I generally agree with the conclusion expressed by the majority, but not some of its reasoning. In essence, it concludes that appellant's C-1 and C-86 applications, the latter one for an additional condition and disability compensation filed on October 16 and December 13, 1991, respectively, were timely, and adequate notice had been presented to the Bureau of Workers' Compensation by virtue of the communications exchanged between appellant and the Bureau between September 2 or 3, 1991, and September 16, 1991, regarding what I believe is more precisely characterized as an additional condition to his L4-5 vertebrae. Parenthetically, appellant's counsel appears to have filed the foregoing dual motions as a procedural safeguard; however, the C-86 motion was clearly the only relevant and appropriate request based on the underlying facts in this case. It is my position that embellishment with respect to this analysis is most appropriate.

Again, I share the view expressed by the majority that denying consideration of appellant's additional condition and the right to further participate for this injury under the act, based upon an untimely filing position, as espoused by the Industrial Commission and the trial court, would clearly defeat the legislative intent and purpose of the statutory law in this area.

Relying on the record in this case, it is evident, and unequivocally manifested, that the requested disability benefits flow from an independent and a clearly established additional condition which was timely communicated. It is also clear here that appellant's application for temporary total benefits stem independently from the additional condition, and not from the original underlying condition. It follows that the appellant's C-1 and C-86 applications for an additional condition and disability compensation filed on October 16 and December 13, 1991, respectively, are predicated on appellant's physician's post-operative report which was issued soon after September 6, 1991.

Thus, under the applicable workers' compensation law, no order from the Industrial Commission to process this claim is required until there is a determination with respect to the merits of the additional condition advanced here. It is this writer's understanding that the Industrial Commission's ability to process a claim, such as the one advanced here under appellant's C-86 motion for temporary total benefits, is non-existent until the requested additional condition is properly allowed.

Again, my impression of the record before us is that the injury claimed here now is more correctly described as an additional condition to the same body part that was initially diagnosed during the surgery performed on September 6, 1991, as a result of the complaints of appellant which occurred on August 30, 1991.

Whether the surgery was one prompted by an "emergency situation," or a required set of circumstances; or whether the injury was an additional condition or a flow-through one simply does not control the outcome here because, under the facts of this case, the result would be the same since the date of the approval of the surgery in question, namely September 4, 1991, should be viewed to be timely under either characterization of the injury in question. The claim would, thus, not be time barred under the pertinent statute.

Further, this writer agrees entirely with the majority's conclusion to cause the reversal of this case and its remand to the trial court with appropriate instructions to have that court properly review the additional condition claim on its merits. This analysis results because the matter was in the trial court on a trial de novo basis before the appeal to this court obtained. See R.C. 4123.512 and its applicable predecessor. Thus, this type of mandate appears cogently logical before any subsequent administrative involvement occurs. _________________________________ PRESIDING JUDGE DONALD R. FORD

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] ACCELERATED

Sometime later, Steele developed an additional condition in his back that required surgery. Steele's physician contacted the Bureau of Worker's Compensation ("the Bureau") requesting authorization for a lumbar laminectomy/diskectomy of the L4-5 vertebrae and four days of hospitalization.

On Wednesday, September 4, 1991, the Bureau sent Steele a letter authorizing the requested treatment and hospital stay.

Steele underwent back surgery on Friday, September 6, 1991. Apparently, he stayed in the hospital for six days, not four as was originally predicted. Someone contacted the Bureau again regarding the additional two days, and on September 16, 1991, the Bureau sent another letter authorizing six days of hospitalization. The Bureau has paid the medical expenses associated with the surgery and hospitalization.

