[Cite as Perez v. Univ. Hosp. Health Sys., 2012-Ohio-5896.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98427
HECTOR PEREZ
PLAINTIFF-APPELLANT
vs.
UNIVERSITY HOSPITALS HEALTH
SYSTEM, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Administrative Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-761580
BEFORE: Celebrezze, J., Boyle, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: December 13, 2012
ATTORNEY FOR APPELLANT
John C. Bucalo
1370 Ontario Street
Suite 330
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEES
For University Hospitals Health System
Erin Hooper
Kirk R. Henrikson
Rademaker, Matty, McClelland & Grev, L.L.C.
55 Public Square
Suite 1775
Cleveland, Ohio 44113
For Administrator, Ohio Bureau of Workers’ Compensation
Mike DeWine
Ohio Attorney General
30 East Broad Street
17th Floor
Columbus, Ohio 43215
Naveen Ramprasad
Assistant Attorney General
615 West Superior Avenue
11th Floor
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Plaintiff-appellant, Hector L. Perez, appeals the order of the common pleas
court granting summary judgment in favor of defendants-appellees, University Hospitals
Health System, et al. (“UH”). After careful review of the record and relevant case law,
we affirm the judgment of the trial court.
{¶2} On October 1, 2001, appellant sustained an injury to his lower back in the
course of and arising out of his employment with UH. As a result of this incident,
appellant filed a workers’ compensation claim, which was assigned claim No. 01-888771
for the conditions “sprain lumbosacral, neuritis lumbosacral.” UH, a self-insured
employer for workers’ compensation purposes, issued payments for medical bills under
claim No. 01-888771 from February 7, 2002, through November 13, 2003.
{¶3} On September 13, 2008, appellant sustained a mid and low back injury while
lifting oxygen tanks in the course of his employment with UH. UH initially attempted to
certify the 2008 injury as a continuation of claim No. 01-888771. However, on
September 24, 2008, appellant filed a First Report of Injury and/or Occupational Disease
with the Bureau of Workers’ Compensation alleging a separate and distinct injury from
claim No. 01-888771. While this issue was pending before the Industrial Commission
of Ohio, all medical bills associated with appellant’s 2008 injury were processed under
claim No. 01-888771 due to UH’s certification of the September 13, 2008 incident as a
reinjury. The medical payment history following appellant’s 2008 injury covered the
period May 18, 2009, through March 24, 2010.
{¶4} This matter went to hearing before the Industrial Commission and, on January
29, 2009, a district hearing officer for the Industrial Commission ruled that the incident of
September 13, 2008, constituted a new injury, not a reinjury of appellant’s 2001 claim.
Accordingly, the Industrial Commission assigned claim No. 08-861676 for the conditions
“sprain lumbar region and sprain thoracic region.” Subsequently, and in response to the
district hearing officer’s decision, UH transferred the previous payments of medical bills
incurred as a result of appellant’s 2008 injury under the newly certified claim No.
08-861676.
{¶5} On April 19, 2010, appellant filed an application for the determination of
percentage of permanent partial disability on the 2001 claim. On September 7, 2010, a
district hearing officer granted the application and issued an order finding that appellant
sustained permanent partial disability pursuant to the provisions of R.C. 4123.57. UH’s
appeal, filed September 24, 2010, was denied when an Industrial Commission staff
hearing officer affirmed the order on November 2, 2010.
{¶6} On December 10, 2010, UH made an application to the Industrial
Commission requesting that the commission exercise its continuing jurisdiction and
vacate the November 2, 2010 order finding permanent partial disability for the reason that
appellant’s 2001 claim had statutorily expired pursuant to R.C. 4123.52. On January 26,
2011, a staff hearing officer denied UH’s motion. Subsequently, UH appealed to the
Industrial Commission, which issued an order on June 16, 2011, finding continuing
jurisdiction and declaring that appellant’s 2001 claim had statutorily expired on
November 13, 2009, because the last medical payment made under appellant’s 2001 claim
occurred on November 13, 2003.
{¶7} On August 9, 2011, appellant filed a notice of appeal and complaint in the
Cuyahoga County Court of Common Pleas. Thereafter, the parties filed cross-motions
for summary judgment. On May 3, 2012, the trial court granted summary judgment in
favor of UH finding that appellant’s 2001 claim had statutorily expired.
{¶8} Appellant brings this timely appeal, raising two assignments of error for
review:
I. The trial court erred when it granted Defendant’s motion for summary
judgment.
II. The trial court erred when it denied Plaintiff’s motion for summary
judgment.
Law and Analysis
I. Standard of Review
{¶9} We review an appeal from summary judgment under a de novo standard of
review. Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing
Smiddy v. Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio Apt.
Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th
Dist.1997). Accordingly, we afford no deference to the trial court’s decision and
independently review the record to determine whether summary judgment is appropriate.
{¶10} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine
issue as to any material fact exists; (2) the party moving for summary judgment is entitled
to judgment as a matter of law; and (3) when viewing the evidence most strongly in favor
of the nonmoving party, reasonable minds can reach only one conclusion that is adverse
to the nonmoving party.
{¶11} The moving party carries an initial burden of setting forth specific facts that
demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio
St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. If the movant fails to meet this
burden, summary judgment is not appropriate; if the movant does meet this burden,
summary judgment will be appropriate only if the nonmovant fails to establish the
existence of a genuine issue of material fact. Id. at 293.
II. Application of R.C. 4123.52
{¶12} The issue before this court and brought by the parties under Civ.R. 56, is
whether appellant’s 2001 claim has statutorily expired. R.C. 4123.52 governs the
continuing jurisdiction of the Industrial Commission of Ohio and essentially places a
statute of limitations on workers’ compensation claims. Sechler v. Krouse, 56 Ohio St.2d
185, 383 N.E.2d 572 (1978). R.C. 4123.52,1 as was in effect at the time of appellant’s
2001 claim, read in relevant part:
The jurisdiction of the industrial commission and the authority of the
administrator of workers’ compensation over each case is continuing, and
As modified by H.B. 107. The current version of R.C. 4123.52 applies to workers’
1
compensation claims arising after August 15, 2006, which confers a five-year statute of limitations.
the commission may make such modification or change with respect to
former findings or orders with respect thereto, as, in its opinion is justified.
No modification or change nor any finding or award in respect of any claim
shall be made with respect to disability, compensation, dependency, or
benefits after six years from the date of injury in the absence of the payment
of medical benefits under this chapter, in which event the modification,
change, finding, or award shall be made within six years after the payment
of medical benefits, or in the absence of payment of compensation under
section 4123.57, 4123.58, or division (A) or (B) of section 4123.56 of the
Revised Code or wages in lieu of compensation in a manner so as to satisfy
the requirements of section 4123.84 of the Revised Code, in which event
the modification, change, finding, or award shall be made within ten years
from the date of the last payment of compensation or from the date of death,
nor unless 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 or
4123.85 of the Revised Code, and the commission shall not make any
modification, change, finding, or award which shall award compensation
for a back period in excess of two years prior to the date of filing
application therefor. (Emphasis added.)
{¶13} In the case at hand, the record supports UH’s position that appellant’s 2001
claim involved the payment of “medical benefits” only. Accordingly, the applicable
statute of limitations period for appellant’s 2001 claim is six years from the date of the
last payment of a medical bill by UH for those injuries stemming from the 2001 injury.
Pursuant to R.C. 4123.52, once the applicable six-year period under R.C. 4123.52
expired, the commission was without power to make any further findings, awards, or
orders, and the claim was deemed to have lapsed.
{¶14} In support of his motion for summary judgment, appellant argues that, at a
minimum, the expiration date for his 2001 claim would be March 24, 2016, based on
UH’s decision to file its initial payment of appellant’s medical bills from May 18, 2009,
through March 24, 2010, under appellant’s 2001 claim number.
{¶15} In contrast, UH maintains that because appellant’s 2008 injury was
subsequently certified as a new and separate claim, it was entitled to transfer all previous
medical payments stemming from the 2008 injury, which were previously filed under
claim No. 01-888771, to appellant’s new claim No. 08-861676. Thus, UH submits that
the last medical payment stemming from appellant’s 2001 injury was made on November
13, 2003, therefore precluding appellant’s ability to seek permanent partial disability as of
November 13, 2009, under the applicable six-year statute of limitations.
{¶16} This court finds that UH’s position is more logical. As determined by the
Industrial Commission’s district hearing officer, appellant’s 2008 injury constituted a new
injury that was separate and distinct from his 2001 injury. Thus, the record establishes
that all payments made subsequent to September 2008 were made in relation to the
medical treatment appellant received for the new injuries identified in claim No.
08-861676. Appellant simply did not receive medical treatment for his 2001 injuries
following UH’s payment of a medical bill on November 13, 2003.
{¶17} For these reasons, we find no merit to appellant’s position that UH’s initial
payment of his medical bills stemming from his 2008 injury under his 2001 claim number
tolled the statute of limitations on his 2001 claim. The record reflects that UH only
submitted medical payments for appellant’s 2008 injury under his 2001 claim number
because the issue of whether appellant’s 2008 injury constituted a new injury or a
continuation of his 2001 injury was pending before the Industrial Commission. Until the
Industrial Commission resolved this issue, UH had no choice but to file the medical
payments stemming from appellant’s 2008 injury under the 2001 claim. Once the
Industrial Commission determined that appellant’s 2008 injury was not a continuation of
his 2001 claim, UH was free to correct its records and reclassify and process all previous
medical payments stemming from appellant’s 2008 injury under the new 2008 claim
number.
{¶18} Similarly, we find no merit to appellant’s assertion that the ten-year statute
of limitations for “compensation” under R.C. 4123.52 was invoked once payment of
appellant’s permanent and partial disability award was made on December 8, 2010.
While we agree that payment of appellant’s permanent and partial disability award
amounted to payment of “compensation” under the claim, the record reflects that
appellant was only awarded permanent and partial disability based on the district hearing
officer’s incorrect belief that appellant’s 2001 claim had not expired. On appeal, the
compensation award was properly vacated. Thus, we are unable to conclude that the
vacated award of permanent and partial disability invoked the ten-year statute of
limitations outlined in R.C. 4123.52.
{¶19} Based on the foregoing, we conclude that the last payment made as a result
of appellant’s injury in 2001 was on November 13, 2003. As such, appellant’s 2001
claim expired, pursuant to R.C. 4123.52, on November 13, 2009. There being no genuine
issue of material fact as to the expiration of claim No. 01-888771, UH is entitled to
judgment as a matter of law. Accordingly, the trial court properly granted summary
judgment in favor of UH, while denying appellant’s motion for summary judgment.
{¶20} Appellant’s first and second assignments of error are overruled.
{¶21} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR