Being unable to concur in the conclusions reached by the majority, I must respectfully dissent.
The sole issue before us is whether the respondent Industrial Commission abused its discretion in refusing to consider relator's application for handicap determination which depends upon the applicability of the five-year limitation of Ohio Adm. Code 4121-3-28(I) as amended effective December 11, 1978.
Determination of this issue must commence with consideration of the applicable statute, R.C. 4123.343, which provides in part:
"This section shall be construed liberally to the end that employers shall be encouraged to employ and retain in their employment handicapped employees as defined in this section.
"* * *
"(C) Any employer who advises the industrial commission prior to the occurrence of an injury or occupational disease that it has in its employ a handicapped employee as defined in this section shall be entitled, in the event such a person is injured, to a determination hereunder. * * *
"Application for such determination shall only be made in cases where a handicapped employee as defined in this section or his dependents claims or is receiving an award of compensation as a result of an injury * * *."
The claimant was injured February 15, 1978. Relator filed an application for handicap reimbursement dated February 14, 1983, on a date unknown since the copy in the claim file is *Page 41 not date stamped and the findings of respondent Industrial Commission include a statement that proof of mailing does not constitute proof of filing. In the application, it is stated that relator filed notification of employment of a handicapped person on March 30, 1977, which apparently is not contested. The application also indicates payments for medical expenses and temporary total disability.
R.C. 4123.343 provides that, with respect to a merit-rated employer, the portion of compensation and benefits paid to a handicapped employee which would not have been necessary except for the handicap will not be "merit-rated or otherwise treated as part of the accident or occupational disease experience of the employer." With respect to a self-insured employer, the proportion of the costs of compensation and benefits attributable to the handicap shall be paid from the surplus fund either directly to the employee or by way of reimbursement to the employer.
Accordingly, handicap compensation has no effect on a merit-rated employer since it is treated as not being part of the employer's experience for merit-rating purposes pursuant to R.C.4123.34 which basically involves a five-year period. Self-insured employers, on the other hand, are affected by handicap compensation so long as the employee is entitled to workers' compensation payments since such payments are made directly by the employer to the employee and may extend over a period of many years. For a self-insured employer to be entitled to handicap reimbursement, R.C. 4123.343 requires the following: (1) the filing of notification of employment of a handicapped person prior to the industrial injury (or a determination of good cause for failure to give notice); (2) an industrial injury occurring after such notification; (3) a claim being filed by the injured employee for total disability whether temporary or permanent or the payment of such compensation by the self-insured employer; (4) an application being filed by the employer for handicap determination but only after such claim is filed or payment of such compensation is commenced; and (5) a determination by the respondent Industrial Commission that handicap compensation or reimbursement should be paid.
Ohio Adm. Code 4121-3-28(I) purports to add a sixth requirement that the application for handicap reimbursement "be filed within five years from the date of injury" irrespective of when the claim for compensation was made or when the compensation was paid, which necessarily must be subsequent to the date of injury. Although the rule purports to grant the self-insured employer five years in which to file the application, necessarily a shorter period is involved since R.C. 4123.343 precludes the filing of the application until such time as the claimant claims or is receiving compensation. Such rule did not become effective until after the injury to claimant.
Given the six-year limitation of R.C. 4123.52 for the initial application by a claimant for compensation for total disability, it is obvious that the right of a self-insurer to seek handicap reimbursement may in some cases be cut off by the rule prior to the time that the right thereto accrues by the filing of a claim for compensation which R.C. 4123.343(C) and Ohio Adm. Code4121-3-28(C)(1) make a prerequisite to the filing of a claim for handicap reimbursement.
The issue before us is whether Ohio Adm. Code 4123-3-28(I), which did not become effective until December 11, 1978, can apply to an application for handicap reimbursement with respect to an injury which occurred on February 15, 1978. The issue is controlled by the third paragraph of the syllabus of Gregory v.Flowers (1972), *Page 42 32 Ohio St.2d 48, 61 O.O. 2d 295, 290 N.E.2d 181, which holds as follows:
"When the retroactive application of a statute of limitation operates to destroy an accrued substantive right, such application conflicts with Section 28, Article II of the Ohio Constitution."
In Gregory, it was specifically held in the second paragraph of the syllabus that the right afforded by R.C. 4123.52 to file for modification of a workers' compensation award is a substantive right which accrues at the time of the claimant's injury.
It is difficult to conceive how, where the claimant's right to seek modification of an award is substantive, that of the employer to seek handicap reimbursement with respect to the same award or modification thereof can be anything other than substantive.
Recently, the Supreme Court reaffirmed the basic principle inState, ex rel. Kirk, v. Owens-Illinois, Inc. (1986), 25 Ohio St.3d 360, 25 OBR 411, 496 N.E.2d 893, stating in the per curiam opinion:
"Entitlement to workers' compensation payments is a substantive right measured by the statutes in force on the date of injury. * * *" (Citations omitted.) Id. at 361, 25 OBR at 411-412,496 N.E.2d at 895.
Again, there is no rational basis for distinguishing between payments made to a claimant and payments made to a self-insured employer from the surplus fund for handicap reimbursement since both arise from the same industrial injury, and both the right of the claimant to compensation and that of the employer to handicap reimbursement are statutorily required to be liberally construed.
Accordingly, I would adopt the report of the referee and grant a writ of mandamus as recommended by the referee.