On October 16, 1991, a little more than one month after being discharged from the hospital, Steele filed a C-1 application, under his original 1985 claim number, generally requesting payment of disability benefits. He also filed a C-86 motion on December 13, 1991, specifically requesting that his 1985 claim be amended to include "herniated disc L4-5" as a recognized condition and asking for temporary total disability from August 30, 1991, "to the present and continuing." Attached to the C-86 was a C-84 report from Steele's physician stating that Steele "is recovering post-operatively from surgery performed on 9/6/91" and that he has "[s]oreness in his back." The doctor estimated that Steele would be able to return to his job as a truck driver on or about December 30, 1991.

The District Hearing Officer ("DHO") held that she had no jurisdiction to amend the 1985 claim because R.C. 4123.52 prohibits the Commission from modifying its prior orders more than six years after the date of the original work-related injury. According to R.C. 4123.52, that period expired on October 4, 1991. Steele filed his C-1 and/or C-86 applications for disability compensation on October 16 and December 12, respectively. By the DHO's reckoning, Steele was at best twelve days too late. The Regional Board of Review affirmed, and the Commission refused further appeal.

Steele appealed to the Trumbull County Court of Common Pleas, which granted summary judgment in favor of the Bureau and the Commission. Steele appealed again, and his single assignment of error states:

"The trial court erred in granting defendant-appellee's motion for summary judgment for the reason that such ruling is a misapplication of the law to the facts of this case."

We agree.

It must be remembered that the worker's compensation statutes must be liberally construed in the claimant's favor. R.C.4123.95.

R.C. 4123.84, the statutory provision regarding the initial two-year period for filing applications for compensation, is analogous to R.C. 4123.52. The former statute's purpose "`is to enable the employers to protect themselves by prompt investigation of the injuries. It is primarily a notice requirement.'"Mewhorter v. Ex-Cell-O Corp. (1986), 23 Ohio St.3d 13, 14, quoting Nackley, The Initial Filing Period in Ohio Worker's Compensation Law (1980), 7 N.Ky.L.Rev. 33, 34.

In Laas v. Young (1962), 1116 Ohio App. 137, the claimant filed a notice with the Commission reciting injuries to her left arm and elbow, to the left eye area, and to her left knee. Her back was also injured, but she did not include this injury in her written notice. The self-insured employer, however, knew about the back injury and paid her medical expenses relating to it. The claimant argued that payment was also for disability compensation. The trial court rejected the claimant's petition for additional disability compensation for the injury to her back because she had not filed written notice of that injury within two years as was required by G.C. 1465-72a, the predecessor to R.C. 4123.84. The appellate court reversed, holding, in effect, that notice to the Commission was immaterial since the employer knew about the back injury and had paid the claimant's medical expenses.

In Sechler v. Krouse (1978), 56 Ohio St.2d 185, 189-190, the Supreme Court stated:

"R.C. 4123.52 must be read in conjunction with R.C. 4123.84. The latter section provides, in pertinent part, that a claimant must file written notice with the commission or bureau within two years after the injury or death concerning the specific part or parts of the body so injured. The section provides further that the commission has continuing jurisdiction pursuant to R.C. 4123.52 over a claim meeting the two-year filing requirement.

"Once a claim has been timely filed pursuant to R.C. 4123.84, `(i)t is incumbent upon a claimant to timely invoke the continuing jurisdiction granted to the commission by R.C. 4123.52 for additional compensation * * *.' Rummel v. Flowers (1972), 28 Ohio St.2d 230, 236, * * *; see State ex rel. Clark v. Krouse (1977), 52 Ohio St.2d 201, 205, * * *. Failure to file an application for modification of an award within the prescribed time period results in the loss of the substantive right for additional benefits. State ex rel. Hammond v. Indus. Comm. (1945), 144 Ohio St. 477, 480, * * *. Thus, it is apparent that the time limitations with respect to the continuing jurisdiction of the commission contained in R.C. 4123.52 operate as a statute of limitations for claimants seeking change or modification of their previously awarded benefits, see Kittle v. Keller (1967), 9 Ohio St.2d 177 * * *; Gregory v. Flowers (1972), 32 Ohio St.2d 48, * * * and not as specific eligibility requirements for benefits."

