DocketNumber: No. 4-07-26.
Citation Numbers: 2008 Ohio 1788
Judges: PRESTON, J.<page_number>Page 2</page_number>
Filed Date: 4/14/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} Brink was an employee at Olson from approximately August 2000 to March 28, 2003. (Brink Depo. at 15, 24, 39); (Olson Depo. at 45, 61-62). Olson operates a food products warehouse. (Olson Depo. at 13-14). One of Brink's occupational duties required that he unload semi tractor-trailers of frozen turkeys and stack them in a warehouse freezer. (Brink Depo., at 24-25). *Page 3
{¶ 3} Sometime between November 2002 and March 2003 while performing his duties, Brink alleges that he injured his lower back. (Complaint at ¶ 4); (Brink Depo. at 91-92). Specifically, Brink alleges that as a result of this back injury he developed "sacroiliac sprain/strain, lumbar sprain/strain, and lumbar disc herniation L4-L5, L5-S1." (Complaint); (Brink Depo., Ex. E).
{¶ 4} On January 29, 2003, Brink reported having "pain in his lower back" to his family physician, Dr. McCullough. (Brink Depo., Ex. A). Dr. McCullough diagnosed Brink with "LOW BACK PAIN WITH L5, S1 RADICULOPATHY1 SYMPTOMS." Dr. McCullough's records also note that Brink had been seeing a chiropractor for several months and using ibuprofen for his pain. (Id.).2 On February 28, 2003, Brink saw his chiropractor, Dr. Raye, for lower back pain and reported that he was stacking 900-1000 turkeys per day at Olson. (Defendant's Reply Memo. in support of Summary Judgment, Ex. A); (Dr. Raye's Affidavit at ¶ 3); (Brink Depo. at 84).
{¶ 5} In April 2003, Olson laid Brink off. (Olson Depo. at 67-68); (Olson Depo., Ex. 2); (Brink Depo. at 39).3 In September of 2004, an MRI revealed that Brink's L4-5 and L5-S1 discs were herniated. (Brink Depo., Ex. C). On October *Page 4 7, 2004, Brink had back surgery to repair the herniated discs. (Id.). On July 20, 2005, Dr. Raye opined that Brink's back injuries were occupational in nature. (Dr. Raye's Affidavit at ¶ 6, 8).
{¶ 6} On August 17, 2005, Brink filed a workers' compensation claim with the BWC. (Brink Depo., Ex. E). On October 12, 2005 an Ohio Industrial Commission ("OIC") District Hearing Officer determined that Brink's claim was not timely filed under R.C.
{¶ 7} On March 31, 2006, Brink filed a complaint in the Defiance County Court of Common Pleas pursuant to R.C.
{¶ 8} On November 15, 2007, the trial court granted the defendants' motion, denied Brink's motion, and dismissed the action. It is from this judgment that Brink now appeals and asserts three assignments of error for review. *Page 5
{¶ 10} Material facts are those facts "that might affect the outcome of the suit under the governing law." Turner v. Turner (1993),
{¶ 11} Summary judgment should be granted with caution, resolving all doubts in favor of the nonmoving party. Perez v. Scripts-HowardBroadcasting Co. (1988),
THE TRIAL COURT ERRED IN FINDING THAT THE APPLICABLE STATUTE OF LIMITATIONS IN THE INSTANT CASE IS THAT SET FORTH IN SECTION4123.84 O.R.C. AND, THEREFORE, PLAINTIFF'S WORKERS' COMPENSATION CLAIM IS TIME-BARRED.
THE TRIAL COURT ERRED IN NOT APPLYING THE ANALYSIS OF WHITE V. MAYFIELD (1988), 37 OHIO ST.3D11 AND O.R.C.4123.85 TO PLAINTIFF/APPELLANT'S WEAR AND TEAR (GRADUAL ONSET) INJURY CLAIM.
{¶ 12} In his first assignment of error, Brink argues that the trial court erred as a matter of law by applying the two-year statute of limitations found in R.C.
{¶ 13} Defendants, on the other hand, argue that "wear and tear,""Village-type," or "gradual onset" injuries are, nonetheless, a type of "injury"; and therefore, R.C.
{¶ 14} When a court is interpreting a statute its primary goal is to ascertain and give effect to the legislature's intent in enacting the statute. State v. Lowe,
{¶ 15} The Ohio Revised Code provides two separate statutes of limitations for workers' compensation claims. R.C.
(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 or facsimile 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;
(Emphasis added). R.C.
