COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60046, 60093 RUSSELL STEPHENS SR., ET AL. : : Plaintiff-Appellant : JOURNAL ENTRY : v. : AND : THE OHIO BELL TELEPHONE CO. : OPINION : Defendant-Appellee : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 15, 1992 CHARACTER OF PROCEEDING: CIVIL APPEAL FROM THE COMMON PLEAS COURT CASE NO. CP-173191 JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Appellants, Administrator and Industrial Commission: ANTHONY J. CELEBREZZE, JR. Attorney General JEROME C. WEBBS Assistant Attorney General 615 West Superior Avenue State Office Bldg., 12th Fl. Cleveland, Ohio 44113-1899 For Appellant, Russell E. Stephens, Sr.: ALBERT J. SAMMON Sammon & Bolmeyer 1160 Rockefeller Building Cleveland, Ohio 44113 For Appellee, The Ohio Bell Telephone Company: MICHAEL R. OKER 45 Erieview Plaza, Suite 1400 Cleveland, Ohio 44114 DARRELL R. SHEPARD Porter, Wright, Morris & Arthur 41 South High Street Columbus, Ohio 43216 -2- SPELLACY, J.: Appellants-Russell E. Stephens, Sr., Administrator, Ohio Bureau of Workers' Compensation and The Industrial Commission of Ohio ("appellants") appeal from the trial court's judgment granting summary judgment in favor of appellee-The Ohio Bell Telephone Company ("appellee"). The facts giving rise to the instant appeal are as follows: On March 16, 1970, appellant-Stephens, Sr., while working during the course of and arising out of his employment with appellee, was involved in an automobile accident. Appellant- Stephens, Sr. suffered injuries to his lower back as a result of the accident. Appellant-Industrial Commission of Ohio allowed appellant- Stephens, Sr.'s claim for recurrent disc herniation, possible cervical spondylosis, chronic cervical and lumbar spine sprains and a strain of the cervical and lumbar musculature super imposed on degenerative lumbar spine changes. Appellant received temporary total disability compensation pursuant to R.C. 4123.56 until April 25, 1977. Permanent partial disability compensation pursuant to R.C. 4123.57 was paid until some time in 1976. Although no weekly compensation was paid pursuant to either R.C. 4123.56 or R.C. 4123.57 after April 25, 1977, appellee continued to pay appellant-Stephens, Sr.'s medical bills, in connection with his allowed conditions, subsequent to October 14, 1977. -3- On October 14, 1987, appellant-Stephens, Sr. filed an application for permanent and total disability with appellant- Industrial Commission of Ohio. On November 2, 1988, a hearing was conducted on appellant-Stephens, Sr.'s application, and on April 26, 1989, appellant-Stephens, Sr.'s application was granted. On July 20, 1989, appellee filed a timely notice of appeal with the Cuyahoga County Court of Common Pleas pursuant to R.C. 4123.519. On February 1, 1990, appellee filed a motion for summary judgment. Appellee argued that appellant-Stephens, Sr.'s claim had expired by virtue of R.C. 4123.52, since his application was filed on October 14, 1987 and after the ten-year statute of limitations. Appellee claimed that the ten-year statute of limitations ran from April 25, 1977, which was the last payment of weekly compensation. Appellee further argued that the payments of medical benefits after 1977 did not toll the running of the statute of limitations. On March 1, 1990, appellant-Stephens, Sr. filed a motion for summary judgment and a brief in opposition to appellee's motion for summary judgment. Appellant-Stephens, Sr. initially argued that since the order being appealed from by appellee concerned the extent of liability, the Cuyahoga County Court of Common Pleas did not have jurisdiction pursuant to R.C. 4123.519. Appellant-Stephens, Sr. next argued that the payment of medical benefits by appellee tolled the running of the statute of -4- limitations and invoked a new ten-year jurisdiction by appellant- Industrial Commission of Ohio for payment of further compensation. Appellant-Stephens, Sr. claimed that payment of medical bills constituted compensation under the meaning of R.C. 4123.52 and began a new ten-year period for jurisdiction. On June 8, 1990, the trial court issued an opinion and judgment, whereby, it granted appellee's motion for summary judgment and denied appellant-Stephens, Sr.'s motion for summary judgment. In its opinion, the trial court found that it did have jurisdiction to hear appellee's appeal, because appellant- Industrial Commission of Ohio's order established appellant- Stephens, Sr.'s right to participate in Workers' Compensation benefits. Such an order was appealable to the Cuyahoga County Court of Common Pleas. The trial court further held that appellant-Stephens Sr.'s claim was barred by the statute of limitations set forth in R.C. 4123.52. The trial court specifically found that the statutory period "provided in R.C. 4123.52 runs from the date of the last payment of weekly compensation paid pursuant to R.C. 4123.56, 4123.57 and 4123.58, and not from the date of the last payment of a medical bill by a self-insured employer." Appellant-Stephens, Sr. filed a timely notice of appeal as did appellants-Administrator, Ohio Bureau of Workers' Compensation and The Industrial Commission of Ohio. On July 16, 1990, this court, sua sponte, consolidated the parties' appeals -5- for record, briefing, hearing and disposition. The following 1 assignment of error was subsequently raised: THE COURT OF COMMON PLEAS ERRED IN HOLDING THAT THE PAYMENT OF MEDICAL BENEFITS DOES NOT INVOKE THE CONTINUING JURISDICTION OF THE INDUSTRIAL COMMISSION PURSUANT TO OHIO REVISED CODE SECTION 4123.52. The sole issue in the instant action is whether the ten- year statute of limitations set forth in R.C. 4123.52 was from the date of the last payment of compensation paid pursuant to R.C. 4123.56, 5123.57 and 4123.58 or from the date of the last payment of a medical bill by appellee. This issue was explicitly ruled upon by the Ohio Supreme Court in Collinsworth v. Western Elec. Co. (1992), 63 Ohio St.3d 268. The Ohio Supreme Court specifically stated: [W]e hold that the payment of medical expenses tolls the ten-year statute of limitations contained in R.C. 4123.52. Implicit in this determination is the notion that in the context of R.C. 4123.52, the term "compensation" is sufficiently broad to include the payment of medical bills. Id. at 271. In the instant case, it is undisputed that appellant- Stephens, Sr.'s medical bills, in connection with his allowed conditions, were paid by appellee subsequent to October 14, 1977. Thus, we find that appellee's payment of appellant-Stephens, Sr.'s medical bills tolled the ten-year statute of limitations 1 Appellant-Stephens, Sr. and appellants-Administrator, Ohio Bureau of Workers' Compensation and The Industrial Commission of Ohio filed separate briefs, but they raised the same issue in their respective assignments of error. -6- contained in R.C. 4123.52 and that the filing of appellant- Stephens, Sr.'s application for permanent and total disability was timely. Accordingly, we conclude that the trial court erred in granting summary judgment in favor of appellee. Appellants' assignment of error is well taken. Trial court judgment is reversed. -7- It is, therefore, considered that said appellant(s) recover of said appellee(s) their costs herein. 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. Exceptions. DYKE, P.J., AND JAMES D. SWEENEY, J., CONCUR. LEO M. SPELLACY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .