State ex rel. Adams v. Aluchem, Inc.

Moyer, C.J. I ¶ 1 In December 1984, James C. Adams, claimant-appellee, was injured in an industrial accident. The Bureau of Workers’ Compensation allowed his claim for the conditions of “dismemberment left arm; phantom limb pain; muscle spasms left arm.” ¶ 2 On April 11, 2001, claimant filed a motion for statutory permanent total disability (“PTD”) compensation under R.C. 4123.58(C). The motion was based on the holding of the Tenth District Court of Appeals in State ex rel. Thomas v. Indus. Comm. (Dec. 19, 2000), Franklin App. No. 00AP-289, 2000 WL 34447881. In Thomas, the court of appeals held that the loss of a hand and arm of the same limb constitutes statutory PTD under R.C. 4123.58(C).1 We affirmed the judg 641 ment of the court of appeals in State ex rel. Thomas v. Indus. Comm., 97 Ohio St.3d 37, 2002-Ohio-5306, 776 N.E.2d 62. ¶ 3 An Industrial Commission staff hearing officer granted claimant’s motion for statutory PTD compensation but applied the two-year statute of limitations in R.C. 4123.52 to bar the payment of retroactive compensation for any period prior to April 11, 1999. ¶ 4 Claimant sought a writ of mandamus in the Tenth District Court of Appeals ordering the commission to award statutory PTD compensation retroactive to the date of his 1984 injury. The court of appeals granted the writ, holding that the two-year statute of limitations in R.C. 4123.52 does not apply to retroactive awards of statutory PTD compensation and that the commission abused its discretion in setting April 11, 1999, as the start date for payment of claimant’s compensation. ¶ 5 The cause is now before this court upon an appeal as of right. II ¶ 6 The parties agree that claimant is entitled to statutory PTD benefits pursuant to R.C. 4123.58(C) and our holding in Thomas, but disagree regarding the appropriate date from which the payment of compensation should begin. ¶ 7 Claimant contends that retrospective application of Thomas compels a finding that the date of his 1984 injury is the appropriate date to begin payment of compensation. ¶ 8 We agree with claimant’s contention that our decision in Thomas must be applied retrospectively because we did not expressly state that the decision was to be applied only prospectively. See Lakeside Ave. Ltd. Partnership v. Cuyahoga Cty. Bd. of Revision (1999), 85 Ohio St.3d 125, 127, 707 N.E.2d 472, quoting State ex rel. Bosch v. Indus. Comm. (1982), 1 Ohio St.3d 94, 98, 1 OBR 130, 438 N.E.2d 415 (“ Tn the absence of a specific provision in a decision declaring its application to be prospective only, * * * the decision shall be applied retrospectively as well’ ”). ¶ 9 We disagree, however, with claimant’s contention that retrospective application of Thomas compels us to set the date of his injury as the appropriate start date for payment of compensation. To reach that conclusion, we would be required to ignore the rules of retrospective application and to disregard another provision of the Workers’ Compensation Act — R.C. 4123.52. ¶ 10 Only those legal conclusions that we announced in Thomas can be retrospectively applied to other cases. Our decision in Thomas was limited to 642 interpreting the scope of statutory PTD as set forth in R.C. 4123.58(C). In Thomas we held that claimants who sustained full limb loss can be declared permanently and totally disabled under that statute. That holding is applicable to injuries sustained before Thomas was decided. See Agee v. Russell (2001), 92 Ohio St.3d 540, 543, 751 N.E.2d 1043 (noting that in statutory interpretation cases, the court determines what a particular statute has meant since its enactment). Our decision in Thomas did not address the compensation commencement date. The compensation commencement date, however, is the only issue in this case. Thus, Thomas is not controlling here. ¶ 11 In order to reach the result urged by claimant, we would also be required to ignore the statute of limitations in R.C. 4123.52. That statute provides that “the commission shall not make any 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.” (Emphasis added.) The language of the provision expressly forbids the commission to pay PTD compensation for a back period in excess of two years before the filing of the application for compensation. State ex rel. Baker v. Indus. Comm., 97 Ohio St.3d 267, 2002-Ohio-6341, 779 N.E.2d 214, ¶ 7. ¶ 12 Despite this express statutory limitation, claimant argues that the commission should award him compensation for a back period of 17 years. Were we to order the commission to do so, we would violate the well-established rule that “when it is used in a statute, the word ‘shall’ denotes that compliance with the commands of that statute is