Summary
In Reeves v. Flowers, supra, the Supreme Court held that an order granting the parents of a deceased worker $3000 pursuant to the statutory presumption of dependency under R.C. 4123.59 but denying further benefits was a decision as to the extent of disability and not appealable because the parents were granted the right to participate by the $3000 award and the order denying further benefits concerned the extent of their participation, i.e., how much they would receive.
Summary of this case from Boston v. DaughertyOpinion
No. 70-473
Decided June 30, 1971.
Workmen's compensation — Appeal to Common Pleas Court — Industrial Commission finding of no actual partial dependency — Minimum award for "presumed dependency" granted — Claimant's right to participate in fund established — No denial of compensation — Order not appealable — R.C. 4123.519.
Where an order of the Industrial Commission finds that a decedent's parents "were not actual partial dependents at the time of his death," but holds "that their dependency did not exceed the $3,000 * * * awarded them for presumed dependency" by the administrator, and affirms the award made by the administrator, such order, by establishing a claimant's right to participate in the Workman's Compensation Fund, does not constitute a denial of a claim "going to the basis of claimant's right" and, therefore, is not appealable to the Court of Common Pleas under the provisions of R.C. 4123.519.
APPEAL from the Court of Appeals for Athens County.
In 1967, Gerry W. Reeves was killed accidentally while in the course of his employment. At the time of his death, Reeves resided with his parents, plaintiff-appellants, Willard and Marian Reeves.
Appellants filed a claim for death benefits with the Administrator of the Bureau of Workmen's Compensation. The administrator found appellants to be presumptively dependent upon their son at the time of his death and allowed them the $3,000 award provided for in R.C. 4123.59.
An appeal was taken to the Regional Board of Review, which board modified the administrator's order, finding that "the parents, Willard and Marian Reeves were actual partial dependents of decedent at time of his death."
Upon further appeal to the Industrial Commission, that body made the following order:
"The commission further finds from proof of record that decedent's parents Willard Reeves and Marian Reeves were not actual partial dependents at the time of his death and that their dependency did not exceed the $3,000 heretofore awarded to them for presumed dependency. It is therefore ordered that the finding and order of the Columbus Regional Board of Review dated October 31, 1968 be vacated; that the finding and order of the deputy administrator dated August 6, 1968 be reinstated and affirmed; that the appeal filed by decedent's parents be denied; that the administrator's appeal be granted to the extent of this order."
Appellants then sought review in the Court of Common Pleas by filing a petition therein in which it was alleged that decedent, at the time of his death, "was making substantial contribution" to the support of his parents. Appellants stated that the order of the Industrial Commission "was a final order denying them the right to participate in the Workmen's Compensation Fund to the extent to which they are entitled." The prayer was for "the right to participate in the Workmen's Compensation Fund" and for a jury trial.
The administrator filed a demurrer to the petition on the grounds that it did not state a cause of action and the court lacked jurisdiction of the subject matter. The Court of Common Pleas overruled the demurrer, defendants elected not to plead further, and judgment was entered in favor of claimants.
An appeal was filed in the Court of Appeals. That court reversed the judgment finding "that the order of the Industrial Commission, which was appealed by the plaintiff was not a decision other than a decision to the extent of disability and that the extent of participation in the Workmen's Compensation Fund was solely within the discretion of the Industrial Commission and that the Common Pleas Court was without jurisdiction over the subject matter of this cause of action."
The cause is now before this court following the allowance of a motion to certify the record.
Messrs. Rowland, Bridgewater Robe and Mr. Erle Bridgewater, Jr., for appellants.
Mr. William J. Brown, attorney general, Mr. R. Patrick Baughman and Mr. William M. Culbert, for appelle Administrator of the Bureau of Workmen's Compensation.
The question presented in this appeal is whether the order of the Industrial Commission, finding that decedent's parents "were not actual partial dependents at the time of his death and that their dependency did not exceed the $3,000 * * * awarded to them for presumed dependency" pursuant to R.C. 4123.59, is appealable to the Court of Common Pleas under the provisions of R.C. 4123.519.
R.C. 4123.519 provides, in pertinent part:
"The claimant or the employer may appeal a decision of the Industrial Commission in any injury case, other than a decision as to the extent of disability, to the Court of Common Pleas * * *.
"* * *
"* * * The court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of the claimant to participate or to continue to participate in the fund upon the evidence adduced at the hearing of such action."
In discussing the "extent of disability" language contained in R.C. 4123.59 in State, ex rel. Mansour, v. Indus. Comm. (1969), 19 Ohio St.2d 94, the court, said at pages 98 and 99:
"In Carpenter v. Scanlon, 168 Ohio St. 139, it was argued that a finding that `the arthritic condition is not related to [the] injury' was not appealable under Section 4123.519. The court stated:
"`The finding of the administrator that "the claimant's generalized arthritic involvement is not related to or the result of the injury in this claim, and, therefore, payment of compensation or for medical services for the treatment of said condition is not authorized," is clearly not "a decision as to the extent of disability" but rather a finding that the arthritic condition of claimant was not a disability resulting from the injury — an absolute denial of the claim on a jurisdictional ground going to the basis of claimant's right. From such a decision an appeal is authorized by the above-quoted provision of the Code.' (Emphasis supplied.)
"The emphasized language provides another guideline for identification of the scope of the `extent of disability' as used in the statute, i. e., a denial that is absolute going to the basis of claimant's right. If this kind of a denial has not been made by the Industrial Commission, it follows that the appeal would be unavailable."
Thus, it is an order constituting a "denial that is absolute going to the basis of claimant's right" that is appealable. It must be noted also that, as expressed in paragraph two of the syllabus in Brecount v. Procter Gamble Co. (1957)), 166 Ohio St. 477 :
"In the event plaintiff's right to participate is established * * * the Industrial Commission has exclusive jurisdiction to determine, under the Workmen's Compensation Act, the extent of such participation."
Since it is a "denial that is absolute going to the basis of claimant's right" that is appealable, we must examine the statutes and the commission's order to determine if there has been such an absolute denial of rights here which would support an appeal by appellants.
R.C. 4123.59 provides that the award to a partly dependent person shall be a percentage of the employee's average weekly wage which "shall continue for such time as the Industrial Commission in each case determines * * *."
As to parents, R.C. 4123.59 states:
"It shall be presumed that there is sufficient dependency to entitle a surviving natural parent or surviving natural parents * * * with whom the decedent was living at the time of his death, to a total minimum award of three thousand dollars."
The commission's order found claimants not to be "partial dependents." However, it also found that claimants' "dependency did not exceed the $3,000 heretofore awarded to them for presumed dependency," and ordered the finding and order of the administrator reinstated and affirmed. Thus, although the commission found claimants not to be "partial dependents," it nonetheless awarded $3,000 to claimants on the basis of "dependency." By allowing appellants to participate in the Workmen's Compensation Fund, the commission recognized appellants' claim. Consequently, there has been no denial of that claim "going to the basis of claimant's right."
Inasmuch as claimants' right to participate in the Workmen's Compensation Fund has been established, and the commission has exclusive jurisdiction to determine the extent of the participation therein, the order of the Industrial Commission is not appealable to the Court of Common Pleas under R.C. 4123.519.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ, concur.