[Cite as Perez v. Univ. Hosp. Health Sys., 2012-Ohio-5896.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 98427



                                      HECTOR PEREZ
                                                              PLAINTIFF-APPELLANT

                                                     vs.

                   UNIVERSITY HOSPITALS HEALTH
                          SYSTEM, ET AL.
                                                              DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                 Administrative Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-761580


        BEFORE:          Celebrezze, J., Boyle, P.J., and E. Gallagher, J.

        RELEASED AND JOURNALIZED:                             December 13, 2012
ATTORNEY FOR APPELLANT

John C. Bucalo
1370 Ontario Street
Suite 330
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

For University Hospitals Health System

Erin Hooper
Kirk R. Henrikson
Rademaker, Matty, McClelland & Grev, L.L.C.
55 Public Square
Suite 1775
Cleveland, Ohio 44113

For Administrator, Ohio Bureau of Workers’ Compensation

Mike DeWine
Ohio Attorney General
30 East Broad Street
17th Floor
Columbus, Ohio 43215

Naveen Ramprasad
Assistant Attorney General
615 West Superior Avenue
11th Floor
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Plaintiff-appellant, Hector L. Perez, appeals the order of the common pleas

court granting summary judgment in favor of defendants-appellees, University Hospitals

Health System, et al. (“UH”).    After careful review of the record and relevant case law,

we affirm the judgment of the trial court.

       {¶2} On October 1, 2001, appellant sustained an injury to his lower back in the

course of and arising out of his employment with UH. As a result of this incident,

appellant filed a workers’ compensation claim, which was assigned claim No. 01-888771

for the conditions “sprain lumbosacral, neuritis lumbosacral.”        UH, a self-insured

employer for workers’ compensation purposes, issued payments for medical bills under

claim No. 01-888771 from February 7, 2002, through November 13, 2003.

       {¶3} On September 13, 2008, appellant sustained a mid and low back injury while

lifting oxygen tanks in the course of his employment with UH. UH initially attempted to

certify the 2008 injury as a continuation of claim No. 01-888771.           However, on

September 24, 2008, appellant filed a First Report of Injury and/or Occupational Disease

with the Bureau of Workers’ Compensation alleging a separate and distinct injury from

claim No. 01-888771. While this issue was pending before the Industrial Commission

of Ohio, all medical bills associated with appellant’s 2008 injury were processed under

claim No. 01-888771 due to UH’s certification of the September 13, 2008 incident as a
reinjury. The medical payment history following appellant’s 2008 injury covered the

period May 18, 2009, through March 24, 2010.

       {¶4} This matter went to hearing before the Industrial Commission and, on January

29, 2009, a district hearing officer for the Industrial Commission ruled that the incident of

September 13, 2008, constituted a new injury, not a reinjury of appellant’s 2001 claim.

Accordingly, the Industrial Commission assigned claim No. 08-861676 for the conditions

“sprain lumbar region and sprain thoracic region.”    Subsequently, and in response to the

district hearing officer’s decision, UH transferred the previous payments of medical bills

incurred as a result of appellant’s 2008 injury under the newly certified claim No.

08-861676.

       {¶5} On April 19, 2010, appellant filed an application for the determination of

percentage of permanent partial disability on the 2001 claim. On September 7, 2010, a

district hearing officer granted the application and issued an order finding that appellant

sustained permanent partial disability pursuant to the provisions of R.C. 4123.57. UH’s

appeal, filed September 24, 2010, was denied when an Industrial Commission staff

hearing officer affirmed the order on November 2, 2010.

       {¶6} On December 10, 2010, UH made an application to the Industrial

Commission requesting that the commission exercise its continuing jurisdiction and

vacate the November 2, 2010 order finding permanent partial disability for the reason that

appellant’s 2001 claim had statutorily expired pursuant to R.C. 4123.52. On January 26,

2011, a staff hearing officer denied UH’s motion. Subsequently, UH appealed to the
Industrial Commission, which issued an order on June 16, 2011, finding continuing

jurisdiction and declaring that appellant’s 2001 claim had statutorily expired on

November 13, 2009, because the last medical payment made under appellant’s 2001 claim

occurred on November 13, 2003.

      {¶7} On August 9, 2011, appellant filed a notice of appeal and complaint in the

Cuyahoga County Court of Common Pleas. Thereafter, the parties filed cross-motions

for summary judgment. On May 3, 2012, the trial court granted summary judgment in

favor of UH finding that appellant’s 2001 claim had statutorily expired.

      {¶8} Appellant brings this timely appeal, raising two assignments of error for

review:

      I. The trial court erred when it granted Defendant’s motion for summary
      judgment.

      II. The trial court erred when it denied Plaintiff’s motion for summary
      judgment.

                                    Law and Analysis

                                 I. Standard of Review

      {¶9} We review an appeal from summary judgment under a de novo standard of

review.   Baiko v. Mays, 140 Ohio App.3d 1, 746 N.E.2d 618 (8th Dist.2000), citing

Smiddy v. Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987); N.E. Ohio Apt.

Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 699 N.E.2d 534 (8th

Dist.1997).   Accordingly, we afford no deference to the trial court’s decision and

independently review the record to determine whether summary judgment is appropriate.
       {¶10} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine

issue as to any material fact exists; (2) the party moving for summary judgment is entitled

to judgment as a matter of law; and (3) when viewing the evidence most strongly in favor

of the nonmoving party, reasonable minds can reach only one conclusion that is adverse

to the nonmoving party.

       {¶11} The moving party carries an initial burden of setting forth specific facts that

demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio

St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. If the movant fails to meet this

burden, summary judgment is not appropriate; if the movant does meet this burden,

summary judgment will be appropriate only if the nonmovant fails to establish the

existence of a genuine issue of material fact. Id. at 293.