mandatory.” (Emphasis sic.) Dept. of Liquor Control v. Sons of Italy Lodge 0917 (1992), 65 Ohio St.3d 532, 534, 605 N.E.2d 368. ¶ 13 We have rejected other arguments to create exceptions to the two-year statute of limitations. See, e.g., Baker, 97 Ohio St.3d at 267, 2002-Ohio-6341, 779 N.E.2d 214, ¶ 7-8 (refusing to create an exception to the two-year limitation and award six years of retroactive PTD compensation when the delay in filing for compensation was attributable to protracted litigation); State ex rel. Justice v. Dairy Mart, Inc. (2002), 94 Ohio St.3d 34, 759 N.E.2d 1252 (rejecting the argument that seriously injured claimants should be exempted from the mandatory two-year limitation in R.C. 4123.52); and State ex rel. Welsh v. Indus. Comm. (1999), 86 Ohio St.3d 178, 179, 712 N.E.2d 749 (emphasizing that “the commission cannot make any * * * award that grants compensation for any period more than two years before the date the claimant applies for such compensation” [emphasis added]). ¶ 14 Claimant asks this court to disregard a provision of the Workers’ Compensation Act that by its own language applies to all awards of compensation and to do so only for the benefit of those receiving one type of compensation— 643 statutory PTD compensation. Were we to grant this request, we would create a situation in which one group of claimants, those who are statutorily permanently totally disabled, would be treated differently from all other claimants, including those claimants who are vocationally permanently totally disabled. The latter group would be bound by a statute of limitations and commensurate restrictions on retroactive compensation, while the former group would be unencumbered. The differing treatment of the groups cannot be justified by any attempt to distinguish them based on the nature of their members’ injuries. ¶ 15 The loss of or loss of use of one’s extremities or eyes is a life-changing occurrence with ramifications that extend far beyond the workplace. However, other claimants deal with consequences that for some individuals are equally debilitating. For example, statutory PTD claimants are permitted to work, and many of them do.2 This is medically and legally foreclosed to vocational PTD claimants,3 and for many, the inability to earn a livelihood has its own emotionally devastating effects. Permanent total disability — no matter how it arises — is a life-altering occurrence for everyone affected, and under no circumstances should one group of PTD claimants be entitled to greater remuneration, via statutory operation, than others. ¶ 16 In fact, we have explicitly rejected the argument that an exception to the two-year limitation is appropriate for claimants with the most severe physical injuries. Justice, 94 Ohio St.3d at 35, 759 N.E.2d 1252. In Justice, the claimant sought a retroactive compensation adjustment following an average-weekly-wage recalculation. Specifically, he sought readjustment back to the date of injury — 12 years earlier — based, in part, on his argument that the liberal construction mandate in R.C. 4123.954 creates an exception to the statute of limitations for claimants with serious injuries. In refusing to acknowledge the proffered exception, we noted that “[n]either R.C. Chapter 4121 nor Chapter 4123 establishes a distinct and more generous statute of limitations for those more seriously injured.” Id. at 35, 759 N.E.2d 1252. Thus, we reject claimant’s attempt to distinguish claims based on the nature of injuries. 644 ¶ 17 The court of appeals held that the two-year statute of limitations in R.C. 4123.52 does not apply in cases of statutory PTD and focused on Ohio Adm.Code 4121-3-34(E)(l), which derives from R.C. 4123.58(C), to support this holding. ¶ 18 Ohio AdmuCode 4121-3-34(E)(l) states: ¶ 19 “(E) Statutory permanent total disability ¶ 20 “Division (C) of section 4123.58 of the Revised Code provides that the loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, constitutes total and permanent disability. ¶ 21 “(1) In all claims where the evidence on file clearly demonstrates actual physical loss, or the permanent and total loss of use occurring at the time of injury secondary to a traumatic spinal cord injury or head injury, of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, the claim shall be referred to be reviewed by a staff hearing officer of the commission. Subsequent to review, the staff hearing officer shall, without hearing, enter a tentative order finding the injured worker to be entitled to compensation for permanent and total disability under division (C) of section 4123.58 of the Revised Code. If an objection is made, the claim shall be scheduled for hearing.” ¶ 22 The court of appeals determined that this