Opinion
No. 33630
Decided March 17, 1954.
Workmen's compensation — Partial disability compensation — Allowance for change of occupation required, when — Silicosis contracted by employee — Change of occupation to avoid further exposure — Section 1465-80, General Code — Statutory construction — Statute subject to two interpretations — Interpretation made resulting in fair dealing.
1. Where a statute is reasonably subject to two interpretations, one of which will result in the infliction of cruel and inhuman treatment to a person making a claim under the provisions thereof, and the other will result in humane and fair dealing in reference to such person, the latter interpretation must be made.
2. Under the provision of Section 1465-80, General Code, that, "if the `silicosis referees' provided for by Section 1465-68 a of the General Code, shall find that an employee has contracted silicosis * * * and that a change of such employee's occupation is medically advisable in order to decrease substantially further exposure to silica dust and if such employee shall, within a period of three months thereafter, discontinue employment or change his occupation to an occupation in which the exposure to silica dust is substantially decreased, the Industrial Commission shall" make an allowance to such employee, such findings require the Industrial Commission to make such allowance unless such employee continues his employment beyond a three-month period thereafter.
APPEAL from the Court of Appeals for Franklin county.
On October 30, 1952, Joseph Nemeth, appellee, hereinafter designated relator, instituted an action in mandamus in the Court of Appeals for Franklin county against the Industrial Commission of Ohio, appellant, hereinafter designated respondent.
In his petition relator alleges that within the proper period of time he applied to respondent for compensation for change of occupation due to his contracting silicosis in the course of and arising out of his employment with the John Harsch Bronze Foundry Company, which was a subscriber to the State Insurance Fund; that respondent, through its Silicosis Referee Board and the Department of Safety and Hygiene, admitted that relator worked in an atmosphere containing free silica and had a well developed simple silicosis; that such board made a finding on May 19, 1951, recommending a change of occupation; that when relator became ill as a result of silicosis his condition was such that his physician had him hospitalized, so that he left his employment on July 25, 1950; that on September 13, 1951, and on May 22, 1952, respondent disallowed relator's application for compensation for change of occupation for the reason that respondent's interpretation of the law was that relator should have remained on his job in the silica-dust atmosphere until such time as the Silicosis Referee Board recommended a change of occupation; that the order of respondent denying relator's claim is erroneous in law and constitutes an abuse of discretion; and that relator has no adequate remedy at law.
Relator prays for a writ of mandamus requiring respondent to enter an order granting his application for an award for change of occupation and for his costs.
Respondent filed an answer admitting most of the allegations of relator's petition, denying that its order of May 22, 1952, constitutes an abuse of discretion, and asking that relator's petition be dismissed.
Relator filed a reply to respondent's answer, calling attention to the order upon which such claim is based, namely, to respondent's order of September 13, 1951, which reads:
"Claimant's application for change of occupation, filed April 9, 1951, is herewith disallowed for the reason that said application does not conform to the statutory provisions of Section 1465-80 of the General Code respecting a change of occupation in which simple silicosis is involved."
The cause was tried upon the pleadings, record, and an agreed statement of facts to the effect that relator was engaged in foundry work and subjected to injurious exposure to silica dust for a period of 37 years; that his last work of that nature was as an employee of the John Harsch Bronze Foundry Company, where he worked from April 1944 to July 25, 1950; that he was subjected to injurious exposure to silica dust while in the course of and arising out of that employment; and that such exposure was injurious and was the direct and proximate cause of his silicosis.
On July 25, 1950, relator reported his condition to his employer, and on the following day, upon the advice of his physician, relator was hospitalized. A diagnosis of silicosis was made on September 27, 1950.
Relator did not return to his employment and has not worked in any other occupation since July 25, 1950.
On September 15, 1950, relator filed his application for compensation with respondent, claiming total disability as the result of his occupational disease.
Thereafter, respondent conducted an investigation, referred the claim to the silicosis referees of respondent, who, on December 5, 1950, found that "claimant has a well-developed simple silicosis and is not totally disabled at this time."
On April 9, 1951, relator's claim was heard before the Cleveland District Board of Claims, at which time an order was made that the claim as to silicosis be disallowed for the reason that medical proof failed to show that claimant was totally disabled due to silicosis, as required by law; that the file be again referred to the Silicosis Referee Board as to the question whether change of claimant's occupation is medically advisable, claimant having discontinued employment July 25, 1950, due to silicosis; and that respondent refer the matter to the Bureau of Vocational Rehabilitation for inquiry into the possibilities of relator's vocational rehabilitation.
On the same day the above order was made, relator filed an application for an award (change of occupation award) under Section 1465-80, General Code.
On April 20, 1951, relator filed an application for a review of his occupational disease claim, which was heard by the silicosis referees on May 19, 1951, at which time a report was made recommending a change of occupation.
On July 19, 1951, relator's claim was again considered by respondent, which made an order that the application for review be allowed and that the claim be referred to the legal section for the arranging of a hearing of the medical issues by the Medical Board of Review.
