State ex rel. Holdridge v. Industrial Commission

• Decision Date: 19 July 1967
• Docket Number: No. 40443,40443
• Citation: 11 Ohio St.2d 175,228 N.E.2d 621,40 O.O.2d 162
• Parties: , 40 O.O.2d 162 The STATE ex rel. HOLDRIDGE, Appellee. and Cross-Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellants and Cross-Appellees.
• Court: Ohio Supreme Court

Page 175

11 Ohio St.2d 175

228 N.E.2d 621, 40 O.O.2d 162

The STATE ex rel. HOLDRIDGE, Appellee. and Cross-Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellants and Cross-Appellees.

No. 40443.

Supreme Court of Ohio.

July 19, 1967.

Syllabus by the Court

1. Laws of a remedial nature providing rules of practice, courses of procedure, or methods of review are applicable to any proceedings conducted after the adoption of such laws.

2. The 1959 amendment to Section 4123.58, Revised Code, amending the language: 'The loss of * * * both eyes * * * shall prima facie constitute total and permanent disability,' to read, 'The loss of * * * both eyes * * * constitutes total and permanent disability,' was remedial, not substantive, in nature.

3. Under the provisions of Section 4123.58, Revised Code, as amended in 1959, an injured workman is entitled to participate in the State Insurance Fund by reason of injuries which constituted total and permanent disability, and such participation should be reinstated as of the date when the Industrial Commission terminated his compensation, and to continue until his death. (Industrial Commission v. Kamrath, 118 Ohio St. 1, 160 N.E. 470, and State, ex rel. Schmersal, v. Industrial Commission, 142 Ohio St. 477, 52 N.E.2d 863; distinguished.)

This is an action originally filed in the Court of Appeals for Franklin County by relator, Holdridge, who sought a writ of mandamus directing respondent, the Industrial Commission of Ohio, to compensate relator upon a permanent and total disability basis from August 2, 1964, and to continue such compensation until his death. The relator contended that the respondent abused its discretion in determining that the extent of disability was not total and permanent.

On June 28, 1966, the Court of Appeals stated in its decision:

'We believe that the writ of mandamus should issue and the Industrial Commission continue to compensate claimant on a permanent total disability basis.'

There is no dispute relative to the facts. The relator, Holdridge, was in the employ of Aerate Products, Toledo, Ohio. He was then 19 years of age. Prior to such employment, relator sustained a disability which resulted in total blindness in his left eye and enucleation. This disability was nonindustrial.

On June 24, 1946, while in the course of his employment with Aerate Products, relator's right eye was destroyed by an explosion, and as a result thereof, he became totally blind.

On July 29, 1947, the Industrial Commission entered its finding and order as follows:

'That the commission finds from proof of record that the claimant is permanently and totally disabled and compensation for such disability be awarded from June 2, 1947, to continue without suspension, unless future facts or circumstances should warrant the stopping of payment.' (Emphasis added.)

Nevertheless, the relator learned to read braille, learned to rely upon a seeing-eye dog, and in short, did what he could to accommodate his activities to his blindness. He secured employment in 1954 with the Hadley Manufacturing Company of Toledo and gradually developed his remaining sensory and physical faculties until 1964 when he was earning approximately $105 a week. He married, purchased a home, and assumed a mortgage obligation upon which he was required to pay $101 a month. He sought the advice of the Industrial Commission relative to his compensation award before assuming the above marital obligation and was told that his compensation payments would not be disturbed.

However, an investigator for the Industrial Commission learned of relator's persistent and determined efforts to rehabilitate himself and his subsequent employment. Upon his report to the Industrial Commission, it held a hearing and on August 4, 1964, entered an order that relator should no longer participate in the State Insurance Fund 'unless future facts or circumstances should warrant renewal' of payments. About three years prior thereto relator had moved to a new address. The Industrial Commission was given this new address but failed to give any notice of the hearing to the relator as required by law.

A motion for a rehearing was denied on July 12, 1965.

This cause is before this court as a matter of right on appeal by respondents from the judgment of the Court of Appeals.

