State ex rel. Nicholson v. Copperweld Steel Co.

Decision Date18 December 1996
Docket NumberNo. 94-2352,94-2352
Citation672 N.E.2d 657,77 Ohio St.3d 193
PartiesThe STATE ex rel. NICHOLSON, Appellant, v. COPPERWELD STEEL COMPANY; Industrial Commission of Ohio, Appellee.
CourtOhio Supreme Court

Appellant, Marian Nicholson, seeks a writ of mandamus (1) to vacate appellee Industrial Commission of Ohio's denial of her "Application for Payment of Compensation Accrued at Time of Death," and (2) to award her the permanent total disability compensation ("PTD") she claims her husband should have received prior to his death.

Marian's husband, Charles Nicholson, was injured in 1973 and again in 1974 while working for Copperweld Steel Company. His workers' compensation claims were recognized for "right foot" and "contusion and ecchymosis of left buttock, strain of left sacroiliac, aggravation of pre-existing arthritis of the lumbar spine, spondylolisthesis at L5/S1 and central bulging discs at L4/5, L5/S1." In July 1990, Charles applied for PTD. His physician, Dr. Martin J. Lohne, reported that Charles was "100% disabled" due to his back injury. A commission specialist, Dr. David M. Baroff, reported Charles had a twenty-five percent permanent partial impairment based on the allowed back condition, but concurred that Charles was unfit for sustained remunerative employment. Charles died on February 18, 1992, before any disposition of his PTD application.

On April 13, 1992, Marian applied, as Charles's dependent, for the compensation Charles could have received prior to his death. The commission denied her application in February 1993, finding that Charles had been permanently and totally disabled when he died, but not due to either of his allowed conditions. The commission explained:

"The reports of Doctors Lohne, Baroff and McCloud were reviewed and evaluated. This order is based particularly upon the report of Doctor McCloud.

"The medical evidence found persuasive includes the report of Commission orthopedist Dr. McCloud. The report, which consists of a review of both allowed claim files subsequent to the claimant's death, finds a 30% permanent partial impairment due to the claimant's allowed conditions and opines these conditions did not render the claimant permanently totally impaired. It is noted that the claimant's course of treatment for his allowed conditions was exclusively conservative in nature. The report of Commission specialist Dr. Baroff, which finds only a 25% permanent partial impairment but opines the claimant is permanently disabled from any work, is found unpersuasive in that it is not supported by objective medical evidence on file. Medical evidence on file indicates at the time of his death the claimant suffered from a seizure disorder and arthritis in both knees. The death certificate indicates the claimant's immediate cause of death was cardiac arrest, with meningeal sarcoma and coronary a[r]teriosclerotic heart disease listed as contributing causes. Therefore, while the Commission finds the claimant to have been incapable of gainful employment at his date of death, it is determined that the claimant's inability to work was not causally related to the allowed conditions in the claim files. This finding is based on a consideration of Dr. McCloud's report, the claimant's conservative course of treatment, the claimant's advanced age of 68 at his date of death, and his serious non-work related medical conditions. Accordingly, the IC-2 filed 7/17/90 [Charles's application] and the C-6 filed 4/13/92 [Marian's application] are denied."

Marian then filed her complaint in mandamus in the Court of Appeals for Franklin County. She argued that the allowed conditions and Charles's other vocational characteristics had made him unfit for sustained remunerative employment and, therefore, that the commission had abused its discretion by denying her payment for the PTD Charles should have received prior to his death. A referee recommended denial of the writ without reaching Charles's PTD eligibility. The referee concluded that Charles's claim had abated upon his death and that Marian had no legal right, under R.C. 4123.60, to pursue payment for his PTD by an action in mandamus. The court of appeals agreed, adopted the referee's reasoning, and denied the writ.

The cause is before this court upon an appeal as of right.

Jurus Law Offices and Michael J. Muldoon, Hilliard, for appellant.

Betty D. Montgomery, Attorney General, and Charles Zamora, Assistant Attorney General, for appellee.


