Waite, Presiding Judge.
{¶ 1} These two timely appeals have been consolidated for the purposes of appellate review as they present similar facts and issues. Appellants John Dombelek (“Dombelek”) and Les Tate (“Tate”) each filed claims for workers’ compensation benefits. They are now appealing from two judgment entries of the Mahoning County Court of Common Pleas granting summary judgment in favor of the Administrator of the Ohio Bureau of Workers’ Compensation (“Administrator”). The issue on appeal is whether there are material facts in dispute concerning the application of the statute of limitations contained in R.C. 4123.85, which requires a claimant to file a workers’ compensation claim “within two years after the disability due to the disease began[.]” We conclude from the record that there are material facts in dispute in both cases, requiring us to reverse the two trial court judgment entries and remand these matters for hearing.
{¶ 2} Both Dombelek and Tate worked for manufacturing firms in Ohio. Dombelek began working for GF Corporation (“GF”) in 1946 and worked there until his retirement in 1977 or 1978. Tate worked for Wean Incorporated (“Wean”) from 1967 through 1973. He also worked for Wean during a two-week period in 1976. Both men were exposed to asbestos during the course of their employment.
{¶ 3} Each of the two men received chest x-rays in May 1997. On May 19, 1997, Dombelek received a report signed by Dr. Neal C. Chadwick, stating that the x-ray showed “significant history of exposure to asbestos dust * * * consistent with asbestosis.” On September 16, 1997, Tate received a similar letter signed by Dr. Paul C. Venizelos.
{¶ 4} Sometime later another doctor, Dr. Alvin Schonfeld, examined the medical history of each of the men. He concluded that both men had asbestosis, “within a reasonable degree of medical certainty.” Dombelek’s diagnosis from Dr. Schonfeld was dated September 9, 1999, and Tate’s was dated January 12, 2000.
{¶ 5} On September 22, 1999, Dombelek filed an application for workers’ compensation benefits. Tate filed his application on December 27, 1999. The Industrial Commission denied both applications. Each man timely appealed from the Industrial Commission’s decision to the Mahoning County Court of Common Pleas. In each case, the Administrator moved for summary judgment, claiming that each man’s application was not filed within the time permitted by R.C. 4123.85. On February 4, 2002, the trial court granted the Administrator’s motion with respect to Dombelek. On May 20, 2002, the trial court granted the Administrator’s motion with respect to Tate. Both Tate and Dombelek filed timely appeals from the respective judgment entries.
{¶ 6} Although briefed separately, both Dombelek and Tate assert the same assignment of error on appeal. Dombelek’s assignment of error states:
{¶ 7} “The trial court erred by granting summary judgment on behalf of defendants-appellees on the basis that plaintiff-appellant’s underlying workers’ compensation claim was untimely filed outside of the limitation period set forth in R.C. 4123.85.”
{¶ 8} Tate’s assignment of error states:
{¶ 9} “The trial court erred by granting summary judgment on behalf of defendant-appellee on the basis that plaintiff-appellant’s underlying workers’ compensation claim was untimely filed outside of the limitation period set forth in R.C. 4123.85.”
{¶ 10} An appellate court reviews de novo the decision to grant a motion for summary judgment, using the same standards as the trial court, as set forth in Civ.R. 56(C).
Grafton v. Ohio Edison Co.
(1996), 77 Ohio St.3d 102, 105, 671 N.E.2d 241. Before summary judgment can be granted, the trial court must determine that (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most favorably in favor of the party against
whom the motion for summary judgment is made, the conclusion is adverse to that party,
Temple v. Wean United, Inc.
(1977), 50 Ohio St.2d 317, 327, 4 O.O.3d 466, 364 N.E.2d 267. “[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party’s claim.”
Dresher v. Burt
(1996), 75 Ohio St.3d 280, 296, 662 N.E.2d 264. If the moving party meets its initial burden, the nonmoving party bears a reciprocal burden to produce evidence on any issue for which that party bears the burden of proof at trial. Id. at 293, 662 N.E.2d 264.