Cobourn, Yager, Smith & Falvey and Fred A. Smith, Toledo, for appellee and cross-appellant.

William B. Saxbe, Atty. Gen., Donald M. Colasurd, Columbus, and Beatric K. Bleicher, Toledo, for appellants and cross-appellees.

HERBERT, Judge.

The compensation of a workman injured in the course of his employment, or compensation to his dependents in the event of his death, is governed by statute. Frequently, such statutes are repealed or repealed and re-enacted as amended. A statute may be substantive or remedial (procedural) or substantive in part and remedial in part.

In the case at bar, it is necessary to examine two statutes-first, Section 1465-81, of the General Code of Ohio, effective at the time of relator's injury, and, second, Section 4123.58 of the Revised Code which is the amended re-enactment of the first statute. The question presented is which of the two statutes, Section 1465-81 of the General Code (now repealed) or Section 4123.58 of the Revised Code, is controlling in the case at bar?

Section 1465-81 of the General Code provided that:

'In cases of permanent total disability, the award shall be sixty-six and two-thirds per cent of the average weekly wages, and shall continue until the death of such person so totally disabled, but not to exceed a maximum of twenty-one dollars per week and not less than a minimum of ten dollars per week at the time of the injury, in which event he shall receive compensation in an amount equal to his average weekly wages.

'The loss of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof, shall prima facie constitute total and permanent disability, to be compensated according to the provisions of this section.' (Emphasis added.)

Section 4123.58 of the Revised Code, effective in 1959, amended the former statute to read as follows:

'In cases of permanent total disability, the employee shall receive an award to continue until his death in the amount of sixty-six and two-thirds per cent of his average weekly wage, but not more than forty-nine dollars per week nor not less than a minimum of forty dollars and twenty-five cents per week, unless the employee's average weekly wage is less than forty dollars and twenty-five cents per week at the time of the injury, in which event he shall receive compensation in an amount equal to his average weekly wage.

'The loss of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof, constitutes total and permanent disability, to be compensated according to this section.' (Emphasis added.)

It is doubtful if a perfect definition of 'substantive law' or 'procedural or remedial law' could be devised. However, the authorities agree that, in general terms, substantive law is that which creates duties, rights, and obligations, while procedural or remedial law prescribes methods of enforcement of rights or obtaining redress. State v. Elmore, 179 La. 1057, 1058, 155 So. 896; Manuel v. Carolina Casualty Ins. Co. (La.App.), 136 So.2d 275, 277; 40 Words and Phrases (Perm.Ed.), 857.

Each of the two statutes defines the loss of both eyes as a permanent and total disability. This is substantive law. Such a disability imposes a duty or obligation upon the employer under the law of Ohio to meet and overcome the prima facie evidence of total and permanent disability. The employer failed to overcome and, so far as we can determine from the record, did not endeavor to overcome the presumption of total disability. The Industrial Commission apparently recognized that the relator suffered a permanent and total disability and allowed compensation under both statutes. It follows, therefore, that since the prima facie proof factor concerned only the manner of arriving at a fact conclusion, upon which the substantive law would operate, it was itself procedural or remedial rather than substantive.

The removal of the prima facie proof factor leaves the relator with an unconditional right to receive compensation 'according to this section' '* * * until his death.' This, the Industrial Commission conceded, when it recognized and allowed compensation under the provisions of the statute of 1959. (Section 4123.58 of the Revised Code.)

The Industrial Commission asked the Attorney General for an official opinion upon the questions raised by the status of the relator. On April 2, 1965, the Attorney General submitted his opinion in a memorandum to the Industrial Commission.

After stating the facts and quoting the sections of the statutes as hereinbefore set out, the Attorney General continued:

'It is well settled that laws of a remedial nature providing rules of practice, courses of procedure, or methods of review are applicable to any proceedings conducted after the adoption of such laws. State, ex rel. Slaughter, v. Industrial Commission, 132 Ohio St. 537 (9 N.E.2d 505); State, ex rel. Michaels v. (Morse) Industrial...