LEWIS, APPELLANT, v. TRIMBLE, ADMR., BUREAU OF WORKERS’ COMPENSATION, ET AL., APPELLEES.
No. 95-2427
Supreme Court of Ohio
Decided July 23, 1997
79 Ohio St.3d 231 | 1997-Ohio-393
Submitted March 5, 1997. APPEAL from the Court of Appeals for Greene County, No. 95-CA-37.
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.)- 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.)
{¶ 1} 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
{¶ 2} 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.”
{¶ 3} 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.
{¶ 4} 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.”
{¶ 5} 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.”
{¶ 6} 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
{¶ 7} 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
{¶ 8} 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
{¶ 9} The cause is now before this court pursuant to the allowance of a discretionary appeal.
E. S. Gallon & Associates and James R. Piercy, for appellant.
Dunlevey, Mahan & Furry, Gary W. Auman, William H. Barney III and William P. Allen, for appellee Dayton Power & Light Company.
ALICE ROBIE RESNICK, J.
{¶ 10} This appeal raises two important issues under Ohio‘s workers’ compensation law. The first issue involves the application and requirements of
I
R.C. 4123.84 and Residual Conditions
{¶ 11}
“(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.”
{¶ 12}
“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.”
{¶ 13} 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
{¶ 14} Claimant does not challenge Clementi‘s application of
{¶ 15} 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
{¶ 16} The syllabus in Clementi begins with the phrase: ”
“Pursuant to
R.C. 4123.84 , notice of a claim by a third party to the Bureau of Workers’ Compensation referring to a prior claim, and filed within two years of the occurrence of the injury underlying such prior claim, gives the court jurisdiction over the subsequent claim.” Id. at syllabus.
“The use of the term ‘motion’ is unfortunate because it causes confusion. A motion, or C-86, is an intra-agency application form designed by the Bureau for parties to use in seeking a determination on any matter. As [a] notice statute[ ],
R.C. * * * 4123.84 * * * merely require[s] notice of the body parts affected by a claimed residual injury. The statute does not require the giving of notice on any particular form or on any particular blank of a form [Toler v. Copeland Corp. (1983), 5 Ohio St.3d 88, 5 OBR 140, 448 N.E.2d 1386], and technical rules of procedure should not be allowed to defeat an otherwise valid claim. [State ex rel. Gatlin v. Yellow Freight Sys., Inc. (1985), 18 Ohio St.3d 246, 18 OBR 302, 480 N.E.2d 487; W.S. Tyler Co. v. Rebic (1928), 118 Ohio St. 522, 161 N.E. 790.] Clementi‘s use of the word ‘motion’ does not mandate any greater specificity for notice of residual injuries thanR.C. * * * 4123.84 * * * generally require[s] for the original injury.”
{¶ 18} It is difficult to ascertain from the opinion in Clementi whether this court really sought to impose the requirement of filing a motion under
{¶ 19} This seems to suggest that the Clementi court drew support from the term “application” in
{¶ 20} In fact, this was precisely the issue in Mewhorter, 23 Ohio St.3d 13, 23 OBR 11, 490 N.E.2d 610. In that case, claimant was injured on July 30, 1976. His claim for injury to his right arm, shoulder, and hand was denied. He was admitted to the hospital and an anterior discectomy of the C 6-7 extruded disc was performed. On April 17, 1978, the bureau received a fee bill and medical reports regarding the disc surgery from claimant‘s self-insured employer, who had received the information from claimant‘s surgeon. However, claimant did not file a motion for recognition of the spinal injury until February 22, 1979. Thus, the fee bill and attachments were filed within two years from the date of injury, but the motion was not. The commission denied the claim for the reason that it had not been filed as to the spinal injury within two years of the date of the industrial accident as mandated by
{¶ 21} Next, the motion (or notice) that Clementi requires a claimant to file is one “for an additional allowance.” Id. at syllabus. This is misleading because it implies that more is required under
“An injured employee is required to give written notice of the specific part or parts of the body claimed to have been injured within two years after the injury, but is not required to include in such notice the specific nature of the physical condition or impairment resulting from such injury. (
R.C. 4123.84 and4123.52 , construed.)”
{¶ 22} Clementi‘s holding required the claimant to file a motion for an additional allowance “within two years of the time that claimant knew or should have known of the additional condition.” 39 Ohio St.3d 342, 530 N.E.2d 909, syllabus. In using the term “additional” to qualify the term “condition,” the court misspoke. An additional condition is different from a residual or flow-through condition. An additional condition is a new condition occurring in a body part for which proper written notice has already been given in the original claim. Additional conditions, by definition, are not subject to the two-year limitations period set forth in
{¶ 23} Also, although Clementi adopted the “knew or should have known” test, it did not adequately inform as to what it is that the claimant must or should be aware of to start the running of the limitations period. In other words, what does it mean to have knowledge or its equivalent of “the condition“?
{¶ 25} As with many competing positions, the answer lies somewhere in between. “[T]he purpose of the initial filing period of
{¶ 26} However, like most workers’ compensation statutes of limitations,
{¶ 27} “The number of jurisdictions that are still capable of destroying compensation rights for failure to file a claim at a time when its existence could not reasonably have been known has dwindled to three or four at the most, all under statutes dating the period from time to [sic, of] accident rather than time of injury.” 2B Larson, Workmen‘s Compensation Law (1996) 15-254 to 15-257, Section 78.41(b).
{¶ 28} Thus, the “knew or should have known” standard was adopted in Clementi in an apparent attempt to temper the literal harshness of
{¶ 29} In Edwards v. AT&T Technologies, Inc. (1989), 42 Ohio St.3d 119, 537 N.E.2d 1305, claimant‘s workers’ compensation claim was allowed for upper and lower back injuries sustained on February 10, 1976. On December 6, 1982, she requested an additional allowance for “depressive neurosis.” However, more than two years prior to the filing of her motion, claimant had been examined by four doctors, whose reports noted “some distinct indications of functional overlay,” “evidence of psychosomatic overlay,” “a psychophysiological reaction,” “conversional” symptoms, and “some conversion anxiety.” Id., 42 Ohio St.3d at 119, 537 N.E.2d at 1305.
{¶ 30} In applying Clementi to these facts, this court held that, although the four reports preceded claimant‘s motion by more than two years, “we are unconvinced that their references to a possible psychiatric condition were sufficient to put [claimant] on notice of a psychiatric condition related to her industrial injury.
{¶ 31} Edwards accords with the overwhelming majority of courts which hold, in one form or another, that “[t]he time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness, and probable compensable character of his or her injury or disease.” 2B Larson, supra, at 15-206, Section 78.41(a).
{¶ 32} Since this standard is essentially one of due diligence, the focus properly rests upon the reasonableness of claimant‘s conduct under all the surrounding circumstances. This requires that all relevant factors bearing on the question of reasonableness be considered, including, but not limited to, the information available to claimant, his or her experience, education and intellectual functioning, and what he or she has been told or not told about the nature, seriousness, and probable compensable character of the condition.
{¶ 33} In this context, it becomes clear that whether or not claimant is informed of a specific diagnosis is not itself a determinative inquiry, but constitutes one factor to be considered. Thus, under a particular set of circumstances it may be properly found that the statute begins to run when the claimant is informed of a specific diagnosis. See, e.g., Mikoch v. Sherwin-Williams Co. (1988), 45 Ohio App.3d 1, 3, 544 N.E.2d 698, 700 (claimant “could [not] report an ‘organic brain syndrome’ before his doctors diagnosed it.“); Forster v. Ohio Bur. of Workers’ Comp. (1995), 102 Ohio App.3d 744, 658 N.E.2d 7 (limitations period held to commence when diagnosis of bilateral carpal tunnel syndrome was made, not when claimant previously experienced tingling in his hands).
{¶ 34} If we were to hold that the date of diagnosis can under no circumstances be the date the statute begins to run, we would effectively place the burden of diagnosis on the claimant. Indeed, this is what the court attempted to do in McCurdy v. Mihm (1993), 89 Ohio App.3d 363, 370, 624 N.E.2d 760, 765, when
{¶ 35} On the other hand, the date of diagnosis does not necessarily determine the date the statute begins to run. The limitations period may properly be found to commence before the claimant is informed of a specific diagnosis. Thus, the court in McCurdy was astute in its observation that “[a]ctual knowledge of a specific diagnosis is not required to commence the statute of limitations period.” Id., 89 Ohio App.3d at 369, 624 N.E.2d at 764. As well stated by the trial court in that case, ” ‘[t]he fact that [claimant] found a doctor to put the label of “dysthymia” on his problem in 1989 does not change his own testimony that he knew of the problem within a few months of the [October 22, 1980] injury.’ ” Id. at 365, 624 N.E.2d at 762. “[I]t is not necessary for the claimant to know the exact diagnosis or medical name for the condition if he or she knows enough about its nature to realize that it is both serious and work-connected.” 2B Larson, supra, at 15-271, Section 78.41(d).
{¶ 36} However, there are circumstances where the limitations period may remain tolled even after claimant is informed of a specific diagnosis. This can occur where the diagnosis is confusing or misleading, or where the claimant cannot be reasonably expected to know what the diagnosis means. See 2B Larson, supra, at 15-277 to 15-279, Section 78.41(d), and 15-283 to 15-286, Section 78.41(f).
{¶ 38} Accordingly, we hold that
{¶ 39} Applying this standard to the case sub judice, we find summary judgment to be inappropriate. Claimant was examined by Dr. Arnold in 1988 and not again until August or September 1990. Notice of a psychiatric condition was first given on February 25, 1992, when claimant filed his motion for allowance of dysthymia along with Dr. Arnold‘s report dated September 6, 1990. Thus, notice was given within two years of Dr. Arnold‘s second report, but not within two years of his first report. Accordingly, if claimant knew or should have known the nature, seriousness, and probable compensability of his psychiatric condition in 1988, his claim therefor is barred under
{¶ 40} If Dr. Arnold‘s 1988 report were the only evidence of record, we might very well be inclined to agree with the employer that claimant‘s 1992 request for allowance of dysthymia was time-barred. However, when this report was filed in his claim for Social Security disability in 1988, claimant was informed by the administrative law judge as follows:
“While I concede that the claimant undoubtedly experiences a degree of depression secondary to the functional limitations imposed by his physical impairment and his inability to work, I find no substantial longitudinal evidence of a mental impairment of independent significance. * * * [O]ther than the consultative examination conducted at the request of his attorney, he has not been referred for, or sought, psychological or psychiatric treatment. * * * Therefore, while I believe that the claimant may experience a degree of situational depression, I find no substantial evidence to establish that he has a mental impairment which significantly limits his functional capabilities.”
{¶ 41} In contrasting his second evaluation of claimant in 1990 with that of 1988, Dr. Arnold testified at his deposition that “[i]n this particular instance because [claimant] appeared to be so distressed the second time I told him I really felt like he needed to get some help.” Thereafter, claimant began treatment with a clinic called “Positive Focus” and, on October 25, 1990, started treatment with a Dr. Siddiqui. He was hospitalized in January 1991 and again in November 1991 because of suicidal ideation and, as of 1992, was seeing a psychiatrist once a month and a psychologist once a week.
{¶ 42} In light of this additional evidence, there remains a genuine issue of fact as to whether claimant knew or should have known of the seriousness of his condition before February 25, 1990.
{¶ 43} Accordingly, we reverse the judgment of the court of appeals insofar as it bears on this issue.
Allowance of Time-Barred Residual Condition by Self-Insured Employer
{¶ 44} Having found summary judgment in favor of the employer to be inappropriate, it remains to be determined whether summary judgment should have been entered in favor of claimant.
{¶ 45} In 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, this court held:
“A self-insured employer who, subsequent to the initial allowance of a workers’ compensation claim, certifies a medical condition as allowed on a ‘Self-Insured Semi-Annual Report of Claim Payments’ (form C-174) has conclusively granted that additional condition as part of the claim.”
