Szekely v. Young, s. 37366 and 37491

• Citation: 22 O.O.2d 214,188 N.E.2d 424,174 Ohio St. 213
• Decision Date: 20 February 1963
• Docket Number: Nos. 37366 and 37491,s. 37366 and 37491
• Parties: , 22 O.O.2d 214 SZEKELY, Appellee, v. YOUNG, Adm'r, Appellant, et al. LAIRSON, Appellant, v. YOUNG, Adm'r, et al., Appellees.
• Court: United States State Supreme Court of Ohio

Page 213

174 Ohio St. 213

188 N.E.2d 424, 22 O.O.2d 214

SZEKELY, Appellee, v. YOUNG, Adm'r, Appellant, et al.

LAIRSON, Appellant, v. YOUNG, Adm'r, et al., Appellees.

Nos. 37366 and 37491.

Supreme Court of Ohio.

Feb. 20, 1963.

Syllabus by the Court

1. The only right of appeal to a court with respect to a claim for workmen's compensation is such as may be provided for by statute.

2. A direction to liberally construe a statute in favor of certain parties will not authorize a court to read into the statute something which cannot reasonably be implied from the language of the statute.

3. There is no right of appeal to the Common Pleas Court with respect to an occupational disease claim under the Workmen's Compensation Statutes.

Case No. 37366 is an appeal from a judgment of the Court of Appeals for Allen County reversing a judgment of the Common Pleas Court which sustained a demurrer to plaintiff's petition and dismissed that petition. The cause is before this court pursuant to allowance of a motion to certify the record.

Case No. 37491 is an appeal from a judgment of the Court of Appeals for Butler County affirming a judgment of the Common Pleas Court which sustained a demurrer to plaintiff's petition and dismissed that petition. The cause is before this court pursuant to a certification of the record by the Court of Appeals for Butler County, it having found that its judgment is in conflict with the judgment of the Court of Appeals for Allen County in case No. 37366.

Hoover, Beall & Eichel, Cincinnati, for appellant in case No. 37491.

Smart & Smart, Canton, and Everett & Blair, Lima, for appellee in case No. 37366.

Mark McElroy, Atty. Gen., Alvin C. Vinopal and Thomas J. Zuber, Columbus, for James L. Young, Administrator of the Bureau of Workmen's Compensation.

Turner, Wells, Granzow & Spayd, Dayton, and Schwenker, Teaford, Brothers & Bernard, Columbus, for appellee Diamond Gardner Corporation, Gardner Division in case No. 37491.

TAFT, Chief Justice.

The only question to be determined in each of these cases is whether there is any right of appeal to the Common Pleas Court with respect to an occupational disease claim under the Workmen's Compensation Statutes.

The only right of appeal to a court with respect to a claim for workmen's compensation is such as may be provided for by statute. Industrial Commission v. Monroe (1924), 111 Ohio St. 812, 146 N.E. 213.

The only statute providing for an appeal to the Common Pleas Court with respect to a claim for workmen's compensation is Section 4123.519, Revised Code, which reads, so far as pertinent:

'The claimant or the employer may appeal a decision of the industrial commission in any injury case, other than a decision as to the extent of disability, to the court of common pleas of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state.'

As pointed out in Johnson v. Industrial Commission (1955), 164 Ohio St. 297, 130 N.E.2d 807, Section 35 of Article II of the Ohio Constitution differentiates between injury and disease and the word 'injury,' as used in our Workmen's Compensation Statutes, does not ordinarily include a disease.

Thus, when the General Assembly provided in Section 4123.519 for an appeal 'in any injury case,' it certainly did not expressly provide for an appeal in an occupational disease case.

In 1955, when Section 4123.519 was first enacted (126 Ohio Laws, pp. 1015, 1022), the General Assembly also enacted Sections 4123.512 to 4123.518, inclusive, which, with Section 4123.519, substantially revised the administrative procedures to be followed with respect to workmen's compensation claims and provided for administrative appeals and court appeals with respect thereto. A reading of these sections clearly indicates that all except Section 4123.519 apply not only to injury claims but also to occupational disease claims. In Section 4123.512, the words 'injury or occupational disease' are used three times in such a way as to indicate beyond any doubt that the claims dealt with therein are not only injury claims but also occupational disease claims. Also, that statute uses the words 'any claim under Chapter 4123 of the Revised Code,' which would necessarily include an occupational disease claim. There are no words in the following Sections 4123.513 to 4123.518, inclusive, to even suggest the possibility that these sections are not also to apply with respect to occupational disease claims. However, in providing for a court appeal in Section 4123.519, the General Assembly provided for such an appeal 'in an injury case' and used the word 'injury' in two other places in providing in that statute for that court appeal. Nowhere in providing for a court appeal did the General Assembly use words which can be reasonably construed as even suggesting an intention to grant a right to a court appeal with respect to an occupational disease claim or in an occupational disease case.