If the two-year limitation period in R.C. 4123.84 serves as notice of an original injury, the six-year limitation period in R.C. 4123.52 likewise serves as notice of an additional condition that is related to the original injury.

In this case, written notice within the six-year period would have been redundant, since the Bureau was informed that Steele developed an additional condition, that he was in need of medical attention, and that he would be incapacitated for at least six days. The two letters from the Bureau serve as evidence that it was properly notified. Furthermore, it does not appear from the record that Steele was dilatory in his duty to formally file the paperwork, as he did so within a few weeks of his surgery.

It would also violate the spirit of the worker's compensation system to narrowly construe and apply R.C. 4213.52 in a draconian manner to defeat on purely technical grounds what may be an otherwise meritorious claim. In Roma v. Indus. Comm. of Ohio (1918), 97 Ohio St. 247, the Commission denied the claimant's petition for compensation and sent notice to the claimant's attorney. At that time, however, the claimant and his attorney were embroiled in a dispute, and the attorney did not relay the notice of the denial of compensation in a timely fashion. Additionally, the claimant was an immigrant with limited command of English. When he discovered his petition had been denied, the claimant filed a notice of appeal twenty-eight days later, almost three months after the Commission had entered its order. The employer argued he was too late because the Worker's Compensation Act required the notice to have been filed within thirty days of the date of the order. The Supreme Court interpreted the deadline as running not from when the Commission filed its order, but, on these facts, from the date the claimant actually received it.

"A strict application of [the 30 day] rule would undoubtedly defeat the right of the plaintiff in error to recover; but in view of the peculiar circumstances which the record discloses, and the feeling which abides within this court that the remedies provided in the Workmen's Compensation Act for the benefit of injured parties should be construed and interpreted with the utmost liberality, we are constrained to hold that the appeal was filed in time.

"* * *

"To defeat the right of this claimant under these circumstances, otherwise than on the merits of the controversy, would be entirely out of accord with the principles and objects sought to be attained by the Workmen's Compensation Act." Id. at 250, 252.

Denying consideration of Steele's disability claim on the ground that, technically, his filing was untimely would likewise defeat the underlying purpose of the law to allow compensation for legitimate work-related injuries. By authorizing debilitating back surgery and six days of hospitalization, and by paying the associated medical expenses, all within the six-year limitation period, the Bureau accepted jurisdiction over the additional condition. To afford Steele the opportunity to be fully compensated, the Bureau must now consider his claim for disability caused by the surgery.

The judgment is reversed and the cause is remanded to the trial court for further proceedings on Steele's applications for disability benefits. ______________________________ JUDGE ROBERT A. NADER

FORD, P.J., concurs with concurring opinion,

CHRISTLEY, J., dissents with dissenting opinion.

I must respectfully dissent from the opinion of the majority for the following reasons.

Before turning to the merits of the assigned error, I will briefly recite those facts that are uncontroverted and demonstrated by the record. Ordinarily, it is not necessary to restate the facts of a case in a dissenting opinion, but I believe that this appeal turns on the specific dates of certain actions.

On October 4, 1985, appellant injured his lower back during the course of his employment at a motor freight company. Following this, he filed a claim with the Bureau of Workers' Compensation ("the Bureau"). The Bureau ultimately allowed payment on the claim for dislocated sacrum, hip, and lumbar vertebrae, lumbosacral sprain, lumbago, lumbar disc displacement, and lumbosacral degenerative disc disease. Although appellant received payment for medical bills relating to these injuries, he neither requested nor received any disability compensation.

Almost six years later, appellant sought authorization from the Bureau for back surgery and accompanying hospitalization. In a letter dated September 4, 1991, the Bureau authorized appellant to undergo the surgical procedure with an admission date of September 6, 1991 and a length of stay in the hospital of four days. Appellant then underwent the surgery. Thereafter, in a letter dated September 16, 1991, the Bureau amended its prior authorization to allow six days of hospitalization following the surgery. The Bureau paid the medical and hospitalization expenses associated with the back surgery.