                               II. Application of R.C. 4123.52

       {¶12} The issue before this court and brought by the parties under Civ.R. 56, is

whether appellant’s 2001 claim has statutorily expired.              R.C. 4123.52 governs the

continuing jurisdiction of the Industrial Commission of Ohio and essentially places a

statute of limitations on workers’ compensation claims. Sechler v. Krouse, 56 Ohio St.2d

185, 383 N.E.2d 572 (1978). R.C. 4123.52,1 as was in effect at the time of appellant’s

2001 claim, read in relevant part:

       The jurisdiction of the industrial commission and the authority of the
       administrator of workers’ compensation over each case is continuing, and

        As modified by H.B. 107. The current version of R.C. 4123.52 applies to workers’
       1


compensation claims arising after August 15, 2006, which confers a five-year statute of limitations.
      the commission may make such modification or change with respect to
      former findings or orders with respect thereto, as, in its opinion is justified.
      No modification or change nor any finding or award in respect of any claim
      shall be made with respect to disability, compensation, dependency, or
      benefits after six years from the date of injury in the absence of the payment
      of medical benefits under this chapter, in which event the modification,
      change, finding, or award shall be made within six years after the payment
      of medical benefits, or in the absence of payment of compensation under
      section 4123.57, 4123.58, or division (A) or (B) of section 4123.56 of the
      Revised Code or wages in lieu of compensation in a manner so as to satisfy
      the requirements of section 4123.84 of the Revised Code, in which event
      the modification, change, finding, or award shall be made within ten years
      from the date of the last payment of compensation or from the date of death,
      nor unless written notice of claim for the specific part or parts of the body
      injured or disabled has been given as provided in section 4123.84 or
      4123.85 of the Revised Code, and the commission shall not make any
      modification, change, finding, or award which shall award compensation
      for a back period in excess of two years prior to the date of filing
      application therefor. (Emphasis added.)
      {¶13} In the case at hand, the record supports UH’s position that appellant’s 2001

claim involved the payment of “medical benefits” only.       Accordingly, the applicable

statute of limitations period for appellant’s 2001 claim is six years from the date of the

last payment of a medical bill by UH for those injuries stemming from the 2001 injury.

Pursuant to R.C. 4123.52, once the applicable six-year period under R.C. 4123.52

expired, the commission was without power to make any further findings, awards, or

orders, and the claim was deemed to have lapsed.

      {¶14} In support of his motion for summary judgment, appellant argues that, at a

minimum, the expiration date for his 2001 claim would be March 24, 2016, based on

UH’s decision to file its initial payment of appellant’s medical bills from May 18, 2009,

through March 24, 2010, under appellant’s 2001 claim number.
       {¶15} In contrast, UH maintains that because appellant’s 2008 injury was

subsequently certified as a new and separate claim, it was entitled to transfer all previous

medical payments stemming from the 2008 injury, which were previously filed under

claim No. 01-888771, to appellant’s new claim No. 08-861676. Thus, UH submits that

the last medical payment stemming from appellant’s 2001 injury was made on November

13, 2003, therefore precluding appellant’s ability to seek permanent partial disability as of

November 13, 2009, under the applicable six-year statute of limitations.

       {¶16} This court finds that UH’s position is more logical. As determined by the

Industrial Commission’s district hearing officer, appellant’s 2008 injury constituted a new

injury that was separate and distinct from his 2001 injury. Thus, the record establishes

that all payments made subsequent to September 2008 were made in relation to the

medical treatment appellant received for the new injuries identified in claim No.

08-861676. Appellant simply did not receive medical treatment for his 2001 injuries

following UH’s payment of a medical bill on November 13, 2003.

       {¶17} For these reasons, we find no merit to appellant’s position that UH’s initial

payment of his medical bills stemming from his 2008 injury under his 2001 claim number

tolled the statute of limitations on his 2001 claim. The record reflects that UH only

submitted medical payments for appellant’s 2008 injury under his 2001 claim number

because the issue of whether appellant’s 2008 injury constituted a new injury or a

continuation of his 2001 injury was pending before the Industrial Commission. Until the

Industrial Commission resolved this issue, UH had no choice but to file the medical
payments stemming from appellant’s 2008 injury under the 2001 claim.             Once the

Industrial Commission determined that appellant’s 2008 injury was not a continuation of

his 2001 claim, UH was free to correct its records and reclassify and process all previous

medical payments stemming from appellant’s 2008 injury under the new 2008 claim

number.

       {¶18} Similarly, we find no merit to appellant’s assertion that the ten-year statute

of limitations for “compensation” under R.C. 4123.52 was invoked once payment of

appellant’s permanent and partial disability award was made on December 8, 2010.

While we agree that payment of appellant’s permanent and partial disability award

amounted to payment of “compensation” under the claim, the record reflects that

appellant was only awarded permanent and partial disability based on the district hearing

officer’s incorrect belief that appellant’s 2001 claim had not expired.    On appeal, the

compensation award was properly vacated.       Thus, we are unable to conclude that the

vacated award of permanent and partial disability invoked the ten-year statute of

limitations outlined in R.C. 4123.52.

       {¶19} Based on the foregoing, we conclude that the last payment made as a result

of appellant’s injury in 2001 was on November 13, 2003. As such, appellant’s 2001

claim expired, pursuant to R.C. 4123.52, on November 13, 2009. There being no genuine

issue of material fact as to the expiration of claim No. 01-888771, UH is entitled to

judgment as a matter of law.     Accordingly, the trial court properly granted summary

judgment in favor of UH, while denying appellant’s motion for summary judgment.
      {¶20} Appellant’s first and second assignments of error are overruled.

      {¶21} Judgment affirmed.

      It is ordered that appellees recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