Furthermore, when it enacted Sections 4123.512 to 4123.519, inclusive, in 1955, the General Assembly also enacted Section 4121.131, Revised Code, providing in part:

'The industrial commission * * * shall * * * render final determinations of disputed claims as provided in sections 4123.516, 4123.517 and 4123.518 * * * except as provided in section 4123.519 * * *.'

Thus, final determinations were to be made by the Industrial Commission of all disputed claims whether for 'injury or occupational disease' except where there was an appeal in an 'injury case.'

As we read these 1955 amendments to the Workmen's Compensation Statutes, they express a legislative intention to provide for administrative review of all disputed claims whether for 'injury or occupational disease' but for a court appeal only in an 'injury case' and not in an occupational disease case. In effect, the General Assembly expressed the intention that there should be no appeal in an occupational disease case just as clearly as if it had expressly so stated.

The arguments made in each of the instant cases in support of the contention that our statutes now confer the right to an appeal to the Common Pleas Court in an occupational disease case may be summarized as follows:

1. When the Workmen's Compensation Statutes were amended in 1921 (109 Ohio Laws, p. 181) to provide for compensation for occupational diseases, this was done by enacting Section 1465-68a and 1465-68b, General Code. Section a of that statute (which, as later amended, became Section 4123.68, Revised Code) provided for compensation payments to employees who contracted certain scheduled occupational diseases and to dependants of employees whose deaths were caused by such diseases.

Section b (which as later amended became Section 4123.69, Revised Code) extended to those employees and dependents all the rights, benefits and immunities provided for injured employees by the other sections of the Workmen's Compensation Statutes excepting Section 1465-90, General Code (which as later amended became Section 4123.51, Revised Code), which permitted a court appeal in certain 'injury' cases.

2. If this exception as to Section 1465-90, General Code (later Section 4123.51, Revised Code), had not been made, Section 1465-68b, General Code (now Section 4123.69, Revised Code), would have conferred the same right of appeal with respect to an occupational disease claim as conferred by Section 1465-90, General Code (later Section 4123.51, Revised Code), with respect to an injury claim. Industrial Commission v. Monroe, supra (111 Ohio St. 812, 146 N.E. 213), is cited as supporting this argument.

3. When Section 4123.51, Revised Code, was repealed in 1955, its provisions for court appeals in injury cases were replaced by the provisions of Section 4123.519 for court appeals in injury cases; and, by reason of the provisions of Section 1.23(A), Revised Code ('[where] reference is made to any section * * * of the Revised Code, such reference shall extend to and include any amendment of or supplement to the section * * * so referred to or any section or sections hereinafter enacted in lieu-thereof'), the words of Section 4123.69, Revised Code, which read, 'except Section 4123.51.' should in effect read, 'except Section 4123.519.'

4. By amending Section 4123.69 in 1959 to eliminate the exception as to Section 4123.51, the General Assembly thereby expressed an intention to confer the same right of appeal with respect to an occupational disease claim as conferred by Section 4123.519 with respect to an injury claim. In support of this argument, a statement is cited from 2 Sutherland on Statutes and Statutory Construction (2 Ed.), 672, Section 351, to the effect that, if a statute is amended by striking out the exception of a particular thing from the operation of the general words of the statute, 'the intent is clear to put the excepted thing within the operation of the general words.'

5. Section 4123.95, Revised Code, provides:

'Sections 4123.01 to 4123.94, inclusive, of the Revised Code shall be liberally construed in favor of employees and the dependents of deceased employees.'

In our opinion, the only legislative purpose in amending Section 4123.69 in 1959 so as to eliminate reference to Section 4123.51 was to clear up the statute by removing an unnecessary reference to a statute which had been repealed four years before. The excepting reference of Section 4123.69 to Section 4123.51 had become unnecessary, as hereinbefore indicated, not only because of the repeal of Section 4123.51 in 1955 but also because of the clear expression by the General Assembly, in the 1955 enactment of Sections 4123.512 to 4123.519, inclusive, Revised Code, and Section 4121.131, Revised Code, of an intent to provide for an appeal in injury cases but not in occupational disease cases.

This opinion is fortified by the fact that, at the same time, the General Assembly removed several other obviously unnecessary...