{¶ 11} The Administrator attempted to support his motion for summary judgment by reference to copies of class-action complaints filed in Cuyahoga County on July 9, 1998, and July 27, 1998. The complaints were for personal injury and loss of consortium due to asbestos exposure, and both Tate and Dombelek were listed as plaintiffs. Both Tate and Dombelek argue on appeal that the Cuyahoga County complaints were not properly submitted as evidence in support of summary judgment. Because of the nature of summary judgment, we will resolve this evidentiary matter before dealing with the broader question of whether summary judgment was appropriately granted by the trial court.
{¶ 12} When ruling on a motion for summary judgment, the trial court may only review evidence properly submitted in accordance with Civ.R. 56(C).
State ex rel. Boggs v. Springfield Local School Dist. Bd. of Edn.
(1995), 72 Ohio St.3d 94, 97, 647 N.E.2d 788. Civ.R. 56(C) prescribes the specific types of evidence to be considered in support of a motion for summary judgment, namely, “the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact” that are timely filed in the action.
{¶ 13} The Administrator argues that the trial court could take judicial notice of the Cuyahoga County complaints even if they did not qualify as evidence under Civ.R. 56(C). The Administrator further argues that the Rules of Civil Procedure no longer require that a complaint be verified, that appellants were not prejudiced by the timing of the filing of the complaints, and that Dombelek waived any error with respect to the filing of the complaints.
{¶ 14} Turning first to the Administrator’s waiver argument, the record reveals that Dombelek objected to the use of the Cuyahoga County complaints at the time the trial court announced its decision. Before beginning the second day of voir dire, the trial court announced that it was granting summary judgment to the Administrator after, among other things, “taking into consideration the lawsuit that was filed in 1998.” Immediately after the trial court announced its decision, Dombelek objected on the record to the court’s decision. Although he
later asked the trial court to clarify that the ruling was based in part upon the Cuyahoga County complaints, Dombelek’s prior objection is sufficient to preserve his argument for appeal.
{¶ 15} The Administrator argues that the Cuyahoga County complaints were admissible, since Civ.R. 56(C) provides that pleadings are admissible to support a motion for summary judgment. Appellee cites
State ex rel. Spencer v. E. Liverpool Planning Comm.
(1997), 80 Ohio St.3d 297, 685 N.E.2d 1251, as its authority for this proposition. But
Spencer
held that sworn pleadings filed in the same case are evidence under Civ.R. 56(C), not that any pleading filed in any case is evidence under that rule.
{¶ 16} We are aware that the Eighth District Court of Appeals was recently faced with this identical issue in
Davis v. Taylor & Bogus Foundry,
8th Dist. No. 81324, 2003-Ohio-1832, 2003 WL 1849172, and that the Eighth District’s reasoning and conclusions were much like the Administrator’s current argument. The plaintiff in
Davis
was a member of the same Cuyahoga County class action suit along with appellants. The
Davis
court concluded that the Cuyahoga County complaint was admissible without being verified and without being incorporated by reference into an affidavit. Id. at ¶ 21.
Davis
basically concluded that it is permissible to file a pleading from any civil action in support of a motion for summary judgment.
Davis
based this conclusion on
Spencer,
supra.
{¶ 17} We cannot agree with the conclusion of the Eighth District Court of Appeals in
Davis.
According to Civ.R. 56(C), not all pleadings are treated alike in the context of summary judgment. Although Civ.R. 56(C) allows for pleadings to be used in support of summary judgment, the reference in the rule is to “pleadings * * * timely filed in the action.” In other words, only the complaint, answer, counterclaims, etc., submitted as pleadings in the immediate case are automatically part of the evidence that can be used in support of summary judgment.
{¶ 18} In contrast to
Spencer,
supra, we rely on
State ex rel. Freeman v. Morris
(1991), 62 Ohio St.3d 107, 579 N.E.2d 702, in which the Supreme Court specifically held:
{¶ 19} “Civ.R. 56(C) enumerates ‘pleading[s], depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact.’ The complaints and judgment entries [of other cases], submitted without affidavit, are none of these.” Id. at 109, 579 N.E.2d 702.
