Farrier v. Connor, 83-686

• Citation: 12 Ohio St.3d 219,12 OBR 303,466 N.E.2d 557
• Decision Date: 01 August 1984
• Docket Number: No. 83-686,83-686
• Court: United States State Supreme Court of Ohio
• Parties: , 12 O.B.R. 303 FARRIER, Appellant, v. CONNOR, Admr., et al., Appellees.

Page 219

12 Ohio St.3d 219

466 N.E.2d 557, 12 O.B.R. 303

FARRIER, Appellant, v. CONNOR, Admr., et al., Appellees.

No. 83-686.

Supreme Court of Ohio.

Aug. 1, 1984.

Arthur C. Graves and Robert J. Perry, Columbus, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen. and Douglas M. Kennedy, Asst. Atty. Gen., for appellees.

PER CURIAM.

The central question presented before this court is whether appellant's decedent, as a member of the Ohio National Guard, was an employee of the state of Ohio under R.C. Chapter 4123, the workers' compensation provisions.

When Ohio's workers' compensation statutes were first promulgated, members of the National Guard were ineligible to recover benefits from the State Insurance Fund. Then, in 1959, the General Assembly extended special coverage to National Guard members, and enacted several statutes, in 128 Ohio Laws 743, which specifically addressed this employment status. ¹ Two of these statutes are determinative of the instant action, and provide as follows:

"Every member of the Ohio organized militia as defined in section 5923.01 of the Revised Code shall, when called to state active duty, be in the employment of the state for the purposes of sections 4123.01 to 4123.94, inclusive, and 4123.99 of the Revised Code." (Emphasis added.) R.C. 4123.022.

" 'State active duty' means that status attaching to a member of the Ohio organized militia performing duty ordered by competent state authority, for which duty status injury and occupational disease benefits are not otherwise provided by act of the congress of the United States or executive regulations of the United States." R.C. 4123.021.

Under this clear directive, in order for a member of the National Guard to be considered an employee of the state of Ohio for the purposes of the state workers' compensation law, a two-prong test must first be satisfied: (1) the member must be ordered to state active duty by competent state authority; and (2) federal benefits are not otherwise provided the member, for which duty he or she is serving.

With respect to the first prerequisite, counsel for appellees conceded at oral argument that appellant has met the requirement that the duty be ordered by competent state authority. Although decedent was ordered to training duty pursuant to Section 503, Title 32, U.S.Code, such training orders were issued through the Ohio Adjutant General's department. Thus, it could be said that decedent was ordered to duty by both state and federal authorities.

However, with respect to the second prerequisite, appellant advances several arguments. It is appellant's contention that Maryland v. United States (1965), 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205, and Spangler v. United States (S.D.Ohio 1960), 185 F.Supp. 531, hold that members of a state National Guard are employees of the state, and not the federal government. We find, however, that these cases are readily distinguishable from the instant action in that both holdings were premised on the definition of "employee" under Section 1346, Title 28, U.S.Code, the Federal Tort Claims Act. As such, we find that neither case is controlling in the context of Ohio's workers' compensation provisions.

Appellant next argues that by virtue of our decisions in Indus. Comm. v. Davis (1933), 126 Ohio St. 593, 186 N.E. 505, and State ex rel. Jones & Laughlin Steel Corp. v. Dickerson (1953), 160 Ohio St. 223, 115 N.E.2d 833 , her claim under R.C. 4123.59 as a dependent of the decedent is a separate and independent claim from that which her late husband could have claimed, and, thus, should be adjudicated on its own merits.

While it is true that a widow or dependent's claim is determined on its own merits as a separate action, the dependent's claim must nevertheless be based on an injury, occupational disease or death which occurred as a result of an Ohio employment.

The record in this case reveals that appellant was eligible for, and did in fact receive, a death gratuity provided in Section 321, Title 32, U.S.Code, plus a burial allowance and a $20,000 life insurance policy from the federal government. The record also indicates that appellant would have been eligible for other federal benefits had she not remarried.

With this in mind, we hold that appellant is precluded from participating in the State Insurance Fund, since the definition supplied in R.C. 4123.021 and 4123.022 prevents her deceased husband from being considered an employee of the state of Ohio, inasmuch as benefits were provided by the federal government. In so holding, we are mindful of the fact that the legislature intended to exclude National Guard members from participating in the State Insurance Fund if the duty status which the member was ordered to, consisted of the regular training exercises.