Two questions are presented for our review: (1) Is mandamus available to compel payment, pursuant to R.C. 4123.60, to a decedent's spouse of the PTD the decedent could have received prior to his death? and (2) Did the commission abuse its discretion in finding that Charles was not entitled to PTD and denying Marian the payments available under R.C. 4123.60? For the reasons that follow, we hold that R.C. 4123.60 affords dependents, upon timely application, the right to claim compensation for which a decedent was eligible but was not paid before death and that mandamus is available to enforce this right. We further hold that the commission's order is not sufficiently specific under State ex rel. Noll v. Indus. Comm. (1991), 57 Ohio St.3d 203, 567 N.E.2d 245, and, therefore, constitutes an abuse of discretion. Accordingly, we reverse and return this cause to the commission for further consideration and an amended order.

R.C. 4123.60

Marian applied for payment of compensation for which Charles qualified before he died pursuant to R.C. 4123.60, which provided, in part:

"In all cases of death from causes other than the injury or occupational disease for which award had theretofore been made on account of temporary, or permanent partial, or total disability, in which there remains an unpaid balance, representing payments accrued and due to the decedent at the time of his death, the commission may, after satisfactory proof has been made warranting such action, award or pay any unpaid balance of such award to such of the dependents of the decedent, or for services rendered on account of the last illness or death of such decedent, as the commission determines in accordance with the circumstances in each such case. If the decedent would have been lawfully entitled to have made application for an award at the time of his death the commission may, after satisfactory proof to warrant an award and payment, award and pay an amount, not exceeding the compensation which the decedent might have received, but for his death, for the period prior to the date of his death, to such of the dependents of the decedent, or for services rendered on account of the last illness or death of such decedent, as the commission determines in accordance with the circumstances of each case, but such payments may be made only in cases in which application for compensation was made in the manner required by sections 4123.01 to 4123.94 of the Revised Code, during the lifetime of such injured or disabled person, or within one year after the death of such injured or disabled person." (Emphasis added.) (136 Ohio Laws, Part I, 1075, 1169-1170.)

The court of appeals concluded that Charles's PTD claim abated upon his death, which is true under State ex rel. Hamlin v. Indus. Comm. (1993), 68 Ohio St.3d 21, 22, 623 N.E.2d 35, 36. The court further held that his surviving spouse had no right under R.C. 4123.60 to "step into * * * [his] shoes" for the purpose of pursuing his claim, and this is also true. State ex rel. Manns v. Indus. Comm. (1988), 39 Ohio St.3d 188, 529 N.E.2d 1379, paragraph three of the syllabus (where deceased claimant was paid lump-sum advance for anticipated future compensation, advance was not "accrued compensation" to which dependents may be entitled under R.C. 4123.60, and a surviving spouse cannot pursue the decedent's claim for the advance). The commission urges us to affirm for the same reasons.

We, however, read the emphasized language of R.C. 4123.60 to expressly authorize a deceased worker's dependents' receipt of compensation for which the worker qualified and should have received before death. Indeed, we have already said that where a deceased worker's dependents' claims accrued compensation under R.C. 4123.60, "[t]he award is not personal to the worker because R.C. 4123.60 specifically provides that dependents may recover the compensation the deceased worker was entitled to receive." State ex rel. Nyitray v. Indus. Comm. (1983), 2 Ohio St.3d 173, 177, 2 OBR 715, 719, 443 N.E.2d 962, 966, fn. 5. For this reason, an R.C. 4123.60 award is similar to a death benefit award under R.C. 4123.59--both exist separate and apart from the rights of the injured worker. Nyitray at 174, 2 OBR at 716, 443 N.E.2d at 963; Manns, 39 Ohio St.3d at 190, 529 N.E.2d at 1381.

Thus, contrary to the court of appeals' decision, Marian is not attempting to pursue Charles's PTD claim, which he filed pursuant to R.C. 4123.58, on his behalf. Rather, when Marian filed her application for accrued compensation, she instituted her own claim for compensation Charles could have received, a claim that is expressly sanctioned by R.C. 4123.60. As a result, Marian's claim was not abated by Charles's death--her interests actually arose at that time and, under R.C. 4123.60, they became independently actionable. Nyitray at 174, 2 OBR at 716, 443 N.E.2d at 963.

The court of appeals also concluded that R.C. 4123.60 requires the commission to decide a dependent's application for accrued compensation, but stops short of authorizing a dependent's suit in mandamus if the application is denied. The court came to this conclusion because R.C. 4123.60 does not identify mandamus as an avenue for challenging the commission's denial of compensation and because the statute states that the commission "may" compensate dependents of deceased workers, connoting a discretionary decision. Neither consideration, however, justifies the...

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