State ex rel. Munding v. Indus. Comm'n of Ohio

• Decision Date: 02 July 1915
• Docket Number: No. 14911.,14911.
• Parties: STATE ex rel. MUNDING v. INDUSTRIAL COMMISSION OF OHIO.
• Court: Ohio Supreme Court

92 Ohio St. 434
111 N.E. 299

STATE ex rel. MUNDING
v.
INDUSTRIAL COMMISSION OF OHIO.

No. 14911.

Supreme Court of Ohio.

July 2, 1915.

Mandamus by the State, on the relation of one Munding, administrator, against the Industrial Commission of Ohio. Writ awarded.

Syllabus by the Court

An award of compensation from the state insurance fund, under section 35 of the Workmen's Compensation Act (103 O. L. 72), to a wholly dependent person vests in the dependent when the award is made; so that, in case of the death of such dependent, his or her personal representative is entitled to the balance, if any, remaining unpaid.

The word ‘commute,’ as employed in Workmen's Compensation Act (103 O. L. p. 88) § 40, providing that the Board of Awards, under special circumstances, may commute periodical payments to one or more lump payments, means that the board may pay the dependent something less than he otherwise would receive.

[Ohio St. 434]McGhee, Davis & Boulger, of Columbus, and Walter L. Connors, of Dayton, for relator.

Edward C. Turner, Atty. Gen., Freeman T. Eagleson, of Cambridge, and John G. Price, of Columbus, for respondent.

NICHOLS, C. J.

The petition in this case and demurrer thereto present the question whether an award of compensation from the state insurance fund, under section 35 of the Workmen's Compensation Act (103 O. L. 72), to a wholly dependent person vests in the dependent when the award is made, so that, in case of the death of such dependent, his or her personal representative is entitled to the balance, if any, remaining unpaid.

[Ohio St. 435]The original Ohio Workmen's Compensation Act was passed May 31, 1911 (102 O. L. 524). Its purpose, well expressed in its title, was:

‘To create a state insurance fund for the benefit of injured and the dependents of killed employés, and to provide for the administration of such fund by a state liability board of awards.’

This act was optional or elective in principle. On February 6, 1912, its constitutionality was upheld by this court in the case of State ex rel. v. Creamer, 85 Ohio St. 349, 97 N. E. 602,39 L. R. A. (N. S.) 694. On September 3, 1912, a constitutional amendment was adopted by the people of Ohio (section 35, art. 2) authorizing the passage of laws providing for a state fund to be created by compulsory contribution thereto by employers and administered by the state.

Pursuant to this authority the Legislature passed the present act (103 O. L. 72). This act is in effect an amendment to the act of 1911, the principal changes being that it is compulsory as to all employers employing five or more workmen, and optional as to those employing less. Section 35 of the act, so far as the question before the court in this case is concerned, may be said to be identical with section 28 of the old law.

The present act was the result of much thought and careful consideration of the operation of workmen's compensation laws of other states and foreign countries, and of the administration of the plan in Ohio under the original law. It made the compensation plan more workable and efficient, and provided fully for the administration of the act in all its features by the state liability board of [Ohio St. 436]awards, and may be said to be a model of legislative expression in clarity and comprehension. For convenience the board in charge of the administration of the fund will be referred to in this opinion as the Board of Awards rather than as the Industrial Commission of Ohio, for the commission, in matters pertaining to its administration of the workmen's compensation fund, acts as the State Liability Board of Awards.

Section 14 of the act defines the terms ‘employé,’ ‘workman,’ and ‘operative’ as used in the act. Section 21 provides in part:

‘Every employé mentioned in subdivision one of section fourteen hereof, who is injured, and the dependents of such as are killed in the course of employment, * * * provided the same was not purposely self-inflicted, * * * shall be entitled to receive * * * from the state insurance fund, such compensation for loss sustained on account of such injury or death, * * * as is provided by sections thirty-two to forty inclusive.’

Section 35 provides for compensation in case of death, and is as follows:

‘In case the injury causes death within the period of two years, the benefits shall be in the amounts and to the persons following:

‘1. If there be no dependents, the disbursements from the state insurance fund shall be limited to the expenses provided for in section forty-two hereof.

‘2. If there are wholly dependent persons at the time of the death, the payment shall be

[111 N.E. 300]

sixty-six and two-thirds per cent. of the average weekly [Ohio St. 437]wages, and to continue for the remainder of the period between the date of the death, and six years after the date of the injury, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars, nor less than a minimum of one thousand five hundred dollars.

‘3. If there are partly dependent persons at the time of the death, the payment shall be sixty-six and two-thirds per cent. of the average weekly wages, and to continue for all or such portion of the period of six years after the date of the injury, as the board in each case may determine, and not to amount to more than a maximum of thirty-seven hundred and fifty dollars.

‘4. The following persons shall be presumed to be wholly dependent for support upon a deceased employé:

‘(A) A wife upon a husband with whom she lives at the time of his death.

‘(B) A child or children under the age of sixteen years (or over said age if physically or mentally incapacitated from earning) upon the parent with whom he is living at the time of the death of such parent.

‘In all other cases, question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employé, but no person shall be considered as dependent unless a member of the family of the deceased employé, or bears to him the relation of husband or widow, lineal descendant, ancestor or brother or sister. The word ‘child’ as used in this [Ohio St. 438]act, shall include a posthumous child, and a child legally adopted prior to the injury.'

Under this section, in case of an injury resulting in death, the essential facts to be determined by the Board of Awards are: (1) That the employé was injured in the course of his employment; (2) that the injury was not self-inflicted; (3) that it resulted in death within the period of two years; and (4) the question of dependency at the time of death.

The last question is determined by the statute in the case of a wife living with her husband at the time of his death, and children under the age of 16 living with the parent at the time of death of such parent. Such persons must be presumed to be wholly dependent for support on the deceased employé. All other questions of dependency must be determined by the Board of Awards. If it be found that there were dependents at the time of death, then the board must determine the average weekly wage of the deceased. If it is found that there were wholly dependent persons at the time of death (as in the instant case, the award having been made to relatrix's intestate as sole dependent), then the board can make no determination or finding as to the amount of the compensation which must be awarded; that is fixed by law in a sum certain. See section 35, paragraph 2. The payment shall be two-thirds of the...