On October 16, 1991, appellant filed a C-1 application with the Bureau. A C-1 application can be used to apply for both medical benefits and lost time compensation. Appellant's C-1 filing, however, was nonspecific as to what he was applying for. Appellant subsequently filed a C-86 motion with the Bureau on December 13, 1991 requesting that his original claim be amended to include an additional allowance for "herniated disc L4-5" and that he be paid temporary total disability compensation retroactive to August 30, 1991. The purpose of the temporary total disability compensation was to compensate appellant for wages lost while he recuperated from the back surgery.

The matter was referred to a district hearing officer of the Industrial Commission ("the Commission") who determined that she had no jurisdiction under R.C. 4123.52 to adjudicate either the C-1 application or the C-86 motion. The lack of jurisdiction was based on the fact that appellant received no disability compensation or wages in lieu of compensation during the six-year period from the date of the injury on October 4, 1985 through October 4, 1991. A regional board of review affirmed the district hearing officer's order in all respects. Finally, in an order dated July 17, 1992, the Commission refused the appeal.

Appellant instituted an administrative appeal in the Trumbull County Court of Common Pleas. Appellant and appellees stipulated to the facts underlying the appeal. The only issue before the common pleas court, therefore, was a question of law concerning whether the Commission had jurisdiction to adjudicate appellant's request for disability compensation.

On July 23, 1997, the common pleas court granted summary judgment for appellees. In doing so, the court concluded that appellant's request for temporary total disability compensation was filed after the six-year statute of limitations governing his original claim expired on October 4, 1991. From this decision, appellant filed a timely appeal with this court.

For purposes of this appeal, the relevant version of R.C.4123.52 read in part as follows:

"The jurisdiction of the industrial commission over each case shall be continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion[,] is justified. No modification or change nor any finding or award in respect of any claim shall be made with respect to disability, compensation, dependency, or benefits, after six years from the date of injury in the absence of the payment of compensation for total disability under section 4123.56 of the Revised Code, or wages in lieu of compensation in a manner so as to satisfy the requirements of section 4123.84 of the Revised Code, except in cases where compensation has been paid under section 4123.56, 4123.57, or 4123.58 of the Revised Code, then ten years from the date of the last payment of compensation * * *."

R.C. 4123.52 establishes the Commission's continuing jurisdiction over a given claim. In order to be entitled to additional compensation for a previously allowed claim, a claimant must timely invoke the continuing jurisdiction of the Commission.

The various time periods set forth in R.C. 4123.52 operate as statutes of limitations. The failure to apply for modification of an award within the prescribed time period causes the claimant to lose any right to receive additional benefits. In other words, once the applicable time period has expired, the Commission lacks the authority to make any further finding, award, or order with respect to a claim.

Under the version of R.C. 4123.52 applicable to the instant case, the Commission could exercise continuing jurisdiction over a given claim for six years, unless the claimant received compensation under R.C. 4123.56, 4123.57, or 4123.58, or wages in lieu of compensation under R.C. 4123.84. If the claimant received disability compensation or wages in lieu of compensation, then the six-year statute of limitations was tolled, and the Commission retained continuing jurisdiction over the claim for ten years from the date of the last payment of compensation.

Thus, the Commission had continuing jurisdiction over a medical-expense-only claim for six years commencing from the date of injury. The only way to toll the statute of limitations was for the claimant to have received compensation under R.C. 4123.56,4123.57, or 4123.58, or wages in lieu of compensation under R.C.4123.84 within the six-year period following the allowance of the original claim.

In the case sub judice, the date of appellant's injury was October 4, 1985. As a result, the six-year statute of limitations expired on October 4, 1991 unless appellant properly invoked the continuing jurisdiction of the Commission as mandated by R.C.4123.52. It is uncontroverted that appellant never received disability compensation or wages in lieu of compensation during this six-year interval. Appellant conceded as much before both the common pleas court and this court.

