Anthony Caruso Pina Caruso, Widow-Claimant v. Aluminum Co. of America

• Decision Date: 27 October 1983
• Docket Number: 45872,83-LW-0333
• Parties: ANTHONY CARUSO, Deceased PINA CARUSO, Widow-Claimant,Plaintiff-Appellant v. ALUMINUM COMPANY OF AMERICA, ET AL., Defendant-Appellees
• Court: Ohio Court of Appeals

ANTHONY CARUSO, Deceased PINA CARUSO Widow-Claimant,Plaintiff-Appellant v. ALUMINUM COMPANY OF AMERICA, ET AL Defendant-Appellees

No. 45872.

83-LW-0333 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

October 27, 1983

Civil appeal from Common Pleas No. 017,584.

Theodore A. Bowman, BAUGHMAN & ASSOCIATES Co. L.P.A., 55 Public Square - Suite 1324, Cleveland, Ohio 44113.

Michael J. Hickey, Assistant Attorney General, 810 State Office Building, 615 West Superior Avenue, Cleveland, Ohio 44113.

Charles S. Tricarichi, CHARLES S. TRICARICHI CO., L.P., 55 Public Square - Suite 2120, Cleveland, Ohio 44113.

JOURNAL ENTRY and OPINION

McMANAMON ANN, J.

It is undisputed that Anthony Caruso, a grinder, died of respiratory failure caused by pneumoconiosis (silicosis) which he allegedly contracted while employed for fifteen years by Aluminum Company of America (appellee). His widow, Pina Caruso (appellant), appeals the denial of her claim for death benefits by the Industrial Commission and the affirmance of this order by the Court of Common Pleas.

Anthony Caruso retired from the Aluminum Company of America on March 6, 1966. His death from pulmonary fibrosis and pneumoconiosis (silicosis) occurred nine years and eight months later, on November 2, 1975.

In December, 1976, the appellant filed her application for death benefits with the Industrial Commission of Ohio, claiming that decedent had died as a direct and proximate result of an occupational disease sustained within the course of his employment with appellee. The District Hearing Officer found that the Industrial Commission was without subject matter jurisdiction to hear appellant's application. This decision was later affirmed by both the Cleveland Regional Board of Review and the Ohio Industrial Commission. Appellant then brought an appeal to the Court of Common Pleas®1¯ on September 26, 1980. On April 7, 1982, appellee filed a motion to dismiss, arguing that the court lacket subject matter jurisdiction for the reason that decedent's death occurred outside of the statutory time provision contained in R.C. 4123.68, which authorizes an award of death benefits only in the event of a worker's death within eight years of his last injurious exposure if death occurs prior to January 1, 1976. Since appellant's husband had retired more than nine years before his death in November, 1975, it was impossible for appellant to satisfy these statutory requirements.

Footnote 1 Pursuant to R.C. 4123.519, which in part provides:

"The claimant or the employer may appeal a decision of the industrial commission or of its staff hearing officer made pursuant to division (B)(6) of section 4121.33 of the Revised Code in any injury or occupational disease case, other than a decision as to the extent of disability, to the court of common pleas of the county in which the injury was inflicted or in which or in which the contract of employment was made if the injury occurred outside the state. If the claim is for an occupational disease the appeal shall be to the court of common pleas of the county in which the exposure which caused the disease occurred."

On September 2, 1982, appellee's motion to dismiss for lack of jurisdiction was granted. Appellant appeals that court's order, citing two assignments of error:

I. "APPELLANT'S CLAIM FOR DEATH BENEFITS FILED WITHIN TWO YEARS OF THE DECEDENT'S DEATH, PURSUANT TO O.R.C. ] 4123.85 IS AN INDEPENDENT CLAIM UNDER O.R.C. ] 4123.59 AND THUS IS NOT BARRED BY THE STATUTE OF LIMITATIONS APPLICABLE TO THE DECEASED WORKER'S CLAIM FOR DISABILITY.

II. "O.R.C. ] 4123.68 WHICH CREATED A RIGHT IN DEFENDANTS OF AN EMPLOYEE WHO DIES FROM PNEUMOCONIOSIS CONTRACTED WITHIN THE COURSE OF EMPLOYMENT ONLY IF SUCH DEATH OCCURRED WITHIN EIGHT YEARS AFTER INJURIOUS EXPOSURE WAS UNCONSTITUTIONALLY APPLIED TO CLAIMANT TO DEPRIVE HER OF HER RIGHT TO DEATH BENEFITS."

I.

In appellant's first assignment of error Pina Caruso contends that her claim for death benefits filed pursuant to R.C. 4123.85®2¯ is an independent claim under R.C. 4123.59®3¯ and therefore, is not barred by the statute of limitations applicable to her deceased husband's clain for disability.