On August 23, 1951, the Medical Board of Review found that in its opinion relator had a well developed simple silicosis from which he was not totally disabled, and recommended that relator's claim be disallowed but that a change of occupation be approved.
On September 13, 1951, respondent ordered "claimant's application for change of occupation, filed April 9, 1951, is hereby disallowed for the reason that said application does not conform to the statutory provisions of Section 1465-80 of the General Code respecting a change of occupation in which simple silicosis is involved."
On May 22, 1952, respondent made an order that relator's request for reconsideration of respondent's order of September 13, 1951, be denied, and that such order be affirmed.
The Court of Appeals granted relator's prayer for a writ of mandamus, and respondent has appealed from the judgment of the Court of Appeals to this court as of right, the cause having originated in the Court of Appeals.
Mr. Gilbert Weil, for appellee.
Mr. C. William O'Neill, attorney general, Mr. Paul Tague, Jr., and Mr. James F. DeLeone, for appellant.
The question before us is the interpretation of Section 1465-80, General Code, which reads in part as follows:
"If the `silicosis referees' provided for by Section 1465-68 a of the General Code, shall find that an employee has contracted silicosis * * * and that a change of such employee's occupation is medically advisable in order to decrease substantially further exposure to silica dust and if such employee shall, within a period of three months thereafter, discontinue employment or change his occupation to an occupation in which the exposure to silica dust is substantially decreased, the Industrial Commission shall allow to such employee the sum of * * *."
It will be noted that originally relator filed a claim for total disability from silicosis, which was disallowed for the reason that the silicosis referees found that, although relator had a well developed simple silicosis, he was not totally disabled.
Relator thereupon filed an application for an award for change of occupation under Section 1465-80, General Code, which was denied for the sole reason that the application did not conform to the provisions of such section respecting a change of occupation in which simple silicosis is involved.
Respondent relies upon a regulation defining the requisite steps to an award under Section 1465-80, which steps are:
1. An application for benefits under the section. (It is agreed that such application was made.)
2. Favorable recommendation by the silicosis referees. (It is agreed that such recommendation was made.)
3. An order of change of occupation by the commission following the recommendation of the silicosis referees. If all these things are done, the change of occupation must be made by the claimant within a period of three months after the commission's order approving the change.
It is the position of respondent that, although relator made an application for benefits under Section 1465-80, and there was a favorable recommendation by the silicosis referees, as well as a favorable report by the Medical Board of Review recommending allowance for change of occupation, the respondent was precluded from making an award to relator unless, at the time the silicosis referees acted favorably upon his application for an award because of a change of occupation, relator was in the same employment as he was when he suffered his attack and was in a position to change his occupation within a period of three months after the finding by the silicosis referees. Such a construction would result in a situation where, although relator was hospitalized for silicosis and after such hospitalization was never able to work in a silica-dust atmosphere, nevertheless, he must work in such atmosphere during all the time necessary to file his application, have a number placed on it, have it investigated with reference to his physical condition and the exposure to silica dust, have his examination by the Silicosis Referee Board, and await its favorable report, all of which might require months. Thereafter, if relator should discontinue his employment or change his occupation, respondent would make an award for such change.
If the statute were to be construed as respondent claims it should be, and from its language a plausible argument can be made for such construction, the result would be that a claimant ill with silicosis would be compelled to remain in a job which would make him more ill, would aggravate his distressed condition, and subject him to an inhuman punishment shocking to any normal person's sense of justice and decency.
Assuredly, in the interpretation of a statute, such a result as above described cannot be ascribed to the intention of the legislative body enacting such statute if another and more humane interpretation can reasonably be made.
We are of the opinion that a humane interpretation of the statute can be made, and that such interpretation is more consistent with what must have been the General Assembly's intention in enacting the statute than the interpretation for which respondent contends.
It will be noted that after the provision as to the finding by the silicosis referees that an employee has contracted silicosis and a change of the employee's occupation is medically advisable, which finding has been made in the present case, it is provided that if such employee shall, within a period of three months thereafter, discontinue employment or change his occupation, the Industrial Commission shall allow such employee an award.
Relator did discontinue his employment and was hospitalized.
The provision in the statute for the discontinuance of employment or change of occupation within a period of three months after the finding of the silicosis referees means that such discontinuance or change can not be made after a period of more than three months following the medical finding. It does not mean that a claimant must continue in a death-dealing employment during the period required to make the finding.
In State v. Nickles, 159 Ohio St. 353, 112 N.E.2d 531, this court held that, "in determining the intention of the General Assembly as to the meaning and operation of statutes, a court, if possible, should avoid absurd and grotesque results."
Certainly in determining such intention, a court, if possible, should avoid results which will lead to the infliction of atrociously cruel and inhuman treatment to a workman who has suffered a terrible disease in the course of and arising out of his employment.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN and LAMNECK, JJ., concur.