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Bishop v. Mayfield12/11/1989
Per Curiam.
This is an appeal by plaintiff-appellant, Clinton R. Bishop, from a decision of the Fayette County Court of Common Pleas granting judgment on the pleadings to defendants-appellees, James L. Mayfield, Administrator of the Bureau of Workers' Compensation, the Industrial Commission of Ohio, and Yeoman Radio & TV.
On September 27, 1980, while Bishop was an employee of Yeoman Radio & TV, he suffered an accidental injury . He filed a claim for benefits with the Bureau of Workers' Compensation, which was allowed for "upper back and shoulders, thoracic strain." Subsequently, he filed a claim for benefits for "cervical strain." Following a hearing, the district hearing officer issued the following order:
"It is the finding of the District Hearing Officer that the claim has been previously allowed for: `upper back and shoulders, thoracic strain.'
"The District Hearing Officer orders that the claim is disallowed for the condition of `cervical strain.'
"The disallowance is based on the opinion of Dr. Blatnik and due to the fact that the body part was not mentioned within two years of the date of injury ."
This order was affirmed by the regional board of review. The Industrial Commission refused an appeal.
On April 6, 1988, Bishop filed a complaint in the court of common pleas alleging that he was entitled to participate in the Workers' Compensation Fund for a "cervical strain." On November 7, 1988, he filed a motion for judgment on the pleadings on the single issue of the Industrial Commission's jurisdiction under R.C. 4123.84. The trial court found that the commission did not have jurisdiction and overruled Bishop's motion.
On February 13, 1989, appellees filed a motion to dismiss, arguing that the trial court lacked jurisdiction to consider Bishop's appeal because he had not filed a timely claim for the condition of cervical strain as required by R.C. 4123.84. On April 28, 1989, the trial court filed a judgment entry stating thasit was "without jurisdiction to grant the relief requested in the complaint" and granting judgment on the pleadings to appellees. This appeal followed.
Bishop presents two assignments of error for review as follows:
"The trial court erred to the prejudice of plaintiff-appellant in overruling appellant's motion for judgment on the pleadings."
"The trial court erred to the prejudice of plaintiff-appellant in granting judgment on the pleadings to defendants-appellees."
In both these assignments of error, Bishop argues that notice of a claim for "upper back and shoulder, thoracic strain" is sufficient to include the cervical area. Because these assignments of error involve the same argument, we will consider them together. We find them both to be well taken.
R.C. 4123.84 sets forth the time limitations for making claims against the Workers' Compensation Fund. It provides in part:
"(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 have been made to the industrial commission or the bureau of workers' compensation[.]"
The notice requirement of R.C. 4123.84 is mandatory and jurisdictional. The obligation to file a written notice within the statutory period of limitations rests with the claimant. The failure to file a timely written notice bars the claim for benefits. Robert
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