{¶ 46} By its terms, Baker applies to the allowance of an “additional condition.” However, we have no hesitation in applying Baker to the allowance of a residual condition as well. The primary basis for our holding in Baker was that the self-insured employer is the initial processing agent and adjudicator of any claim. Id. at 205, 631 N.E.2d at 142. Thus, it is irrelevant whether the condition certified is characterized as an initial injury or as an additional or residual condition.
{¶ 47} Equally irrelevant is the method by which the self-insurer allows the claim, whether it be by certifying the condition on a C-174 form, or by the more direct method of formally accepting the condition by motion, as occurred in this case. In either instance, the allowance stands because the initial determination of allowed conditions necessarily is made by the self-insurer. Id., 69 Ohio St.3d at 206, 631 N.E.2d at 142.
{¶ 48} However, the employer argues that Baker should not apply where the residual condition has been accepted by the self-insurer after the claim becomes time-barred under
{¶ 49} Claimant, on the other hand, argues that the limitations bar is not jurisdictional and, therefore, can be waived. Accordingly, a self-insured employer who accepts a time-barred residual condition cannot subsequently withdraw that acceptance by alleging expiration of the limitations period.
{¶ 50} We begin our inquiry by examining our prior decisions in an effort to gain insight into whether and in what sense
“The provisions of [
R.C. 4123.84 ‘s predecessor, G.C. 1465-72a (108 Ohio Laws, Part I, 319, effective May 16, 1919)] are wholly negative. That section confers no rights upon an injured employee or the dependents of a killed employee, but its whole effect is to limit rights elsewhere conferred upon them. It is strictly a statute of limitations and limits alike the rights of the injured employees, the rights of dependents of killed employees, and the powers of the administrators of the fund.”
{¶ 51} In State ex rel. Carr v. Indus. Comm. (1935), 130 Ohio St. 185, 4 O.O. 122, 198 N.E. 480, at paragraph one of the syllabus, this court held: “The filing of a claim for compensation * * * within the time specified is a condition qualifying the right vested by the statute.” This holding was based upon the concept that where a statutory right is expressly conditioned upon its assertion before a certain deadline, the timeliness requirement is jurisdictional.
{¶ 52} Yet, in Gregory v. Flowers (1972), 32 Ohio St.2d 48, 53, 61 O.O.2d 295, 298, 290 N.E.2d 181, 185, this court characterized
{¶ 54} These cases serve to illustrate that the characterization of
{¶ 55} The 1967 amendments, 132 Ohio Laws, Part I, 1433, and as clarified in Am. H.B. No. 1, 133 Ohio Laws, Part II, 1622, effective March 18, 1969, added the following provision to
“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.)
{¶ 56} Moreover, even were we to assume that
{¶ 57} Indeed, as Professor Larson points out, “practically every fact the [commission] finds bears on its jurisdiction—it has no jurisdiction to award compensation in the absence of such facts as employment relation, employment by the employer of the requisite minimum number of employees, injury in the course of employment, injury arising out of employment, personal injury, injury by accident, existence of dependency in death cases, timely filing of claim, absence of self-injury, and so on. * * *” 3 Larson, supra, at 15-959 to 15-961, Section 80.41.
{¶ 58} If we were to follow the logic that a given issue is unwaivable merely because we have referred to it as “jurisdictional,” virtually every issue could be raised for the first time at even the last stages of an appeal. This would in no small way disrupt the manifold rules that this court has carefully established to facilitate the orderly and fair administration of justice. See State ex rel. Quarto Mining Co. v. Foreman (1997), 79 Ohio St.3d 78, 679 N.E.2d 706. Moreover, “the net result [would be] that the agency expressly created and empowered to find the facts and administer the Act is * * * deprived of all effective ability to perform its duty, and is reduced to presiding over a hollow preliminary ritual.” 3 Larson, supra, at 15-961, Section 80.41.
