DocketNumber: No. 63540.
Citation Numbers: 627 N.E.2d 1058, 90 Ohio App. 3d 26
Judges: DYKE, Chief Justice.
Filed Date: 8/23/1993
Status: Precedential
Modified Date: 1/13/2023
Defendant-appellant, ABB Raymond Cast Equipment Company, appeals the judgment of the court of common pleas which denied its motion for summary judgment and granted the cross-motion of plaintiff-appellee, Edward Olech, on his workers' compensation claim.
In its first assignment of error, appellant contends that the trial court erred in denying its motion for summary judgment because appellee's claim was time-barred by R.C.
In its second assignment of error, appellant contends that the trial court erred in granting appellee's cross-motion for summary judgment because the Industrial Commission's order "suspending" appellee's claim indefinitely did not operate to toll the six-year statute of limitations.
Appellant's assignments of error are not well taken. For the reasons which follow, the judgment of the trial court is affirmed.
On August 8, 1977, appellee injured his finger. On May 7, 1978, he timely filed a C-92 application for permanent partial disability. On October 24, 1978, the commission recognized appellee's claim but ordered that the claim "be held in suspense indefinitely as the claimant has twice failed to appear for a medical exam as required."
On February 19, 1988, ten years, six months and eleven days after the date of injury, appellee filed a C-86 motion requesting that his claim be reinstated and that a C-92 medical exam be scheduled. Appellee's motion was granted on September 15, 1988 by a district hearing officer1 and that order was affirmed by the Cleveland Regional Board of Review. Appellant appealed the board's ruling but the appeal was denied. On March 27, 1991, appellant filed a motion for reconsideration. The commission's response, however, does not appear in the record.
On April 23, 1991, appellant filed its notice of appeal pursuant to R.C.
On August 7, 1991, appellee filed a motion to dismiss, contending that the court was without jurisdiction to hear the appeal as the commission's order related to a *Page 29 determination of the "extent of [appellee's] disability" and not the appellee's right to participate in the fund.2
On September 13, 1991, appellant filed a motion for summary judgment, arguing that the continuing jurisdiction of the commission had expired on August 8, 1983 because appellee had received no compensation within six years of the date of his injury.
On October 24, 1991, appellee filed his cross-motion for summary judgment, arguing that the commission's suspension of appellee's claim operated to toll the six-year statute of limitations provided by R.C.
On March 17, 1992, the trial court, denied appellee's motion to dismiss, denied appellant's motion for summary judgment and granted appellee's cross-motion for summary judgment, without opinion.
In support of its first and second assignments of error, appellant, citing Felske v. Daugherty (1980),
Appellant's statement of law is correct; however, appellant's reliance on Felske is misplaced and its argument fails for two reasons. *Page 30
First, it ignores the fact that the commission, in the exercise of its proper jurisdiction, suspended appellee's claim "indefinitely." Second, in contravention of established rules of statutory construction,4 appellant argues against the commission's continuing jurisdiction, by relying exclusively upon the first two sentences of R.C.
R.C.
"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 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
Under established rules of statutory construction, the third sentence of R.C.
In the instant case, appellee filed his claim in a timely basis in compliance with R.C.
Ohio Adm. Code
"(A) When the Bureau, Board or the Commission orders an injured or disabled employee to submit to medical examination and such employee refuses to be examined or in any way obstructs the examination, the employee's claim for compensation shall be suspended during the period of his refusal or obstruction.
"(B) In the event an employee fails to supply required facts, complete the required forms, submit to medical examinations ordered by the Commission, Board or Bureau or submit other proof which may be requested or in any way unduly delays the expeditious processing of his claim, the Bureau, Board or Commission may withhold action on the claim and may withhold future actuarial reserve while such situation obtains. In such cases further consideration shall be given to the claim when the employee remedies the condition which invoked suspension of action on the claim." (Emphasis added.) *Page 32
The record demonstrates that the commission possessed jurisdiction over appellee's claim when it ordered suspension. The record also demonstrates that the appellee remedied "the condition which invoked suspension of action" by requesting the scheduling of a C-92 medical exam. While there is no case law directly on point, nothing in the record or in related case law suggests that the commission was divested of its continuing jurisdiction between the time it suspended appellee's claim and the time the appellee remedied the condition which invoked that suspension. Hence, when appellee filed his C-86 motion requesting a C-92 medical exam, the commission was obliged under Ohio Adm. Code
"Once a claim has been timely filed pursuant to R.C.
The record demonstrates that appellee had received no previously awarded benefits to change or modify. Rather, his C-86 motion sought to resume a determination of the extent of an initial award.
On August 8, 1977, the date of appellee's injury, the statute began to run. The statute stopped running on October 24, 1978, when the commission suspended appellee's claim. The statute started running again on either February 19, 1988, when appellee filed his C-86 motion, or on September 15, 1988, when the district hearing officer granted appellee's motion for a C-92 medical exam. Thus, less than two6 years of the six-year statute of limitations elapsed under R.C.
The trial court did not err in denying appellant's motion for summary judgment and granting appellee's cross-motion for summary judgment. Appellant's first and second assignments of error are, therefore, overruled.
Based upon the specific facts of this case, to wit, the commission's suspension of appellee's claim, the judgment of the trial court is affirmed.
Judgment affirmed.
JOHN F. CORRIGAN and JAMES D. SWEENEY, JJ., concur.
"THIS CLAIM IS RECOGNIZED FOR: Lacerated left 4th finger.
"The claimants [sic] C-86 requesting a C-92 medical exam is granted. The claim is referred to Cleveland Medical for scheduling this exam. The medical section should note that, although the claimants [sic] mailing address is in Ohio, he is currently living in * * * Florida and requests the exam be done in Florida if possible."
"* * * If a claimant has, since the date of injury, received temporary, partial or permanent total disability compensation under R.C.
The court acknowledged that the claimant had received none of the above-mentioned compensation within ten years of the date of injury, but, nevertheless, held that the failure to obtain such compensation did not preclude the commission from considering the claimant's application under R.C.
This holding is consistent with appellee's argument that the third sentence of R.C.