Opinion
No. 31230
Decided March 2, 1949.
Workmen's compensation — Death from occupational disease — Two-year limitation for making claim for compensation, applicable — Section 1465-68a, General Code — Right not available after amendment changing limitation to eight years — Silicosis — Death claim to be made to self-insurer within six months, when — Section 1465-72b, General Code.
1. Where a death from silicosis occurred more than two years after the last injurious exposure while the two-year limitation in Section 1465-68 a, General Code (118 Ohio Laws, 422), was in effect and no application for compensation was made within the time then prescribed, a right to compensation therefor may not be asserted under the later amendment of Section 1465-68 ( a), General Code (121 Ohio Laws, 661), which changed to eight years the period of time within which a claim for death by silicosis might be made.
2. Where a workman's death is due to injurious exposure to silica dust, application for compensation must be made within six months to the employer in the event such employer has elected to pay compensation direct. If no such application is made within six months from the death, claims for compensation are forever barred. (Section 1465-72 b, General Code.)
IN MANDAMUS.
This is an action in mandamus filed originally in this court to compel respondent Industrial Commission of Ohio to consider and allow a claim of relatrix, hereinafter called relator, against respondent Jones Laughlin Steel Corporation, a self-insuring employer, on account of the death of her husband, Andrew Efford, alleged to having been the result of silicosis contracted in the course of his employment by Jones Laughlin Steel Corporation. Respondent Jones Laughlin Steel Corporation, filed an answer denying that respondent Industrial Commission abused its discretion in denying the claim of relator because:
"(1) No claim was filed by the relator naming Jones Laughlin as the employer in whose employ Efford's last injurious exposure was suffered within six months after the latter's death as required by law, and the claim seasonably filed against Park Drop did not confer upon the Industrial Commission jurisdiction to order payment of benefits in the claim against Jones Laughlin filed after the statutory period of limitation had run.
"(2) At the time Efford suffered his last exposure while employed by Jones Laughlin the workmen's compensation law of Ohio provided that total disability, temporary or permanent, must occur within two years after such exposure to be compensable. That law determines the right of the relator to benefits under the workmen's compensation law and since Efford's disability did not occur within the two-year period neither he nor his dependents had or have any claim for benefits."
The record of the proceedings before the Industrial Commission, together with certain affidavits, were stipulated into evidence here.
The pleadings and evidence disclose that the deceased, Andrew Efford, was employed by Jones Laughlin Steel Corporation in 1934. He continued to work for Jones Laughlin until February 13, 1943. At that time he quit to accept employment with the Park Drop Forge Company where he continued to be employed until 1945.
In July 1945, Efford entered the Cleveland City Hospital where he was confined until his death on January 2, 1946.
On February 25, 1946, the widow filed a claimant's preliminary application with respondent commission in which she sought death benefits and in which application she designated the Park Drop Forge Company as the employer in whose employ her husband had suffered his last injurious exposure to silicon dioxide.
On August 1, 1946 — more than six months after Efford's death — a like application was filed in which the widow stated that her deceased husband's last injurious exposure had occurred during the course of his employment by Jones Laughlin Steel Corporation.
Respondent commission's Cleveland District Board of Claims disallowed the widow's claim against the Park Drop Forge Company on the ground that the deceased had suffered no injurious exposure while, employed by that company. At the same time the Cleveland District Board of Claims allowed the widow's claim against respondent Jones Laughlin Steel Corporation. The Jones Laughlin Steel Corporation filed an application with the respondent Industrial Commission for reconsideration, review and modification. The respondent commission reversed its Cleveland District Board of Claims and entered the following order:
"This day, to wit, September 23, 1947, this claim came on for further consideration by the Industrial Commission of Ohio on the application filed by the employer on April 9, 1947, for reconsideration of the finding of facts and order of the Cleveland District Board of Claims, dated March 12, 1947, and on the briefs and memoranda subsequently filed by both the claimant and the employer, and on all of the proof contained in the file.
"The Industrial Commission of Ohio now, after careful consideration of all of the proof contained in the file, finds that it is without jurisdiction to consider this claim on its merits for the reason that no application for death benefits was filed in this claim with the named employer or with the Industrial Commission of Ohio within the time prescribed by Section 1465-68 a or 1465-72 b of the Ohio General Code.
