This mandamus action was referred to a referee, pursuant to Civ. R. 53, who rendered a report and recommended the writ of mandamus be granted ordering the Industrial Commission to vacate its order of June 20, 1985 and conduct further proceedings on the merits of relator's application for handicap reimbursement. Respondent, Industrial Commission of Ohio, filed objections to the referee's report; briefs were submitted by the parties and oral argument was heard by the court.
The record shows that the employee-claimant, Donna Martin Anca, was injured on February 15, 1978 in the course of her employment with relator, Inland Division, General Motors Corporation. Compensation and benefits were allowed for "sprain low back." Claimant ultimately received temporary total disability and permanent partial disability compensation. Relator, a self-insured employer, requested a handicap reimbursement pursuant to R.C. 4123.343 based upon a contention that the claimant's disability was increased due to a pre-existing arthritic condition. Apparently, relator mailed its application for reimbursement on February 14, 1983. This application was heard by a staff hearing officer who issued an order on February 20, 1985 stating, in pertinent part, that:
"It is ordered that this Application be denied for failure to file within the five year period. Further, find proof of mailing on 2-14-83 does not support timely filing."
Relator unsuccessfully appealed this determination through the administrative process. Relator filed this action on August 6, 1985 contending that the Industrial Commission abused its discretion by failing to consider relator's application for handicap reimbursement based upon a finding that the handicap reimbursement application was not timely filed. The parties have stipulated the Industrial Commission claim file as the evidence to be considered by the court in this case.
The Industrial Commission presumably denied relator's application for handicap reimbursement based upon Ohio Adm. Code4121-3-28 which provides, in pertinent part, that:
"(C) Relief under section 4123.343 of the Revised Code will be considered only in claims where: *Page 39
"* * *
"(2) An application for handicap reimbursement is filed by the employer while the claim is within the employer's claim experience period, as referred to in division (B) of section4123.34 of the Revised Code.
"* * *
"(I) Self-insured employers shall be reimbursed and treated in all respects in the same manner as state fund merit-rated employers, except that reimbursement, when made, shall be by direct payment to the self-insurer from the statutory surplus fund and, further, that an application for handicap reimbursement must be filed within five years from the date of injury or within five years from the beginning of disability in occupational disease claims."
As noted above, claimant sustained her disability injury on February 15, 1978. Relator submits that since its application for handicap reimbursement was mailed to the Industrial Commission on February 14, 1983, within the five-year period set forth in the aforementioned Ohio Administrative Code provision, proof of said mailing requires that this court issue a writ ordering the Industrial Commission to conduct a hearing on the merits of relator's application.
As the referee pointed out in his report, Ohio Adm. Code4121-3-28(I), effective December 11, 1978, clearly specifies that a self-insured employer's application for a handicap reimbursement "must be filed" no later than five years from the date of injury or beginning of disability. A deposit of materials in the United States Post Office is not equivalent to filing within the normal construction of the term. The referee rejected the relator's contention that it complied with Ohio Adm. Code4121-3-28(I) concerning the five-year filing requirement. The relator did not prove compliance with the above-mentioned filing requirement and, hence, this court agrees with the referee's determination on this issue and adopts that portion of the referee's report.
Relator next argues that the five-year filing provision contained in Ohio Adm. Code 4121-3-28(I) was not effective until December 11, 1978, and therefore cannot be retroactively applied to relator's application. Section 28, Article II, of the Ohio Constitution provides that:
"The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts; * * *."
Claimant was injured on February 15, 1978. This was the date relator's right to apply for handicap reimbursement accrued. Relator contends that the commission cannot apply the subsequently enacted five-year filing provision to destroy its existing right to apply for reimbursement.
The commission has the authority to adopt its own rules of procedure. R.C. 4121.11; 4121.13(E); State, ex rel. Curry, v.Indus. Comm. (1979), 389 Ohio St.2d 268, 12 O.O. 3d 271,389 N.E.2d 1126. It is also basically accepted that statutes of limitations are classified as procedural legislation. Ohio Adm. Code 4121-3-28(I) is a statute of limitations as it prescribes the time limitation for certain rights of action arising from R.C. 4123.343. Finally, it is well-established that the constitutional ban against retroactive legislation is applicable solely to substantive as opposed to remedial or procedural laws.Gregory v. Flowers (1972), 32 Ohio St.2d 48, at 52-53, 61 O.O. 2d 295, at 297-298, 290 N.E.2d 181, at 184-185.
Nonetheless, as the court pointed out in Gregory, supra, an automatic characterization of statutes of limitations as procedural and thus subject to retroactive amendments may ignore the effective destruction of a substantive *Page 40 right. It is definite from the opinion in Gregory and subsequent cases that the analysis required by a court considering the issue of the retroactive application of an amended statute of limitations involves more than the mechanical substantive-procedural classification.
R.C. 4123.343 creates a substantive right for employers to have all or a portion of the compensation and benefits paid in any claim of a handicapped employee charged to and paid by the statutory surplus fund. Ohio Adm. Code 4121-3-28(I) limits the time an employer has to file an application for the reimbursement to five years from the date the employee was injured. In limiting the amount of time an employer has to file the application, the commission did not destroy any substantive rights.
The limitation under the facts in this case left the employer a more than reasonable time to enforce its right to reimbursement. The amended rule became effective on December 11, 1978, approximately ten months after the date claimant was injured. Applying the five-year filing provision to relator's circumstance still left fifty months in which to file. As the Supreme Court stated in Cook v. Matvejs (1978), 56 Ohio St.2d 234, at 237, 10 O.O. 3d 384, at 385, 383 N.E.2d 601, at 604:
"* * * [T]his court * * * delineated between the operation of an amended statute of limitations which totally obliterates an existing substantive right and one which merely shortens the period of time in which the remedy can be realized. * * *" (Emphasis sic.)
Consequently, no substantive right was destroyed by the retroactive application of this provision. The commission properly determined that relator's application was not timely filed.
For the foregoing reasons, the referee's report is adopted in part and modified in part, and relator's request for a writ of mandamus is denied.
Writ denied.
TYACK, J., concurs.
WHITESIDE, J., dissents.