provision obligates the commission to issue a tentative order finding the claimant to be entitled to compensation under R.C. 4123.58(C) in all cases where the evidence on file clearly demonstrates the requisite physical loss, regardless of the filing or failure to file an application for such compensation. This court has recognized that the statute of limitations in R.C. 4123.52 requires the filing of an application to trigger it. See, e.g., State ex rel. Drone v. Indus. Comm. (2001), 93 Ohio St.3d 151, 155, 753 N.E.2d 185. The court of appeals cited Drone to support its holding that the statute of limitations is not triggered in statutory PTD cases, because Ohio Adm.Code 4121-3-34(E)(l) makes the filing of applications for statutory PTD unnecessary. ¶ 23 However, the court of appeals reached this conclusion by applying one provision of the administrative rule out of context. Ohio Adm.Code 4121-3-34(E)(1) must be considered in conjunction with other provisions of 4121-3-34, especially subsections (E)(1)(a) and (E)(1)(b). ¶ 24 References to “applications” appear throughout Ohio Adm.Code 4121-3-34. For example, subsection (A) states, “The purpose of this rule is to ensure that applications for compensation for permanent total disability are processed and adjudicated in a fair and timely manner.” (Emphasis added.) ¶ 25 Ohio Adm.Code 4121-3-34(C) sets forth the procedures that “shall apply to applications for [PTD].” (Emphasis added.) With regard to the procedure for statutory PTD applications, the rule provides that if the claimant “is request 645 ing a finding of permanent total disability compensation under division (C) of section 4123.58 of the Revised Code (statutory permanent and total disability), the application shall be adjudicated in accordance with paragraph (E) of this rule.” (Emphasis added.) Ohio Adm.Code 4121-3-34(C)(3)(b). ¶ 26 The stated purpose of the rule and the other references to applications throughout the rule demonstrate that the Industrial Commission intended claimants to affirmatively seek, rather than automatically receive, PTD compensation. ¶ 27 Ohio Adm.Code 4121-3-34(E)(l)(a) states, “Within thirty days of the receipt of the tentative order adjudicating the merits of an application for compensation for permanent and total disability, a party may file a written objection to the order.” (Emphasis added.) Ohio Adm.Code 4121-3-34(E)(l)(b) also assumes the filing of an application for compensation: it directs that if a written objection to the tentative order is made, “the application for permanent and total disability shall be set for hearing and adjudicated on its merits.” (Emphasis added.) ¶ 28 A plain reading of these subsections reveals that the Industrial Commission intended applications for statutory PTD compensation to precede the issuance of tentative orders for such compensation. ¶ 29 Thus, the court of appeals erred in holding that Ohio Adm.Code 4121-3-34 renders applications for statutory PTD unnecessary and the statute of limitations in R.C. 4123.52 inapplicable. Ill ¶ 30 Claimant filed a motion for statutory PTD on April 11, 2001. As the court of appeals noted, this motion can be viewed as claimant’s application for compensation. This April 11, 2001 application triggered the two-year statute of limitations in R.C. 4123.52, and claimant is thereby entitled to retroactive statutory PTD compensation effective April 11,1999. ¶ 31 For the foregoing reasons, the judgment of the court of appeals is reversed and the order of the commission is reinstated. Judgment reversed. Lundberg Stratton, O’Connor and O’Donnell, JJ., concur. Resnick, F.E. Sweeney and Pfeifer, JJ., dissent. Footnotes [1] {¶ a} R.C. 4123.58(C) provides: {¶ b} “The loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, constitutes total and permanent disability, to be compensated according to this 641 section. Compensation payable under this section for permanent total disability is in addition to benefits payable under division (B) of section 4123.57 of the Revised Code.” [2] Statutory PTD compensation is awarded regardless of a claimant’s ability to work if the claimant has suffered “[t]he loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof.” R.C. 4123.58(C). [3] An award of vocational PTD compensation requires a showing that claimant’s allowed conditions, either alone or with claimant’s nonmedical disability factors, prevent sustained remunerative employment. See, e.g., State ex rel. Stephenson v. Indus. Comm. (1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946. [4] {¶ a} R.C. 4123.95 provides: {¶ b} “Sections 4123.01 to 4123.94, inclusive, of the Revised Code shall be liberally construed in favor of employees and the dependents of deceased employees.”