COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68170 VINCENT FORSTER : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : OHIO BUREAU OF WORKERS' : OPINION COMPENSATION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-237390. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee David A. Kulwicki, Esq. Vincent Foster: Dennis Seaman & Associates 614 Superior Avenue, N.W. 1600 Rockefeller Building Cleveland, OH 44113 For Defendant-Appellant Albert Q. Corsi, Esq. Bureau of Workers' Comp.: Ohio Assistant Attorney General 12th Floor State Office Building 615 West Superior Avenue Cleveland, OH 44113-1899 For Reliance Mechanical Robert Matyjasic Corporation: 24441 Detroit Road, Suite 300 Westlake, OH 44145 -2- PER CURIAM: This cause came to be heard upon an accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25 of the Eighth District Court of Appeals. Defendant-appellant, Bureau of Workers' Compensation, et al. ("the Bureau"), appeals the Cuyahoga County Common Pleas Court's denial of their motion for summary judgment and the court's subsequent finding that plaintiff-appellee's, Vincent Forster, cause of action was timely filed. On October 8, 1988, appellee was working for defendant- appellant, Reliance Electric Co., at a downtown Cleveland construction site; the British Petroleum Building. While in the course and scope of employment, a piece of concrete fell from the fifth floor striking appellee on the head and causing him to fall down. Appellee attempted to break his fall by putting his hands in front of him. Appellee felt his wrists snap back. Appellee filed a claim with the Bureau for injuries to his neck. Appellee stated in his deposition that although his hands felt somewhat sprained, he thought it would go away. The treating physicians, Dr. Mares and Dr. Stephee, did not examine appellee's hands. Appellee stated that in June of 1989 his hands began tingling. For this reason, appellee was referred to Dr. Shah of Parma Hospital for nerve testing. On August 22, 1989, the test results were interpreted by Dr. Mars, a neurologist, as being Bilateral Carpal Tunnel Syndrome. On September 19, 1990, Dr. Mars' medical -3- report of appellee stated he believed the condition had a causal relationship to his injury on October 8, 1988. Appellee filed written notification of the additional claim with the Bureau on November 5, 1990. A hearing was held and appellee's claim was disallowed for bilateral carpal tunnel syndrome "as not a `Flow' injury from 10/8/88 injury and not alleged within 2 years of the date of injury." The decision was subsequently affirmed by the regional board of review. Appellee appealed to the trial court. The Bureau filed a motion for summary judgment claiming appellee's cause of action was time-barred pursuant to R.C. 4123.84. In response, appellee filed a motion in opposition arguing the cause of action was timely since it was filed within two years of discovering the existence of the residual injury. On May 19, 1994, the trial court overruled appellant's motion for summary judgment. After a final pretrial hearing was had, the trial court amended its entry denying appellant's motion indicating the court finds the cause of action to be timely filed. The cause was remanded to the Bureau for further proceedings. Appellant timely filed this appeal and assigns one assignment of error: THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S MOTION FOR SUMMARY JUDGMENT AND DETERMINING THAT APPELLEE'S MOTION FOR THE ADDITIONAL ALLOWANCE OF CARPAL TUNNEL SYNDROME WAS FILED WITHIN THE LIMITATION FOUND IN R.C. 4123.84(A)(1). -4- Initially we note that an appeal to the court of common pleas involving a claimant's right to participate in the State Insurance Fund, pursuant to 4123.512, is subject to a de novo review for a determination of both the facts and law. See Afrates v. Lorain (1992), 63 Ohio St.3d 22; State, ex rel. Mitchell, v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d 481. Here, the determination of whether appellee's motion for additional allowance was timely filed is a question of fact. See Hoar v. Schneider Transport, Inc. (1991), 68 Ohio App.3d 450. Civ.R. 56 provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remains to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come but to one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1; Temple v. Wean United, Inc (1977), 50 Ohio St.2d 317. Accordingly, an entry of summary judgment against the moving party is appropriate where all relevant evidence is before the court, no genuine issue as to any material fact exists, and the non-moving party is entitled to judgment as a matter of law. Lester v. State Farm Mut. Auto. Ins. Co. (1989), 64 Ohio App.3d 52. -5- In the case sub judice, appellant misconstrues the law regarding R.C. 4123.84 as stated in Clementi v. Wean United, Inc. (1988), 39 Ohio St.3d 342, 344 as: R.C. 4123.84(A)(1) applies only to initial date injuries and not to residual or flow through injuries. Rather, the Supreme Court of Ohio rejected that notion when it held "R.C. 4123.84 requires a claimant to file a motion for an additional allowance within two years of the time the claimant knew or should have known of the additional condition." Id. at 347. Hence, if the claimant filed for additional allowance for "residual" or "flow through" injuries within two years of the time he/she knows or should have known of the additional condition, the claim is not time barred. See, also, Dietrick v. Ohio Bur. of Workers' Comp. (1991), 72 Ohio App.3d 567; R.C. 4123.84(A)(1). Importantly, a party's failure to move to strike or otherwise object to documentary evidence submitted by a party in support of, or in opposition to, a motion for summary judgment waives any error in considering that evidence under Civ.R. 56(C). Stegawski v. Cleveland Anesthesia Group, Inc. (1987), 37 Ohio App.3d 78. Since appellant did not object at trial level to the evidence entered in support of appellee's motion in opposition, all documents attached to both parties' motions were properly considered by the trial court. After a review of the evidence submitted, we find appellee first became aware of the residual injury, bilateral carpal tunnel syndrome, on August 22, 1989. -6- Since appellee filed his claim on November 5, 1990, appellee's claim for additional allowance was timely filed under a proper application of R.C. 4123.84. The trial court did not err in denying appellant's motion for summary judgment and subsequently entering a finding that appellee timely filed his claim. Affirmed and the cause remanded to the Bureau of Workers' Compensation for further proceedings. -7- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Ohio Bureau of Workers' Compensation 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. LEO M. SPELLACY, PRESIDING JUDGE DAVID T. MATIA, JUDGE ANN DYKE, 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. .