Opinion
Nos. 79-1522 and 79-1523
Decided June 25, 1980.
Workers' compensation — Reduction in benefits by amount of disability payments — Former R.C. 4123.56 provision construed.
The former provision of R.C. 4123.56, which authorized a reduction of workers' compensation benefits by amounts paid pursuant to a non-occupational disability program totally funded by an employer, is not applicable to cases of permanent total disability.
IN MANDAMUS.
Two cases are addressed together in this opinion. In the first cause (case No. 79-1522), relator, Everett Bunch, seeks a writ of mandamus to compel the respondents, the Industrial Commission of Ohio, the Administrator of the Bureau of Workers' Compensation, and the Chrysler Corporation, to pay him full permanent total compensation under R.C. 4123.58 without any offset. Bunch was injured while employed by respondent Chrysler Corporation. As a result of the physical disabilities resulting from that injury, Bunch was found to be permanently and totally disabled by the Industrial Commission on March 14, 1978. From that date until December 1978, he was paid the full amount of permanent total compensation as required by law by respondent Chrysler. Bunch received a letter dated December 12, 1978, from respondent Chrysler stating that his workers' compensation benefits would be offset by the disability pension he received, effective December 4, 1978. The offset reduced his workers' compensation from $112 per week to $82.63 per week.
In the second cause (case No. 79-1523), relators, Frances Z. Buzard and Lester T. Spring, also seek a writ of mandamus. Both individuals received injuries in the course of their employment with respondent Packard Electric Division, General Motors Corporation (General Motors). Each filed claims with the Bureau of Workers' Compensation and was adjudged by the Industrial Commission to be permanently and totally disabled as a result of his injuries. General Motors, like Chrysler Corporation, is an employer who has elected to pay workers' compensation directly to its employees. It paid permanent and total disability benefits to Spring and Buzard, beginning in November of 1975 and June of 1976, respectively. These payments were made in full until April 1979, when relators received notice that their disability pension benefits were going to be deducted from their workers' compensation benefits. Such a deduction reduced the amount of workers' compensation to be received by Buzard from $56 a week to $18.38 a week. The deduction as applied to Spring totally eliminated his workers' compensation benefits of $52.50.
All the relators are or were members of a union which, through collective bargaining, obtained contracts calling for the respondent employers to pay disability pensions for the benefit of relators. The disability pension benefits referred to above, which were offset from the workers' compensation benefits, were paid out under these contracts.
Each of the three relators filed motions with the Industrial Commission requesting the commission to: "(1) Order the employer to stop offsetting my [relator's] disability pension against the permanent total compensation I have been awarded; (2) order the employer to pay me the full amount of permanent total compensation which he had previously paid me[;] and (3) order the employer to pay me all monies it has erroneously withheld to this point in time on its claim that it is acting under the case of Green v. International Harvester" (hereinafter cited as Green v. Stringer [January 13, 1978], 58 Ohio App.2d 53).
On November 9, 1979, the Industrial Commission in a split vote issued orders denying the motion to each relator. The commission, however, prohibited the employer from taking a setoff for any period prior to January 13, 1978. These orders led to the present actions in mandamus being filed in this court. Relators seek writs essentially compelling the Industrial Commission to grant the above quoted motions, which are claimed to have been denied contrary to law.
Pursuant to Section 7, Rule VIII of the Rules of Practice of the Supreme Court, it has been stipulated that the evidence in this action shall consist of all documents contained in the workers' compensation claim file of Everett Bunch (claim No. 535446-22), filed between March 14, 1978 (the date he was placed on permanent total disability), and November 9, 1979 (the date of the order leading to this action), the entire Industrial Commission files in the case of Frances Buzard (claim No. 491380-22) and Lester Spring (claim No. 463953-22).
Messrs. Clayman Jaffy, Mr. Stewart R. Jaffy and Mr. John F. Livorno, for relators.
Mr. William J. Brown, attorney general, and Mr. Michael J. Hickey, for respondents Administrator and Industrial Commission.
Coolidge, Wall, Matusoff, Womsley Lombard Co., L.P.A., and Mr. Joseph A. O'Friel, for respondent Chrysler Corp.
Messrs. Vorys, Sater, Seymour Pease, Mr. Russell P. Herrold, Jr., Mr. Thomas M. Taggart and Mr. Robert E. Tait, for respondent General Motors Corp.
At issue in the instant cause is a statutory provision formerly contained within R.C. 4123.56. This provision, part of an amendment to that statute on December 11, 1967 (132 Ohio Laws 1406), read as follows:
"If any compensation for total disability has been paid for the same period or periods for which non-occupational disability insurance or benefits is or has been paid pursuant to an insurance policy or program to which the employer has made the entire contribution or payment for providing such insurance or benefits, compensation for total disability for such period or periods shall be paid only to the extent by which such payment or payments exceeds the amount of such non-occupational insurance or benefits paid or payable."
