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SPECHT v. BP AMERICA, INC. et al.



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SPECHT

v.

BP AMERICA, INC. et al.


Specht, Appellant, v. BP
America, Inc. et al., Appellees.

[Cite as Specht v. BP Am.,
Inc.
(1999), 86 Ohio St.3d 29.]

Workers’ compensation
— Two-year notice requirement in R.C. 4123.84(A) does not
apply to claims for residual conditions — Residual-condition
claims must be considered within the Industrial Commission’s
continuing jurisdiction under R.C. 4123.52.

The two-year notice requirement
in R.C. 4123.84(A) does not apply to claims for residual
conditions, and these claims must be considered within the
Industrial Commission’s continuing jurisdiction under R.C.
4123.52. (Clementi v. Wean United, Inc. [1988], 39 Ohio
St.3d 342, 530 N.E.2d 909, overruled.)

(No. 98-1 — Submitted
January 12, 1999 — Decided June 30, 1999.)

Appeal from the Court of Appeals
for Cuyahoga County, No. 71899.


Marie Ann Specht, appellant, injured her back
in 1985 while working for a predecessor of appellee BP America,
Inc. ("BP"). Her workers’ compensation claim was
initially recognized for "low back," and afterward, for
an additional condition in her back. In 1989, Specht moved for
recognition of a residual psychological condition; however,
appellee Industrial Commission of Ohio denied her motion because
it was not filed within the two-year notice requirement in R.C.
4123.84.

Specht appealed pursuant to R.C. 4123.512,
seeking a judgment that she was entitled to participate in the
workers’ compensation system for her residual condition. The
Cuyahoga County Court of Common Pleas refused this relief and
granted summary judgment for BP on the ground that Specht had not
provided timely notice of her residual claim. The Court of
Appeals for Cuyahoga County affirmed.

The cause is before this court upon the
allowance of a discretionary appeal.


Stewart R. Jaffy & Associates Co.,
L.P.A., Stewart R. Jaffy
and Marc J. Jaffy; Shapiro,
Kendis & Associates Co., L.P.A.,
and Alan J. Shapiro,
for appellant.

Krugliak, Wilkins, Griffiths & Dougherty
Co., L.P.A., Edward D. Murray, Michael A. Thompso
n and Susan
Carson Rodgers
, for appellee BP America, Inc.


Pfeifer, J.

A "residual" workers’
compensation claim occurs when a claimant’s work-induced
injury generates a medical condition in a body part other than
the claimant originally specified. Dent v. AT&T
Technologies, Inc
. (1988), 38 Ohio St.3d 187, 189, 527 N.E.2d
821, 824. Formerly, the commission determined a
residual-condition claimant’s right to participate pursuant
to the commission’s continuing jurisdiction under R.C.
4123.52 and without regard to the two-year notice requirement in
R.C. 4123.84 for initiating claims generally. Kittle v. Keller
(1967), 9 Ohio St.2d 177, 38 O.O.2d 414, 224 N.E.2d 751,
syllabus. But in Clementi v. Wean United, Inc. (1988), 39
Ohio St.3d 342, 530 N.E.2d 909, this court applied amended
versions of these statutes to also require notice of a residual
condition within two years of the claimant’s actual or
constructive knowledge.

Specifically, Clementi declared that a
residual-condition claim is untimely under R.C. 4123.84 unless
written notice of the specific part or parts of the body claimed
to have been injured is given within two years of the time the
claimant knew or should have known of the residual condition. Id.
at syllabus. In Lewis v. Trimble (1997), 79 Ohio St.3d
231, 680 N.E.2d 1207, this court modified Clementi to hold
that such claims are untimely if filed more than two years after
the claimant knew or should have known of the "nature and
seriousness" of the residual condition and its causal
relation to the work injury. Id. at paragraph one of the
syllabus. Specht urges us to reconsider Clementi and to
again recognize the commission’s continuing jurisdiction
under R.C. 4123.52 to determine the claimant’s right to
participate for a residual condition notwithstanding the two-year
notice requirement. We hold that the two-year notice requirement
in R.C. 4123.84 does not apply to claims for residual conditions
and that the commission has continuing jurisdiction under R.C.
4123.52 to consider these claims. Accordingly, we overrule Clementi
and reverse the judgment of the court of appeals.

