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Wall v. Terrible12/3/1996
JOSEPH E. O'NEILL, Presiding Judge.
On November 27, 1990, Bill S. Wall, the appellant, an employee of the Youngstown Street Department, was a passenger in a city truck. Hershel Fordham, a fellow employee, backed the truck into a pole, allegedly causing the appellant to be injured.
On January 29, 1993, the appellant signed a Workers' Compensation Form C-3, an Application for Payment of Medical Benefits and, then, on February 10, 1993, the appellant signed a Workers' Compensation Form C-1, an Application for Payment of Compensation and Medical Benefits. His claims were denied throughout the administrative process as not being timely filed. The appellant pursued an appeal to the common pleas court, which court granted summary judgment in favor of the appellees. A timely notice of appeal was filed, directed to that final judgment entry.
The first assignment of error contends that the trial court erred in granting defendants' motions for summary judgment for the reason that the statute of limitations contained in R.C. 4123.85 was extended by failure of the city to file a report required by R.C. 4123.28.
R.C. 4123.85 reads as follows:
"In all cases of occupational disease, or death resulting from occupational disease, claims for compensation or benefits shall be forever barred unless, within two years after the disability due to the disease began, or within such longer period as does not exceed six months after diagnosis of the occupational disease by a licensed physician or within two years after death occurs, application is made to the industrial commission or the bureau of workers' compensation or to the employer in the event the employer has elected to pay compensation or benefits directly."
Very obviously, appellant's claims for compensation and benefits were not filed within two years after the alleged disability arose.
R.C. 4123.28 reads as follows: "Every employer in this state shall keep a record of all injuries and occupational diseases, fatal or otherwise, received or contracted by his employees in the course of their employment and resulting in seven days or more of total disability. Within a week after acquiring knowledge of an injury or death therefrom, and in the event of occupational disease or death therefrom, within one week after acquiring knowledge of or diagnosis of or death from an occupational disease or of a report to the employer of the occupational disease or death, a report thereof shall be made in writing to the bureau of workers' compensation upon blanks to be procured from the bureau for the purpose. The report shall state the namsand nature of the business of the employer, the location of his establishment on place of work, the name, address, nature and duration of occupation of the injured, disabled, or deceased employee and the time, the nature, and the cause of injury, occupational disease, or death, and such other information as is required by the bureau.
"The employer shall give a copy of each report to the employee it concerns or his surviving dependents.
"No employer shall refuse or neglect to make any report required by this section.
"Each day that an employer fails to file a report required by this section constitutes an additional day within the time period given to a claimant by the applicable statute of limitations for the filing of a claim based on the injury or occupational disease, provided that a failure to file a report shall not extend the applicable statute of limitations for more than two additional years."
In his motion for summary judgment, at no point did the appellant es
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