"It is, therefore, ordered that the previous order of the Cleveland District Board of Claims dated March 12, 1947, allowing this death claim and awarding benefits be vacated and held for naught; that the application for reconsideration heretofore filed by the employer on April 9, 1947, be granted to the extent of this order."
It is relator's claim that the respondent commission abused its discretion and failed to use its discretion. It is contended by relator that inasmuch as the claims against the Jones Laughlin Steel Corporation and the Park Drop Forge Company were considered as placed in the same file by the respondent commission, the claim became one although the employers were two. Relator admits that respondent, Jones Laughlin Steel Corporation was entitled, under the rules of the commission, to receive notice of the claim together with a copy of the proceedings in the claim prior to the hearing but that such failure to receive such notice and copy was due to the fault of respondent commission. The Park Drop Forge Company was a complying employer which had not elected to pay compensation direct.
Messrs, Davis Handelman, for relator.
Mr. Hugh S. Jenkins and Mr. Herbert S. Duffy, attorneys general, Mr. R. Brooke Alloway and Mr. John J. Nolan, for respondent Industrial Commission.
Messrs. Jones, Day, Cockley Reavis, Mr. Thomas M. Harman and Mr. Allen C. Holmes, for respondent Jones Laughlin Steel Corporation.
Our first question here may be phrased thus: Where a statute creates a right in dependents of a workman to compensation for death from silicosis only in the event of such death resulting within two years after the last injurious exposure (118 Ohio Laws, 422), may a statute enacted subsequent to the expiration of the two years from the last injurious exposure and death of the workman create a new right in the dependents for compensation for such original occupational disease-death? Specifically, may the amendment of Section 1465-68( a), General Code, effective October 12, 1945 (121 Ohio Laws, 661), relate back and create a liability against an employer where no liability existed after February 13, 1945?
The second question we have to consider may be phrased: Is an employer, who has elected to pay compensation direct, liable where no application for compensation is made to such employer within six months after death resulting from an occupational disease, as provided in Section 1465-72 b, General Code?
The last injurious exposure of relator's decedent was on February 13, 1943, when he left the employment of the Jones Laughlin Steel Corporation. At that time Section 1465-68 a, General Code (118 Ohio Laws, 422), was in force and provided that compensation should be payable only in the event of death resulting within two years after the last injurious exposure, which fact would have carried the right to claim compensation for such death to February 13, 1945.
Effective October 12, 1945, the General Assembly amended Section 1465-68 a, General Code, by substituting eight years instead of two years. It is the contention of relator based upon paragraph four of the syllabus in the case of Industrial Commission v. Kamrath, 118 Ohio St. 1, 160 N.E. 470, that the right of action in the instant case did not accrue until decedent's death. Paragraph four of the syllabus in the Kamrath case reads:
"The cause of action of a dependent of a killed employee accrues at the time the employee dies from an injury received in the course of his employment." (Italics ours.)
The Kamrath case was not an occupational disease case where the statute creating the liability provided in so many words that compensation should be payable only in the event that death resulted within two years after the last injurious exposure. (118 Ohio Laws, 422.)
Section 1465-72 b, General Code, provides as follows:
"In all cases of occupational disease, or death resulting from occupational disease, claims for compensation shall be forever barred, unless, within four months after the disability due to the disease began, or within six months after death occurred, application shall be made to the Industrial Commission of Ohio, or to the employer in the event such employer has elected to pay compensation direct, except in such cases as are provided for in Section 1465-82, subdivision 4, General Code."
Relator admits that such application was not formally made to respondent Jones Laughlin Steel Corporation within the time limited but seeks to avoid this in two ways: First, by asserting that the claim against respondent Jones Laughlin Steel Corporation was combined in the commission's files with the claim against the Park Drop Forge Company to whom proper notice had been given; and, second, that the failure of the respondent Jones Laughlin Steel Corporation to receive notice was due to the negligence of respondent commission.
