White v. Mayfield

523 N.E.2d 497, 37 Ohio St. 3d 11, 1988 Ohio LEXIS 134
CourtOhio Supreme Court
DecidedMay 18, 1988
DocketNo. 87-326
StatusPublished
Cited by29 cases

This text of 523 N.E.2d 497 (White v. Mayfield) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
White v. Mayfield, 523 N.E.2d 497, 37 Ohio St. 3d 11, 1988 Ohio LEXIS 134 (Ohio 1988).

Opinions

Sweeney, J.

In the cause sub judice we are asked to interpret the pertinent language of R.C. 4123.85 as it [12]*12applies to the facts developed below. R.C. 4123.85, which establishes the time period for the filing of claims alleging a disability due to an occupational disease, provides as follows:

“In all cases of occupational disease, or death resulting from occupational disease, claims for compensation or benefits shall be 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 to the employer in the event such employer has elected to pay compensation or benefits directly.”

The appellant-administrator asserts that the appellee’s cause of action accrued at the time he was diagnosed as having an occupational hearing loss (i.e., July 1978), and that since the instant claim was not filed until approximately five years after such diagnosis, the instant claim is time-barred under R.C. 4123.85. Appellant further argues that the lower courts erred by inserting, in essence, the word “total” before “disability” in the statute.

A review of R.C. Chapter 4123 reveals that the term “disability” is nowhere defined in any of the statutory provisions. However, as this court noted in State, ex rel. Preston, v. Peabody Coal Co. (1984), 12 Ohio St. 3d 72, 12 OBR 63, 465 N.E. 2d 433, both Black’s Law Dictionary (5 Ed. 1979) and Webster’s New Collegiate Dictionary (1975) define “disability” as the inability to work. Since, unlike other occupational diseases, the appellee here was clearly able to work in spite of his hearing loss, common sense dictates that his disability did not set into motion the R.C. 4123.85 statute of limitations on the date he was diagnosed as having a significant employment-related hearing loss.1

As appellee points out, the triggering event of R.C. 4123.85 is the disability brought on by the occupational disease, not the diagnosis of the disease itself. The “six months after diagnosis of the occupational disease by a licensed physician” language will typically come into play when a worker is already suffering a disability, but did not discover that it was employment-related until more than two years after the “disability due to the disease began.” Under a clear reading of the statute, in all other situations the “six months after diagnosis” language will not be relevant except where it serves to extend the running of the two-year statute of limitations. By its very terms, the “six months after diagnosis” language can only lengthen, not shorten, the time for setting in motion the two-year statute of limitations. Therefore, given the peculiar facts of this case, we must reject appellant’s argument that the date of diagnosis is the event which triggered the running of the statute of limitations set forth in R.C. 4123.85.

Similarly, we also reject appellant’s argument that the courts below essentially added the word “total” before “disability” in interpreting R.C. 4123.85 as it applies to the facts in the instant case. Indisputably, under the workers’ compensation system a “dis[13]*13ability” may be total or partial, temporary or permanent, depending on the nature of the disease and how it affects the worker who suffers the disease. A review of R.C. Chapter 4123 reveals that certain occupational diseases are compensable only if total disability or death results. See, e.g., R.C. 4123.68. Thus, one may suffer an occupational disease that gradually appears and worsens over time, but does not ripen into a compensable disability until sometime after the symptoms of the occupational disease are manifested. The hearing loss suffered by appellee in the instant case is but one example of an occupational disease that may not develop into a disabling disease until after the symptoms initially arise. Even if appellee had filed his claim within the time period urged by appellant, the hearing loss would probably not have been compensable since this court has held that a claim for benefits for a partial loss of hearing will not be allowed under the permanent partial disability provisions of R.C. 4123.57(B) or (C). State, ex rel. Hammond, v. Indus. Comm. (1980), 64 Ohio St. 2d 237, 18 O.O. 3d 438, 416 N.E. 2d 601, syllabus.

In any event, we do not believe that the interpretation of R.C. 4123.85 rendered by the courts below essentially adds words or meaning apart from that which appears on the face of the statute. Nevertheless, the fact remains that the term “disability” is not defined anywhere in R.C. Chapter 4123. Since a disability due to an occupational disease may manifest itself in varying degree and kind, we are persuaded that Resolution 21 of the Industrial Commission merits adoption by this court in order to establish a workable standard for determining when “disability due to the [occupational] disease began,” under R.C. 4123.85. Resolution 21 of the Industrial Commission, which was drawn up in 1945, and as revised, provides:

“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’:
“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.”

The appellant contends that this court should resist adopting the foregoing Resolution 21 because it is in apparent conflict with R.C. 4123.85 and is not codified as a formal rule of the Industrial Commission in the Ohio Administrative Code. While appellant is correct in asserting that the Industrial Commission has not codified Resolution 21 in the Ohio Administrative Code, we do not believe that our adoption of it will conflict with R.C. 4123.85 in any respect. On the contrary, we are of the opinion that Resolution 21 complements the statute, especially in cases such as the instant one where definition of the “beginning” of the “disability due to the disease” is almost impossible to accurately define under the terms of the statute.

At this time, three of Ohio’s courts of appeals have adopted Resolution 21 in assisting determination of the beginning of the “disability due to the disease” under R.C. 4123.85. The [14]*14Franklin County Court of Appeals adopted the Resolution 21 standard in the cause sub judice. The Butler County Court of Appeals also embraced this standard in Grant v. Connor (June 8, 1987), case No. CA86-12-177, unreported, appeal pending in 87-1353. In addition, the Court of Appeals for Lake County applied Resolution 21 in Craddock v. Eagle Picker Indus., Inc. (1982), 8 Ohio App. 3d 383, 8 OBR 498, 457 N.E. 2d 338.

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Cite This Page — Counsel Stack

Bluebook (online)
523 N.E.2d 497, 37 Ohio St. 3d 11, 1988 Ohio LEXIS 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-mayfield-ohio-1988.