{¶20} The proper procedure for introducing evidentiary matter not specifically authorized by Civ.R. 56(C) is to incorporate it by reference in a
properly framed affidavit pursuant to Civ.R. 56(E). See
State ex rel. Corrigan v. Seminatore
(1981), 66 Ohio St.2d 459, 467, 20 O.O.3d 388, 423 N.E.2d 105.
{¶ 21} Therefore, based on
State ex rel. Freeman,
the Administrator needed to file a proper affidavit that referred to the Cuyahoga County complaints, as well as to attach sworn or certified copies of the complaints to the affidavit, in conformity with Civ.R. 56(E).
{¶ 22} We must note that even if the Administrator had taken the proper steps to submit the Cuyahoga County complaints, the Administrator is mistaken about the evidentiary value of the Cuyahoga County complaints. The Ohio Supreme Court has indicated that the allegations in a complaint are treated as binding judicial admissions only in the case arising from that complaint.
Gerrick v. Gorsuch
(1961), 172 Ohio St. 417, 17 O.O.2d 353, 178 N.E.2d 40, paragraph two of the syllabus;
Faxon Hills Constr. Co. v. United Bhd. of Carpenters & Joiners of Am.
(1958), 168 Ohio St. 8, 10, 5 O.O.2d 260, 151 N.E.2d 12. A judicial admission presented “by pleading and setting forth the fact * * * is binding as between parties to the suit, and in the same suit in which such admission is made.”
Peckham Iron Co. v. Harper
(1884), 41 Ohio St. 100, 106, 1884 WL 75. In other words, the allegations in a complaint are binding admissions only in the lawsuit initiated by that complaint, similar to other written admissions obtained through Civ.R. 36: “Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission by him for any other purpose nor may it be used against him in any other proceeding.”
{¶ 23} Although we have found no other Ohio appellate opinions on the issue, the vast majority of states that have considered this issue have allowed pleadings to be used as evidence in an unrelated proceeding, but not as binding or conclusive evidence on any matter. Annotation,
Admissibility of Pleading as Evidence Against Pleader, on Behalf of Stranger to Proceedings in which Pleading was Filed
(1959), 63 A.L.R.2d 412, 1958 WL 11287. The allegations and assumptions in a pleading from an unrelated case may be rebutted in many ways, such as by showing that it was filed without the plaintiffs knowledge, assistance, or direct input; was withdrawn or modified; was not intended to be a judicial admission but was merely raised as a fact in dispute to be proved at trial; or that later facts reveal that an assertion made in the complaint was in error. Id.; 4 Wigmore, Evidence (3d Ed.1940), Sections 1065-1067. Federal courts take the same view, allowing pleadings from unrelated cases to be introduced as rebuttable evidence and not as conclusive admissions. See, e.g.,
Enquip, Inc. v. Smith-McDonald Corp.
(C.A.7, 1981), 655 F.2d 115, 118.
{¶ 24} Based on these legal principles, a trial court should not automatically grant summary judgment simply based on factual allegations or assumptions contained in a pleading filed in an unrelated case. Although the assertions in an unrelated complaint may have very persuasive value, they may be rebutted.
{¶ 25} Furthermore, the Cuyahoga County complaints were filed less than two years before the appellants filed their claims with the Industrial Commission. The complaints by themselves do not prove that appellants violated the two-year statute of limitations of R.C. 4123.85. The Cuyahoga County complaints appear to reflect that appellants thought that they were disabled by asbestosis on July 9 and July 27, 1998, respectively. Appellee would need further corroborative evidence to show that appellants believed they were disabled as early as September 1997 (for Dombelek) and December 1997 (for Tate), which would be two years prior to the dates on which they filed their initial claims with BWC.
{¶ 26} The Administrator argues that its failure to incorporate the Cuyahoga County complaints into an affidavit by reference is harmless, since the trial court could take judicial notice of the complaints. But this court has adhered to the principle that a trial court may not take judicial notice of earlier proceedings, either in its own court or another court, except for proceedings in the immediate case under consideration.
Calex Corp. v. United Steelworkers of Am.