{¶ 59} We must conclude, therefore, that the issue of whether
{¶ 60} Thus, to say that
{¶ 61} In its argument, the employer focuses on the waiver provisions set forth in
{¶ 62} We agree with the employer that the two-year bar set forth in
{¶ 63} However, valid waiver may also take a procedural form. This occurs when a party fails to raise the defense promptly. This court has applied procedural waiver to a number of issues denominated jurisdictional. In Miles, supra, the court held waived issues of situs of injury, the requisite minimum number of employees, and the status of the employer as self-insuring.
{¶ 64} In State ex rel. Gibson v. Indus. Comm. (1988), 39 Ohio St.3d 319, 320, 530 N.E.2d 916, 917, the court held:
“[Claimant‘s] sole proposition before this court is that the commission‘s assumption of jurisdiction over an issue that she did not intend to relitigate violated her right to due process of law. We hold that this issue was not raised previously, and therefore has been waived.”
{¶ 65} Recently, in Quarto Mining Co., supra, 79 Ohio St.3d 78, 679 N.E.2d 706, we held the defense of voluntary retirement to have been procedurally waived. In so doing, we relied in part on Bohn v. Watson (1954), 130 Cal.App.2d 24, 37, 278 P.2d 454, 462, in which it was stated:
“Had [appellant] desired to avail herself of the asserted bar of limitations, she should have done so in the administrative forum, where the commissioner could have prepared his case, alert to the need of resisting this defense, and the hearing officer might have made appropriate findings thereon.”
{¶ 67} Other state courts have reached similar conclusions. In Frazier v. Indus. Comm. (1985), 145 Ariz. 488, 490, 702 P.2d 717, 719, the employer argued that “A.R.S. § 23-947, as amended in 1980, provides only certain limited exceptions in which the commission may act if a request for hearing is not filed within 90 days. From this premise, the [employer] argues that the limitation period is now a jurisdictional bar which may be raised for the first time on appeal.”
{¶ 68} The court disagreed, holding in part that “[s]ince the court, under certain circumstances, may excuse a late filing, such time limitations are not jurisdictional.” Id., 145 Ariz. at 491, 702 P.2d at 720.
{¶ 69} In Ball, supra, 30 Colo.App. at 588, 503 P.2d at 1042, the court similarly found: “The fact that the court held the time limitation tollable indicates that the court could not have regarded the limitation to be jurisdictional.” Accordingly, the court went on to hold that “[t]he time limitation of C.R.S. 1963, 81-14-19 is a statute of limitation which may be pled as a bar to a claim. This
{¶ 70} Thus, the majority of courts hold that the defense of lateness in filing claims or giving notice may be lost by failure to raise it promptly. 2B Larson, supra, at 15-426.32(34), Section 78.72. As Professor Larson explains:
“[I]n spite of the impressive list of earlier authorities that could be mustered to support the ‘jurisdictional’ view, the entire content of the present section belies the present validity of the idea, since, taken at face value, it would simply mean that none of the relaxations or waivers herein discussed, based on the conduct of employer or employee, could exist except where authorized by express statutory enactment. Regardless, then, of the theoretical question whether late filing goes to the right so as to affect jurisdiction, or to the remedy only, the practical fact seems to be that one way or another this defense can be lost by waiver in the various forms discussed.” Id. at 15-426.32(40) to 15-426.32(41), Section 78.73.
{¶ 71} Lastly, the employer alleges that it did not discover Dr. Arnold‘s 1988 report until after its November 16, 1992 motion accepting claimant‘s residual condition, and that it thereafter raised the statute of limitations defense at each administrative level.
{¶ 72} In Baker, supra, 69 Ohio St.3d at 206, 631 N.E.2d at 142, we adopted the following reasoning of the court of appeals in State ex rel. Saunders v. Metal Container Corp. (Nov. 29, 1988), Franklin App. No. 87AP-509, unreported, 1988 WL 129162:
“‘[W]hen * * * the employer is self-insured[,] [t]he initial determination of allowed conditions necessarily is made by the employer in such a situation. The district hearing officer cannot modify that finding over the objection of the
claimant, upon the assumption that the self-insured employer erroneously certified the condition. The district hearing officer had no jurisdiction under R.C. 4123.52 , or otherwise, to modify the original finding of the employer as to the allowed condition over the objection of the claimant. The employer who made the determination and certified the claim cannot now complain, as it attempted to do before the district hearing officer * * * that it, the employer, had made an erroneous determination and certification as to the allowed condition.‘”
{¶ 73} Thus, the limitations defense is waived at the moment the employer accepts claimant‘s residual psychiatric condition as part of the claim.
