Vandemark v. Southland Corp.

Sweeney, J. 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 fur [4] ther 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 Ms 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 immumty to defendant-employer with respect to the essential allegations set forth in plaintiff’s complaint for the simple reason that the remaimng 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” Ms 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 mirnmal 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 Admimstrative 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 all reasonable inferences to be drawn therefrom, construed in Ms favor as true. Peterson v. Teodosio (1973), 34 Ohio St. 2d 161, 165-166, 63 O.O. 2d 262, 264, 297 N.E. 2d 113, 117. Under such circumstances, the courts below were correct in presuming that the defendant, as a self-insured employer, failed to satisfy its duty to notify the bureau of any recognized medical condition within thirty days of submission of the claim by the injured employee under Ohio Adm. Code 4121-9-03(M)(10). Nevertheless, if paragraph two of the syllabus in Greenwalt, supra, is still good law, the plaintiff herein will be unable to state a cogmzable cause of action in tort against the defendant-employer. Therefore, we believe that a re-examination of this court’s prior decision in Greenwalt is in order. A review of .the facts in Greenwalt, supra, indicates a strong resemblance to the facts sub judice. See Egan v. Natl. Distillers & Chemical Corp. (1986), 25 Ohio St. 3d 176, 182, 184-185, 25 OBR 243, 248, 250, 495 [5] N.E. 2d 904, 909, 911 (Douglas, J., concurring in judgment only). In Greenwalt, the plaintiff became permanently and totally disabled due to work-related injuries. After submitting a workers’ compensation claim with his self-insured employer, employee Greenwalt was led to believe that the subsequent payments he was receiving were the result of his workers’ compensation claim. In reality, Greenwalt’s employer was paying him compensation out of its own pocket for approximately two years. At the end of two years, the employer stopped the payments to Greenwalt, and Greenwalt obtained counsel whereupon he discovered that the employer had never submitted Greenwalt’s workers’ compensation application with the Industrial Commission. Upon filing his claim directly with the Industrial Commission, Greenwalt was informed that his application was denied because it had not been filed within two years of the date the injuries were sustained. Greenwalt then commenced an action for damages against his former employer for its failure to submit his workers’ compensation claim to the Industrial Commission. The trial court dismissed Greenwalt’s complaint upon the employer’s demurrer, and the court of appeals affirmed the dismissal. Upon appeal before this court, a bare four-to-three majority upheld the lower courts’ judgments. In arriving at its decision, the majority opined that the Workers’ Compensation Act provided Greenwalt with his exclusive remedy. Predictably, the law enunciated in Greenwalt, supra, was subjected, and continues to be subjected, to harsh criticism. In a dissenting opinion to the majority decision in Greenwalt, Judge William L. Hart stated: “In my opinion the cause of action here asserted has nothing to do with liability of the employer under the Workmen’s Compensation Act. If a lawyer had undertaken to prosecute the plaintiff’s claim and the lawyer had failed to file the claim until after the expiration of the period prescribed by the statute of limitations, he would be liable to the plaintiff for negligence as in an action for malpractice. * * *” Id. at 8, 57 O.O. at 60, 128 N.E. 2d at 121. In addition, Judge Charles B. Zimmerman offered his own dissenting viewpoint: «* * * [W]here an employee sustains an injury through the negligence or misconduct of his employer, which is clearly outside the scope of the Workmen’s Compensation Act, he may maintain an action against his employer to recover damages therefor.” Id. at 9, 57 O.O. at 61, 128 N.E. 2d at 121. One of the foremost commentators in the area of workers’ compensation has characterized the Greenwalt decision as “distasteful,” and that it is related to an “extreme position.” 2A Larson, Workmen’s Compensation (1988) 13-9, Section 68.32(b), fn. 46.2, at 13-97 to 13-98. The court of appeals’ opinion in Delamotte v. Midland Ross (1978), 64 Ohio App. 2d 159, 163, 18 O.O. 3d 117, 119-120, 411 N.E. 2d 814, 817, determined that Greenwalt had been legislatively overruled when the General Assembly amended R.C. 4123.74 to limit employer immunity to physical injuries or conditions arising out of employment. In light of these observations and for the reasons that follow, we find that continued reliance on the standard enunciated in Greenwalt appears to be inappropriate given this court’s recognition of an intentional tort cause of action outside the Workers’ Compensation Act in Blankenship v. Cin [6] cinnati Milacron Chemicals (1982), 69 Ohio St. 2d 608, 23 O.O. 3d 504, 433 N.E. 2d 572,2 and Jones v. VIP Development Co. (1984), 15 Ohio St. 3d 90, 15 OBR 246, 472 N.E. 2d 1046. Given the gross unfairness inherent in the Greenwatt standard, we believe that the most prudent course is to overrule paragraph two of the syllabus in Greenwatt, supra, and announce a new standard. In our opinion, the archaic view expressed by the bare majority in Greenwatt, supra, should no longer be countenanced by this court. Therefore, we repudiate the law enunciated in paragraph two of the syllabus in