Clementi v. Wean United, Inc.

Moyer, C.J. The sole issue presented in this case is whether the two-year notice requirement under R.C. — 343 — 4123.84(A)(1) bars an additional claim for a “flow-through” or residual psychiatric condition under the Industrial Commission’s continuing jurisdiction to modify orders pursuant to R.C. 4123.52. We have defined a “flow-through” or “residual injury” as “one developing in a body part not originally alleged per R.C. 4123.84(A)(1).” Dent v. AT&T Technologies, Inc. (1988), 38 Ohio St. 3d 187, 527 N.E. 2d 821. For the following reasons, we hold that the two-year notice requirement under R.C. 4123.84(A)(1) does bar such an additional claim for a “flow-through” or residual psychiatric condition. R.C. 4123.84 provides in pertinent part: “(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. ii(g) * * * “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.” (Emphasis added.) R.C. 4123.52 provides in pertinent part: “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 such 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 4123.56 of the Revised Code, or wages in lieu of compensation in a manner so as to satisfy the requirements of section 4123.84 of the Revised Code, except in cases where compensation has been paid under section 4123.56,4123.57, or 4123.58 of the Revised Code, then ten years from the date of the last payment of compensation or from the date of death, nor 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 such 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 such application is filed within the applicable time limit as provided in this section.” (Emphasis added.) Wean United argues that the flow-through or residual condition of “generalized anxiety disorder” was barred because Clementi failed, for at least five years after the condition first manifested itself, to file an application for allowance. The trial court agreed — 344 — and stated that since R.C. 4123.84 requires that a claim be filed within two years after the injury, when a new condition is discovered which flows from an original injury, a claim for the new condition must be made within two years from the discovery thereof. The court of appeals, however, citing dicta in Repan v. Connor (Nov. 18, 1985), Belmont App. No. 85-B-19, unreported, reversed. “R.C. 4123.84(A)(1) * * * applies only to initial date injuries and not to residual or flow through injuries.” Repan v. Connor, supra. The trial court correctly interpreted the relationship between R.C. 4123.84 and 4123.52. There are a number of courts of appeals decisions that have disposed of the issue presented by this appeal. Because they are persuasive, we will review them here. In Hall v. Diamond Internatl. Corp., supra, the claimant filed an application for workers’ compensation benefits for an “anxiety and nervous condition” in 1979. The claimant argued that this condition was a residual or flow-through injury from a back injury for which he had already been compensated in 1975. The claimant further argued that because the “anxiety-nervous condition” was a new and changed condition flowing from the original injury with the passage of time, he was entitled to compensation for the new condition under R.C. 4123.52. The court of appeals disagreed, stating: “A review of the record demon-states the ‘anxiety-nervous condition’ manifested itself three years prior to the filing of the claim. R.C. 4123.52, which provides for continuing jurisdiction in the Industrial Commission to modify or change former findings or orders, requires strict adherence to the two-year notice limitation of R.C. 4123.84 as to a claim for the specific part or parts of the body injured or disabled. The record clearly reveals that the ‘anxiety-nervous condition’ is an alleged injury or disability to a specific part or parts of the body other than the original back injury location, and the notice of the claim was not made until three years after its manifestation.” Id. at 203-204, 24 OBR at 327, 493 N.E. 2d at 1371. The court of appeals in Hall v. Diamond Inter-natl. Corp., therefore, held that the trial court properly granted the employer’s motion for summary judgment. The same court of appeals reached the same conclusion in McCain v. Connor (May 28,1986), Hamilton App. No. C-850525, unreported, a case in which the appellant filed a claim in 1981 for a psychological condition allegedly resulting from a work-related injury sustained in 1978. Noting that the condition was first manifested in 1979 and the claim was filed more than two years later, the court of appeals, citing Hall v. Diamond Internatl. Corp., supra, held that the claim was barred by the statute of limitations found in R.C. 4123.84. The Montgomery County Court of Appeals in Brock v. Mayfield, supra, also held that a claimant must file an application for allowance of an additional condition which is due to and a result of, or a residual of, a previously allowed condition within two years of the time that the claimant first knew or should have known that the additional condition was due to and a result of, or a residual of, a previously allowed condition. The court of appeals stated: “[w]e believe that the notice provisions of R.C. 4123.52, unrestricted by [their] own terms as to type of injury, appl[y] to residual or ‘flow-through’ injuries as well as any other new conditions. The notice language involves R.C. 4123.84, which establishes a two-year period within which to file for the new condition.” — 345 — In Brock, the claimant was injured in 1979 in the course of and arising out of her employment. A claim was allowed for “torn medial meniscus of left knee” and “possible herniated nucleus pulposis at L-4, L-5.” In 1983, the claimant filed a motion for allowance of the additional condition of “depressive reaction.” Noting that the claimant admitted that she failed to file a motion for allowance of the “depressive reaction” claim within two years of the time she knew, or should have known, that the “depressive reaction” was due to, a result of, and/or residual of her industrial injuries sustained in 1979, the court of appeals held that her claim was barred by the statute of limitations. See, also, Snyder v. Mayfield, supra, and Horn v. Mayfield (Jan. 12, 1988), Montgomery App. No. CA10468, unreported, in which the Court of Appeals for Montgomery County again held that a claimant did not timely file a motion to have his industrial claim additionally recognized for a psychiatric condition when he failed to file the claim within two years of the time he knew or should have known of this additional condition. The Court of Appeals for Stark County reached a simflar conclusion in Kirkbride v. Hoover Co. (June 9, 1986), Stark App. No. CA-6848, unreported. Clementi cites this court’s decision in Kittle v. Keller (1967), 9 Ohio St. 2d 177, 38 O.O. 2d 414, 224 N.E. 2d 751, in support of his contention that his claim is not barred by the statute of limitations. In Kittle, this court held that “[a]n injured employee, who, after filing a claim within time and being awarded compensation or benefits, files an application for modification of that award more than two years after the original injury occurred in order to secure compensation for a subsequently developing disability directly caused by an injury sustained in the original accident but not described in the original application, is not barred of his right to continue to participate in the State Insurance Fund by virtue of Section 4123.84, Revised Code, which provides that claims for compensation for injuries are barred unless application is made to the Industrial Commission within two years after the injury, so long as such application for modification is filed within the ten-year period provided by Section 4123.52, Revised Code.” Id. at syllabus. In 1956, Kittle injured his back in the course of and arising out of his employment. He filed an application for compensation within the two-year period, and his claim was allowed. Kittle then filed an application in 1962 for additional compensation for disability caused by a brain hemorrhage sustained in the original accident. As noted above, the court held that Kittle’s claim for an additional allowance was not barred by either R.C. 4123.84 or 4123.52. However, less than a year after the Kittle decision, the General Assembly amended R.C. 4123.84 and 4123.52 to essentially their present form. R.C. 4123.52 was amended to provide that the commission’s jurisdiction would not continue “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 * * (132 Ohio Laws, Part I, 1405.) Additionally, R.C. 4123.84 was amended to include a new requirement that notice of “the specific part or parts of the body injured” be given. (132 Ohio Laws, Part I, 1432.) The General Assembly also added the next to the last paragraph in R.C. 4123.84, as it now appears with minor changes, which provides- “The commission has continuing jurisdiction as set forth in section 4123.52 of the Revised Code over a — 346 — 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.” Clementi cites several cases in which courts reached a conclusion contrary to the judgments in Hall v. Diamond Internatl. Corp., supra; Brock v. Mayfield, supra; Snyder v. Mayfield, supra; Horn v. Mayfield, supra; and Kirkbride v. Hoover Co., supra. In Edwards v. AT&T Technologies, Inc. (July 21,1987), Franklin App. No. 86AP-831, unreported, appeal pending in case No. 88-15, the Court of Appeals for Franklin County held that “the two-year limitation of R.C. 4123.84 does not apply to the allowance of the additional condition and that the defendant Industrial Commission properly applied the ten-year limitation of R.C. 4123.52 in recognizing plaintiff’s claim for the additional psychiatric condition as a residual or flow-through condition.” The court of appeals reached its decision emphasizing that R.C. 4123.95 requires that all provisions of R.C. Chapter 4123 be construed liberally in favor of employees. Clementi also cites the court of appeals’ decision in Dent v. AT&T Technologies, Inc. (July 21, 1987), Franklin App. No. 86AP-841, unreported. In Dent, the court of appeals concluded that “[b]oth R.C. 4123.84(A) and 4123.52 require that notice be given of the specific part or parts of the body claimed to have been injured, but neither require [sic] that notice be given as to the nature of the injury or impairment of such bodily part or parts.” We affirmed on the same grounds. See Dent v. AT&T Technologies, Inc. (1988), supra. Dent, however, is inapposite here because in that case the additional condition developed in the body part of which the claimant had given notice. We conclude that the courts of appeals’ decisions in Hall v. Diamond Internatl. Corp., supra; Brock v. Mayfield, supra; Snyder v. Mayfield, supra; Horn v. Mayfield, supra; and Kirkbride v. Hoover Co., supra, contain the better interpretation of the relationship between R.C. 4123.84 and 4123.52. The 1967 amendments to R.C. 4123.84 and 4123.52 apparently were made to expand the notice requirements and therefore the statute of limitations requirements to residual or flow-through conditions. In Wargetz v. Villa Sancta Anna Home for the Aged (1984), 11 Ohio St. 3d 15, 17, 18, 11 OBR 49, 51, 52, 462 N.E. 2d 1215, 1217, 1218, this court stated that “[statutes of limitations are constitutionally permissible methods of preventing stale claims, in order that necessary evidence pertinent to the issues is preserved. * * * [T]he statutory classification directly furthers a permissible objective: insuring that the proper processing agent of a workers’ compensation claim receives notice of a potential claim before the continuing jurisdiction provisions of R.C. 4123.52 are involved by the tolling of the statute of limitations. Notice is imperative in that subsequent measures can be taken by the responsible party to protect its resources. “Further, notice to the commission or bureau is especially important to the stability of the State Insurance Fund. Since premium rates are established according to the liability history of the participating employers, the two-year bar aids the administrator in — 347 — his effort to balance payments made and funds collected. An extended period in which to file could result in unrealistic rate-setting.” (Emphasis added.) We therefore hold that R.C. 4123.84 requires a claimant to file a motion for an additional allowance within two years of the time the claimant knew or should have known of the additional condition. Accordingly, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court. Judgment accordingly. Locher, Holmes and Wright, JJ., concur. Sweeney, Douglas and Baird, JJ., dissent. William B. Baird, J., of the Ninth Appellate District, sitting for H. Brown, J.