The question that arises is whether appellant made an application for temporary total disability compensation by October 4, 1991. No formal application was initiated until October 16, 1991. Nevertheless, appellant argues that he made an informal application for disability benefits in September 1991.

Specifically, appellant maintains that he was, in effect, applying for disability benefits when he sought authorization from the Bureau for the back surgery and ensuing hospitalization. According to appellant, this action met the requirement of an application under R.C. 4123.52. Appellant further contends that once the Bureau authorized the surgical procedure and six-day hospital stay, it was implicitly acknowledging that appellant would be disabled for a period of time, thereby entitling him to temporary total disability compensation.

Appellant cites State ex rel. Gen. Refractories Co. v. Indus.Comm. (1989), 44 Ohio St.3d 82, as lending credence to the position that his contact with the Bureau regarding authorization for the surgical procedure constituted an application for disability compensation under R.C. 4123.52. In Gen. Refractories, the claimant's attending physician submitted a medical report to the claimant's self-insured employer on March 23, 1982. The report indicated that a necrotic condition had arisen from the claimant's industrial injury which would prevent him from returning to work until at least May 3, 1982. The employer responded on May 4, 1982 with a letter stating that it was unable to pay temporary total disability compensation since necrosis was a nonallowed condition.

On June 23, 1983, the claimant filed a motion with the Commission asking it to allow the condition. The condition was ultimately recognized, and the claim was allowed. Thereafter, on May 15, 1985, the claimant filed another motion with the Commission requesting that he be awarded temporary total disability compensation for the period from March 16, 1982 through August 15, 1985. The employer opposed the motion on the ground that the two-year statute of limitations in R.C. 4123.52 limited the claimant to compensation for a back period of two years running from May 15, 1983 to May 15, 1985. The Commission, however, allowed compensation extending back to March 16, 1982 by construing the claimant's June 23, 1983 application for the allowance of the additional condition as an application for disability compensation.

On appeal, the Supreme Court upheld that decision. In doing so, the court observed:

"R.C. 4123.52 does not state how an application for compensation must be made. The fact that the application in question did not expressly request compensation is not conclusive of whether it was for compensation. The character of the application is to be determined not only from its contents, but also from the nature of the relief sought and how the parties treated the application." (Citation omitted.) Gen. Refractories, 44 Ohio St.3d at 83.

The facts giving rise to the court's holding in Gen.Refractories, however, are clearly distinguishable from the facts at bar. The most significant aspect of Gen. Refractories was the employer's May 4, 1982 letter stating that it was unable to pay temporary total disability compensation to the claimant because necrosis was not an allowed condition. The employer clearly perceived the claimant's submission of his physician's report as a request for disability compensation; otherwise, it would not have notified the claimant that he was not eligible for such benefits.

In the case sub judice, there are no analogous facts to indicate that the Bureau considered appellant's request for surgical authorization to include a request for disability compensation. Indeed, the two letters from the Bureau to appellant in September 1991 included the following language:

"The Ohio Bureau of Workers' Compensation reviewed your physician's request for hospitalization based on the medical information provided. This review considers the relationship of the admission to the allowance(s) in your industrial claim and the medical necessity of the admission.

"Based on this review, approval is granted * * *. Please be advised that this approval is limited to the procedure and length of stay listed." (Emphasis added.)

This language only manifests a clear intent on the part of the Bureau to authorize the payment of medical expenses associated with the surgical procedure. It does not indicate any acknowledgment by the Bureau that appellant was also applying for disability compensation.

