State ex rel. Ford Motor Co. v. Indus Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Ford Motor Company, Appellee, v.
Industrial Commission of Ohio et al.; Kane, Appellant.
[Cite as State ex rel. Ford Motor Co. v. Indus Comm.
(1992) Ohio St.3d .]
Workers' compensation -- R.C. 4123.52 forbids any award of
compensation "for a back period in excess of two years
prior to the date of filing application therefor."
(No. 91-332 -- Submitted May 12, 1992 -- Decided October
14, 1992.)
Appeal from the Court of Appeals for Franklin County, No.
88AP-1172.
On April 6, 1979, appellant-claimant, Joan Kane, suffered
an injury to her left leg received in the course of and arising
from her employment with appellee, Ford Motor Company ("Ford"),
a self-insured employer.
Appellant did not appear for work on August 20, 1979 and
never returned. There is no evidence that Ford knew why
appellant left.
On November 25, 1980, appellant filed a motion with the
Industrial Commission that read in its entirety:
"That the claim include 'Demyelinative disease, or
'Multiple Sclerosis' because of the trauma as results [sic] of
the above claim."
Accompanying the motion was attending physician William R.
Bauer's report. Dr. Bauer gave his opinion that appellant's
multiple sclerosis had been aggravated by her industrial injury
and stated that her "progress remains guarded." He did not
indicate that appellant (1) was not working, (2) could not
perform her former duties at Ford, or (3) had any residual
disability.
Protracted litigation resulted in formal recognition of
appellant's claim for aggravation of the preexisting condition
of multiple sclerosis. On March 20, 1984, appellant moved for
temporary total disability compensation from "August 20, 1979
through the present and ongoing" based on the newly allowed
condition. A commission district hearing officer on May 12,
1986 awarded temporary total disability compensation from March
20, 1982 through June 6, 1985, with future compensation

contingent on continued medical proof. Temporary total
disability compensation from August 20, 1979 through March 19,
1982 was denied under the theory that R.C. 4123.52 prohibited
compensation payment for periods more than two years prior to
appellant's March 20, 1984 motion for temporary total
disability compensation. The order was administratively
affirmed.
Ford eventually sought permission to terminate temporary
total disability compensation, alleging that appellant's
condition was permanent. At the August 20, 1987 hearing, a
district hearing officer found that appellant's condition had
become permanent as of that date. However, because appellant
had applied for compensation for permanent total disability,
temporary total disability compensation was continued pending
determination of appellant's application for compensation for
permanent total disability. This order was also affirmed.
Ford initiated a mandamus action in the Court of Appeals
for Franklin County, contesting the extension of temporary
total disability compensation beyond the August 20, 1987
permanency date. Appellant countered with a challenge to the
commission's denial of temporary total disability compensation
prior to March 20, 1982. Ford prevailed on both claims. The
appellate court upheld the commission's denial of temporary
total disability compensation from August 20, 1979 through
March 19, 1982 and ordered the commission to vacate the
extension of compensation beyond August 20, 1987.
This cause is now before this court upon an appeal as of
right.

Petro, Rademaker, Matty & McClelland and James M. Petro,
for appellee.
Nurenberg, Plevin, Heller & McCarthy Co., L.P.A., Michael
C. Porterfield, Richard C. Alkire and Joel Levin, for appellant.

Per Curiam. Two periods of temporary total disability
compensation are at issue: (1) August 20, 1979 through March
19, 1982 and (2) August 20, 1987 and after. The appellate
court held that compensation was not payable over either. We
affirm its judgment.
The commission premised its denial of temporary total
disability compensation prior to March 20, 1982 on R.C.
4123.52. The statute forbids any award of compensation "for a
back period in excess of two years prior to the date of filing
application therefor." The commission looked to appellant's
March 20, 1984 motion for temporary total disability
compensation and determined that it could not order
compensation before March 20, 1982.
Appellant contends that her November 25, 1980 motion for
allowance of an additional condition should be construed as an
R.C. 4123.52 application for compensation, thereby permitting
compensation over the period in question. She alternatively
argues that R.C. 4123.52's two-year statute of limitations does
not apply. Both arguments lack merit.
Appellant bases her initial proposition on State ex rel.
Gen. Refractories Co. v. Indus. Comm. (1989), 44 Ohio St.3d 82,
541 N.E.2d 52. There, a March 23, 1982 medical report from the
claimant's attending physician to the claimant's self-insured

employer indicated that a necrotic condition had arisen from
claimant's industrial injury and prevented work through May 3,
1982. The employer responded with a May 4, 1982 letter
refusing temporary total disability compensation payment since
necrosis was not an allowed condition.
The claimant, on June 23, 1983, asked the commission to
allow the necrotic condition. After the condition was formally
recognized, claimant, on May 15, 1985, filed another motion,
this time requesting temporary total disability compensation
from March 16, 1982 through August 15, 1985. The employer
opposed the motion, arguing that under R.C. 4123.52's two-year
statute of limitations, compensation could be ordered only for
the period after May 15, 1983--two years prior to claimant's
motion for temporary total disability compensation. The
commission granted claimant's motion and ordered compensation
for the period beginning March 16, 1982. To do this, the
commission construed claimant's June 23, 1983 application for
allowance of an additional condition as an application for
compensation.
We upheld that decision, rejecting the employer's claim
that only those motions expressly requesting compensation could
be considered applications for compensation within the meaning
of R.C. 4123.52. We wrote:
"R.C. 4123.52 does not state how an application for
compensation must be made. The fact that the application in
question did not expressly request compensation is not
conclusive of whether it was for compensation. The character
of the application is to be determined not only from its
contents, but also from the nature of the relief sought and how
the parties treated the application." Id., 44 Ohio St.3d at
83, 541 N.E.2d at 54.
We stressed that claimant's application for allowance of
an additional condition was accompanied by medical proof of a
work-prohibitive disability. The employer's May 4, 1982
letter, moreover, treated claimant's motion as one requesting
compensation, since the employer specifically stated that no
temporary total disability compensation would be paid. It was
this denial, we observed, "that gave rise to the June 23, 1983
motion. The motion, in effect, sought allowance of the refused
compensation. Put in perspective, if appellant had considered
necrosis as an allowed condition, the result would have been
the payment of compensation for the condition and the June 23,
1983 motion would not have been necessary. Thus it appears
obvious * * * that the parties treated the application for
allowance of the additional condition as an application for an
additional award of compensation." Id., 44 Ohio St.3d at 84,
541 N.E.2d at 54-55.
Appellant argues that Gen. Refractories is
indistinguishable from this case. We disagree. Gen.
Refractories is based on the perception that the employer,
despite the lack of a direct request for temporary total
disability compensation, knew that the claimant was seeking
compensation as well as an additional allowance. While this
conclusion was supported in Gen. Refractories, in this case it
is not.
Most significant in Gen. Refractories was the employer's
May 4, 1982 letter denying temporary total disability

compensation. The employer obviously perceived claimant's
March 23, 1982 letter as a compensation request or it would not
have responded as it did. Here, Ford gave no indication that
it considered claimant's application for allowance of an
additional condition to include a request for compensation.
Second, claimant's initial letter in Gen. Refractories was
accompanied by medical evidence of temporary total disability.
This, too, is missing here. Dr. Bauer's report indicated at
most that prospects for improvement were "guarded." Nothing
indicated that the newly sought condition was, at that point,
disabling.
Finally, in the earlier case, the proximity of claimant's
last date worked to the letter and evidence in question
strongly suggested that the letter stemmed from a desire for
disability compensation. In Gen. Refractories, claimant's last
date worked was March 16, 1982. One week later, claimant
submitted evidence of an inability to work caused by a
work-related accident. It was thus reasonable to presume that
the employer knew that compensation was being sought. Here,
however, there were fifteen months between appellant's last
date worked and her motion for allowance of an additional
condition. Given appellant's delay, we decline to impute
knowledge of temporary total disability to Ford.
Admittedly, R.C. 4123.95 requires liberal construction in
appellant's favor of R.C. 4123.52's "application" for
"compensation." Liberal construction, however, is not
limitless and merely because appellant belatedly says that she
intended her initial motion to be an application for
compensation does not, under these facts, make it one.
Appellant alternately challenges R.C. 4123.52's
applicability, pointing instead to R.C. 4123.84. R.C.
4123.84(A) states:
"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[.]"
Appellant reasons that where an application for allowance
of an additional condition is made within two years of the date
of injury, as hers was, R.C. 4123.52's limitation of actions
does not apply. Appellant, however, ignores that the next to
last paragraph of R.C. 4123.84 specifically applies R.C.
4123.52 to all injury claims made pursuant to R.C.
4123.84(A)(1).
Accordingly, we find that R.C. 4123.52 bars compensation
for temporary total disability for the period prior to March
20, 1982.
The commission also declared appellant's condition to be
permanent as of August 20, 1987, which, under State ex rel.
Ramirez v. Indus. Comm. (1982), 69 Ohio St.2d 630, 23 O.O.3d
518, 433 N.E.2d 586, warranted termination of temporary total
disability compensation. However, pursuant to then-existing
commission policy, temporary total disability compensation was
continued pending determination of claimant's application for
permanent total disability compensation.

State ex rel. Eaton Corp. v. Lancaster (1988), 40 Ohio
St.3d 404, 534 N.E.2d 46, invalidated that policy. It also
ordered the commission to vacate four orders that had extended
temporary total disability compensation despite a finding of
permanency, and ordered the commission to make a determination
in accordance with Eaton. Eaton, however, recognized that the
commission had promulgated its policy in response to the
lengthy delay, common at that time, in processing applications
for permanent total disability compensation. We cited this as
justification for declaring our holding to be prospective only
and refusing to order the commission to terminate the temporary
total disability compensation of all claimants then receiving
compensation under the invalidated policy. Id., 40 Ohio St.3d
at 408, 534 N.E.2d at 51.
Almost four years have passed since our decision in Eaton,
and there is no evidence presently before us which indicates
that the timeliness concerns, so relevant then, still exist.
We thus find it unnecessary now to allow temporary total
compensation to continue despite a finding of permanency.
Accordingly, the judgment of the court of appeals is
affirmed.
Judgment affirmed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.