In all cases of occupational disease, or death resulting from occupational disease, claims for compensation or benefits are forever barred unless, within two years after the disability due to the disease began, or within such longer period as does not exceed six months after diagnosis of the occupational disease by a licensed physician or within two years after death occurs, application is made to the industrial commission or the bureau of workers' compensation or to the employer if he is a self-insuring employer.
(Emphasis added).
{¶ 16} R.C.
(C) "Injury" includes any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee's employment. "Injury" does not include:
(1) Psychiatric conditions except where the claimant's psychiatric conditions have arisen from an injury or *Page 9 occupational disease sustained by that claimant or where the claimant's psychiatric conditions have arisen from sexual conduct in which the claimant was forced by threat of physical harm to engage or participate;
(2) Injury or disability caused primarily by the natural deterioration of tissue, an organ, or part of the body;
(3) Injury or disability incurred in voluntary participation in an employer-sponsored recreation or fitness activity if the employee signs a waiver of the employee's right to compensation or benefits under this chapter prior to engaging in the recreation or fitness activity;
(4) A condition that pre-existed an injury unless that pre existing condition is substantially aggravated by the injury. Such a substantial aggravation must be documented by objective diagnostic findings, objective clinical findings, or objective test results. Subjective complaints may be evidence of such a substantial aggravation. However, subjective complaints without objective diagnostic findings, objective clinical findings, or objective test results are insufficient to substantiate a substantial aggravation.
* * *
(F) "Occupational disease" means a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general.
(Emphasis added). With the applicable statutes and definitions in view, we now proceed to the merits of this case.
{¶ 17} Brink's argument lacks merit for three important reasons. First, the statute of limitations found in R.C.
{¶ 18} Second, the Ohio Supreme Court has held "that an injury which develops over time as the result of the performance of the injured worker's job-related duties is compensable under R.C. 4123.01(C)."Village v. Gen. Motors Corp. (1984),
{¶ 19} Third, for R.C.
(1) The disease is contracted in the course of employment; (2) the disease is peculiar to the claimant's employment by its causes and the characteristics of its manifestation or the conditions of the employment result in a hazard which distinguishes the employment in character from employment generally; and (3) the employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.
Krise,
{¶ 20} Brink alleged that as a result of this back injury he developed "sacroiliac sprain/strain, lumbar sprain/strain, and lumbar disc herniation L4-L5, L5-S1." (Complaint); (Brink Depo. Ex. E). None of these are scheduled occupational diseases under R.C.
{¶ 21} In their reply memorandum in support of summary judgment, defendants alleged that Brink could not show that his conditions were "occupational diseases" under Krise and R.C.
4. Sacroiliac sprain/strain, lumbar sprain/strain and lumbar disc herniation at L4-5 and L5-S1 are not diseases.
6. To a reasonable degree of medical certainty, Mr. Brink's diagnosis of sacroiliac sprain/strain, lumbar sprain/strain and lumbar disc herniation at L4-5 and L5-S1 is not peculiar to his employment at Olson Cold Storage, Ltd. either by their causes or characteristics of their manifestations.
7. To a reasonable degree of medical certainty, Mr. Brink's sacroiliac sprain/strain, lumbar sprain/strain and lumbar disc herniation at L4-5 and L5-S1 did not arise as a result of a hazard which distinguishes Mr. Brink's employment at Olson Cold Storage, Ltd. in character from other employment generally.
8. To a reasonable degree of medical certainty, Mr. Brink's employment at Olson Cold Storage, Ltd. did not create a risk of contracting sacroiliac sprain/strain, lumbar sprain/strain and lumbar disc herniation at L4-5 and L5-S1 in a greater degree or in a different manner than in the public generally.
(Affidavit of Dr. James D. Brue, at ¶¶ 4, 6-8; R. at 47). Once the defendants offered this evidence, the burden shifted to Brink to set forth specific facts, in the manner prescribed by Civ.R. 56(E), indicating that a genuine issue of material fact *Page 13
existed for trial. Dresher v. Burt (1996),
{¶ 22} Since Brink failed to submit any evidence showing that his conditions constituted "occupational diseases" as defined in R.C.
{¶ 23} For all these aforementioned reasons, Brink's first and second assignments of error are overruled.
