Summary
In Swallow v. Indus. Comm. (1988), 36 Ohio St.3d 55, 57, 521 N.E.2d 778, we approved the commission's "rationale that claimants are generally placed in a better position by receiving payments consecutively rather than concurrently."
Summary of this case from Estate of McKenney v. Indus. CommOpinion
No. 86-2078
Decided April 6, 1988.
Workers' compensation — Consecutive, as opposed to concurrent, payment of benefits pursuant to R.C. 4123.57(C) not abuse of discretion, when.
APPEAL from the Court of Appeals for Franklin County.
Relator-appellant, Lynn Charles Swallow, was injured on June 14, 1979, during the course of and arising out of his employment when he was struck on the back of the head by a crane hook. His claim for workers' compensation benefits was allowed for "status post-severe neurological deficit, due to head injury, with multiple intracerebral and brain stem hematomas, resulting in paralysis of all four extremities." As a result of this order, benefits were paid to appellant.
Appellant was originally denied the right to participate in the State Insurance Fund. The Court of Common Pleas of Stark County determined that relator was entitled to participate in the fund for injuries sustained in the course of and arising out of his employment with the employer. This judgment was affirmed by the Court of Appeals for Stark County.
On August 29, 1983, appellant filed a motion requesting that he be awarded compensation pursuant to R.C. 4123.57(C) for loss of use of both arms and both legs. Ultimately, the Industrial Commission issued an order recognizing the claim for total loss of use of both arms and both legs. The commission also determined that appellant was permanently and totally disabled and that compensation for such disability should be awarded.
On January 15, 1985, appellant filed another motion requesting that his benefits awarded pursuant to R.C. 4123.57(C) be paid concurrently. By order issued March 11, 1985, a district hearing officer denied appellant's request on the basis that it was the policy of the commission to pay such awards consecutively. This order was affirmed by the regional board of review and further appeal was refused by the commission.
Appellant thereafter filed an action in the court of appeals seeking a writ of mandamus ordering concurrent payment of benefits to appellant for loss of use of both arms and legs pursuant to R.C. 4123.57(C).
On October 30, 1986, the court of appeals held that the policy determination of the commission that claimants are placed in a better position with compensation guaranteed over an extended rather than an abbreviated period of time was not a "clearly unreasonable determination." The court denied the writ on the basis that appellant had not shown a clear legal right thereto.
The cause is now before this court on an appeal as of right.
Tablack, Wellman Jeren and John A. Jeren, Jr., for appellant.
Anthony J. Celebrezze, Jr., attorney general, Helen M. Ninos and James A. Barnes, for appellee.
Former R.C. 4123.57(C) (currently R.C. 4123.57[B]) provided, in pertinent part, that:
" In cases included in the following schedule the compensation payable per week to the employee shall be sixty-six and two-thirds per cent of his average weekly wage, but not more than a maximum of fifty per cent of the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code per week regardless of the average weekly wage, and not less than twenty-five per cent of the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code per week and shall continue during the periods provided in the following schedule:
"* * *
"For the loss of an arm, two hundred twenty-five weeks.
"* * *
"For the loss of a leg, two hundred weeks." (Emphasis added.)
The statute does not specify whether the payments are to be made consecutively or concurrently.
Appellant urges that he is a single man with a limited life expectancy and no dependents. In the event of his death no survivor benefits would be forthcoming. He contends further that the award of a consecutive schedule of payments would force him to remain dependent on those family members who provide for his primary daily and medical care. He states that it is to his advantage to have each of the awards paid concurrently, so that he would receive two separate awards for the loss of each arm paid over two hundred twenty-five weeks and two separate payments for loss of both legs paid over two hundred weeks.
Appellant cites as support R.C. 4123.95, which provides, in pertinent part, that:
"Sections 4123.01 to 4123.94, inclusive, of the Revised Code shall be liberally construed in favor of employees and the dependents of deceased employees."
This court has held that "where a section of the Workmen's Compensation Act will bear two reasonable but opposing interpretations, the one favoring the claimant must be adopted. Section 4123.95, Revised Code." State, ex rel. Sayre, v. Indus. Comm. (1969), 17 Ohio St.2d 57, 62, 46 O.O. 2d 297, 300, 245 N.E.2d 827, 830.
However, the commission is vested with the authority to formulate policies and standards for administering the Workers' Compensation Act. Section 35, Article II of the Ohio Constitution provides that:
"* * * Laws may be passed establishing a board which may be empowered to classify all occupations, * * * to fix rates of contribution to such fund according to such classification, and to collect, administer and distribute such fund, and to determine all right of claimants thereto. * * *"
It is a well-settled rule that courts, when interpreting statutes, must give due deference to an administrative interpretation formulated by an agency that has accumulated substantial expertise, and to which the General Assembly has delegated the responsibility of implementing the legislative command. State, ex rel. McLean, v. Indus. Comm. (1986), 25 Ohio St.3d 90, 25 OBR 141, 495 N.E.2d 370; Jones Metal Products Co. v. Walker (1972), 29 Ohio St.2d 173, 58 O.O. 2d 393, 281 N.E.2d 1.
Although there may be underlying tension between these two principles, in the instant case the issue is whether the commission formulated a reasonable rule regarding the payment of funds pursuant to R.C. 4123.57(C). The liberal construction provision of R.C. 4123.95 does not necessarily equate with giving an individual claimant what he thinks is best in his particular situation. As the court of appeals noted, the commission had a reasonable basis upon which to formulate a policy premised on the rationale that claimants are generally placed in a better position by receiving payments consecutively rather than concurrently. It was within the administrative purview of the commission to determine that appellant would be put in a better position by receiving eight hundred-fifty weeks of payments consecutively rather than two two-hundred weeks of payments for loss of each leg and two two-hundred twenty-five weeks of payments for loss of each arm concurrently.
In determining whether there has been an abuse of discretion by the commission, this court has stated that a relator must demonstrate that the commission acted from perversity of will, passion, prejudice, partiality, or moral delinquency. State, ex rel. Brady, v. Indus. Comm. (1986), 28 Ohio St.3d 241, 28 OBR 322, 503 N.E.2d 173. Here, appellant cannot sustain this burden.
In order to establish that a writ of mandamus should issue, appellant is required to demonstrate that he has a clear legal right to the relief prayed for. State, ex rel. Fant, v. Sykes (1986), 28 Ohio St.3d 90, 28 OBR 185, 502 N.E.2d 597. Appellant has not shown that the commission abused its discretion by awarding benefits pursuant to R.C. 4123.57(C) on a consecutive weekly basis rather than concurrently and, therefore, has failed to prove a clear legal right to the relief sought.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.