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Hull v. Mayfield11/28/1990
THOMAS F. BRYANT, Judge.
This is an appeal from a judgment entered by the Common Pleas Court of Shelby County denying plaintiff-appellant's motion for summary judgment and granting defendant-appellee's motion for the same.
On February 27, 1984, while employed by A.C. Leasing , a state-funded insurance employer, plaintiff-appellant George Hull was injured in an industrial accident. Hull received workers' compensation benefits for those injuries claimed on his original application, which include headaches, left rib strain and bruise, and injuries to the left arm.
In January 1987, Hull sought to modify his original application for benefits by filing a motion seeking additional benefits for a lower back injury alleged to have also occurred in the February 1984 accident. The Dayton Regional Board of Review reversed a decision by a district hearing officer and allowed the additional claim. This decision was appealed by A.C. Leasing to the Industrial Commission of Ohio, which reinstated the original order of the hearing officer disallowing the claim.
On appeal by Hull to the Common Pleas Court of Shelby County, both parties filed motions for summary judgment. The point of contention between the parties is whether Hull was barred by the two-year statute of limitations set forth in R.C. 4123.84(A) requiring notice to be given to the Bureau of Workers' Compensation or the Regional Board of Review. The trial court denied Hull's motion for summary judgment and granted that of appellee James Mayfield, Administrator of the Bureau of Workers' Compensation.
It is from this judgment that appellant now appeals, asserting a single assignments of error which is:
"Whether or not the trial court erred in denying plaintiff-appellant's motion for summary-judgment and granting the defendant-appellee's motion for summary-judgment."
The trial court granted appellee's motion for summary judgment on a question of law, specifically the application of R.C. 4123.84.
Therefore, our review of the court's decision on appeal is limited to whether the court abused its discretion when denying appellant's motion for summary judgment and granting appellee's motion. Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App.3d 159, 161, 11 OBR 242, 244, 463 N.E.2d 1280, 1283,
"`" n abuse of discretion involves far more than a difference in opinion. * * * The term discretion itself involves the idea of choice, of an exercise of the will, of a determination made between competing considerations. In order to have an `abuse' in reaching such determination, the results must be so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias * * *."'" Witter v. Witter (Feb. 21, 1990), Hancock App. No. 5-89-24, unreported, 1990 WL 16696, quoting Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126-127, 482 N.E.2d 1248, 1252 (citing State v. Jenkins , 15 Ohio St.3d 164, 222, 15 OBR 311, 361, 473 N.E.2d 264s314). In its decision, the trial court construed R.C. 4123.84(A)(1) as in effect at the time relevant to this appeal. R.C. 4123.84 stated:
"(A) In all cases of injury or death, claims for compensation or benefits for the specific part or parts of the body injured shall be forever barred unless, within two years after the injury or death:
"(1) Written notice of the specific part or parts of the body claimed to have been injured has been made to the industrial commission or the bureau of workers' compensa
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