Opinion
No. 21282
Decided February 27, 1929.
Workmen's compensation — Dependents not entitled to partial disability payments, upon death not resulting from injury — Section 1465-83, General Code — Payments limited to unpaid balance of award granted before employee's death.
ERROR to the Court of Appeals of Cuyahoga county.
Terrell was an employee of the McKinney Steel Company, a contributor to the state insurance fund, and received his injury on July 7, 1924. He was allowed total temporary compensation, and returned to work September 7, 1924, so continuing until December 16th, when he died from causes totally disconnected with his injury, to wit, lobar pneumonia. Between September 7th and December 16th the commission had under consideration whether an award would be made for partial permanent disability, to wit, the loss of vision of one eye. Terrell had been examined by the commission's physicans as late as December 11, 1924, and between that date and September 7, 1924, there had been some communication between Terrell and the commission relative to his claimed loss of vision in one eye. However, no award had been made at the time of Terrell's death, on December 16, 1924.
On March 20, 1925, an application was made by Minnie Terrell, as a dependent common-law wife, for compensation for her and a minor child, who had been living with Terrell and herself. On April 3, 1925, the claim was disallowed on the ground that death did not result from injuries sustained in the course of employment. The case was given further consideration, and on May 29, 1925, the commission found that decedent did have total loss of vision of the right eye, due to the injury, and that the necessary funeral and medical expenses for decedent's last illness and death should be paid from the compensation due him on account of permanent partial disability. The award read: "Aud. Dept.: Only funeral and medical services incident to last illness of decedent to be paid from permanent partial award." "Compensation to be paid. * * * Pay at rate of $18.75 per week beginning September 8-24, the sum of $1,875.00, 100 weeks."
From this refusal of the commission to pay more than the funeral and medical services incident to the last illness of the decedent from the $1,875, an appeal was taken to the court of common pleas, which court ordered that Minnie Terrell was "entitled to the unpaid balance of such award amounting to $1,725.00." This judgment was affirmed by the Court of Appeals. Error is now prosecuted here to reverse that judgment.
Mr. Gilbert Bettman and Mr. Edward C. Turner, attorneys general, Mr. R.R. Zurmehly, Mr. Arthur Krause and Mr. John A. Elden, for plaintiff in error.
Messrs. Cerrezin Wilson, for defendant in error.
Is the Industrial Commission entitled by law to pay any part of the allowance for partial disability, made under Section 1465-80, General Code, when such award is made after the death of the injured person?
Provision is made in Section 1465-83, General Code, as to unpaid balances remaining after the death of an injured employee, as follows: "In all cases of death from causes other than the injury for which award had theretofore been made on account of temporary, or permanent partial, or total disability, in which there remains an unpaid balance, representing payments accrued and due decedent at the time of his death, the commission may at its discretion, * * * award or pay," etc.
It is apparent that this section only authorizes the commission to act upon an award "theretofore" made, and it must represent payments "accrued and due decedent at the time of his death." In this case no award had been made at the time of the death. Therefore the same had not "theretofore been made," and, unless the same was made, no part thereof would represent "payments accrued and due decedent at the time of his death."
The judgment of the lower courts must be reversed, and final judgment rendered for the commission.
Judgment reversed.
MARSHALL, C.J., KINKADE, JONES, MATTHIAS and DAY, JJ., concur.