(2000), 137 Ohio App.3d 74, 85, 738 N.E.2d 51. “The rationale for this holding is that, if a trial court takes judicial notice of a prior proceeding, the appellate court cannot review whether the trial court correctly interpreted the prior case because the record of the prior case is not before the appellate court.”
D & B Immobilization Corp. v. Dues
(1997), 122 Ohio App.3d 50, 53, 701 N.E.2d 32. Under this rationale, a trial court may not take judicial notice even of its own judgment entries in another case. See id. at 52-53, 701 N.E.2d 32;
Phillips v. Rayburn
(1996), 113 Ohio App.3d 374, 378-379, 680 N.E.2d 1279. Accordingly, the trial courts in the instant appeals could not take judicial notice of the Cuyahoga County complaints when ruling on the Administrator’s motions for summary judgment.
{¶ 27} Due to the fact that the Cuyahoga County complaints are not the type of evidentiary materials specifically listed in Civ.R. 56(C), were not incorporated by reference into an affidavit in either case, and because the lower courts were not entitled to take judicial notice of the complaints, we cannot consider the Cuyahoga County complaints as evidence in support of the Administrator’s motions for summary judgment.
{¶ 28} We now turn to the broader issue of whether summary judgment is appropriate in the two cases under review. Both cases before us involve the interpretation of R.C. 4123.85, which states:
{¶ 29} “In all cases of occupational disease, or death resulting from occupational disease,
claims for compensation or benefits are forever barred unless, within two years after the disability due to the disease began,
or within such longer period as does not exceed six months after diagnosis of the occupational disease by a licensed physician or within two years after death occurs,
application is made to the industrial commission or the bureau of workers’ compensation or to the employer if he is a self-insuring employer.”
(Emphasis added.)
{¶ 30} The Ohio Supreme Court established a three-part test to use in interpreting when a disability due to disease has begun:
{¶ 31} “ ‘It is hereby directed that since R.C. Section 4123.85 provides that an occupational disease application (other than silicosis) shall be barred unless made to the Bureau within two years after the disability began or within two years after death, and that said Section does not define the word “disability,” the
following should be used as an instruction guide
in determining “when disability due to the disease began”:
{¶ 32} “
‘Disability due to an occupational disease shall be deemed to have begun as of the date on which the claimant first became aware through medical diagnosis that he was suffering from such disease or the date on which he first received medical treatment for such disease or the date claimant first quit work on account of such disease, whichever date is the latest.’ ”
(Emphasis added.)
White v. Mayfield
(1988), 37 Ohio St.3d 11, 13, 523 N.E.2d 497, quoting the 1945 Resolution 21 of the Industrial Commission.
{¶ 33} The Administrator argues that Tate and Dombelek were diagnosed with asbestosis in May and September 1997, when they received letters indicating that their chest x-rays were consistent with asbestosis. The Administrator further asserts that the two men began receiving treatment for asbestosis in May 1997, when their chest x-rays were taken. The Administrator concludes that the applications were not filed within the time frame set by R.C. 4123.85, and, thus, summary judgment was appropriate.
{¶ 34} Appellants contend that they were neither diagnosed with nor treated for asbestosis until Dr. Schonfeld issued his reports in September 1999 and January 2000, indicating that each man was diagnosed with asbestosis, “within a reasonable degree of medical certainty.” Appellants conclude that their applications for workers’ compensation benefits were filed within the applicable statute of limitations, based on the holding of
White,
supra, and that both of the trial courts erred when granting summary judgment to the Administrator.
{¶ 35} The
White
three-part test cited above was meant to be an instructional guide in determining when a disability due to occupational disease has begun. Id., 37 Ohio St.3d at 13, 523 N.E.2d 497. Although
White
describes three
separate elements for determining the beginning date of a disability (diagnosis, treatment, or leaving employment), the opinion does not rigidly define those concepts. This court has previously held:
{¶ 36} “The
White
court distinctly states that this three-element test is to be used as a guideline for defining ‘disability,’ recognizing that it may have a fluid and changing meaning based on the particular claimant, the particular disease, and its effects.”
Heard v. Conrad
(2000), 138 Ohio App.3d 503, 507, 741 N.E.2d 897.