In relator's brief it is said:
"Let us understand, first, that we have no dispute with the defendant Jones Laughlin Steel Corporation's contention that they were entitled under the rules of the commission to receive notice of the claim, together with copy of the proceedings in the claim prior to the hearing. The Industrial Commission admits these errors. But does that fact justify the use of its discretion to rectify what may be an injustice to the Jones Laughlin Steel Corporation by slamming the door shut in the face of the claimant by the simple expediency of severing the context of the claim No. 4039-22 [Jones Laughlin] from claim No. 47261 [Park Drop Forge Co.], and thus treat it as a separate and distinct claim?"
After the respondent commission found that it had no jurisdiction, relator attempted to supplement her record by taking depositions.
Without passing upon the question of the materiality of or the right to take and file these depositions, we do find from a search of the record, assuming such depositions to be a part thereof, that the aforesaid finding of respondent commission was justified. In this case there had been two separate claims filed, one against the Park Drop Forge Company and one against respondent Jones Laughlin Steel Corporation. Relator contends that "the claim was one, although of employers there were two." In our opinion this claimed situation does not aid relator's case.
The record clearly discloses that no application was made to respondent, Jones Laughlin Steel Corporation, pursuant to Section 1465-72 b, General Code.
The provisions, of Section 1465-72 b, General Code, are clear, that application claiming compensation in cases of occupational diseases shall be made to the employer in the event that the employer has elected to pay compensation direct.
The record here discloses and we so hold that Efford's dependents had no right of action against respondent Jones Laughlin Steel Corporation, and that the respondent Industrial Commission did not abuse its discretion, and, therefore, the writ of mandamus should be and hereby is denied and relator's petition dismissed.
Petition dismissed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and STEWART, JJ., concur.
I regret that I cannot agree with the conclusions of the court in this case.
The first question is whether this claim is barred by the portion of Section 1465-68( a), General Code, reading:
"Claims of dependents for benefits on account of death from silicosis shall be forever barred unless application therefor shall have been made to the Industrial Commission within six months after death."
Here it appears that the decedent had filed claims with the Industrial Commission prior to his death, naming Jones Laughlin Steel Corporation and the Park Drop Forge Company. These two claims were being processed at the time of decedent's death. Less than two months after decedent's death relatrix, hereinafter referred to as relator, filed a claim with the commission, seeking the death benefits provided by law. This claim designated the Park Drop Forge Company as the employer in whose employment decedent had suffered his last injurious exposure. Thereafter slightly more than six months after decedent's death, on request of the commission, a like application was filed in which relator stated that the last injurious exposure occurred during decedent's employment by Jones Laughlin. It further appears from the files of the Industrial Commission that less than six months after decedent's death an inter-office communication in the commission's Cleveland branch referred to the two claims which the decedent had filed, noted his death and stated that "these two claims will therefore be completed as death claims." There are other documents in the commission's files to substantially the same effect.
Admittedly a death claim was filed with the Industrial Commission within six months of decedent's death. A silicosis claim is not like a claim for an injury. Unlike in a claim caused by injury, it may be difficult to determine which of several employers was responsible. This is recognized in the portion of Section 1465-68( a), General Code, providing that compensation for disability or death from silicosis shall not be payable unless "the employee has been subject to injurious exposure to silica dust * * * in his employment in Ohio preceding his disablement, for periods amounting in all to at least three years, some portion of which shall have been after the effective date of this act," and the portion of that section which states that such compensation shall be paid "only in the event of * * * disability * * * or death."
Obviously there may be several employers involved in such a claim. Here, both claims filed by 'decedent before his death, as well as the death claim filed within two months after his death and designating Park Drop Forge Company as the employer in whose employment decedent suffered his last injurious exposure, would all require the commission to determine whether decedent had suffered an injurious exposure while employed by Jones Laughlin. This is because he had been employed by Park Drop Forge Company for more than two, but less than three, years before his total disability commenced and his previous employment for nine years had been with Jones Laughlin.
