DocketNumber: No. 16318.
Citation Numbers: 636 N.E.2d 418, 92 Ohio App. 3d 603, 1993 Ohio App. LEXIS 6462
Judges: Baird, Quillin, Reece
Filed Date: 12/29/1993
Status: Precedential
Modified Date: 11/12/2024
This cause comes before the court upon the appeal of James P. Cosner from the judgment of the Summit County Court of Common Pleas granting summary judgment to the appellees, Babcock Wilcox Company ("Babcock") and the Administrator of the Bureau of Workers' Compensation and Industrial Commission of Ohio. We affirm.
Cosner worked at a Babcock facility from 1941 until his retirement in 1982. Although he had regular contact with asbestos dust throughout his employment with Babcock, he retired because of an unrelated heart condition. In 1988, Cosner was diagnosed as having lung disease for which he filed a complaint in tort against Babcock and others, alleging negligence, strict liability, and asbestosis.
On April 4, 1990, he was diagnosed as having asbestosis and his treating physician stated in a medical report dated October 16, 1990 that this disease had created a moderate degree of functional disability. On February 26, 1991, he filed a workers' compensation claim that was disallowed at every administrative level.
Pursuant to R.C.
"2. The Court of Common Pleas erred in granting summary judgment against Plaintiff-Appellant by finding that Plaintiff was disabled in June of 1988. Genuine issues of material fact existed and reasonable minds could differ as to whether or not Plaintiff-Appellant was disabled."
Pursuant to Civ.R. 56(C), summary judgment is proper where (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion and, viewing the evidence most strongly in favor of the party against whom the motion for summary judgment is *Page 605
made, that conclusion is adverse to that party. Temple v. WeanUnited, Inc. (1977),
While the court of common pleas may have decided correctly based on the statute of limitations in R.C.
As Cosner points out, asbestosis is a specially restricted disease within the framework of the Workers' Compensation Act. Under R.C.
The purpose of total disability benefits is to compensate injured workers for lost wages (in the case of temporary total disability benefits) or for loss of earning capacity (in the case of permanent total disability benefits). See State ex rel.Nye v. Indus. Comm. (1986),
There is evidence in the record that Cosner retired in 1982 for reasons not having to do with his exposure to asbestos. Since he failed to carry his burden of presenting evidence controverting that fact, there was no triable issue before the court. Johnson v. Akron Mgt. Corp. (May 30, 1990), Summit App. No. 14320, unreported, at 6, 1990 WL 73668. Because Cosner voluntarily retired, he is ineligible to participate in the Workers' Compensation Fund, and the summary judgment is affirmed.
Judgment affirmed.
QUILLIN, P.J., and REECE, J., concur. *Page 606