Opinion
No. 68-193
Decided November 27, 1968.
Workmen's compensation — Death benefits — Death 21 years after injury — Division (3), Section 4123.59, Revised Code — Appeal to Common Pleas Court — Petition fatally defective, when — Failure to allege decedent would have been entitled to compensation.
Where, in an appeal to the Common Pleas Court from an order of the Industrial Commission which, in effect, denied a claim for death benefits, plaintiff, by the averments of the petition, must rely on division (3) of the first paragraph of Section 4123.59, Revised Code, to support the appeal, the absence of any allegation in the petition that the Administrator of the Bureau of Workmen's Compensation or the Industrial Commission made a finding that the decedent would have been entitled to a compensation award had he lived, renders the petition fatally defective, and a demurrer thereto is properly sustained.
APPEAL from the Court of Appeals for Stark County.
This is a case under the Ohio Workmen's Compensation Law in which Blanche Amos, plaintiff and the widow of Benjamin K. Amos, claims death benefits for her husband's demise, which she claims occurred as a direct result of a leg injury he sustained in the course of and arising out of his employment as a machinist by the Sparta Ceramic Company, a contributor to the State Insurance Fund.
Plaintiff's claim for death benefits was denied by the Administrator of the Bureau of Workmen's Compensation on the ground "that proof of record does not establish that decedent's death was the result of an injury received in the course of and arising out of employment."
On appeal to the Canton Regional Board of Review, the administrator's order of disallowance was affirmed, and a further appeal to the Industrial Commission was refused, whereupon plaintiff filed her petition in the Court of Common Pleas of Stark County, naming Elmer A. Keller, Administrator, the Industrial Commission and the Sparta Ceramic Company as defendants, and praying "that she be allowed to participate in the provisions of the Workmen's Compensation Act * * *."
Among the material allegations of the petition is the following:
"Plaintiff further alleges that the decedent, Benjamin K. Amos, was disabled from the date of injury [June 29, 1944] to the date of death [April 4, 1965], and that at the time of the death of said Benjamin K. Amos there was pending before the Industrial Commission of Ohio and Bureau of Workmen's Compensation an application for benefits for permanent and total disability for which the Industrial Commission had already had the decedent examined by a specialist in orthopedic surgery; that had the decedent lived, he would have been awarded compensation for permanent and total disability * * *."
Defendant Keller, Administrator, demurred to the petition "for the reason that it does not state facts which show a cause of action."
The trial court sustained the demurrer and, plaintiff not desiring to plead further, the petition was dismissed, and judgment was rendered for the defendants.
An appeal on questions of law to the Court of Appeals resulted in an affirmance of the judgment below.
Allowance of the motion to require the Court of Appeals to certify the record brings the cause here for decision on the merits.
Mr. Leander P. Zwick, Jr., for appellant.
Mr. William B. Saxbe, attorney general, Mr. Walter J. Howdyshell and Mr. Gerald Goldberg, for appellees.
Section 4123.59, Revised Code, sets forth the requirements and conditions necessary to establish a right to death benefits and reads, in part:
"In case an injury to * * * an employee causes his death, and if (1) his death ensues, within a period of three years after the injury * * * or (2) compensation for total disability, or partial disability as provided in division (A) of Section 4123.57 of the Revised Code, on account of the injury * * * which caused his death has been paid for any portion of the year next preceding the date of the death of such employee, or (3) the administrator or Industrial Commission finds that a decedent, who applied for compensation as described in division (2) of this paragraph, and who was examined by a licensed physician, would have been entitled to an award of compensation had not death ensued * * * benefits shall be in the amount and to the persons following * * *." (Emphasis added.)
The petition discloses that a span of nearly 21 years elapsed between Benjamin K. Amos' leg injury and his death. There are no allegations in the petition which bring the case within divisions (1) and (2) of the quoted section. Consequently, plaintiff must rely on division (3). That division demands a finding by the administrator or the Industrial Commission that the decedent, upon the condition stated, would have been entitled to an award of compensation had he not died.
It is alleged in that part of the petition quoted in the statement of the case only "that had the decedent lived, he would have been awarded compensation for permanent and total disability."
Entirely absent is any averment of a finding that had the decedent lived he would have been entitled to a compensation award. The absence of an allegation of such a "finding" renders the petition fatally defective. Such was the position taken by both of the lower courts, and we are in accord with that position.
Therefore, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., MATTHIAS, O'NEILL and SCHNEIDER, JJ., concur.