THE TRIAL COURT ERRED IN FINDING THAT NOTHING IN THE EVIDENTIARY MATERIALS BEFORE THE COURT DEMONSTRATE [SIC] THAT THE STATUTE OF LIMITATIONS WOULD BE TOLLED UNDER THE PROVISIONS OF O.R.C.*Page 144123.28
{¶ 24} In his third assignment of error, Brink argues that the trial court erred in finding that nothing in the evidentiary materials demonstrate that R.C.
{¶ 25} The defendants, on the other hand, argue that R.C.
{¶ 26} A. Trial Court's Analysis
{¶ 27} Two questions were presented to the trial court subjudice: (1) whether the statute of limitations for "injuries," set forth in R.C.
Plaintiff here contends that Plaintiff's claim was not diagnosed as occupational until July of 2005 and, as such, his August of 2005 filing would be timely under White/Svet analysis. In response, Defendants argue that nothing in the evidentiary materials before the court demonstrates that the statute of limitations would be tolled under the provisions of 4123.28. The Defendants are correct in this assertion.
(Nov. 15, 2007 JE at 4).
{¶ 28} Brink raised the White/Svet analysis to argue that his claim was timely filed under R.C.
{¶ 29} R.C.
Every employer in this state shall keep a record of all injuries and occupational diseases, fatal or otherwise, received or contracted by his employees in the course of their employment and resulting in seven days or more of total disability. Within a week after acquiring knowledge of an injury or death therefrom, and in the event of occupational disease or death therefrom, within one week after acquiring knowledge of or diagnosis of or death from an occupational disease or of a report to the employer of the occupational disease or death, a report thereof shall be made in writing to the bureau of workers' compensation upon blanks to be procured from the bureau for that purpose. The report shall state the name and nature of the business of the employer, the location of his establishment or place of work, the name, address, nature and duration of occupation of the injured, disabled, or deceased employee and the time, the nature, and the *Page 16 cause of injury, occupational disease, or death, and such other information as is required by the bureau.
* * *
Each day that an employer fails to file a report required by this section constitutes an additional day within the time period given to a claimant by the applicable statute of limitations for the filing of a claim based on the injury or occupational disease, provided that a failure to file a report shall not extend the applicable statute of limitations for more than two additional years.
(Emphasis added). By its plain language, R.C.
{¶ 30} Accordingly, whether R.C.
{¶ 31} B. Applicability of R.C.
{¶ 32} Since the trial court inappropriately conflated Brink's arguments and our review on summary judgment is de novo, we must independently determine whether or not R.C.
{¶ 33} R.C.
{¶ 34} In the case sub judice, Brink has failed to show that Olson had knowledge of an employment injury, which resulted in seven or more days of total disability. First, the evidence presented by Brink was, at most, casual conversations about having a sore back from lifting things at work. This is evident from the fact that when Brink stated his back was hurting, the manager, "* * * never really answered me. He just would kind of laugh it off. Tell you to slow down." (Brink Depo. at 30). Casual conversations about aches and pains at work *Page 18
do not impart the employer with knowledge of an injury during the course of or arising out of an employee's employment sufficient to trigger R.C.
{¶ 35} Furthermore, Olson testified that the only conversation that he had with Brink about his back pain was when he asked Brink about pain medication. (Olson Depo. at 54-55). Olson testified that he asked Brink about what medication he was using because he knew Brink suffered an injury when he was younger. (Id. at 55). Olson denied having any knowledge that Brink injured his back while employed at Olson. (Olson Depo. at 53-55).
{¶ 36} Brink argues that the manner in which Olson obtained the information that he was injured is irrelevant, citing Lahoud,
{¶ 37} Second, Brink also failed to show that Olson had knowledge of seven or more days of total disability. Brink alleges that he was laid off because of his back injury; that he was laid off for more than seven days; and, that this provided Olson with knowledge of his seven or more days of total disability. In support of this assertion, Brink points out that when he was laid off, Scott Olson told him to "take time off and get [his] back healed." (Brink Depo. at 60). Even assuming that Olson made this statement, this statement does not mean that Brink was laid off because of his alleged back injury. Olson testified that Brink was laid off because of a slow-down in business, and that Brink volunteered to be laid off because he was "in the best position to take it." (Olson Depo. at 62-63).
{¶ 38} Based upon this evidence, we cannot conclude that Olson had knowledge of an injury or occupational disease received or contracted by Brink within the course of his employment, which resulted in seven days or more of total disability. Therefore, R.C.
{¶ 39}
{¶ 40} Brink's third assignment of error is, therefore, overruled. *Page 20
Judgment Affirmed. WILLAMOWSKI and ROGERS, JJ., concur.