Extension of Statute of Limitations in Ohio R. C. 4123.28 Does Not Apply to Death Claims
In a divided opinion, an Ohio appellate court affirmed a decision of a state trial court that granted summary judgment to an employer in a death benefits case that had originally been filed before the Industrial Commission by the girlfriend of a deceased worker who sustained a “near instantaneous death” on December 16, 2017, while working for the employer [Ramos v. Canton, 2022-Ohio=3642, 2022 Ohio App. LEXIS 3421 (Oct. 11, 2022). The Commission ultimately determined that the claim—filed December 5, 2019—was barred by the one-year statute of limitations found in Ohio Rev. Code § 4123.84(a). The majority of the appellate court held the last paragraph of Ohio Rev. Code § 4123.28 created an extension of the one-year statute of limitations for injury and occupational disease claims; there was, however, no corresponding extension that applied to death claims.
Background
The facts were not in dispute. The deceased employee suffered an injury resulting in near instantaneous death while working for the employer on December 16, 2017. The deceased employee’s girlfriend (“the appellant”), via a C-5 application filed December 5, 2019, sought death benefits on behalf of the employee’s four surviving children. The self-insuring employer denied certification of the claim, citing the relevant application was filed past the one-year statute of limitations.
Failure to Record Employee’s Fatal Injury
Appellant had argued that the statute of limitations was extended by the employer’s failure to file the report described in R.C. 4123.28(A), wherein an employer “shall keep a record of all injuries and occupational diseases, fatal or otherwise, received or contracted by his employees in the course of their employment and resulting in seven days or more of total disability” and within a week after acquiring knowledge of the death, “a report thereof shall be made in writing to the bureau of workers’ compensation.” Failure to file the report extends the statute of limitations.
The employer argued R.C. 4123.28 was inapplicable to the facts of this case because the deceased employee did not have any days of total disability because of his death; therefore, it was not required to file the report. The hearing officer agreed with the employer and found the statute of limitations was not extended. Ultimately, the appellant appealed the decision to the Court of Common Pleas, which granted the employer summary judgment.
Two Issues to be Decided
The appellate court identified three issues:
- Whether a report was required by the undisputed facts in this case. The second and (the ultimately controlling question)
- Whether the failure to file a report of death implicates the extension of the statute of limitations set out in the final paragraph of R.C. 4123.28.
Majority of Appellate Court Affirms on Different Grounds
The majority indicated it was affirming the trial court’s decision, but on other grounds. Speaking for the majority, Presiding Judge Wise observed that the first sentence of R.C. 4123.28 requires the recording of all injuries “fatal or otherwise, received or contracted by his employees in the course of their employment and resulting in seven days or more of total disability,” and requires a written report to the bureau “[w]ithin a week after acquiring knowledge of an injury or death therefrom.” Judge Wise indicated that one could argue that a fatal injury results in seven days or more of total disability because the employee is dead, or does not result in seven days or more of total disability because the employee is dead. The trial court found the second sentence requiring a report is “only triggered once the first sentence has been satisfied, i.e. where there is seven or more days of disability.”
The presiding judge indicated he would find there is ambiguity in what constitutes “seven or more days of disability” when the employee dies instantly or within six days of the incident. He added that R.C. 4123.28 is the only provision that requires employers to report fatal injuries to the bureau. He added that this statute requiring the reporting of workplace deaths was internally inconsistent if a death was reportable only if the employee survived the injury by seven or more days.
R.C. 4123.28 is Ambiguous
Having found the statute to be ambiguous, and after analyzing the legislative intent, the majority found that the legislative intent was in line with appellant’s position. An employer is required to make a report with the Bureau of Workers’ Compensation within one week of a death.
Effect of Failure to File Report of Death
As noted above, the controlling issue was whether the failure to file the report worked to extend the statute of limitations set out in the final paragraph of R.C. 4123.28. The majority held it did not, based upon the following:
- R.C. 4123.28 is ambiguous.
- R.C. 4123.28 is the only statute in the chapter relating to an employer’s requirement to report workplace deaths and thus is applicable to all workplace deaths; therefore, a report by the employer to the bureau was required in this case.
- The first sentence of R.C. 4123.28 does not act as a gatekeeper to exclude the requirement to file a report of a workplace death where the employee survives the incident for less than seven days.
- The final paragraph of R.C. 4123.28 creates an extension of the one-year statute of limitations for injury and occupational disease claims, but there is no corresponding extension which applies to death claims.
Based on the foregoing, the majority found the trial court did not err in denying appellate’s motion for summary judgment and in granting the employer’s motion. Judge Baldwin concurred separately. Judge Hoffman concurred in part and dissented in part.
Comment
I wouldn’t be surprised to see this case addressed at some point soon by the Supreme Court of Ohio.