[Cite as Weisenauer v. Am. Standard, Inc., 2014-Ohio-1569.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               SENECA COUNTY




KENNETH L. WEISENAUER,

        PLAINTIFF-APPELLANT,                                  CASE NO. 13-13-25

        v.

AMERICAN STANDARD, INC., ET AL.,                              OPINION

        DEFENDANTS-APPELLEES.




                 Appeal from Seneca County Common Pleas Court
                          Trial Court No. 2012 CV 0261

                      Judgment Reversed and Cause Remanded

                             Date of Decision: April 14, 2014




APPEARANCES:

        Theodore A. Bowman for Appellant

        Timothy E. Cowans for Appellee, American Standard
Case No. 13-13-25


SHAW, J.

        {¶1} Plaintiff-appellant Kenneth Weisenauer (“Weisenauer”) appeals the

June 3, 2013, judgment of the Seneca County Common Pleas Court granting

defendant-appellee American Standard, Inc., summary judgment on the basis that

Weisenauer’s claim for Workers’ Compensation was time-barred by the statute of

limitations.

        {¶2} The facts relevant to this appeal are as follows. Weisenauer began

working for American Standard in 1971. On November 26, 2007, Weisenauer

was diagnosed with, and began treatment for, silicosis. American Standard “does

not dispute that [Weisenauer] contracted the occupational disease silicosis in the

course of and arising out of his employment with the company.” (Doc. 21).

        {¶3} Following his diagnosis, Weisenauer continued to work for American

Standard through December of 2007 without missing any time on account of the

disease.     In December of 2007, American Standard closed the plant where

Weisenauer worked.1

        {¶4} On November 3, 2010, Weisenauer filed an application for the right to

participate in workers’ compensation benefits for an occupational disease

contracted in the course of and arising out of his employment. American Standard


1
  American Standard alleges in its brief that Weisenauer then retired. The only evidence in the record
seems to be Weisenauer’s admission that “[t]he plant closed and American Standard no longer [had] any
work for [him].” Weisenauer specifically denies that he quit work at that time, thus nothing in the record
conclusively establishes that Weisenauer retired. (Doc. 19, Ex. B.).

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Case No. 13-13-25


contested the application, arguing that Weisenauer’s claim was time-barred by the

statute of limitations set out in R.C. 4123.85.

       {¶5} An administrative hearing was held on the matter before a District

Hearing Officer on February 1, 2012.           The District Hearing Officer rejected

American Standard’s statute of limitations defense finding that under the Ohio

Supreme Court case of White v. Mayfield, 37 Ohio St.3d 11 (1988), wherein the

Ohio Supreme Court analyzed R.C. 4123.85, Weisenauer’s claim was timely.

       {¶6} American Standard subsequently filed an appeal from the District

Hearing Officer’s decision. On April 13, 2012, an administrative hearing was held

on the matter before a Staff Hearing Officer. The Staff Hearing Officer concurred

with the District Hearing Officer’s finding that pursuant to White v. Mayfield the

claim was timely filed and not barred by the statute of limitations. In addition, the

Staff Hearing Officer further noted that this determination was consistent with the

Industrial Commission’s interpretation of relevant authorities as memorialized in




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Case No. 13-13-25


Commission Memo B3.2

          {¶7} American Standard appealed the Staff Hearing Officer’s decision but

that appeal was denied by order mailed May 15, 2012.




2
    Industrial Commission Memo B3 reads:

                  April 17, 2002                                               Memo B3
                                              State of Ohio
                                         Industrial Commission
                                    Policy Statements and Guidelines

                                   ORC 4123.85 and White v. Mayfield

          There appears to be confusion as to the Industrial Commission’s application of the
          case White v. Mayfield (1988), 37 Ohio St.3d 11. White provided that the disability
          date necessary for the application of the statute of limitations contained in ORC
          4123.85, occurs when the injured worker first became aware through medical
          diagnosis that he or she was suffering from such a disease, or the date on which the
          injured worker first received medical treatment for such a disease, which ever date
          is the latest. While there does not seem to be much confusion as to the date of
          diagnosis or the date of first medical treatment, there is confusion in situations
          where either the injured worker retired prior to being diagnosed with an
          occupational disease and/or where there is no request for disability compensation.

          It is the Commission’s position that where there has not been a request for disability
          compensation or where the injured worker retired prior to being diagnosed with an
          occupational disease that involves a long latency period, that the claim is timely
          filed. Claims are only untimely filed pursuant to White where they have been filed
          more than two years after diagnosis and first medical treatment and two years after
          the injured worker quit work on account of the disease. If an injured worker has not
          yet quit work on account of the disease, the two-year period has not even begun to run.