This amendment, providing for an offset of non-occupational employer funded disability payments from workers' compensation benefits, in the years following its enactment was applied only in temporary total disability situations which are governed by R.C. 4123.56, the statute in which it appears. The offset provision, however, was read by the Court of Appeals for Clark County in Green v. Stringer, supra ( 58 Ohio App.2d 53), to also apply to cases of permanent total disability governed by R.C. 4123.58. In response to that court decision, respondent-employers in the instant cause began to offset the amount of disability pensions received by relators against their workers' compensation benefits.
In reviewing the workers' compensation scheme established by R.C. Chapter 4123 it is clear that there is a particular statutory section for each type of compensation. R.C. 4123.56 deals with temporary total compensation; r.C. 4123.57 deals with permanent partial compensation; R.C. 4123.58 deals with permanent total compensation; R.C. 4123.59 deals with death benefits; and R.C. 4123.66 deals with additional compensation, such as payment for medical, nursing, hospital services, medicine and funeral expenses.
Yet in Green, supra, the lower court read the offset provision of R.C. 4123.56 into 4123.58 without any nexus between the two sections being demonstrated in regard to that offset provision and without any express statutory authorization for application of the offset to cases of permanent total disability. The court, in Green at pages 59-60, stated:
"To interpret the provisions of R.C. 4123.56 in the manner urged by appellants would lead to an incongruous and contradictory result. An employer would receive credit for non-occupational payments made when the employee's total disability is temporary but no credit or offset whatsoever if the total disability becomes permanent. This was obviously not the object sought to be attained by the General Assembly by the enactment of that provision."
This observation by the Court of Appeals is based upon an erroneous premise. The compensatory purposes of the two statutory sections are separate and distinct. The purpose of temporary disability benefits is to compensate for the loss of earnings. State, ex rel. Rubin, v. Indus. Comm. (1938), 134 Ohio St. 12. The aim in an award of a permanent total disability is to compensate for an impairment of earning capacity. State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278. Thus, contrary to the statement in Green, there is good reason to have differing results when dealing with a particular disability. Although both categories of disabilities here in question have the same extent or degree, i.e., total, the duration of the two are different. The different statutory goals require the two sections to be read separately.
As part of an emergency legislation effective May 14, 1979 (Am. S.B. No. 30), the General Assembly overruled Green by amending R.C. 4123.56 to read as follows:
"If any compensation for temporary total disability has been paid for the same period or periods for which temporary non-occupational accident and sickness insurance is or has been paid pursuant to an insurance policy or program to which the employer has made the entire contribution or payment for providing such insurance or under a non-occupational accident and sickness program fully funded by the employer, compensation for total disability for such period or periods shall be paid only to the extent by which such payment or payments exceeds the amount of such non-occupational insurance or program paid or payable. Offset of such compensation shall be made only upon the prior order of the bureau or industrial commission or agreement of the claimant." (Emphasis added.)
Although it can be argued that the General Assembly substantially altered the statute and did not merely clarify it to overrule Green, and, thus, this court cannot make the substantive change applicable prior to the 1979 amendment, Hearing v. Wylie (1962), 173 Ohio St. 221, the chronological setting and statutory change in the instant action does not require such a reading. It was pointed out in State, ex rel. Gassmann, v. Indus. Comm. (1975), 41 Ohio St.2d 64, 67, that: "***It has long been held that the purpose of an amendment `may be either to add new provisions and conditions to the section as it then stands, or for the purpose of making plain the meaning and intent thereof.' Lytle v. Baldinger (1911), 84 Ohio St. 1, 8." The legislature appears to have intended to merely clarify R.C. 4123.56, in response to Green. Further, R.C. 4123.95 mandates a liberal construction in favor of employees.
Accordingly, we hold that the former provision of R.C. 4123.56, which authorized a reduction of workers' compensation benefits by amounts paid pursuant to a non-occupational disability insurance or benefit program totally funded by an employer, is not applicable to cases of permanent total disability governed by R.C. 4123.58. The writs of mandamus sought by relators are hereby allowed.
Respondent General Motors challenges the propriety of an action in mandamus to resolve the issues raised in this cause of action. It is clear, however, that this action is properly brought in mandamus since it deals with the "extent of disability" and, therefore, is not appealable. See R.C. 4123.519; Zavatsky v. Stringer (1978), 56 Ohio St.2d 386; Miraglia v. B.F. Goodrich (1980), 61 Ohio St.2d 128.
Writs allowed.
CELEBREZZE, C.J., HERBERT, W. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.