{¶ 74} The fact that the employer expresses surprise at having discovered Dr. Arnold‘s report subsequent to accepting the claim is irrelevant. There is no evidence in the record, and, indeed, no allegation made, that Dr. Arnold‘s report was fraudulently withheld. In fact, the employer chose to accept the residual condition based on Dr. Clary‘s September 25, 1992 report, which specifically stated that claimant “saw a psychologist, Dr. Arnold in 1988 for Social Security disability” and that since 1987, when he became unable to work, “he has felt anxious and depressed.”
{¶ 75} We hold that 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
{¶ 76} However, since it is the self-insured employer who makes the initial determination of which conditions to accept, the only residual condition made part of this claim is the condition recognized by the employer in its motion, i.e., “the condition diagnosed by Dr. Clary as indicated in [his September 25, 1992] report.” The condition diagnosed by Dr. Clary was “major depression and panic disorder.”
Judgment reversed.
F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
DOUGLAS, J., concurs separately.
LUNDBERG STRATTON, J., concurs in the syllabus and judgment only.
MOYER, C.J., concurs in judgment only.
LEWIS, APPELLANT, v. TRIMBLE, ADMR., BUREAU OF WORKERS’ COMPENSATION, ET AL., APPELLEES.
No. 95-2427
Supreme Court of Ohio
Decided July 23, 1997
DOUGLAS, J., concurring.
{¶ 78} I concur in both paragraphs of the syllabus as well as the opinion and ultimate judgment of the majority. Much of what Justice Resnick says in this opinion has needed saying for a long time. My only reservation and regret is that Clementi v. Wean United, Inc. (1988), 39 Ohio St.3d 342, 530 N.E.2d 909, is “modified” rather than “overruled.”
Notes
“(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;
“(2) The employer, with knowledge of a claimed compensable injury or occupational disease, has paid wages in lieu of compensation for total disability;
“(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 or the employer has furnished treatment by a licensed physician in the employ of an employer, provided, however, that the furnishing of such treatment shall not constitute a recognition of a claim as compensable, but shall do no more than satisfy the requirements of this section;
“(b) Compensation or benefits have been paid or furnished equal to or greater than is provided for in sections 4123.52, 4123.55 to 4123.62, and 4123.64 to 4123.67 of the Revised Code.
“(4) Written notice of death has been given to the commission or bureau. “(B) The bureau shall provide printed notices quoting in full division (A) of this section, and every self-insuring employer shall post and maintain at all times one or more of the notices in conspicuous places in the workshop or places of employment. “(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.
“(D) Any claim pending before the administrator, the commission, or a court on December 11, 1967, in which the remedy is affected by this section is governed by this section.
“(E) Notwithstanding the requirement that the notice required to be given to the bureau, commission, or employer under this section is to be in writing, the bureau may accept, assign a claim number, and process a notice provided by any method of telecommunication. Immediately upon receipt of the telecommunicated notice, the bureau shall send a written notice to the employer of the bureau‘s receipt of the telecommunicated notice. Within fifteen days after receipt of the notice, the employer may in writing either verify or not verify the telecommunicated notice. If the bureau does not receive the written notification from the employer or receives a written notification verifying the telecommunicated notice within such time period, the claim is validly filed and such telecommunicated notice tolls the statute of limitations in regard to the claim filed and is considered to meet the requirements of written notice required by this section.
“(F) As used in division (A)(3)(b) of this section, ‘benefits’ means payments by a self-insuring employer to, or on behalf of, an employee for a hospital bill, a medical bill to a licensed physician or hospital, or an orthopedic or prosthetic device.”