Opinion
No. 31900
Decided March 15, 1950.
Workmen's compensation — Silicosis — Award for disability or death within eight years after last injurious exposure — Section 1465-68a, General Code (121 Ohio Laws, 661), applicable, when.
Where a workman had a last injurious exposure to silicosis on September 19, 1944, present Section 1465-68 a, General Code (121 Ohio Laws, 661), effective October 12, 1945, is applicable to any claim he might have for temporary or permanent total disability and is likewise applicable to any claim which his dependent or dependents might have by reason of his death from silicosis. ( State, ex rel. Efford, v. Industrial Commission, 151 Ohio St. 109, distinguished.)
IN MANDAMUS.
The instant case is an original action in mandamus in this court, the pleadings being the petition and answer thereto.
There is no substantial dispute in the controlling facts.
The petition alleges the following facts:
Relatrix is the widow of Peter Frank Venys, who died August 3, 1947, leaving her as his only dependent and she was wholly dependent upon him for support.
Decedent had been employed as a molder, for a period ending September 1944, for Acme Aluminum Alloys, Inc., of Dayton, a complying employer under the Workmen's Compensation Act. During this and other periods of employment in Ohio aggregating more than three years, the decedent suffered exposures to silica dust.
After decedent's death an application for a death award was filed by relatrix with respondent within six months after the death. It was established that all requirements under the law for a death award were fulfilled. On March 11, 1949, respondent made a finding and order for a maximum death award of $7,500 to relatrix, such finding and order reading as follows:
"That the death claim be allowed; that the commission find from proof of record that the decedent's death was due to silicosis complicated by bilateral pulmonary tuberculosis; that the commission further find that the widow-claimant (Mary E. Venys) was wholly dependent on the decedent for support at the time of his death, and it is ordered that a maximum death award, based on the average weekly wage, be granted to her; that the medical bills be paid as approved, and the statutory funeral expense be refunded to the widow-claimant, who has already paid the funeral bill; that the fees of the silicosis referee board, previously paid from the occupational disease surplus fund, be charged to the expenses of this claim."
Thereafter on April 1, 1949, an application for reconsideration of such order was filed by the last employer, and on June 6, 1949, respondent reversed its order of March 11 and disallowed the claim of relatrix, solely upon the ground that compensation could not be awarded to relatrix under the rule announced in the case of State, ex rel. Efford, v. Industrial Commission, 151 Ohio St. 109, 84 N.E.2d 493.
Respondent alleges that its order of June 6, 1949, reads as follows:
"This claim being considered upon the employer's application for reconsideration, filed April 1, 1949, and after discussion and review of the record and the briefs of counsel for the claimant and the employer, the commission finds that proof of record shows that the decedent, Peter Frank Venys, last had injurious exposure to silicon dioxide while in the employ of the Acme Aluminum Alloys, Inc., which employment and exposure was terminated September 19, 1944. Proof of record does not establish any injurious exposure after September 19, 1944.
"The commission further finds that the decedent did not become totally disabled from silicosis until December 27, 1946, and at a time more than two years after the last injurious exposure.
"It is, therefore, ordered that the commission's order of March 11, 1949, allowing this claim be vacated and revoked in its entirety. It is ordered by the commission that the death claim of Mary E. Venys, widow, be disallowed for the reason that neither total disability nor death of the decedent occurred within two years after the decedent's last injurious exposure to silicon dioxide, and compensation and benefits cannot be awarded under the rule announced by the Supreme Court in the case of State, ex rel. Efford, v. Industrial Commission, 151 Ohio St. 109."
Relatrix alleges in her petition that respondent's order of June 6, 1949, refusing to allow the death claim, is contrary to law and constitutes an abuse of discretion for the reason that within two years from decedent's last injurious exposure to silicon dioxide death from silicosis became compensable if it occurred within eight years from such exposure.
Relatrix prays that a writ of mandamus issue requiring respondent to vacate and set aside its order of June 6, 1949, to reinstate its order of March 11, 1949, and to make payments accordingly, and for such other and further relief to which relatrix may be entitled in law or equity.
In its answer, respondent alleges that the allegations of the petition do not state facts sufficient to constitute a cause of action, and that this court has no jurisdiction of the subject of this action.
