Summary
In Greenwalt, the plaintiff became permanently and totally disabled due to work-related injuries. After submitting a workers' compensation claim with his self-insured employer, employee Greenwalt was led to believe that the subsequent payments he was receiving were the result of his workers' compensation claim.
Summary of this case from Vandemark v. Southland Corp.Opinion
No. 34127
Decided July 13, 1955.
Workmen's compensation — Complying employer not liable at common law or by statute, when — Employer gratuitously offering to file employee's claim — Failure to file within statutory time — No right of action against employer accrues to employee.
1. An employer who complies with the Workmen's Compensation Act shall not be liable to respond in damages at common law or by statute for any injury, disease or death of an employee occurring during the period of such compliance.
2. Where an employer gratuitously offers to file for an employee a claim for workmen's compensation with the Industrial Commission and fails to file the claim within the time required by the statute of limitations, no right of action against the employer accrues to the employee, who, by reason of such failure of the employer, is unable to personally file the claim because the statutory period of limitation has expired.
APPEAL from the Court of Appeals for Summit County.
On January 17, 1951, plaintiff, appellant herein, filed in the Court of Common Pleas of Summit County a petition which, omitting the caption and verification, reads as follows:
"Now comes the plaintiff and states that defendant is a corporation duly organized and existing under the laws of the state of Ohio.
"Plaintiff further states that he is 44 years of age and that during the year of 1944 he was an employee of the defendant herein, in what is known as defendant's department 152F.
"Plaintiff further states that on or about February 22, 1944, plaintiff was performing his ordinary duties in putting a truck under a skid, and in so doing was injured on said date.
"Plaintiff further says that by reason of said injury he is now totally and permanently disabled, and completely unable to work.
"Plaintiff further says that he has undergone extensive medical treatment and attention at the instance of defendant herein, and that at the instance of the industrial compensation department of the defendant herein, plaintiff was hospitalized on successive occasions, and that the bills therefor were paid by defendant.
"Plaintiff further says that he has lost wages, and will continue to lose wages for the rest of his life due to the aforesaid injury and the total and permanent disability resulting therefrom.
"Plaintiff further says that defendant did not report said injury to the state liability board of awards as required by Ohio General Code, Section 1465-99.
"Plaintiff further states that after he was injured he was requested by defendant, through its agents and employees, in charge of its claim department, to fill out a C-57 application, which was to be filed with the Industrial Commission of Ohio, and that defendant requested, through its employee, that plaintiff sign said application after it had been duly filled out by defendant, through its agent and employee; after which defendant would undertake to and would file the same with the Industrial Commission of Ohio, so as to give plaintiff consideration for his injury and loss and meet medical care and other expense sustained by him at said time and in the future.
"Plaintiff further states that he duly executed said C-57 application as requested by defendant herein for the purpose of having defendant transmit and file the same with the Industrial Commission of Ohio, and that plaintiff gave said C-57 application to defendant for the purpose of transmitting and filing same with the Industrial Commission of Ohio; and that the defendant represented and agreed with the plaintiff that it would undertake to file the said C-57 application with the Industrial Commission of Ohio, and that it would file the same.
"Plaintiff further states that defendant is a `self-insurer' and that defendant thereafter paid plaintiff various payments at the rate of $22.50 per week so as to lead plaintiff to believe that compensation was being paid in accordance with the rules of the Industrial Commission of Ohio.
"Plaintiff further says that for a period of two years after said injury the defendant sent plaintiff to various company doctors and hospitals with regard to his claim, and negotiated and talked to him regarding his claim through the defendant's industrial claim department.
"Plaintiff further says that after said two-year period had passed defendants refused to do anything further with regard to his injury; that plaintiff at that time contacted an attorney and found for the first time that defendants had not filed said C-57 application as they had undertaken to do.
"Plaintiff further says that defendant wilfully and fraudulently withheld the filing of said C-57 application for the pursose of defeating plaintiff's claim against them under the workmen's compensation laws of Ohio.
"Plaintiff further says that thereafter plaintiff filed a C-57 application with the Industrial Commission of Ohio, and said application was given Industrial Commission number `324791-22,' and that the Industrial Commission of Ohio dismissed said claim for the reason that:
"`* * * the commission finds that the said application was not filed within two years after date of alleged injury; the commission is, therefore, without jurisdiction to entertain the claim.'