{¶ 37} Appellants believe that the terms “diagnosis” and “treatment” have very specific meanings, and that the May 1997 x-rays referred-to by the Administrator could not possibly qualify as “diagnosis” or “treatment.”
{¶ 38} Appellants also argue that a doctor’s interpretation of a chest x-ray cannot be a diagnosis in and of itself. Dombelek argues that a diagnosis must include the following elements: a physical examination; an inquiry of occupational and exposure histories; an interpretation of pulmonary function test results to determine lung impairment; and an opinion statement of causation, to a reasonable degree of medical certainty, by a physician. Tate also has specific requirements in his definition of diagnosis. He contends that a diagnosis must meet the standards set in Industrial Commission Resolution R96-1-01, which include (1) an interpretation of roentgenography by a “B” reader certified by the National Institute of Occupational Safety and Health; (2) the results of a pulmonary function study; and (3) an opinion of causation by a licensed physician.
{¶ 39} Appellants’ attempt to narrowly define the words “diagnosis” and “treatment” is ill advised. The reason that the words “diagnosis” and “treatment” are even relevant to R.C. 4123.85 is because the Supreme Court, in
White,
used those words to explain the meaning of the word “disability” in the statute and to define when a disability due to an occupational disease begins. The definition that the Supreme Court adopted in
White
was in turn taken from a definition created by the Industrial Commission, cited in
White
as Resolution 21.
{¶ 40} The definitions proposed by the appellants would further complicate the task of the trial court in determining whether R.C. 4123.85 applies to a particular workers’ compensation claimant. We have noticed that Tate and Dombelek do not agree even on how specific the definition of “diagnosis” should be. Subsequent claimants might want more specifications added to the definitions of “diagnosis” and “treatment,” depending on the facts of their cases. We do not believe that this is an acceptable approach. These terms can be described or defined only in a manner that is best described as “fact-based.” The trier of fact is in the best position to evaluate when medical diagnosis and treatment have occurred based on all the facts and circumstances of the individual case.
{¶ 41} Furthermore, according to
White,
it is not enough that a claimant be diagnosed with a disease; the claimant must also be aware he has the disease because of the diagnosis. The Administrator itself argues that the “knew or should have known” standard set by the Ohio Supreme Court decision in
Lewis v. Trimble
(1997), 79 Ohio St.3d 231, 680 N.E.2d 1207, applies to these cases now under review. Although
Lewis
was interpreting a different statute of limitations than the one involved before us, its analysis appears to apply to our review.
{¶ 42}
Lems
was interpreting the statute of limitations for bodily injury claims (as opposed to occupational disease claims) governed by R.C. 4123.84. The
Lewis
court explained that a literal interpretation of R.C. 4123.84 would mean that the statute is triggered merely by the occurrence of an injury, without taking into account whether the claimant had discovered the true nature of the injury. Id. at 238, 680 N.E.2d 1207. The Supreme Court found it fundamentally unfair that a claimant could be barred from relief even though he or she was unaware of the true nature of the medical condition. Id.
{¶ 43}
Lems
applied a “knew or should have known” standard to R.C. 4123.84 in order to alleviate the harsh affects of a literal interpretation of the statute.
Lems
held:
{¶ 44} “ ‘The time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness, and probable compensable character of his or her injury or disease.’ [2B Larson, Workmen’s Compensation Law (1996) 15-206, Section 78.41(a).]
{¶ 45} “Since this standard is essentially one of due diligence, the focus properly rests upon the reasonableness of claimant’s conduct under all the surrounding circumstances. This requires that all relevant factors bearing on the question of reasonableness be considered, including, but not limited to, the information available to claimant, his or her experience, education and intellectual functioning, and what he or she has been told or not told about the nature, seriousness, and probable compensable character of the condition.
{¶ 46} “In this context, it becomes clear that whether or not claimant is informed of a specific diagnosis is not itself a determinative inquiry, but constitutes one factor to be considered. Thus, under a particular set of circumstances it may be properly found that the statute begins to run when the claimant is informed of a specific diagnosis.” Id. at 239, 680 N.E.2d 1207.
{¶ 47} The
Lewis
analysis is applicable to cases involving R.C. 4123.85 as well. One of the factors triggering the statute of limitations in R.C. 4123.85, according to
White,
is “the date on which the claimant
first became aware
through medical diagnosis that he was suffering from such disease * * (Emphasis added.)
White,
supra, 37 Ohio St.3d at 13, 523 N.E.2d 497. The
words “first became aware” as used in
White
parallel the phrase “knew or should have known” as used in
Lewis.
The intent of the holding in
Lewis
was to allow a claimant to prove that a diagnosis, in and of itself, does not necessarily trigger the statute of limitations in R.C. 4123.84. There is no logical reason why a claimant should not be able to make the same argument to overcome the statute of limitations in R.C. 4123.85.
{¶ 48} We are aware that the record contains depositions showing that both appellants answered affirmatively when asked whether they were diagnosed with asbestosis after their chest x-rays in 1997. Nevertheless, both men stated in their initial claim applications to the BWC that the date of each of their injuries was November 10, 1998. Based on the record as it exists here, it is up to the factfinder to weigh the evidence in this case to determine whether appellants were aware that they had been diagnosed with asbestosis after they received the results of their chest x-rays.
{¶ 49} We now turn to the parties’ dispute regarding what constitutes treatment for the purposes of
White
and R.C. 4123.85. The Administrator argues that “treatment,” in the context of R.C. 4123.85, means “all the steps taken to effect a cure of an injury or disease; including examination and diagnosis as well as application of remedies.”
Bradley v. Connor
(Nov. 8, 1984), 8th Dist. No. 48005, 1984 WL 3557; and
Biddle v. Gen. Dynamics Land Sys.
(Dec. 12, 1991), 3d Dist. No. 1-91-22, 1991 WL 261827;
Davis,
supra, 8th Dist. No. 81324, at ¶ 26. This definition is the same definition of “treatment” found in Black’s Law Dictionary. Thus, according to the Administrator, appellants received their first “treatment” when they had their chest x-rays taken because an examination is part of the definition of “treatment.”
{¶ 50} Appellants believe that they have not yet been treated for asbestosis and that a chest x-ray cannot be considered treatment. Tate also argues that there is no actual treatment for asbestosis because it is an incurable disease. Tate appears to concede that Dr. Schonfeld’s personal examination on January 12, 2000, was the functional equivalent of treatment, because Dr. Schonfeld provided at least some instructions for preventive health care relating to asbestosis. Tate argues that he filed his initial claim within two years of January 12, 2000, and therefore satisfied the time requirements of R.C. 4123.85.
{¶ 51} Appellants’ assumption that chest x-rays or other initial diagnostic tests can never qualify as “treatment” under the
White
test is incorrect. There is nothing in the
White
decision that requires “diagnosis” and “treatment” to be mutually exclusive concepts. We would expect that in many cases a diagnosis would be the first step in the treatment process.
{¶ 52} That does not mean that there is no distinction between “treatment” and “diagnosis.” In some instances, a claimant may have symptoms of a disease prior to any diagnosis of the disease, and the claimant may seek relief for those symptoms prior to diagnosis. In those instances, the date that treatment begins might be much earlier than the date on which the claimant is first diagnosed with an occupational disease. It is also possible that an isolated x-ray or test may be so tenuously related to a particular disease that it should not be considered as the beginning of treatment. Thus, the distinction between “diagnosis” and “treatment,” as used in the
White
case, has meaning even if, in a particular case, the beginning of a claimant’s diagnosis also constitutes the beginning of his treatment. Once again, these questions are best left to the trier of fact to resolve after weighing the evidence in light of the totality of the circumstances.
{¶ 53} Based on the above, summary judgment was not appropriate in either case now under review. Both cases contain genuine conflicts of material facts regarding the starting date of treatment and the date that appellants were first aware through medical diagnosis that they were suffering from asbestosis. We reverse both judgment entries granting summary judgment to the Administrator, and remand both cases to the trial court for further proceedings.
Judgments reversed and cause remanded.
Vukovich, J., concurs.
DeGenaro, J., concurs in judgment only.