In State ex rel. Ford Motor Co. v. Indus. Comm. (1992), 65 Ohio St.3d 17, the Supreme Court of Ohio considered whether the appellant's motion for the allowance of an additional condition should be construed as an R.C. 4123.52 application for disability compensation, thereby permitting the payment of benefits for the period in question. The court rejected such an interpretation and, in doing so, made the following observations regarding the limited holding of Gen. Refractories:

"Appellant argues that Gen. Refractories is indistinguishable from this case. We disagree. Gen. Refractories is based on the perception that the employer, despite the lack of a direct request for temporary total disability compensation, knew that the claimant was seeking compensation as well as an additional allowance. While this conclusion was supported in Gen. Refractories, in this case it is not.

"Most significant in Gen. Refractories was the employer's May 4, 1982 letter denying temporary total disability compensation. The employer obviously perceived claimant's March 23, 1982 letter as a compensation request or it would not have responded as it did. Here, Ford gave no indication that it considered claimant's application for allowance of an additional condition to include a request for compensation." Ford Motor, 65 Ohio St.3d at 20.

I agree with appellant that R.C. 4123.52 does not expressly state how an application for compensation must be made. In light of Gen. Refractories and Ford Motor, however, it is clear that the Supreme Court of Ohio has set forth the precedent mandating that a request should be characterized by the nature of the relief sought and the manner in which the parties treated the request.

As for the nature of the relief sought in the present case, there is nothing in the record to suggest that appellant was seeking temporary total disability compensation when he contacted the Bureau in September 1991. Rather, appellant only sought the approval of the Bureau to undergo the back surgery. Moreover, there is nothing to indicate that either of the parties treated the September 1991 correspondence as an application for disability benefits. Rather, these letters reflect the fact that the Bureau was only authorizing the payment of those medical expenses associated with the surgery and hospitalization. There is nothing in these documents to suggest that the Bureau was acknowledging any broader request beyond the receipt of an application for disability benefits.

Although R.C. 4123.95 requires this court to construe R.C.4123.52 liberally in appellant's favor, such an expansive construction is not limitless. Ford Motor, 65 Ohio St.3d at 21. In this context, to construe liberally means to interpret clearly established facts in a manner favorable to the claimant; however, a court may not create facts that are not in existence. Even under a liberal construction of R.C. 4123.52, this court is not free to find an intent to apply for disability compensation within the six-year statute of limitations when such intent is not evidenced by the documents in the record.

In this appeal, appellant is effectively asking this court to overlook the fact that he did not file for the allowance of an additional condition and corresponding lost-time compensation until after the statutory period for such filings had elapsed. To do otherwise, according to appellant, would unfairly bar him from receiving temporary total disability compensation for the time he was unable to work following the back surgery.

While such a result may be inequitable from appellant's perspective, this court is bound by the statutory mandate of R.C.4123.52. The failure to file an express application for disability compensation, or a written notice that was treated as such by the Bureau, within the prescribed time period results in the loss of any right to additional benefits.

After October 4, 1991, appellant was time-barred from moving the Bureau to modify its prior award with respect to appellant's original claim arising from the October 4, 1985 workplace injury. Appellant did not file his C-1 application until October 16, 1991. Moreover, it was not until appellant filed his C-86 motion on December 13, 1991 that he specifically requested that his original claim be amended to include an additional allowance for "herniated disc L4-5" and that he be paid temporary total disability compensation.

It is uncontroverted that appellant never received compensation under R.C. 4123.56, 4123.57, or 4123.58, or wages in lieu of compensation under R.C. 4123.84 during the six-year period following the allowance of his original claim. Therefore, appellant's claim was dead by operation of law on October 4, 1991, and the Commission was without continuing jurisdiction to adjudicate appellant's filings after that date.

Upon viewing the evidence in a light most favorable to appellant as the nonmoving party, I conclude that he failed to apply for disability compensation within the time frame allowed under R.C. 4123.52. Appellees, therefore, were entitled to judgment as a matter of law. Accordingly, I would affirm the judgment of the common pleas court. ____________________________ JUDGE JUDITH A. CHRISTLEY