"Plaintiff further states that in addition to the wilfull and fraudulent withholding of the filing of said C-57 application, for the purpose of defeating plaintiff's claim, defendant was also careless and negligent by reason of its acts in the following respects, to wit:
"1. In not filing said application immediately or within a reasonable time after the same was executed and given to defendant by plaintiff.
"2. In not mailing said application to the Industrial Commission of Ohio, or causing the same to be duly filed, after the defendant had the said C-57 application.
"3. In failing to exercise ordinary care in filing the said application with the Industrial Commission of Ohio when the defendant [knew], or in the exercise of ordinary care should have known, that the failure to file the same within the statutory period of two years would deprive the plaintiff of his benefits and rights under the workmen's compensation laws of Ohio.
"4. In requesting the plaintiff to file the said application or to give the same to the defendant and thereafter in failing to file the said C-57 application for the plaintiff for workmen's compensation benefits when the defendant had undertaken and agreed to do the same for the plaintiff.
"5. In so acting and conducting itself in such a manner that the defendant failed to file the said C-57 application with the Industrial Commission of Ohio within the statutory period of two years after the injury had occurred."
"7. In representing to plaintiff that his application had been duly filed by defendant when the defendant had failed and neglected to file the same as aforesaid.
"Plaintiff further states that by reason of the above acts of defendant herein and of the wilfull and fraudulent withholding of said C-57 application, and by reason of said wilfull and fraudulent acts of defendant in leading plaintiff to believe that his claim was being paid in accordance with the workmen's compensation laws, said plaintiff has been damaged in the amount of $100,000.
"Wherefore plaintiff prays judgment against the defendant in the sum of $100,000 together with the costs of this action."
To this petition the defendant, appellee herein, filed a demurrer for the reason "that said petition does not, on its face, state facts which show any cause of action against the defendant."
The trial court sustained the demurrer and dismissed the petition.
Plaintiff perfected an appeal to the Court of Appeals for Summit County, which court affirmed the judgment of the Court of Common Pleas.
The cause is before this court upon the allowance of a motion to certify the record.
Mr. Merrill D. Brothers and Mr. Robert Dow Hamilton, for appellant.
Mr. Walter E. deBruin and Mr. R.D. Merrick, for appellee.
The question presented by this appeal may be stated thus: May an employee maintain an action against his employer for the wilfull and fraudulent or negligent failure of the employer to file a claim for workmen's compensation, where the employer agreed to file the claim for the employee, and where the claim was later filed by the employee and denied by the Industrial Commission because the statutory period of time within which the claim could be filed had expired?
There is no doubt that under the laws of this state a claim for workmen's compensation must be filed within two years after an injury or death or such claim shall be forever barred. Section 1465-72 a, General Code (Section 4123.84, Revised Code); State, ex rel. Carr, v. Industrial Commission, 130 Ohio St. 185, 198 N.E. 480; State, ex rel. Goodenough, v. Industrial Commission, 132 Ohio St. 218, 6 N.E.2d 755.
Similarly, there is no doubt that an employer who complies with the Workmen's Compensation Act shall not be liable to respond in damages at common law or by statute for any injury, disease or death of an employee occurring during the period of compliance by the employer. Section 1465-70, General Code (Section 4123.74, Revised Code).
It is the connention of plaintiff, however, that his petition does not attempt to state a cause of action for any injury or disease resulting from his employment, but rather it states a common-law cause of action for deceit (or negligence), which deceit resulted in his failure to receive compensation for his injury.
Deceit is, of course, a species of fraud. To maintain an action for damages for deceit certain elements must be present. There must be (1) an actual or implied false representation or concealment (2) of a material fact (3) with knowledge of its falsity (4) made with the intent to mislead another into relying upon it and (5) followed by actual reliance thereon by such other person having the right to so rely (6) with injury resulting to such person because of such reliance.
A study of the petition in this case, the facts in which for the purpose of the demurrer herein must be taken as true, reveals the allegation of all the elements of an action for deceit. And, unless such action is barred by the Workmen's Compensation Act, the petition states a cause of action.
Section 35, Article II, Ohio Constitution, as amended January 1, 1924, provides in part as follows:
"Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease."
This court has stated on many occasions the purpose of this provision of the Constitution and the statutes enacted pursuant thereto. In Zajachuck v. Willard Storage Battery Co., 106 Ohio St. 538, 140 N.E. 405, it is said:
"In its scheme of compensatory legislation, and acting within its constitutional power, that of taking away rights of action, the Legislature did pass a comprehensive law granting to those employers complying with the workmen's compensation law complete immunity for any `injury or death' occurring during the period covered by the premium paid."
