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Dombelek v. Ohio Bureau of Workers' Compensation9/23/2003
JUDGMENT: Reversed and Remanded.
. 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.
. 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.
. 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.
. 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.
. 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.
. Although briefed separately, both Dombelek and Tate assert the same assignment of error on appeal. Dombelek's assignment of error states:
. "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."
. Tate's assignment of error states:
. "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."
. 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 judgm
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