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Specht v. BP America5/23/1996
Marie Specht appeals the trial court's grant of summary judgment in favor of BP America, Inc., thereby denying her participation in the Workers' Compensation fund for an alleged flow-through psychiatric condition. Because a genuine issue of material fact exists as to whether Marie Specht gave timely notice of this claim, we vacate the judgment of the trial court and remand the matter for further consideration of this issue.
The parties generally do not dispute that Maria Specht injured her back on March 19, 1985 while assisting with the move into the then new British Petroleum world headquarters in Cleveland, Ohio. Her workers' compensation claim was allowed for, "low back, acute allergic reaction to lumbar radiculopathy medication, and lumbar radiculopathy L4-5."
Almost two years later, on January 29, 1987, Specht filed a C-86 motion seeking all of the following:
1. Order Employer to pay for consultation with physicians at Cleveland Clinic.
2. Order employer to approve referral to pain center at Cleveland Clinic.
3. Further allow claim for protusion of disc between 4th and 5th lumbar vertebrae.
4. Approve and pay for treatment W.G. Nord Community Mental Health Center.
5. Further allow claim for "allergic rhinitis"
6. Set average weekly wage pursuant to Sections 4123.61 & 62.
At the C-86 hearing, which was held before the Industrial Commission on December 2, 1988, the hearing officer entertained an oral motion for additional allowance of Specht's psychiatric condition and issued the following order inter alia:
* THE DISTRICT HEARING OFFICER FINDS, PER ORAL REQUEST AT HEARING, THAT THE CLAIM BE ADDITIONALLY ALLOWED FOR A PSYCH CONDITION BY CLAIMANT'S COUNSEL. THE DISTRICT HEARING OFFICER ORDERS THE CLAIMANT EXAMINED BY A QUALIFIED PSYCHIATRIST (CLESP). THEREFORE, THE DISTRICT HEARING OFFICER HOLDS NUMBER FOUR, PER C-86, IN ABEYANCE PENDING AN EXAM AND ORAL HEARING ON THE ISSUE OF ADDITIONAL ALLOWANCE (PSYCH). (SEE W-6 NORD RECORDS AND NARRATIVE FROM THOMAS J. HAGLUND, PHD, AND COMPLETE FILE ON ISSUE OF SAME). THE DISTRICT HEARING OFFICER GRANTS CLAIMANT'S REQUEST TO NUMBER FOUR PER C-86.
On appeal by BP America, the Regional Board deleted in its entirety only the first sentence relating to the additional allowance per oral request, and affirmed in all other respects.
Neither party appealed from that order of the Regional Board, but on October 23, 1989, Specht filed a new request with the Industrial Commission seeking additional allowance of her psychiatric condition, listed as, "adjustment disorder with mixed emotional features including depression."
At the hearing held on this second C-86 motion, the district hearing officer denied the additional psychiatric allowance because the claim was not made within two years of diagnosis of the condition. On appeal, the Regional Board vacated the order of the hearing officer, found the employer had notice of the psychiatric condition per the 1987 C-86 motion, and allowed the claim. On further appeal, the Industrial Commission vacated this order of the Regional Board and reinstated the finding of the district hearing officer.
When plaintiff appealed to the Common Pleas Court, BP America filed for summary judgment; appellant moved to strike attachments to that motion, but the trial court granted summary judgment without ruling on the motion to strike.
Appellant urges on appeal:
I.
THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BP AMERICA BECAUSE THE EMPLOYER HAD TIMELY NOTICE OF PLAINTIFF'S PSYCHIA
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