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Cantrell v. Celotex Corp.6/28/1995
PAINTER, Judge.
The plaintiff-appellant, Robert Cantrell, filed an appeal with the court of common pleas following the decision of the defendant-appellee Industrial Commission of Ohio to deny his claim for workers' compensation benefits. The court of common pleas granted the Industrial Commission's motion to dismiss the appeal on the basis that the appeal was filed beyond the sixty-day limit for appealing the Industrial Commission's decisions contained in R.C. 4123.519. In his solitary assignment of error, Cantrell asserts that dismissal of his appeal was in error because the sixty-day time limit begins to run only when a party receives the formal written decision of the Industrial Commission, and upon the undisputed evidence in this case his attorney never received such formal notice.
Although not without concern for the wisdom or economy of requiring Cantrell to go back to the Industrial Commission and prove what it apparently concedes that notice to Cantrell's attorney was mailed to the wrong address and thereforsnot received--we hold that compliance with R.C. 4123.522, the statutory "savings procedure," is a required first step to vesting the court of common pleas with jurisdiction in a case involving an alleged failure of notice. Because Cantrell did not pursue this administrative remedy before filing his appeal in the court of common pleas, we affirm that court,'s dismissal of his appeal.
On October 19, 1990, the Industrial Commission, through a district hearing officer, denied Cantrell's claim for workers' compensation benefits for laryngeal cancer which he allegedly contracted as a result of asbestos exposure while an employee of the defendant-appellee Celotex Corporation. Cantrell timely appealed this decision to the Dayton Regional Board of Review, which affirmed the decision of its hearing officer on August 22, 1991. The Industrial Commission then affirmed the regional board on December 8, 1992.
According to Cantrell, the Industrial Commission then sent notice of its decision to his attorney at the address of his old law firm, where he had not worked for approximately two years. This allegation is borne out by the decision itself, which bears the addresses of the parties and contains a different address for Cantrell's attorney than the one that appeared in the earlier decisions of the hearing officer and regional board. In its response to the Industrial Commission's motion to dismiss his appeal to the court of common pleas, Cantrell's counsel averred that he only became aware of the Industrial Commission's denial of the claim on May 11, 1993, when he called to inquire as to why no decision had yet been issued. According to Cantrell's counsel, he had yet to receive written notice of the Industrial Commission's decision during the pendency of his appeal in the court of common pleas.
As he argued below, Cantrell asserts before this court that the Industrial Commission's failure to provide his counsel with written notice of its decision rendered inapposite the requirement in R.C. 4123.519 that the appellant file his notice of appeal to the court of common pleas within sixty days of the receipt of the Industrial Commission's order. In the absence of written notice, Cantrell asserts that it is sufficient that he filed his appeal to the court of common pleas within sixty days of May 11, 1993, the date upon which his counsel received actual knowledge of the decision. Moreover, Cantrell argues that R.C. 4123.522, the statutory section which sets forth an administrative procedure whereby parties who have failed to receive notice through no fault or neglect of their own may receive an additional twenty-day perio
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