Footnote 2 R.C. 4123.85 provides in part:

"In all cases of occupational disease, or death resulting from occupational disease, claims for compensation or benefits shall be forever barred unless, within two years after the disability due to the disease began, or within such longer period as does not exceed six months after diagnosis of the occupational disease by a licensed physician or within two years after death occurs, application is made to the industrial commission or to the employer in the event such employer has elected to pay compensation or benefits directly."

Footnote 3 That portion of R.C. 4123.59 applicable to appellant states:

"In case an injury to or an occupational disease contracted by an employee causes his death, benefits shall be in the amount and to the persons following:

(D) The following persons shall be presumed to be wholly dependent for theif support upon a deceased employee:

(1) A surviving spouse who was living with the employee at the time of death."

Neither this court nor the appellee disagrees with appellant's assertion that her death benefit claim is one independent of any right that her deceased husband may have possessed. See Fisher v. Ohio Malleable Iron Co. (1933), 127 Ohio St. 321; State, ex rel. Jones and Laughlin Steel Corp. v. Dickerson (1953), 160 Ohio St. 223. However, the plain and specific language of R.C. 4123.68 regarding those conditions of filing for death benefits would control the disposition of Mrs. Caruso's claim rather than the general language of R.C. 4123.85. State, ex rel. Efford v. Industrial Commission (1949), 151 Ohio St. 109; State, ex rel. Hamilton v. Industrial Commission (1963), 119 Ohio App. 297.

That portion of R.C. 4123.68®4¯ which delineated the applicable statute of limitations on silicosis claims as of the date of Mr. Caruso's death provided:

Footnote 4 See Page's Ohio Revised Code (1953-73), ] 4123.68(Y), 4th paragraph, containing the previous provisions of this section.

"Claims of dependents for benefits on account of death from silicosis, asbestosis, or coal miners' pneumoconiosis are forever barred unless application therefor is made to the commission within six months after death."

It is not disputed that Mrs. Caruso filed her death benefit claim thirteen months after her husband's demise. Clearly, under R.C. 4123.68 a claim for silicosis benefits could be barred if filed beyond the six month time limit.

However, this portion of R.C. 4123.68 was eliminated by a legislative amendment which became effective on January 1, 1976.®5¯ At that point, R.C. 4123.85 became the applicable statute of limitations on silicosis death benefit claims, and appellant had two years from the date of her husband's death in which to file her claim.®6¯ It is well settled in Ohio that when an extension of time in which a claim can be made becomes effective before the pre-existing statute of limitations on the claim has run, that the claimant may file his claim within the effective extended time provision. See Cox v. Department of Transportation (1981), 67 Ohio St. 2d 501; Baker v. Farish (1964), 1 Ohio Misc. 1 (Clark County Common Pleas Court). See, also, 34 Ohio Jurisprudence 2d 492, ] 8.

Footnote 5 The amended R.C. 4123.68(Y) now in part provides:

"Compensation and medical, hospital, and nursing expenses on account of silicosis, asbestosis, or coal miners' pneumoconiosis are payable only in the event of temporary total disability, permanent total disability, or death, in accordance with sections 4123.56, 4123.58, and 4123.59 of the Revised Code, and only in the event of such disability or death resulting within eight years after the last injurious exposure; provided that such eight-year limitation shall not apply to disability or death occurring after January 1, 1976, and further provided that such eight-year limitation shall not apply to any asbestosis cases. In the event of death following continuous total disability commencing within eight years after the last injurious exposure, the requirement of death within eight years after the last injurious exposure does not apply."

Footnote 6 See R.C. 4123.85; Id. at footnote No. 2.

This assignment of error is well taken.

II

In her second assignment of error appellant argues that the then applicable provisions of R.C. 4123.68, which denied appellant the right to proceed on her claim for death benefits because her husband did not die within eight years of his last exposure to silicon dioxide, violated her right to due process and equal protection under the Ohio and United States Constitutions.

At the time of decedent's death®7¯ on November 2, 1975, R.C which covered the award of death benefits on account of silicosis, provided in pertinent part:

Footnote 7 Under R.C. 4123.68 the award of benefits and the amount thereof is governed by the law in effect at a decedent worker's death. See State, ex rel. Jones & Laughlin Steel Corp. v. Dickerson (1953), 160 Ohio St. 223.

"Compensation and medical, hospital, and nursing expenses on account of silicosis, asbestosis, or coal miners' pneumoconiosis are payable only in the event of ... death, in accordance with sections 4123.56, 4123.58, and 4123.59, of the Revised Code, and only in the event of such disability or death resulting within eight years after the last injurious exposure. [Emphasis added]

Effective January 1, 1976, the eight year time limitation between injurious exposure and death was eliminated from the statute by the legislature. However, this amendment is applicable only to the dependents of workers dying after January...