State ex rel. Liposchak v. Indus. Comm.

• Decision Date: 15 November 2000
• Docket Number: No. 98-2287.,98-2287.
• Parties: THE STATE EX REL. LIPOSCHAK ET AL., APPELLANTS, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
• Court: Ohio Supreme Court

90 Ohio St.3d 276

737 NE 2d 519

THE STATE EX REL. LIPOSCHAK ET AL., APPELLANTS, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.

No. 98-2287.

Supreme Court of Ohio.

Submitted June 6, 2000.

Decided November 15, 2000.

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, Marc J. Jaffy and Eric S. Bravo, for appellants.

Betty D. Montgomery, Attorney General, and Craigg E. Gould, Assistant Attorney General, for appellee Industrial Commission.

PFEIFER, J.

Two issues are presented for our review: (1) Can a claimant who was denied R.C. 4123.60 compensation for failure to show dependency appeal to the common pleas court pursuant to R.C. 4123.512? and (2) Can Robert's estate collect his accrued R.C. 4123.60 compensation? For the reasons that follow, we hold that dependency issues do not invoke the basic right to participate in the workers' compensation system and, therefore, are not appealable. We further hold that a decedent's estate can be entitled to R.C. 4123.60 compensation that accrued but was not paid to the decedent. Accordingly, we reverse the dismissal of the Liposchak complaint and remand to the court of appeals for further proceedings.

Right to Participate

Under R.C. 4123.512, claimants and employers can appeal Industrial Commission orders to a common pleas court only when the order grants or denies the claimant's right to participate. Determinations as to the extent of a claimant's disability, on the other hand, are not appealable and must be challenged in mandamus. Thomas v. Conrad (1998), 81 Ohio St.3d 475, 477, 692 N.E.2d 205, 207; Felty v. AT&T Technologies, Inc. (1992), 65 Ohio St.3d 234, 237, 602 N.E.2d 1141, 1144; Zavatsky v. Stringer (1978), 56 Ohio St.2d 386, 10 O.O.3d 503, 384 N.E.2d 693, paragraph one of the syllabus.

These principles seem simple enough, but distinguishing between appealable right-to-participate orders and nonappealable extent-of-disability orders, as we must do in this case, has never been easy. Cook v. Mayfield (1989), 45 Ohio St.3d 200, 202, 543 N.E.2d 787, 790. The task is even more difficult in this appeal because (1) Edith's estate has not argued in favor of her R.C. 4123.59 death benefit claim,¹ and (2) R.C. 4123.59 specifically provides for appeal under R.C. 4123.512, whereas R.C. 4123.60 explicitly forbids this appeal.²

The court of appeals relied mainly on State ex rel. Ross v. Indus. Comm. (1998), 82 Ohio St.3d 411, 696 N.E.2d 585 ("Ross I"), from which the appellate court inferred that dependency represents "a" most basic right-to-participate issue. This suggests that the appeals court considered dependency just one of several issues appealable under R.C. 4123.512. But the discussion in Ross I actually referred to "the" basic right to participate. Id. at 414, 696 N.E.2d at 588. Though Ross I was reversed on reconsideration in State ex rel. Ross v. Indus. Comm. (1999), 84 Ohio St.3d 364, 703 N.E.2d 1276 ("Ross II"), Ross II reiterated that "only decisions involving a claimant's right to participate in the fund could be appealed." Id. at 367, 703 N.E.2d at 1278.

The only right-to-participate question that is appealable is whether an employee's injury, disease, or death occurred in the course of and arising out of his or her employment. Felty, 65 Ohio St.3d 234,602 N.E.2d 1141, at paragraph two of the syllabus; Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175, paragraph one of the syllabus; State ex rel. Evans v. Indus. Comm. (1992), 64 Ohio St.3d 236, 594 N.E.2d 609; and Zavatsky, 56 Ohio St.2d 386,10 O.O.3d 503,384 N.E.2d 693, paragraph one of the syllabus. When the answer to this question is "no," all compensation, expenses, and awards of every kind must be denied because the commission has no jurisdiction in such cases. Lewis v. Trimble (1997), 79 Ohio St.3d 231, 244, 680 N.E.2d 1207, 1217, citing 3 Larson, Workmen's Compensation Law (1996) 15-959 to 15-961, Section 80.41. When the answer is "yes," the claimant has cleared the first hurdle, and then may attempt to establish his or her extent of disability. It follows that these claimants may qualify based either on the extent of their own disability or the extent to which they were legally dependent on the injured employee. But either way, the issue is no longer whether the commission has jurisdiction to award benefits in the employee's case; the question instead becomes how much the system must pay. Zavatsky, 56 Ohio St.2d at 396,10 O.O.3d at 509,384 N.E.2d at 699.

