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 conditions (developing as a result of the injury) and additional conditions (growing out of a listed body part already in the claim). The Court said an injured worker had to file a motion within two years from the time they knew or should have known of the condition.
This led to a lot of injured workers having claims for flow-through or additional conditions 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 they first felt depressed. The injured worker would say shortly after the accident, but the motion was filed five years later. Or, the injured worker went to a social security disability examination which diagnosed a psychiatric condition but not related by the social security evaluator as caused by the injury.
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. 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. The evaluation diagnosed him 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, he filed a motion to allow major depression with agoraphobia.
The employer sent Lewis to a doctor who 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 cannot 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 Commission allowed the claim for “major depression and panic disorder with agoraphobia.” The employer appealed to Common Pleas. The parties filed cross motions for summary judgment.
The Common Pleas Court ruled the claim 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. The Ohio Supreme Court accepted the appeal.
Decision: Ohio Supreme Court reverses.
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.
The 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, 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.
The 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.
The Court observes it does not matter how the self-insurer allows the claim (C-174, motion).
The Court also discusses whether the employer can waive the statute of limitations. 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 a party may lose the defense of lateness in filing claims or giving notice by failure to raise it promptly.
The 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 the claimant knew or should have known – this case makes the issue one determined by the trier of fact so long as there are facts in dispute on the issue.