was determined on a Civ.R. 12(C) motion, the party against whom the motion is made is entitled to have all the material allegations in the complaint, with...