Greenwatt, and hold that 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. The cause of action alleged herein, like the cause alleged in Greenwatt, requests relief outside the workers’ compensation system from a self-insured employer who led its employee to believe that his claim was submitted and approved by the bureau or Industrial Commission. However, unlike the majority view expressed in Greenwatt, we are unwilling, under the guise of employer immunity, to reaffirm a standard that is grossly unfair. To hold an employer immune from suit under the cloak of R.C. 4123.74 in circumstances similar to the instant cause would be totally unjustified and manifestly unfair. As mentioned before, the instant cause is not a workers’ compensation action; it is a common-law action for damages outside the scope of workers’ compensation. In addition, the Ohio Administrative Code imposes a duty on a self-insured employer to submit its employee’s claim, regardless of its position on the merits of the claim, to the bureau within thirty days of the submission of the claim by the employee. Such a duty is minimal. However, a failure of an employer to satisfy such a minimal duty, either negligently or intentionally, can be potentially devastating to the injured employee. Once the employer fails to satisfy this duty, workers’ compensation benefits to the injured employee may be precluded as in the cause sub judice by virtue of the statute of limitations (R.C. 4123.84). In our view, a common-law cause of action in tort should arise against the employer where the failure to submit the employee’s claim to the the bureau ultimately prevents the employee from having his or her claim reviewed by the bureau. Regardless of whether one concludes that the General Assembly legislatively overruled Greenwatt, supra, by amending R.C. 4123.74, as suggested by the appellate court in Delamotte, supra, or whether one views the Greenwatt decision as patently unjust, especially in light of Blankenship or Jones, an employee should have a common-law remedy where the employer’s failure to submit the claim of the employee precludes [7] the employee from the remedies provided by the workers’ compensation system. Therefore, based on these reasons, the decision of the court of appeals below must be affirmed. Turning our attention to the other issue raised before us, we find that defendant-appellant’s argument that the instant cause is time-barred under R.C. 4123.84 must be rejected. As discussed herein, the instant action is not a workers’ compensation action, and, therefore, R.C. 4123.84 is inapplicable. Similarly, defendant’s assertion that the two-year limitations period for personal injury applies (R.C. 2305.10) is rejected because the complaint filed herein does not allege the type of personal injuries contemplated by that statute. As stated previously, the “injury” which is the basis of plaintiff’s complaint is the injury which resulted from defendant’s failure to process his workers’ compensation claim. If plaintiff’s complaint is viewed as one stating a cause of action for an insurer’s failure to handle a claim in good faith, or any other recognized cause of action in tort not involving bodily injury or injury to personal property, the applicable statute of limitations would be R.C. 2305.09, which provides a four-year limitations period. See Kunz v. Buckeye Union Ins. Co. (1982), 1 Ohio St. 3d 79, 1 OBR 117, 437 N.E. 2d 1194. In any event, as the appellate court below pointed out, the pleadings do not affirmatively show that the cause of action was time-barred by any statute of limitations. See Peterson, supra; and Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St. 2d 376, 23 O.O. 3d 346, 433 N.E. 2d 147, paragraph three of the syllabus. A review of the record below indicates that defendant’s statute-of-limitations argument was set forth in its Civ. R. 12(B)(6) motion. In employing the standard by which a court must review a Civ. R. 12(B)(6) motion, O’Brien v. University Community Tenants Union (1975), 42 Ohio St. 2d 242, 71 O.O. 2d 223, 327 N.E. 2d 753, we determine it does not appear that plaintiff’s complaint was untimely filed. Thus, we find that the court of appeals correctly held that the plaintiff may be able to prove a set of facts entitling him to recovery in light of the allegations of the complaint, coupled with the reasonable inferences deducible therefrom. Accordingly, based on all the foregoing, the judgment of the court of appeals is affirmed. Judgment affirmed. Locher, Douglas and H. Brown, JJ., concur. Moyer, C.J., Holmes and Wright, JJ., dissent. Footnotes [1] Defendant now claims for the first time before this court that it was not a self-insured employer at the relevant time in question. However, such assertion is not properly before this court inasmuch as it was not disputed or brought to the attention of the courts below. [2] In footnote 7 of the Blankenship opinion, it was stated that Greenwatt was factually distinguishable on the basis that Greenwatt involved “omission” on the part of the employer, and not “commission.” In our view, this characterization of the employer’s conduct in Greenwatt was fundamentally flawed. The employer in Green-watt deliberately pursued a course of conduct intended to lull the employee-claimant into a false belief that his workers’ compensation application had been filed when in fact it had not. A careful reading of the Greenwatt case reveals that the “omission” of not filing the claim was only one of several elements of the action for deceit which the employee was attempting to establish.