Messrs. Landis, Ferguson, Bieser Greer, for relatrix.
Mr. Herbert S. Duffy, attorney general, and Mr. T. Vincent Martin, for respondent.
The solution of the problem posed in the instant case must be determined by the interpretation of Section 1465-68 a, General Code (120 Ohio Laws, 451), in effect prior to October 12, 1945, and the amendment thereof (121 Ohio Laws, 661), effective on such latter date.
Section 1465-68 a, General Code (120 Ohio Laws, 451), provided in part:
"Compensation, medical, hospital and nursing expenses on account of silicosis shall be payable only in the event of temporary total disability, permanent total disability, or death, in accordance with the provisions of Sections 1465-79, 1465-81 and 1465-82 of the General Code, and only in the event of such disability or death resulting within two years after the last injurious exposure * * *."
The section, after the amendment, effective October 12, 1945, reads exactly as it did before, except that the word "eight," appears in place of the word, "two." It is argued and indeed it forms the basis of respondent's ruling of June 6, 1949, that the instant case is covered by the rule stated in the case of State, ex rel. Efford, v. Industrial Commission, supra.
In the Efford case, a workman died from silicosis, his death occurring more than two years after his last injurious exposure, while the two-year limitation in Section 1465-68 a, General Code, was in effect, and this court held that since no application for compensation was made within the time then prescribed a right to compensation could not be asserted under the amendment of Section 1465-68 a, General Code, which changed to eight years the period of time within which a claim for death by silicosis might be made.
However, the facts in the Efford case were materially different from those in the instant case. Efford had his last injurious exposure on February 13, 1943. 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 total disability or death resulting within two years after the last injurious exposure, which carried the right to claim compensation to February 13, 1945. On that date Efford was still alive and had suffered no total disability. On that latter date, the amendment of Section 1465-68 a, General Code, extending time to eight years had not become effective. Therefore, on February 13, 1945, Efford, being still alive and having suffered no permanent disability, was forever barred from asserting any claim for compensation for silicosis and, he having no assertable claim himself which could ever come into existence, it would necessarily follow that his dependents could have no such claim.
In the instant case, decedent's last injurious exposure was on September 19, 1944. At that time Section 1465-68 a, General Code (120 Ohio Laws, 451), provided that compensation should be payable in the event of total disability or death resulting within two years after the last injurious exposure, which would carry the right to claim compensation to September 19, 1946. However, Section 1465-68 a was amended effective October 12, 1945, to extend the limitation to eight years, so that when the eight-year amendment became effective decedent had not lost a right to claim compensation in the event of total disability nor had his dependent lost her right to claim compensation for his subsequent death.
Before the two-year limitation period, during which decedent's last injurious exposure took place, had expired, the eight-year limitation became effective, and logically it became applicable to any claim which decedent or his dependent might legally then have had. There is a real and vital difference between workmen's compensation rights which became barred by the expiration of a limitation period before the extension of such period, and such rights which were not so barred when such extension became effective.
We are, therefore, of the opinion that in the instant case since the decedent had his last injurious exposure on September 19, 1944, and since Section 1465-68 a, General Code, was amended effective October 12, 1945, which was within two years after such last injurious exposure, the amendment became applicable to any claim which decedent might have had for total disability and to a claim by relatrix, as such decedent's sole dependent, for the death of decedent from silicosis.
It follows that the action of the respondent in entering its order of June 6, 1949, was arbitrary, unreasonable and unlawful and constituted a gross abuse of discretion and may therefore properly be attacked by an action in mandamus.
Matthias, J., in the case of State, ex rel. Bevis, v. Coffinberry et al., Industrial Commission, 151 Ohio St. 293, 296, 85 N.E.2d 519, stated as follows:
"The payment of compensation to employees who have incurred occupational diseases is limited in this state to certain enumerated types of disease and no direct appeal to the courts has been provided where compensation is denied. Arbitrary, unreasonable and unlawful orders of the Industrial Commission may properly be attacked by an action in mandamus but no relief may be granted unless the relator shows gross abuse of discretion of the commission."
The writ of mandamus, as prayed for by relatrix, is allowed.
Writ allowed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, TURNER and TAFT, JJ., concur.