Opinion
No. 30647
Decided June 19, 1946.
Prohibition — Writ not issued to prevent payment of workmen's compensation — Industrial Commission disallowed death benefits or ground claimant not dependent — Commission later granted award to claimant as common-law wife — Complying employer not necessary or proper party.
IN PROHIBITION.
A concise statement of some of the allegations of the petition filed in this court will present those facts which demonstrate that a writ of prohibition should not issue.
Willard Roland Ihinger died as a result of injuries sustained in the course of his employment by the relator, Jones Motor Sales, Inc., a contributor to the state insurance fund.
Ella A. Ihinger filed an application for death benefits from the workmen's compensation fund, alleging she was decedent's lawful widow and wholly dependent upon him for her support at the time of his death. The Industrial Commission ordered that funeral expenses be allowed and that the dependency claim be disallowed because the proof failed to show that she was either legally or actually dependent upon the decedent at the time of his injury and death.
More than two years thereafter, claimant filed a motion to vacate that order and to grant her death benefits as a dependent of the decedent. The Industrial Commission referred the claim to its Zanesville branch office for the purpose of securing further testimony as to the marital relationship between the decedent and Ella A. Ihinger. After the additional investigation of the claim, an order was made by the commission which dismissed the aforementioned motion, vacated the former order disallowing the dependency claim, found that Ella A. Ihinger was the common-law wife of the decedent and wholly dependent upon him at the time of his death and granted her an award based on a fixed average weekly wage.
The relator prays for a writ prohibiting the Industrial Commission from proceeding to make any payment of benefits on the claim and from taking into consideration any payments which may have been made and will affect the merit rate experience of the relator.
The respondents, as members of the Industrial Commission, filed a demurrer to the petition.
Messrs. Meyer, Johnson Kincaid, for relator.
Mr. Hugh S. Jenkins, attorney general, Mr. C.G.L. Yearick and Mr. Albertus B. Conn, for respondents.
In the case of Copperweld Steel Co. v. Industrial Commission, 142 Ohio St. 439, 52 N.E.2d 735, the plaintiff, an employer complying with the workmen's compensation law, sought from this court a writ prohibiting the Industrial Commission from making payments under orders awarding compensation and from taking into consideration any payments, which had been made thereunder, in the merit or individual rating of the plaintiff's workmen's compensation risk.
In holding the plaintiff's petition demurrable in that case, this court said at pages 443 and 444:
"Counsel for plaintiff do contend that this action is 'in prohibition.' Prohibition is a remedy calculated to keep inferior tribunals from usurping power with which they have not been invested. It must be borne in mind that it is not sought herein to prevent a merit rating of a complying employer as was the case in State, ex rel. Powhatan Mining Co., v. Industrial Commission, 125 Ohio St. 272, 181 N.E. 99, 82 A. L. R., 938, but to control the action of the Industrial Commission with respect to the allowance or disallowance of certain claims. The power to hear claims and award death benefits and compensation for injuries has been expressly conferred upon the commission by Section 1465-90, General Code, and prohibition will not lie to curb the exercise of that power or to prevent the enforcement of a valid award after it has been made upon claims properly before it, as were the claims in the case at bar. * * *
"The complying employer has no direct financial interest in the distribution of the state insurance fund. His interest lies in basic and merit ratings and the amount he is required to pay in premiums. With respect to the subject matter involved in a proceeding upon a claimant's application for compensation under Section 1465-90, General Code, the complying employer's interest is remote. He is neither a necessary nor a proper party to such a proceeding; not being a party he has no right to appeal or review."
Upon the reasoning and authority of that case, the demurrer in the present proceeding is sustained and a writ of prohibition denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.