          This position is consistent with ORC 4123.68 that provides a claim may be
          compensable to the extent of payment of medical and hospital bills even if the
          injured worker is not disabled from work due to the disease.

          The limitation period begins to run when the latest of the three elements in White
          occurs. If the last element has not yet occurred, 4123.85 has not begun to run.
          Therefore, the claim application is to be found timely filed.

(Emphasis added.) (Doc. 19, Ex. A-6).



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Case No. 13-13-25


      {¶8} On May 30, 2012, American Standard filed a request for

reconsideration, and that request was denied by the commission in an order filed

June 27, 2012.

      {¶9} On July 13, 2012, American Standard subsequently appealed to the

Seneca County Common Pleas Court. (Doc. 2).

      {¶10} On August 1, 2012, Weisenauer filed a complaint against American

Standard and Stephen Buehrer in his capacity as administrator of the Bureau of

Workers’ Compensation. (Doc. 8).

      {¶11} On August 9, 2012, American Standard filed its answer. (Doc. 13).

      {¶12} On August 31, 2012, the Bureau of Workers’ Compensation filed its

answer. (Doc. 15).

      {¶13} On October 31, 2012, a preliminary pretrial conference was held

wherein the trial court ordered a briefing schedule for American Standard to file a

summary judgment motion. (Doc. 18).

      {¶14} On January 15, 2013, American Standard filed a motion for summary

judgment, arguing that the facts in this case were undisputed and that

Weisenauer’s claim was time-barred by the statute of limitations in R.C. 4123.85.

(Doc. 19).

      {¶15} On April 17, 2013, Weisenauer filed a memorandum in opposition to

American Standard’s motion for summary judgment and a motion for leave to file


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Case No. 13-13-25


a cross-motion for summary judgment and a memorandum in support. (Doc. 20).

In response to American Standard’s summary judgment motion, Weisenauer

argued that the Ohio Supreme Court’s interpretation of the statute of limitations in

R.C. 4123.85 in White, supra, would make Weisenauer’s claim timely as it had

previously been found in the administrative hearings.       Weisenauer then also

claimed that as the facts were not in dispute, and as his claim was not time-barred

pursuant to White, he should be granted leave to file a motion for summary

judgment.

         {¶16} On April 22, 2013, American Standard filed a reply brief in support

of its motion for summary judgment and a memorandum contra to Weisenauer’s

motion for leave to file cross-motion for summary judgment. (Doc. 21).

         {¶17} On April 26, 2013, Weisenauer filed a reply in support of its motion

for leave to file cross-motion for summary judgment. (Doc. 22).

         {¶18} On June 3, 2013, the trial court filed an entry granting American

Standard’s motion for summary judgment. (Doc. 24). In so doing, the trial court

stated

         Upon review of the respective motions, memorandum contra and
         reply the Court finds that Plaintiff-Appellee failed to timely file
         his occupational disease claim within the applicable statute of
         limitations set forth in R.C. §4123.85. As a result, the Court
         finds that there is no genuine issue of material fact and
         Defendants are entitled to summary judgment as a matter of
         law.


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Case No. 13-13-25


       Due to the granting of Defendant-Appellant’s Motion for
       Summary Judgment, Plaintiff-Appellee’s Motion for Leave to
       File Motion for Summary Judgment is moot, and therefore,
       denied.

(Doc. 24).

       {¶19} It is from this judgment that Weisenauer appeals, asserting the

following assignment of error for our review.


                   ASSIGNMENT OF ERROR 1
       THE TRIAL COURT ERRED IN GRANTING APPELLEE’S
       MOTION FOR SUMMARY JUDGMENT AND DENYING
       APPELLANT THE RIGHT TO PARTICIPATE FOR
       SILICOSIS ON THE BASIS THAT HIS CLAIM WAS
       BARRED BY THE STATUTE OF LIMITATIONS.

                           Summary Judgment Standard

       {¶20} Initially, we note that an appellate court reviews a grant of summary

judgment de novo, without any deference to the trial court. Conley–Slowinski v.

Superior Spinning & Stamping Co., 128 Ohio App.3d 360, 363 (6th Dist.1998). A

grant of summary judgment will be affirmed only when the requirements of Civ.R.

56(C) are met. This requires the moving party to establish: (1) that there are no

genuine issues of material fact, (2) that the moving party is entitled to judgment as

a matter of law, and (3) that reasonable minds can come to but one conclusion and

that conclusion is adverse to the non-moving party, said party being entitled to

have the evidence construed most strongly in his favor. Civ.R. 56(C); Marusa v.

Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, ¶ 7.

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Case No. 13-13-25


       {¶21} The party moving for summary judgment bears the initial burden of

identifying the basis for its motion in order to allow the opposing party a

“meaningful opportunity to respond.” Mitseff v. Wheeler, 38 Ohio St.3d 112,

syllabus (1988). The moving party also bears the burden of demonstrating the

absence of a genuine issue of material fact as to an essential element of the case.

Dresher v. Burt, 75 Ohio St.3d 280, 292, 1996-Ohio-107. Once the moving party

demonstrates that he is entitled to summary judgment, the burden shifts to the non-

moving party to produce evidence on any issue which that party bears the burden

of production at trial. See Civ.R. 56(E).

                         Weisenauer’s Assignment of Error

       {¶22} In Weisenauer’s assignment of error, he argues that the trial court

erred in granting summary judgment to American Standard.                Specifically,

Weisenauer contends that White v. Mayfield, 37 Ohio St.3d 11 (1988), interprets

the statute of limitations governing this case, R.C. 4123.85, and provides

guidelines for when a “disability” is determined under the statute. According to

Weisenauer, applying White to this case, the statute of limitations has not run and

the claim would, therefore, not be time-barred.

       {¶23} R.C. 4123.85 establishes the time period for the filing of claims

alleging a disability due to an occupational disease. It reads as follows.

       In all cases of occupational disease, or death resulting from
       occupational disease, claims for compensation or benefits are

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Case No. 13-13-25


           forever barred unless, [1] within two years after the disability
           due to the disease began, or [2] within such longer period as does
           not exceed six months after diagnosis of the occupational disease
           by a licensed physician or [3] 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.

R.C. 4123.85.3

           {¶24} The parties agree in this case that the deadlines we enumerated as

numbers 2 and 3 in R.C. 4123.85 are inapplicable here and are not at issue. The

central issue in this case deals with the clause we enumerated as number 1, which

requires Weisenauer to file an application for benefits within two years of the time

that his “disability due to the disease began.”           Thus, in this case, we must

determine if Weisenauer’s claim was filed within two years of the onset of his

“disability.”

           {¶25} The Ohio Supreme Court considered the specific question of when a

“disability due to an occupational disease” begins in White v. Mayfield, 37 Ohio

St.3d 11 (1988), which proves instructional here and is binding upon us. In White,

the claimant worked for a company for 29 years until the company ceased

business in 1982. White at 11. Due to working in close proximity to “drop forge

hammers which emit a great deal of loud noise,” the claimant began wearing a

hearing aid in 1973. Id. Even though the claimant began wearing the hearing aid



3
    The numbers were added for ease of reference.

                                                    -9-
Case No. 13-13-25


in 1973, and was diagnosed with hearing loss due to his employment in 1978,

claimant continued to work until the company went out of business in 1982. Id.

The claimant in White filed his application for workers' compensation benefits in

1983. Id.

      {¶26} In White, the administrator argued that the claimant’s cause of action

accrued at the time he was diagnosed as having an occupational hearing loss, and

that since the claim was not filed until approximately five years after diagnosis,

the claim was time-barred under R.C. 4123.85. Id. at 12.

      {¶27} The Ohio Supreme Court determined in White that “the triggering

event of R.C. 4123.85 is the disability brought on by the occupational disease, not

the diagnosis itself.” (Emphasis sic.) Id. at 13. Thus the court found that the two

year statute of limitations began to run from the moment claimant was disabled.

      {¶28} The court then went on to define “disability” for purposes of R.C.

4123.85, as it was not “defined anywhere in R.C. Chapter 4123.” Id. at 13.

Ultimately, the Court adopted the following definition for disability due to an

occupational disease pursuant to R.C. 4123.85.

      [D]isability due to an occupational disease shall be deemed to
      have begun [1] as of the date on which the claimant first became
      aware through medical diagnosis that he was suffering from
      such disease or [2] the date on which he first received medical
      treatment for such disease or [3] the date claimant first quit
      work on account of such disease, whichever date is latest.



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(Emphasis added.) Id. at 14.4

           {¶29} Based on this definition of disability, the Court in White found that

claimant’s case was not time-barred by the statute of limitations as two years had

not elapsed from the latest possible date.

           {¶30} Applying White’s definition of when a “disability due to an

occupational disease” is deemed to have begun to the case before us, it is

undisputed that Weisenauer never quit work on account of his disease.