R.C. 4123.84(A) bars all claims for
compensation or benefits for a work-induced injury or death
unless either (1) the commission or bureau receives written
notice of the "specific part or parts of the body
injured" within two years of an employee’s injury or
death, or (2) the employer receives such other notice as is
specified in the statute within two years of an employee’s
injury or death.
[1] R.C. 4123.52 establishes the
commission’s continuing jurisdiction to modify its findings
and awards provided that, among other conditions, "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
* * * of the Revised Code."

Before the quoted phrases were added to these
statutes, the commission’s continuing jurisdiction to allow
or reject residual condition claims was settled — the
commission acted to consider new evidence of further disability
unencumbered by the two-year notice requirement in R.C. 4123.84. Kittle,
9 Ohio St.2d at 180-181, 38 O.O.2d at 416-417, 224 N.E.2d at
754-755. In Kittle, six justices refused to set this
artificial barrier before claimants seeking their rightful
compensation, even if it released some spurious claims into the
workers’ compensation system. The court held:

"Faced as we are here with a choice
between closing the door on some possibly fraudulently based
claims and thus denying to an injured work[er] the
compensation to which [the worker] is justly entitled, or
granting such compensation and risking the possibility that
some fraudulent claims will be successful under the rule, the
majority of this court is of the opinion that the Legislature
intended that once it has been established by a claimant that
he [or she] was injured in the course of and arising out of
[the claimant’s] employment and his [or her] claim has
been allowed and compensation or benefits paid, the
Industrial Commission has continuing jurisdiction, pursuant
to Section 4123.52, Revised Code, to modify or change its
findings or orders, and pursuant to a proper application by
the claimant, supported by proper evidence, the commission
has jurisdiction to grant compensation for a subsequently
developing disability resulting from an injury which was
suffered at the time of the original accident, and the
payment of such compensation or benefits is not barred by the
two-year provision of Section 4123.84, Revised Code, even
though such disability was not diagnosed and such injury was
not discovered until after the two-year statutory period had
run." Id. at 185, 38 O.O.2d at 419-420, 224
N.E.2d at 757.

In 1967, soon after Kittle was decided,
the General Assembly added the requirement that claimants specify
the bodily part or parts injured. See R.C. 4123.52 and
4123.84(A)(1) (132 Ohio Laws, Part I, 1405, 1432-1433). At the
same time, it added to R.C. 4123.84 the following paragraph
directly addressing residual claims:

"The commission shall have continuing
jurisdiction as set forth in section 4123.52 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 paragraph 1 of division
(A) 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 paragraph 1 of
division (A) of this section." 132 Ohio Laws, Part I,
1433.

We no longer agree, as we reservedly did in Clementi,
39 Ohio St.3d at 346, 530 N.E.2d at 913, that "[t]he
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 * * * conditions." In
fact, this paragraph is quite clear and unambiguous, just as
Visiting Judge Baird observed in his dissent to the Clementi majority
opinion. Id. at 349, 530 N.E.2d at 915. The paragraph
specifically provides for the commission’s continuing
jurisdiction over conditions developing from a bodily injury as
long as the commission, bureau, or employer has been properly
advised of the initially injured body part, and the commission
attributes the condition to the initially injured body part.
Correspondingly, R.C. 4123.52 has remained unaltered in stating
that its various deadlines "do[ ] not affect the right of a
claimant to compensation accruing subsequent to the filing of [an
otherwise timely] application * * *." Claims for residual
conditions, therefore, are obviously excepted from the two-year
notice requirement formerly applicable only to new claims.
Id. at 347-348, 530 N.E.2d at 914 (Douglas, J.,
dissenting).

Despite the clarity of R.C. 4123.84, as
amended, BP insists that Clementi must represent the
General Assembly’s will; otherwise the General Assembly
would have enacted legislation to supersede the Clementi
syllabus. In Lewis, we acknowledged that Clementi has
caused substantial confusion, and we struggled to reconcile it
with the express terms of R.C. 4123.84 and 4123.52 and precedent
from this court.
[2] Lewis, 79 Ohio St.3d at
235-241, 680 N.E.2d at 1211-1215. Yet these problems went
unchecked by the General Assembly for years before we were able
to revisit Clementi and independently remedy them, albeit
only to the extent that they were raised by the parties. Thus, in
this case, we cannot say that the General Assembly’s
inaction represents its approval of the Clementi syllabus.
In any event, "[l]egislative inaction is a weak reed upon
which to lean in determining legislative intent." Greeley
v. Miami Valley Maintenance Contrs., Inc.
(1990), 49 Ohio
St.3d 228, 231, 551 N.E.2d 981, 984.

