# Gregory v. Flowers

> Ohio Supreme Court · November 29, 1972 · 32 Ohio St. 2d 48

URL: https://www.frixlaw.com/law-library/cases/6754979

## Case

- **Full name:** Gregory v. Flowers, Administrator, Bureau of Workmen's Compensation
- **Court:** Ohio Supreme Court
- **Decided:** November 29, 1972
- **Citations:** 32 Ohio St. 2d 48; 61 Ohio Op. 2d 295; 290 N.E.2d 181; 1972 Ohio LEXIS 358
- **Precedential status:** Published
- **Opinion:** Concurrence by Leach
- **Judges:** Brown, Corrigan, Herbert, Leach, Neill, Schneider, Stern
- **Cited by:** 96 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6754979

## Opinion text

Leach, J.,
concurring in judgment. Here, as contrasted with Cochran v. Flowers, post, 32 Ohio St. 2d 61 , and with Payne v. Keller (1969), 18 Ohio App. 2d 66 (affirmed by this court without opinion, October 1, 1969), the application for modification was filed subsequent to the amendment of R. C. 4123.84, effective December 11, 1967.
I agree that under the holdings of Kittle v. Keller (1967), 9 Ohio St. 2d 177 , and Payne, supra, the right to a possible increase in compensation is a substantive right, subject to the provisions of Section 28, Article II of the Ohio Constitution prohibiting the enactment of “retroactive laws.”
A statute of limitations limiting the time for the assertion of such substantive right to a judicial or quasi-judicial tribunal, however, concerns procedure. In my opinion, such a procedural right is subject to the provisions of Section 28, Article II of the Ohio Constitution, only to the extent that any reduction in the time within which such a substantive right may be asserted must allow a reasonable time for such assertion after the effective date of the change of the law..
Here, the amendment of R. C. 4123.84, effective December 11, 1967, as applied to the facts in this case, would have terminated appellee’s right to assert a claim for injury to his lower back as of January 1961, a date long since passed. Even if this court were to hold that the *60 amendment is effective only as to applications filed on and after December 11, 1967 (a holding which would appear to be in conformity with that of Payne), such an interpretation would result in the complete destruction of appellee’s substantive right herein as of December 11, 1967, without according him any reasonable period of time after the effective date of the new law for the assertion of his existing substantive right. It is upon this basis that I concur in the judgment herein.
I regret, however, that I am unable to ascertain from the opinion of the majority whether its holding herein is limited to cases where the existing substantive right is, in effect, abolished, without a reasonable opportunity for filing a claim therefor after the effective date of the change ; or whether the court is holding that any reduction of a ten-year statute of limitations, as it existed at the time of injury, is unconstitutional. If the latter be the effect of the court’s holding, I am in strong disagreement.
Moreover, I must concede that even under my reasoning we are required to modify the holding of this court in Smith v. New York Central Rd. Co. (1930), 122 Ohio St. 45, 51 . While the court stated that “the Legislature is free to act in remedial legislation, subject only to the requirement that any change which may possibly affect vested rights should give a reasonable time within which to enforce such rights,” the court therein held that the time lapse of 90 days between the date of passage of the amended law and its effective date was sufficient to comply with such a requirement. I would hold that amendatory legislation of this nature, relating to procedure, must accord a reasonable time after the effective date of the amendment, for the assertion of existing substantive or vested rights.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6754979. Public record. Not legal advice.