The statute does not say that a single employer must be designated as the responsible employer. In my opinion, when a silicosis claim has been filed with the commission, the duty of ascertaining the responsible employers should rest upon the state. See State, ex rel. Thompson, v. Industrial Commission, 121 Ohio St. 17, 166 N.E. 806; Pyle v. Industrial Commission, 139 Ohio St. 644, 41 N.E.2d 857. The mere fact that Jones Laughlin was not designated by the relator as the one in whose employment decedent last suffered an injurious exposure should certainly not affect her rights. In my opinion, since her death claim was filed with the commission in time, an amendment so designating Jones Laughlin should be allowed if such amendment of her claim is necessary. Kaiser v. Industrial Commission, 136 Ohio St. 440, 26 N.E.2d 449. The fact that Jones Laughlin is a self-insurer does not affect the remedy of relator. See Reinholz v. Industrial Commission, 96 Ohio St. 457, 119 N.E. 129.
The opinion of the majority of this court and the second paragraph of the syllabus treat relator's failure to file her claim with Jones Laughlin within six months of decedent's death as a bar thereof by reason of Section 1465-72 b, General Code.
Under the provisions of that section such a claim is barred "unless * * * within six months after death occurred, application shall be made to the Industrial Commission of Ohio, or to the employer in the event such employer has elected to pay compensation direct." (Emphasis added.)
Admittedly an application was made to the Industrial Commission within less than six months. The word "or" indicates that it could have been made to Jones Laughlin since that employer was a self-insurer.
The language of Section 1465-72 b, General Code, does not require that the application must be made to the employer instead of the Industrial Commission where the employer is a self-insurer.
The second question involved is whether Section 1465-68 a, General Code, as in force at the time of decedent's death should apply. Until October 12, 1945, this section provided for payments "only in the event of * * * disability or death resulting within two years after the last injurious exposure." Effective October 12, 1945, the statute was amended to change "two years" to "eight years."
Filed in office of Secretary of State, July 13, 1945 (121 Ohio Laws, 661).
Decedent's last injurious exposure was on February 13, 1943. In July 1945 his disability commenced. He died on January 2, 1946.
The second and fourth paragraphs of the syllabus in Industrial Commission v. Kamrath, 118 Ohio St. 1, 160 N.E. 470, read:
"2. The provisions of the General Code relating to compensation of injured employees or the dependents of killed employees in force at the time the cause of action accrues are the measure of the right of such employees and dependents to participate in the state insurance fund."
"4. The cause of action of a dependent of a killed employee accrues at the time the employee dies from an injury received in the course of his employment."
In 58 American Jurisprudence, 627, Section 73, it is said:
"With respect to time, the right to compensation for an injury, under the workmen's compensation acts is governed, in the absence of any provision to the contrary, by the law in force at the time of the occurrence of such injury. This rule is applicable to the rights of relatives or dependents of a deceased employee, in so far as they are predicated upon the survival of the rights of the employee. But where the statute confers upon the dependents a new and independent right to compensation on account of his death, it is generally held that the right to such compensation is governed by the law in force at the time of death rather than at time of injury, when the two events are separated in time." State, ex rel. Slaughter, v. Industrial Commission, 132 Ohio St. 537, 9 N.E.2d 505, is cited in support of the last statement.
It is argued, however, that, to follow the foregoing statement in the Kamrath case in this case, would contravene the inhibitions in the Constitution against enactment of retroactive laws.
Apart from the provisions of the Workmen's Compensation Act relating to self-insurance, there would appear to be no substantial objection under that constitutional provision which could not be raised with regard to the so-called "moral claims" acts of the Legislature. Such acts have been sustained as against the contention that they contravene these constitutional provisions. Spitzig v. State, ex rel. Hile, 119 Ohio St. 117, 162 N.E. 394.
As pointed out in Thornton v. Duffy, 254 U.S. 361, 367, 65 L.Ed., 447, 41 S.Ct., 7, in discussing the decision of this court then under review ( Thornton v. Duffy, 99 Ohio St. 120, 126 and 127, 124 N.E. 54): "To the contention the Supreme Court replied that the alternative to contribution to the state fund of dealing with the employees directly was a privilege that need not have been granted and that, therefore, to effect the purpose of the Constitution and law, could be withdrawn * * *."
I believe, therefore, that the law as in effect at the date of decedent's death should be applied and, since relator's, death claim was filed with the commission within six months of decedent's death, the writ prayed for should be allowed.