Mentzer v. Westinghouse Corp.

• Decision Date: 30 June 1983
• Citation: 10 Ohio App.3d 198,10 OBR 271,461 N.E.2d 24
• Parties: , 10 O.B.R. 271 MENTZER, Appellant, v. WESTINGHOUSE CORPORATION et al., Appellees.
• Court: Ohio Court of Appeals

Page 198

10 Ohio App.3d 198

461 N.E.2d 24, 10 O.B.R. 271

MENTZER, Appellant, v. WESTINGHOUSE CORPORATION et al., Appellees.

Court of Appeals of Ohio, Tenth District, Franklin County.

June 30, 1983.

Syllabus by the Court

The six-year limitation of R.C. 4123.52 does not bar a claim for death benefits which is timely filed pursuant to R.C. 4123.84 within two years after the death of the decedent, even where the Industrial Commission had previously denied the decedent's industrial claim arising from the same injury since the claim for death benefits does not accrue until the death of the decedent.

John R. Workman, Columbus, for appellant.

Bricker & Eckler and Michael J. Renner, Columbus, for appellee Westinghouse Corp.

Anthony J. Celebrezze, Jr., Atty. Gen., and Gerald H. Waterman, Asst. Atty. Gen., for appellee Administrator, Bureau of Workers' Compensation.

WHITESIDE, Presiding Judge.

Plaintiff-appellant, Isabell Mentzer, appeals from a judgment of the Franklin County Court of Common Pleas and raises a single assignment of error, as follows:

"The trial court erred in granting defendant's motion to dismiss plaintiff's claim as being barred by the six-year limitation period of Ohio Revised Code Section 4123.52. Claimant-appellant's claim for death benefits was timely filed pursuant to Ohio Revised Code Section 4123.84, which provides that claims for benefits on account of death shall be filed within two years of the date of death."

Plaintiff's decedent, Ownie Mentzer, sustained an industrial injury in March 1965 while in the course of his employment with defendant-appellee Westinghouse Corporation. Mentzer filed an industrial claim which was allowed in 1974 by the Bureau of Workers' Compensation, which decision was reversed on appeal by the Industrial Commission. He appealed to the court of common pleas but died during the pendency of that appeal. Thereupon, plaintiff filed an application pursuant to R.C. 4123.84 for death benefits as the decedent's widow, claiming that his death was a direct result of his industrial injury.

This application for death benefits was denied at the administrative level upon the ground that the cause of death was not related to the industrial injury. Upon appeal to the Franklin County Court of Common Pleas, that court dismissed the appeal, holding that: "Defendant Westinghouse's Motion to Dismiss is found to be well taken and is sustained as the six-year limitation of R.C. Section 4123.52 applies to bar this claim, regardless of the claim's validity, invalidity or anyone's skepticism about it." The single assignment of error on appeal pertains to this issue.

Although the appeal is from its order, the Industrial Commission now agrees with plaintiff and urges reversal of the decision of the court of common pleas conceding that R.C. 4123.52 cannot properly be construed to bar a claim for death benefits pursuant to R.C. 4123.59 with respect to an employee who died as a result of an industrial injury effective some nine years prior to his death. This is the result of the construction of the trial court in this case since, under the trial court's reasoning, the death-benefit claim was barred by the statute, R.C. 4123.52, nine years prior to the decedent's death. No contention has been made that the claim was not made within the two-year period prescribed by R.C. 4123.84. Thus, the sole question is whether plaintiff's death-benefit claim is barred by virtue of R.C. 4123.52, which provides in pertinent part as follows:

"The jurisdiction of the industrial commission over each case shall be continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified. No such modification or change nor any finding or award in respect of any claim shall be made with respect to disability, compensation dependency, or benefits, after six years from the date of injury in the absence of the payment of compensation for total disability * * * except in cases where compensation has been paid under section 4123.56, 4123.57, or 4123.58 of the Revised Code, then ten years from the date of the last payment of compensation or from the date of death * * *."

Technically, the trial court erred because the complaint expressly alleges that plaintiff filed her application within the time provided by law, and there are no factual allegations to the contrary, the claim not having been denied at the administrative level upon this basis and the issue being submitted to the trial court upon motion to dismiss prior to any answer being filed by defendants. Plaintiff indicates, however, that the factual situation is such that a reversal for this reason would be only technical in nature and that the essential facts are as set forth above. With that understanding, we proceed to consideration of the basic statute-of-limitations issue. Nevertheless, we note that, pursuant to Felske v. Daugherty (1980), 64 Ohio St.2d 89, 413 N.E.2d 809 , and Clifford v. Daugherty (1980), 62 Ohio St.2d 414, 406 N.E.2d 517 , the six-year limitation of R.C. 4123.52 does not apply if the employee is disabled and unable to work as a result of the industrial injury and is paid either temporary total compensation pursuant to R.C. 4123.56 or wages by his employer for such period of disability. The complaint specifically alleges that plaintiff's decedent was continually disabled in...