Posted: August, 1997; Updated: July, 1999
Time Limit for Filing Psychiatric Claim: Clementi Modified
Lewis v. Trimble (7/23/97), 79 Ohio St.3d 231.NOTE: The portion of this decision relating to the time limit for filing for a residual condition has been affected by the Ohio Supreme Court's decision in Specht v. BP America, Inc. (6/30/99), 86 Ohio St.3d 29, which overruled Clementi.
Issue: In 1988 the Ohio Supreme Court decided the Clementi case, which put in a time limit for filing for psychiatric conditions and other conditions described as flow-through (developing as a result of the injury) and additional conditions (growing out of a listed body part already in the claim). The time limit was two years from the time the injured worker knew or should have known of the condition. The Court said a motion had to be filed within two years.
This led to a lot of injured workers being thrown out because they had not filed within two years of the time they knew or should have known.
It became common for company lawyers to ask the injured worker when he first felt depressed. The injured worker would say it was shortly after the accident and it turns out the motion was filed five years later. Too bad, too late. Or, the injured worker went to a social security disability examination for psychiatric and was diagnosed with a psychiatric condition. The condition was not related by the social security evaluator as being caused by the injury. Social security is not concerned about the cause.
Defense lawyers would argue that the two years ran from the time of the social security examination, or the time of the feelings of depression -- and if the Court agreed, the injured worker would lose the right to workers' compensation. Lewis involved such a problem.
Background: Lewis was injured in 1987 and his claim was allowed for "recurrent right ventral hernia."
On October 1, 1987 he filed for Social Security Disability and was sent on March 24, 1988 for a psychological evaluation. He was diagnosed with "adjustment disorder with depressed mood moderate." The diagnosis noted that the "current anxiety and depressive symptoms are primarily reactive to his deteriorating physical status."
On February 25, 1992 Lewis filed a motion for allowance of a dysthymia in his industrial claim based on a report of September 6, 1990. On August 5, 1992, a motion was filed to allow major depression with agoraphobia.
The employer sent Lewis to a doctor who in his report noted the Social Security examination in 1988. The employer's doctor opined that Mr. Lewis suffered from major depression and panic disorder. He also stated the psychological problems are permanent and Lewis is unable to return to his former employment.
On November 16, 1992, the employer filed a motion stating that it "will accept the condition diagnosed . . . as indicated in the attached report." It also asked for an order that "claimant's condition is permanent."
The employer claims that it later learned of the existence of the 1988 report and its content and claims it raised the statute of limitations defense at the DHO hearing and later hearings.
The claim was allowed administratively for "major depression and panic disorder with agoraphobia."
The employer appealed to Common Pleas. Cross motions for summary judgment were filed. The Common Pleas Court ruled that the claim was time-barred under R.C. 4123.84 because the motion was filed more than two years after the 1988 examination.
The Court of Appeals affirmed. It said the employer was not estopped form making the time limitation defense although it had agreed because this was after the time limitation had run and that invokes the subject matter jurisdiction of the Industrial Commission.
The Ohio Supreme Court accepted the case for hearing on the merits.
Decision: Ohio Supreme Court reverses (7-0).
The Court modifies Clementi v. Wean United (1988), 39 Ohio St.3d 342, which held that claimant must file within two years of the time he knew or should have known of the additional condition.
Court observes Clementi has raised confusion.
Time Limitation
Court rules that written notice must be given within two years of the time the claimant knew or should have known of the nature and seriousness of the flow-through condition and its causal relation to the injury.
The notice does not have to be by motion. In the Lewis case, Court says notice was given in 1992 by the motion for dysthymia with the attached report of September 6, 1990. That was within two years of the 1990 report, but not within two years of the first report (1988).
The Social Security Administrative Law Judge in 1988 informed claimant that he found "no substantial evidence to establish ... a mental impairment which significantly limits his functional capacity."
By contrast, the report in 1990 says Mr. Lewis needs help. Treatment started thereafter. He was hospitalized in January 1991 and November 1991 because of suicidal ideation.
Court says there is a genuine issue of fact as to whether he knew or should have known of the seriousness of his condition before February 25, 1990. Therefore, summary judgment for the employer is inappropriate.
Waiver Issue
Court points to Baker Material Handling (1994), 69 Ohio St.3d 202 (additional condition allowed by employer) and says it has "no hesitation in applying Baker to the allowance of a residual condition as well ... The self-insurer is the initial processing agent and adjudicator of any claim."
Court observes it does not matter how the self-insurer allows the claim (C-174, motion). Court observes statute (R.C. 4123.84) has been changed to requiring notice.
Court also discusses the issue of whether the limitations bar is a waivable defense. Valid waiver may take a procedural form when party fails to raise the defense promptly. It rules that procedural waiver applies to the defense of untimely notice under R.C. 4123.84. It also notes that the majority of Courts in other states hold that the defense of lateness in filing claims or giving notice may be lost by failure to raise it promptly.
Court says "the limitation defense is waived at the moment the employer accepts claimant's residual psychiatric condition as part of the claim." Since self-insurer made the original determination to accept the condition diagnosed by its examining doctor, court reinstates the Industrial Commission order to the extent it recognizes "major depressive and panic disorder."
Editor’s Comment: This case is also significant in recognizing the difference between a "flow-through" condition (developing in a body part not originally alleged to have been injured and an additional condition (a new condition occurring in a body part for which written notice had already been given.
Additional conditions (same body part) are not subject to the two year limitation. Dent v. AT&T Technologies (1988), 38 Ohio St.3d 187.
Court makes it clear it mis-spoke in Clementi by using the terminology "additional condition" in that case as requiring a motion to be filed within two years. As to the notice issue - when did the claimant know or should have known. This case makes the issue a fact question to be determined by the trier of fact so long as there are facts in dispute on the issue.
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