State ex rel. Frank v. Keller

Citation3 Ohio App.2d 428,210 N.E.2d 724
Parties, 32 O.O.2d 549 The STATE ex rel. FRANK, v. KELLER, Admr., Bureau of Workmen's Compensation, et al.
Decision Date02 March 1965
CourtUnited States Court of Appeals (Ohio)

Richard N. Larrimer, Columbus, for relator.

William B. Saxbe, Atty. Gen., and Robert M. Duncan, Columbus, for respondents.

DUFFY, Judge.

This is an action in mandamus originating in this court.

Both parties have made a motion for summary judgment, asking this curt to determine whether Section 4123.57(B), Revised Code, as amended effective October 1, 1963 (130 Ohio Laws, pp. 926, 1466), can be applied in determining the percentage of permanent partial disability award for claimants whose injuries were received prior to the effective date of that amendment.

In the present action the parties are in agreement that at the time of injury (October 18, 1961), Section 4123.57(B) provided for the payment of compensation for permanent partial disability based on the percentage of permanent partial disability found by the Industrial Commission, and that approximately two years later (October 1, 1963) and before an award of compensation was made in the claim, the Legislature amended Section 4123.57(B) so that after providing for an award for permanent partial disability, the section contained the following:

'* * * No award shall be made under this division based upon a percentage of disability which, when taken with all other percentages of permanent disability, exceeds one hundred per cent. * * *'

Previously, effective November 2, 1959 (128 Ohio Laws, pp. 743, 757, 762), the Legislature had amended Section 4123.57 and had enacted Section 4123.571, Revised Code, which reads as follows:

'In connection with the procedural and remedial rights of employees, all claims which have accrued prior to the effective date of this act, whether or not an application for claim has been filed, or whether or not jurisdiction has been established or whether or not an application for an award under divisions (A), (B), (C), or (D) of section 4123.57 of the Revised Code has been filed shall be governed by the provisions of 4123.57 of the Revised Code, as amended by this act.'

The parties agree also that on December 11, 1963, the Industrial Commission made a determination that the relator had a 35% permanent partial disability which prior to the amendment of Section 4123.57, Revised Code, on October 1, 1963, would have entitled the claimant to compensation for 70 weeks at the rate of $49 per week, or a total award of $3,430 for permanent partial disability. However, the Industrial Commission found that in three prior claims filed by the relator, it had allowed him compensation for permanent partial disability which totaled 84%, and therefore awarded him compensation equal to a 16% permanent partial disability, or 32 weeks at a rate of $49 per week totaling $1,568.

The relator contends that there was no limiting provision in the Code section prior to October 1, 1963. Since the amount of payable to an injured employee was involved, a substantive right of the relator was affected, and the amendment can apply only to claims in which the injury was received after that date.

The Industrial Commission contends that the statute merely sets forth the procedure for the recovery of compensation and the extent to which relator may...

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8 cases
  • State ex rel. Sears, Roebuck & Co. v. Industrial Com'n of Ohio
    • United States
    • Ohio Supreme Court
    • July 3, 1990
    ...in violation of R.C. 4123.57(B)." The referee based his recommendation in part on the holding in State ex rel. Frank v. Keller (1965), 3 Ohio App.2d 428, 32 O.O.2d 549, 210 N.E.2d 724, that the amendment to R.C. 4123.57(B), effective October 1, 1963, could not affect the substantive rights ......
  • State v. Carder
    • United States
    • Ohio Court of Appeals
    • September 27, 1965
  • State ex rel. Borden, Inc. v. Martin, 2004 Ohio 4647 (OH 9/2/2004)
    • United States
    • Ohio Supreme Court
    • September 2, 2004
    ...Comm. v. Kamrath (1928), 118 Ohio St. 1; State, ex rel. Kirk v. Owens-Illinois, Inc. (1986), 25 Ohio St. 3d 360; State, ex rel. Frank v. Keller, Admr. (1965), 3 Ohio App.2d 428. It is equally well settled under O.R.C. 1.48 that changes in the law must be prospective unless expressly made re......
  • State ex rel. Ganson v. Indus. Comm., 2009 Ohio 1669 (Ohio App. 4/7/2009)
    • United States
    • Ohio Court of Appeals
    • April 7, 2009
    ...(a statutory right to apply for modification of workers compensation award accrues at time of claimant's injury); State ex rel. Frank v. Keller (1965), 3 Ohio App. 2d 428, 430 (the maximum amount of compensation to which a claimant is entitled is a substantive right and is governed by the s......
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