Similar expressions may be found in State, ex rel. Engle, v. Industrial Commission, 142 Ohio St. 425, 52 N.E.2d 743, and Mabley Carew Co. v. Lee, a Minor, 129 Ohio St. 69, 193 N.E. 745, 100 A.L.R., 511.
There can be no doubt of the intention of the people in approving Section 35, Article II of the Constitution, or of the Legislature in enacting Section 1465-70, General Code, and other sections of the Workmen's Compensation Act, pursuant to the Constitution. The intention was to relieve a complying employer from any liability, either at common law or by statute, for the death, injury or occupational disease suffered by an employee in the course of and arising out of his employment. Plaintiff had a direct remedy for compensation for his injury under the act. It was his duty to see that the requisite application was properly filed within the statutory period of limitation. Had he done so we may assume he would still be receiving compensation.
By promising gratuitously to do what the plaintiff should have done for himself, the defendant incurred no legal obligation either to file the claim or to respond in damages for failure to file it. (However, we readily admit that, if the facts in the petition are true, the defendant certainly assumed a moral obligation to see that its injured employee was adequately compensated. And furthermore, if the facts in the petition are true, the Industrial Commission should and probably will revoke the defendant's status as a self-insurer.)
Attempting to sue an employer for deceit is not without precedent. Bevis v. Armco Steel Corp., 86 Ohio App. 525, 93 N.E.2d 33, motion to certify overruled (case No. 32035), was an action for deceit brought against an employer for the concealment of a lung condition that was aggravated by continued employment. It was held that no action at common law, irrespective of the form, is maintainable under the present law.
It is argued by plaintiff that the concurring opinion of Judge Ross in the Bevis case, supra, is authority for maintaining the instant action. Judge Ross said: "I also wish to be understood as excluding from the rule of abrogation a situation where, by reason of the fraud of the employer, the employee is caused to forego his remedy under the Workmen's Compensation Act." This language, standing alone, would be persuasive. Earlier in his opinion, however, Judge Ross said: "In the instant case a cause of action for false representations is stated in part. The difficulty with the case of the plaintiff is that the damages alleged fall within the classification definitely provided for by the Workmen's Compensation Act, and the plaintiff, therefore, fails to allege other damages for which the law-now recognizes a remedy by compensation."
Admittedly, the damages to which plaintiff would be entitled here are the amounts he would have received under the Workmen's Compensation Act. It is our belief that the situation falls within the constitutional and statutory abrogation of employer's liability.
Although the Bevis case is perhaps distinguishable on its facts from the instant case, the careful analysis of the constitutional and statutory provisions made by Judge Taft in Bevis v. Armco Steel Corp., 156 Ohio St. 295, 102 N.E.2d 444, is persuasive.
Since the open liability of employers has been abolished and since plaintiff's claim was not filed within the statutory period of limitation, the demurrer of the defendant was properly sustained.
The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS and TAFT, JJ., concur.
STEWART, J., concurs in the syllabus but dissents from the judgment.
HART and ZIMMERMAN, JJ., dissent.
In my opinion the cause of action here asserted has nothing to do with liability of the employer under the Workmen's Compensation Act. If a lawyer had undertaken to prosecute the plaintiff's claim and the lawyer had failed to file the claim until after the expiration of the period prescribed by the statute of limitations, he would be liable to the plaintiff for negligence as in an action for malpractice. Here, the defendant having undertaken to prosecute the plaintiff's claim and having failed to fulfill that obligation, it becomes liable for breach of that contract, and plaintiff has a right of action for that breach to recover at least nominal damages.
My answer to the question stated in the first paragraph in the majority opinion is in the affirmative. I adhere to the position taken in my dissenting opinion in the case of Mabley Carew Co. v. Lee, a Minor, 129 Ohio St. 69, 76, 193 N.E. 745, 100 A.L.R., 511, that where an employee sustains an injury through the negligence or misconduct of his employer, which is clearly outside the scope of the Workmen's Compensation Act, he may maintain an action against his employer to recover damages therefor. See, also, Triff, Admx., v. National Bronze Aluminum Foundry Co., 135 Ohio St. 191, 20 N.E.2d 232, 121 A.L.R., 1131, and Weil, Admx., v. Taxicabs of Cincinnati, Inc., 139 Ohio St. 198, 39 N.E.2d 148.