Weisenauer stopped working for American Standard when the plant closed.

However, there is nothing in the record to establish that Weisenauer retired at the

time the plant closed. Rather, the only evidence in the record on this issue comes

from Weisenauer’s admission that “[t]he plant closed and American Standard no

longer [had] any work for [him].” (Doc. 19, Ex. B.). Moreover, Weisenauer

specifically stated in discovery testimony that he “den[ies] that [he] quit work at

that time.” (Id.)           Based on the foregoing, it is apparent that Weisenauer has not

yet “quit work on account of such disease.” Therefore under the express language

of the Ohio Supreme Court's decision in White, the third possible date for

triggering the period of limitations has not happened yet and the statute of

limitations would not bar the filing of this claim.




4
    Numbers have again been added for ease of discussion.

                                                   -11-
Case No. 13-13-25


       {¶31} Nevertheless, American Standard argues against the application of

the third prong of White to this case by asserting that because the plant closed,

Weisenauer can never "quit work on account of his disease" and thus the third

possible date for commencing the period of limitations set forth in White can never

happen.

       {¶32} In making this argument, American Standard directs us to Heard v.

Conrad, 138 Ohio App.3d 503, 741 N.E.2d 897 (7th Dist.2000), and Davis v.

Taylor & Bogus Foundry, 8th Dist. Cuyahoga No. 81324, 2003-Ohio-1832, for the

proposition that where the existence of the third triggering definition of

“disability” in White is incapable of determination, the reviewing court must

essentially "default" to the later of the two remaining disability dates set forth in

the White three prong test. However, in our view, this rationale seems to run

counter to the express language in White directing us to use the latest of the three

dates to determine when the statute of limitations has run - without mention of any

further fact-finding by the court of appeals as to the possible occurrence of future

events.

       {¶33} As an example of the dangers of such further “fact-finding,” we

believe that the premise for the argument advanced by American Standard that for

Weisenauer, the third date of White would never run, is entirely speculative. As

noted earlier, there is no actual evidence in the record that Weisenauer ever


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Case No. 13-13-25


retired. However, even if we were to somehow deem by default that because the

plant closed, Weisenauer was effectively “retired,” as a practical matter, it is

indeterminable under such circumstances whether he could or would be entirely

eligible to later rejoin the work force if the opportunity arose with another plant or

a re-opened plant, and then still subsequently “quit on account of his disease,”

triggering the third definition of “disability” under White. As a result, it is our

conclusion that under the closest reading of the Ohio Supreme Court’s decision in

White, if the third date has not yet occurred the claim is still valid.

           {¶34} While our holding may run counter to the opinions in Heard and

Davis, it is consistent with the First District Court of Appeals’ holding in

DesMarais v. Strauss & Troy, 121 Ohio App.3d 125, 130, 699 N.E.2d 113, 116-17

(1st Dist.1997). Moreover, we believe our holding is consistent with the Ohio

Supreme Court’s guidance in White, wherein the Court held,

           Equally compelling, in our view, is the fact that provisions such
           as R.C. 4123.85 must be “ * * * liberally construed in favor of
           employees * * *.” R.C. 4123.95. Given the legislative directive
           to liberally construe the workers’ compensation statutes in favor
           of the employee, we believe our endorsement * * * is more
           consonant with furthering the remedial and humanitarian
           purposes of the workers’ compensation system.5

Id. at 14.




5
    The final set of ellipses denotes an omission in our citation. The previous two were in the original.

                                                      -13-
Case No. 13-13-25


       {¶35} Finally, while not binding on us, we are also persuaded by the

Industrial Commission’s Memo cited by the Staff Hearing Officer in support of

allowing the claim. The Industrial Commission’s Memo, cited earlier herein at

Fn.2, explicitly states that, “[t]he limitation period begins to run when the latest of

the three elements in White occurs. If the last element has not yet occurred,

4123.85 has not begun to run. Therefore, the claim application is to be found

timely filed.” (Doc. 19, Ex. A-6).

       {¶36} In sum, we find that under the express language of the Ohio Supreme

court in White the claim in this case is not time-barred pursuant to the statute.

       {¶37} For the foregoing reasons the assignment of error is sustained, the

judgment of the Seneca County Common Pleas Court is reversed and the cause is

remanded for further proceedings consistent with this opinion.

                                                             Judgment Reversed and
                                                                  Cause Remanded

WILLAMOWSKI, P.J. and ROGERS, J., concur.

/jlr




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