for the purposes of the Ohio retaliatory discharge statute, OHIO REV. CODE ANN. Sec. 4123.90 (Page 1980), a workers’ compensation proceeding for medical expense benefits has been “instituted” if an employer has paid for medical care provided to an injured employee
How later courts described this case
- for the purposes of the Ohio retaliatory discharge statute, OHIO REV. CODE ANN. Sec. 4123.90 (Page 1980), a workers’ compensation proceeding for medical expense benefits has been “instituted” if an employer has paid for medical care provided to an injured employee
Written by the judges who cited it.
The opinion
Clifford F. Brown, J.,
concurring in part. I concur in the judgment and syllabus, and in the rationale of the majority opinion except for the following portion.
At page 144 the opinion states, “Appellant urges a finding that the mere reception of treatment with the employer’s knowledge is sufficient to establish a claim for purposes of R.C. 4123.90.” It concludes that “[reception of treatment is not such an actual pursuit,” to constitute a compensable claim. This conclusion is incorrect. It conflicts with the next paragraph of the opinion which correctly holds, inter alia, that a workers’ compensation claim has been “instituted” or “pursued” against a self-insured employer within R.C. 4123.90 when “(2) the employer agrees to pay or has paid for medical care provided to an injured employee, or (3) the employer receives written notice from an independent health care provider in the form of a bill for medical services rendered to an injured employee on account of his *146 employment-related injury, or (4) the employer becomes similarly involved with the compensation process.”
Holmes, J., dissenting. I must dissent in that the court of appeals appropriately found, under the facts of this case, that a self-insured employer’s provision of medical treatment to an employee is not equivalent to filing a claim, and does not constitute recognition by the employer of a valid workers’ compensation claim already in existence.
The applicable law was set forth in Genheimer v. Clark Grave Vault Co. (1980), 70 Ohio App.2d 65 [ 24 O.O.3d 77 ], a case in which an employee injured his back. The accident was reported, the employee received first aid from the nurse, an accident report was completed, and he subsequently received chiropractic treatment. A few weeks later, plaintiff received a head injury which was immediately reported to the foreman and to the nurse on duty the next day. The company physician sent plaintiff to a hospital for x-rays. Plaintiff signed an application for workers’ compensation benefits, and told the nurse he had filed a claim. He was terminated shortly thereafter, and filed a workers’ compensation claim only after his termination. Despite these steps being taken the court stated:
“* * * [T]he employer had not recognized the claim, prior to plaintiff leaving his employ, by paying benefits. There was only notice of two potential claims and of events preparatory to the filing of claims or the receiving of benefits. R.C. 4123.90 requires, as a minimum, a proceeding.” (Emphasis sic.) Genheimer, supra, at 69 .
It is conceded here that no claim had in fact been filed by the employee, nor was there any specific notice given by the employee to the employer of his intent to file an industrial claim. Under Ohio’s workers’ compensation law, a claim is filed when the Industrial Commission or Bureau of Workers’ Compensation is given written notice of a claimed injury. State, ex rel. Carr, v. Indus. Comm. (1935), 130 Ohio St. 185 [ 4 O.O. 122 ]. The only issue is whether or not he had instituted proceedings under the Workers’ Compensation Act prior to his discharge, and it may not reasonably be asserted that providing medical treatment to an employee is instituting a proceeding because some affirmative action must be taken by the employee in this regard. This court so stated in Bryant v. Dayton Casket Co. (1982), 69 Ohio St. 2d 367 [ 23 O.O.3d 341 ]. In Bryant , this court concluded, in interpreting R.C. 4123.90, that the expression of an intent to pursue a claim for workers’ compensation benefits was not within the class of activities protected by the statute. Id. at 371 . It was noted that, unlike Section 132a of West’s California Labor Code, R.C. 4123.90 created no cause of action for an employee who had made known his intention to file an application. Id. at fn. 2. In utilizing the specific and exclusive words, “filed a claim” and “instituted, pursued or testified in” any proceedings, the General Assembly excluded the interpretation urged by the appellant.
The majority opinion here reaches the hypothetical and the absurd result *147 that where a self-insured employer provides medical treatment to injured employees as required by law, and later fires an employee, an action may be brought against the employer under R.C. 4123.90. Conversely, where the self-insuring employer would terminate the employee rather than provide such medical services, such employer would not be amenable to actions pursuant to this section. Certainly, this is not the intention of the General Assembly.
This court is again legislating and rewriting the pertinent statutes by establishing the syllabus law that the mere providing of medical services to the employee, or the notice that such have been provided by an independent health care provider, constitutes filing a claim or instituting a proceeding within the Industrial Commission. If this is to be done, it remains within the General Assembly’s prerogative to do so.
Accordingly, I would affirm the judgment of the court of appeals.