I dissent for the reason that the widow-claimant has been denied her right to appeal the "decision" of the Canton Regional Board of Review to the Court of Common Pleas as provided in Section 4123.519 of the Revised Code. This section of the code, in its pertinent part, reads:
"The claimant * * * may appeal a decision of * * * [a regional board of review] in any injury case * * * to the Court of Common Pleas of the county in which the injury was inflicted * * *." (Emphasis added.)
The widow perfected her appeal to the Court of Common Pleas. That court sustained a demurrer, filed by the Administrator of the Bureau of Workmen's Compensation, to the widow's petition.
A demurrer admits the truth of well-pleaded allegations of the petition. Consequently it is necessary that the widow-claimant's petition be reviewed with reference, only, to well-pleaded allegations which state a cause of action.
After stating certain formalities in her petition, the claimant alleges that her decedent husband was injured while engaged in his usual employment; that his death was the direct result of the injury; that he was disabled as a result of the injury from the time of its infliction to the date of his death and that decedent employee was the sole support of the widow.
Pursuant to the provisions of Section 4123.519 of the Revised Code, the plaintiff-widow alleges that a hearing was had before the administrator, who entered the following finding:
"The administrator finds that proof of record does not establish that decedent's death was the result of an injury received in the course of and arising out of employment.
"The administrator finds from proof of record that the decedent's widow, Blanche Amos, was decedent's sole dependent and was solely and wholly dependant upon him for support at the time of his death.
"It is, therefore, ordered that the death claim be disallowed." (Emphasis added.)
The petition alleges further that the widow filed her appeal to the Canton Regional Board of Review, which board, after a hearing, affirmed the order of the administrator. The widow gave notice of appeal to the Industrial Commission, which entered the following order:
"It is ordered that the appeal filed June 28, 1966, by the widow-claimant from the order made June 21, 1966 by the Canton Regional Board of Review, be refused and that copies of this order be mailed this day to all interested parties."
The petition then proceeds:
"Plaintiff alleges that this was a final order denying her the right to participate in the provisions of the Workmen's Compensation Act of the state of Ohio for the death of her husband on April 4, 1965, from the injuries received by him on or about June 29, 1944.
"Wherefore, plaintiff prays judgment against the defendants and each of them in that she be allowed to participate in the provisions of the Workmen's Compensation Act of the state of Ohio and for such other and further benefits as she may be by law entitled."
The petition conformed to and complied with the provisions of Section 4123.519 of the Revised Code, indicating clearly that she was confining her appeal to that section of the Code.
The allegations of the petition, properly pleaded and admitted by the demurrer, and the "decision" of the regional board of review raise a clear-cut issue of fact. A cause of action is stated under the provisions of Section 4123.519 of the Revised Code which forms the basis for the appeal provided for in that section.
The question here that requires a "decision" on the part of the Industrial Commission and the administrator may be stated in this language: Was the decedent employee's death the result of the injury? The widow answers the question, "yes." The Industrial Commission and the administrator answer the question, "no."
Section 4123.519 of the Revised Code confers upon the widow the absolute right to appeal to the Court of Common Pleas and there have this question of fact decided by a jury, if demanded.
I am strongly of the opinion that the petition of the widow states a cause of action and that the demurrer should have been overruled.
The majority opinion ignores the allegations of fact appearing in plaintiff's petition, but rests judgment solely upon the provisions of Section 4123.59 of the Revised Code. Section 4123.59 of the Revised Code cannot apply to the case at bar. In the opening sentence of the section it is said:
"In case an injury to * * * an employee causes his death * * *."
It clearly appears that the section is controlling only in a case where an injury causes death of the employee.
It is admitted that the administrator has already made a finding that the death of the decedent husband did not result from his injury. He certainly could not make another and contrary finding.
Section 4123.519 of the Revised Code, in mandatory language, assures the widow of her right to appeal the decision of the Canton Regional Board of Review. She has been denied this right.
Section 4123.95 of the Revised Code provides that:
"Sections 4123.01 to 4123.94, inclusive, of the Revised Code shall be liberally construed in favor of * * * the dependents of deceased employees."
Gugle v. Loeser, 143 Ohio St. 362, in the fourth paragraph of the syllabus, states:
"For the purpose of testing the legal sufficiency of a petition upon demurrer, a court must indulge every reasonable inference, from the facts alleged, to sustain the petition."
The judgment of the Court of Appeals should be reversed and the cause remanded to the Court of Common Pleas for further proceedings according to law.
BROWN, J., concurs in the foregoing dissenting opinion.