"* * * In 1963, the definition of State active duty was clarified to exclude the regular training periods. 130 Ohio Laws 919. The Common Pleas Court of Franklin County had held in case number 212762, Williams v. Young, unreported, that a member of the National Guard was on State active duty in returning from the regular summer encampment." Young, Workmen's Compensation Law of Ohio (2 Ed.1971) 320, Section 20.10. See, also, McComas v. Ohio National Guard (1980), 69 Ohio App.2d 87, 430 N.E.2d 948 .

Appellant submits that the workers' compensation enabling provision, found in Section 35, Article II of the Ohio Constitution, sets forth a "trilogy" of compensable occurrences by which an employee may recover benefits under the workers' compensation statutes. It is appellant's contention that since R.C. 4123.021 does not mention "death" benefits, the legislature did not intend to foreclose a dependent from recovering those benefits.

We find this argument to be unpersuasive. If we were to adopt appellant's position, our interpretation, as such, would lead to the incongruous finding that a National Guard member would not be a state employee when federal benefits were provided for an injury or occupational disease, but that the same guard member would be a state employee when the injuries sustained had resulted in the member's death.

The policy reasons behind the exclusion set forth in R.C. 4123.021 are readily ascertainable. The General Assembly intended to prevent a double recovery from both the state and federal government for the same injury, death or occupational disease.

Although workers' compensation provisions are remedial in nature, and R.C. 4123.95 requires that these provisions be " * * * liberally construed in favor of employees and the dependents of deceased employees," R.C. 4123.022 seemingly excludes the operation of this liberal construction provision by its own terms. Further, liberal construction of R.C. 4123.021 cannot overcome the clear and unequivocal language promulgated by the General Assembly. As this court stated in paragraph two of the syllabus in Szekely v. Young (1963), 174 Ohio St. 213, 188 N.E.2d 424 :

"A direction to liberally construe a statute in favor of certain parties will not authorize a court to read into the statute something which cannot reasonably be implied from the language of the statute." See, also, Felske v. Daugherty (1980), 64 Ohio St.2d 89, 91, 413 N.E.2d 809 . ²

R.C. 4123.021 ensures that a National Guard member, when ordered to duty by competent state authority, will be eligible for state workers' compensation benefits, if benefits are not otherwise provided by the federal government. ³ Compensation for injury and occupational disease is specifically provided for National Guard members who are participating in summer exercises under Sections 318, 319 and 320, Title 32, U.S.Code. Thus, the duty status in which the deceased was serving pursuant to Section 503, Title 32, U.S.Code, made him ineligible for state compensation benefits even if he had survived, inasmuch as these statutory provisions of the United States Code clearly establish benefits "provided by act of the congress of the United States * * *." R.C. 4123.021. While we believe it is unfortunate for appellant that the drafters of the workers' compensation statutes chose to exclude from coverage members of the National Guard who are eligible for federal benefits, we are nevertheless bound to interpret the clear and unambiguous intent of the General Assembly in accordance with our constitutional mandate.

Lastly, appellant argues that the denial of her participation in the State Insurance Fund constitutes an unreasonable classification in violation of the Equal Protection Clauses of the United States and Ohio Constitutions, and amounts to a denial of due process of law.

In support of her equal protection argument, appellant relies on State ex rel. Nyitray v. Indus. Comm. (1983), 2 Ohio St.3d 173, 443 N.E.2d 962, and contends that the effort to preclude dependents from obtaining simultaneous recovery from both federal and state compensation funds is not rationally related to the accomplishment of some legitimate state objective.

We find appellant's reliance on Nyitray to be misplaced. In Nyitray, this court held, as unconstitutional, a provision in the workers' compensation statutes which, in effect, denied accrued but unpaid benefits to dependents of workers who died from work-related causes, while compensating dependents of workers who died from causes other than a compensable injury or occupational disease. However, the situation presented in the instant case is totally different. Here, the deceased, had he survived, would have been ineligible to receive workers' compensation benefits by virtue of R.C. 4123.021 and 4123.022. By the same token, decedent's surviving spouse is ineligible to receive state workers' compensation death benefits under R.C. 4123.59, because the decedent was not on state active duty pursuant to the relevant statutes, and ipso facto, was not an employee of the state of Ohio.

In any event, by applying the test of equal protection set forth in Porter v. Oberlin ...