Ross I and Ross II applied the rule that the right to participate is invoked when it is determined that an employee has sustained an injury, disease, or death in the course of and arising out of employment. Ross I at 414-415, 696 N.E.2d at 588; Ross II, 84 Ohio St.3d at 367-368, 703 N.E.2d at 1278. Ross II went further, holding that when the commission finds merely that a particular type of employment caused an employee's injury, disease, or death, the employee's baseline right to participate has already been established and an order finding the wrong employer responsible is not appealable. Id. at 368-369, 703 N.E.2d at 1279. According to Ross II, the identity of the responsible employer's identity can only be challenged in mandamus. Id. at 369, 703 N.E.2d at 1279.

Thus, under our most recent precedent, any issue other than whether the injury, disease, or death resulted from employment does not constitute a right-toparticipate issue. From a logical standpoint, the rule is the same whether the claim is for accrued but unpaid compensation under R.C. 4123.60 or for death benefits under R.C. 4123.59.

Unfortunately, the dispute in this case is not so easily settled because of the differing appeal provisions in R.C. 4123.60 and 4123.59. While R.C. 4123.60 is consistent with the rule that only the causal connection between an employee's condition and employment is appealable, R.C. 4123.59, which defines dependency, is not. Regarding claims for accrued but unpaid compensation, the last paragraph of R.C. 4123.60 provides:

"An order issued by the administrator under this section is appealable pursuant to section 4123.511 of the Revised Code [administrative appeal to the commission] but is not appealable to court under section 4123.512 of the Revised Code." (Emphasis added.)

Regarding death benefits, R.C. 4123.59 specifies in its last paragraph:

"(E) An order issued by the administrator under this section is appealable pursuant to sections 4123.511 to 4123.512 of the Revised Code." (Emphasis added.)

The court of appeals dismissed the last paragraph of R.C. 4123.60 as irrelevant to the question of appealability in this case because it precluded R.C. 4123.512 appeals from the administrator, but not from the commission. But as the Liposchaks argue, the administrator's allowance or disallowance of a claim is never appealable to common pleas court; R.C. 4123.512 authorizes appeal only for final commission orders. Furthermore, the similarity of these two closing paragraphs suggests legislative intent to distinguish the applicable appeal procedures. In fact, the General Assembly enacted these provisions in 1993, the year after the Felty, Evans, and Afrates decisions in an apparent attempt to settle the matter. See 145 Ohio Laws, Part II, 2990, 3170-3171.

In State ex rel. Nicholson v. Copperweld Steel Co. (1996), 77 Ohio St.3d 193, 672 N.E.2d 657, and State ex rel. Yancey v. Firestone Tire & Rubber Co. (1997), 77 Ohio St.3d 367, 673 N.E.2d 1374, we recently recognized mandamus as the sole means to enforce a claimant's right to accrued but unpaid compensation. The court of appeals distinguished Nicholson and Yancey because neither turned on dependency. Each case involved a widow whose dependency was unquestioned, seeking to establish her husband's eligibility for permanent total disability benefits, which is an accepted extent-of-disability issue. That aspect of the claims in Nicholson and Yancey differs from Edith's R.C. 4123.60 claim. However, the only appealable right-to-participate issue is whether an employee has contracted a disease or been injured or killed as a result of his or her employment; the extent to which a claimant is a dependent of that injured, sick, or deceased employee does not invoke the right to appeal under R.C. 4123.512.

The determination that issues of dependency arising in an R.C. 4123.60 claim are not appealable does not resolve the related question that pervades this appeal—whether these same issues may be appealed in an R.C. 4123.59 claim. In the interest of consistency, we hold that they cannot. While these issues arguably fall under the broad heading of what may be appealed under R.C. 4123.59, we refuse to obscure the rule that R.C. 4123.512 permits only those appeals that concern whether the employee's injury, disease, or death occurred in the course of and arising out of his or her employment. We read R.C. 4123.59 in pari materia with R.C. 4123.512 and find that the latter statute restricts the appeals authorized by R.C. 4123.59. Accordingly, we hold that although death benefits may be granted or denied based on dependent status as defined in R.C. 4123.59, the denial or grant of such benefits is not appealable unless it concerns the causal connection between injury, disease, or death and employment.

Our decision, therefore, does more than simply overturn the judgment of the Franklin County Court of Appeals; it also undermines the Jefferson County Common Pleas Court's recognition of dependency as an appealable issue in Edith's death benefit claim. Under R.C. 4123.66(A), funeral expenses can be paid only "in case death ensues from the [employment-related] injury or occupational disease." By granting funeral expenses to Edith, the commission has effectively already determined the basic right to participate. Indeed, had the commission not concluded that Robert died as a result of his occupational disease, it would not have had jurisdiction to order any benefits at all.

Accrued Compensation

Having...