Moreover, we are now convinced that the General
Assembly did not intend to cut off residual claims in 1967 when
it required claimants to report the "specific part or parts
of the body injured." Rather, after the Kittle court’s
articulated concern over fraudulent claims, we suspect that the
General Assembly interjected more stringent notice requirements
to combat this possibility. The court was concerned because,
prior to 1967, R.C. 4123.84 required only a written application
within two years of the claimant’s injury or death. The
statute did not require that the application specify the body
part injured. See Kittle, 9 Ohio St.2d at 178-179, 38
O.O.2d at 415, 224 N.E.2d at 753. The Kittle court
conceded that allowing residual claims beyond the two-year
limitations period might permit unscrupulous claimants to take
advantage of the commission’s continuing jurisdiction by
filing spurious claims years after the injury, using the lapse of
time to impede any defense. Id. at 184, 38 O.O.2d at 419,
224 N.E.2d at 756. But the court concluded that the risk was
necessary to protect bona fide residual claims. Id.
at 185, 38 O.O.2d at 419-420, 224 N.E.2d at 757.

The specific-notice requirements in R.C.
4123.84 and 4123.52 were enacted to cure this potential problem.
When this deterrent is considered in conjunction with the General
Assembly’s preservation of the commission’s continuing
jurisdiction over residual conditions in R.C. 4123.84, it compels
the conclusion that the General Assembly never intended to bar
legitimate claims for residual conditions. To the contrary, the
1967 amendments were meant to codify the Kittle syllabus
and at the same time minimize the incidence of fraudulent claims.
Accord Clementi, 39 Ohio St.3d at 349, 530 N.E.2d at 915
(Baird, J., dissenting).

For these reasons, the two-year notice
requirement in R.C. 4123.84(A) does not apply to claims for
residual conditions, and these claims must be considered within
the commission’s continuing jurisdiction under R.C. 4123.52.
Accordingly, we overrule Clementi and find that BP is not
entitled to summary judgment on the ground that Specht failed to
provide notice of her claim as required by R.C. 4123.84. We
reverse the judgment of the court of appeals and remand the cause
to the trial court for further proceedings consistent with this
opinion.

Judgment reversed

and cause remanded.

Douglas, Resnick and F.E. Sweeney, JJ., concur.

Moyer, C.J., Cook and Lundberg Stratton, JJ.,
dissent.


Cook, J., dissenting.

The majority decides an issue that the claimant
did not raise in the court of appeals. Failure to raise the issue
in the court below waives the opportunity to raise it here. State
v. Lorraine
(1993), 66 Ohio St.3d 414, 416, 613 N.E.2d 212,
216.

The court of appeals’ judgment that is
appealed here is not a decision as to the application of R.C.
4123.84. Rather, the appellate court determined that the claimant
had not complied with the requirements of that section. The
claimant argued to the court of appeals that her evidence was
timely submitted pursuant to the statute, not that the statute
did not apply to her. In this court, claimant now seeks for the
first time a decision that R.C. 4123.84 is not applicable to
flow-through psychiatric injuries.

Accordingly, the court of appeals’
decision on the issue raised before that court is correct.
This court should not, therefore, reverse the court of appeals.
This cause ought not to have been heard here. The decision to
allow this discretionary appeal was not unanimous.

Moyer, C.J., and Lundberg Stratton, J., concur
in the foregoing dissenting opinion.

 

 

FOOTNOTES:

[1] When Specht was injured, R.C.
4123.84(A) provided, much as it does today:

"(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;

"(2) The employer, with knowledge of a
claimed compensable injury or occupational disease, has paid
wages in lieu of compensation for total disability;

"(3) In the event the employer has
elected to pay compensation or benefits directly, one of the
following has occurred:

"(a) Written notice of the specific
part or parts of the body claimed to have been injured has
been given to the commission or bureau, or the employer has
furnished treatment by a licensed physician in the employ of
an employer; providing, however, that the furnishing of such
treatment shall not constitute a recognition of a claim as
compensable, but shall do no more than satisfy the
requirements of this section;

"(b) Compensation or benefits have
been paid or furnished equal to or greater than is provided
for in sections 4123.52, 4123.55 to 4123.62, and 4123.64 to
4123.67 of the Revised Code.

"[4] Written notice of death has been
given to the commission or bureau." 137 Ohio Laws, Part
II, 3960.

[2] The claimant-appellant in Lewis
did not challenge Clementi for applying the R.C.
4123.84 notice requirement to residual conditions. Lewis,
79 Ohio St.3d at 235, 680 N.E.2d at 1211.

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