COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69377 MARIE SPECHT : : : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : OPINION BP AMERICA, INC. et al. : : : : Defendant-Appellees : : DATE OF ANNOUNCEMENT OF DECISION: MAY 23, 1996 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-263029 JUDGMENT: JUDGMENT VACATED AND CAUSE REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: ALAN J. SHAPIRO GEOFFREY J. SHAPIRO Shapiro, Kendis & Assoc. Co., LPA Rockefeller Bldg., 15th Floor 614 W. Superior Avenue Cleveland, Ohio 44113 For Defendant-Appellees: MICHAEL A. THOMPSON EDWARD D. MURRAY 4667 Munson Street NW P.O. Box 36963 Canton, Ohio 44735-6963 - 3 - O'DONNELL, J.: Marie Specht appeals the trial court's grant of summary judgment in favor of BP America, Inc., thereby denying her participation in the Workers' Compensation fund for an alleged flow-through psychiatric condition. Because a genuine issue of material fact exists as to whether Marie Specht gave timely notice of this claim, we vacate the judgment of the trial court and remand the matter for further consideration of this issue. The parties generally do not dispute that Maria Specht injured her back on March 19, 1985 while assisting with the move into the then new British Petroleum world headquarters in Cleveland, Ohio. Her workers' compensation claim was allowed for, "low back, acute allergic reaction to lumbar radiculopathy medication, and lumbar radiculopathy L4-5." Almost two years later, on January 29, 1987, Specht filed a C-86 motion seeking all of the following: 1. Order Employer to pay for consultation with physicians at Cleveland Clinic. 2. Order employer to approve referral to pain center at Cleveland Clinic. 3. Further allow claim for protusion [sic] of disc between 4th and 5th lumbar vertebrae. 4. Approve and pay for treatment W.G. Nord Community Mental Health Center. 5. Further allow claim for "allergic rhinitis" 6. Set average weekly wage pursuant to Sections 4123.61 & 62. At the C-86 hearing, which was held before the Industrial Commission on December 2, 1988, the hearing officer entertained - 4 - an oral motion for additional allowance of Specht's psychiatric condition and issued the following order inter alia: *** THE DISTRICT HEARING OFFICER FINDS, PER ORAL REQUEST AT HEARING, THAT THE CLAIM BE ADDITIONALLY ALLOWED FOR A PSYCH CONDITION BY CLAIMANT'S COUNSEL. THE DISTRICT HEARING OFFICER ORDERS THE CLAIMANT EXAMINED BY A QUALIFIED PSYCHIATRIST (CLESP). THEREFORE, THE DISTRICT HEARING OFFICER HOLDS NUMBER FOUR, PER C-86, IN ABEYANCE PENDING AN EXAM AND ORAL HEARING ON THE ISSUE OF ADDITIONAL ALLOWANCE (PSYCH). (SEE W-6 NORD RECORDS AND NARRATIVE FROM THOMAS J. HAGLUND, PHD, AND COMPLETE FILE ON ISSUE OF SAME). THE DISTRICT HEARING OFFICER GRANTS CLAIMANT'S REQUEST TO NUMBER FOUR PER C-86. On appeal by BP America, the Regional Board deleted in its entirety only the first sentence relating to the additional allowance per oral request, and affirmed in all other respects. Neither party appealed from that order of the Regional Board, but on October 23, 1989, Specht filed a new request with the Industrial Commission seeking additional allowance of her psychiatric condition, listed as, "adjustment disorder with mixed emotional features including depression." At the hearing held on this second C-86 motion, the district hearing officer denied the additional psychiatric allowance because the claim was not made within two years of diagnosis of the condition. On appeal, the Regional Board vacated the order of the hearing officer, found the employer had notice of the psychiatric condition per the 1987 C-86 motion, and allowed the claim. On further appeal, the Industrial Commission vacated this - 5 - order of the Regional Board and reinstated the finding of the district hearing officer. When plaintiff appealed to the Common Pleas Court, BP America filed for summary judgment; appellant moved to strike attachments to that motion, but the trial court granted summary judgment without ruling on the motion to strike. Appellant urges on appeal: I. THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BP AMERICA BECAUSE THE EMPLOYER HAD TIMELY NOTICE OF PLAINTIFF'S PSYCHIATRIC INJURY AND PLAINTIFF PROPERLY PURSUED THE ALLOWANCE OF THE CLAIM THROUGH THE PROCEDURES OF THE INDUSTRIAL COMMISSION OF OHIO. II. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION TO STRIKE ATTACHMENTS TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT BECAUSE IN FAILING TO STRIKE, THE COURT CONSIDERED IMPROPER EVIDENCE. Essentially appellant argues she filed her claim for additional allowance of her psychiatric condition in a timely manner and that the first order of the Regional Board clarified an inconsistent order of the hearing officer and permitted her to proceed with a CLESP examination and, therefore, the trial court erred in granting summary judgment for BP America on her additional claim for her psychiatric condition. - 6 - BP America argues the trial court correctly granted summary judgment either because appellant failed to give timely notice of her claim or to appeal from the first order of the Regional Board which bars further litigation. The issue then presented is whether Marie Specht filed her claim for additional allowance of her psychiatric condition in conformity with R.C. 4123.84, which sets forth the period of limitations on giving notice of claims. In relevant part, R.C. 4123.84 states: (A) In all cases of injury or death, claims for compensation or benefits for the specific part or parts of the body injured shall be forever barred unless, within two years after the injury or death: (1) Written notice of the specific part or parts of the body claimed to have been injured has been made to the industrial commission or the bureau of workers' compensation; *** This statute has been held to require a claimant to file a motion for additional allowance within two years of the time claimant knew or should have known of the additional condition. See Clementi v. Wean United, Inc. (1988), 39 Ohio St.3d 342. Further, R.C. 4123.95 mandates sections 4123.01 to 4123.95 to be "liberally construed in favor of employees ***." Finally, we note that in Mewhorter v. Ex-Cello-O Corp. (1986), 23 Ohio St.3d 13, the court determined that the fee bill and attachments of a treating physician submitted to the Bureau of Workers' Compensation, "sufficed to give notice for purposes of the limitation specified in R.C. 4123.84(A)(1)." - 7 - A review of the record in this case raises a question as to what information, if any, Specht presented to the Bureau of Workers' Compensation at the time she originally filed the C-86 motion on January 29, 1987. On that form, in the space allocated for evidence in support of her request is the notation, "See reports attached." The original file of the Bureau of Workers' Compensation is not before us on appeal and, hence, we are unable to ascertain whether the attached reports referred to in that C- 86 motion are those which might suffice for purposes of notice as described by the Supreme Court in Mewhorter, supra. Since we are constrained to liberally construe these notice provisions in favor of employees, and since the attached reports to the C-86 may be those relating to the W. G. Nord Community Mental Health Center, appellant may have given timely written notice of her claim. Because this is a genuine issue of a material fact, BP America was not entitled to judgment as a matter of law. Accordingly, we vacate the summary judgment and remand this matter to the trial court for a limited hearing to determine whether the claimant filed attachments to her original January 29, 1987 C-86 form adequately describing treatment at the W. G. Nord Community Mental Health Center which would have timely notified the bureau of this claim. A later presentment of those records would not constitute timely notice. This remand is therefore only jurisdictional and does not necessarily reverse - 8 - the earlier determination of the trial court, nor seek to address the merits of appellant's claim. We have further considered BP America's position that Specht waived her psychiatric claim by failing to appeal the first ruling of the Regional Board which had deleted the sentence granting oral allowance of her claim, but affirmed all other aspects of the hearing officer's order. Upon examination, we note that the order is internally inconsistent in that it both holds the request for allowance in abeyance and grants the request. As modified by the Regional Board, this order is clearly not a denial of appellant's claim and, hence, appellant had no reason to appeal from it. In conformity with the rationale of the court in Jones v. Fruehauf Corp. (1992), 81 Ohio App.3d 454, we are unable to determine what information appellant presented to the Workers' Compensation Bureau on January 29, 1987, when she filed her C-86 motion. Thus, we find reasonable minds cannot come to but one conclusion in favor of BP America and we hold an issue of fact exists as to whether appellant presented sufficient written information of her psychological condition within the two-year notice limitation of R.C. 4123.84. Accordingly, the judgment of the trial court is vacated and this matter is remanded for further proceedings consistent with the law and this opinion. - 9 - The foregoing resolution of this first assignment of error renders the second assignment of error moot. See App. R. 12(A)(1). Judgment accordingly. - 10 - The judgment of the trial court is vacated and this matter is remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) 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. BLACKMON, P.J., and PATTON, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .