LaCavera v. Cleveland Electric Illuminating Co.

Parrino, P.J. Appellant Cleveland Electric Illuminating Company (CEI) appeals the decision of the Court of Common Pleas of Cuyahoga County which granted benefits under R.C. 4123.57(C) to Elaine LaCavera, the widow of Reginald LaCavera. Reginald LaCavera was employed by CEI on August 1,1981 when, during the course of his employment, he suffered an accident which caused electrical burns and further caused him to fall approximately thirty-five feet. He had second and third degree burns over sixty to seventy percent of his body and was immediately hospitalized. A claim was filed for benefits under the Workers’ Compensation Act on August 10, 1981. On August 13, 1981 his leg was amputated and he died on August 15,1981. A claim for death benefits was filed August 17, 1981. On November 11, 1981 LaCavera’s widow, Elaine LaCavera, the appellee herein, filed a claim for allowable benefits for the amputation of the decedent’s leg pursuant to R.C. 4123.57 (C). Had decedent survived, he would have been entitled to two hundred weeks of workers’ compensation for the amputation of his leg. Benefits were denied by the hearing officer February 9, 1982; that decision was affirmed by the regional board of review April 26, 1982 and on June 24,1982 the Industrial Commission refused further appeal. Pursuant to R.C. 4123.519 widow-appel-lee timely filed her notice of appeal and complaint with the trial court. The trial court entered judgment in favor of ap-pellee and CEI filed timely notice of appeal. The appeal raises three issues for our review. *214 I “The common pleas court lacked jurisdiction under O.R.C. § 4123.519 over widow-claimant’s appeal from a decision of the industrial commission involving the extent of decedent’s disability.” This assignment of error is not well-taken. Appellant argues that since decedent’s claim for benefits for “injuries to his entire body had been certified and recognized,” any further claim for another specific injury arising out of the same . accident would be an “extent of disability” question. Under R.C. 4123.519 “extent of disability” disputes are not appealable to the common pleas court. In the instant case, however, the widow's claim was a separate and distinct injury to decedent, i.e., the loss of a limb, which was specifically com-pensable under R.C. 4123.57(C). The syllabus of Zavatsky v. Stringer (1978), 56 Ohio St. 2d 386 [10 O.O.3d 503], states: “1. An order of the Industrial Commission, which either denies or allows a claimant the right to participate in the Workers’ Compensation Fund for injury to a specific part or parts of the body involving loss or impairment of bodily functions on the basis that such was or was not the result of a compen-sable injury, is a decision other than one as to the extent of disability and, thus, pursuant to R.C. 4123.519, may be appealed to the Court of Common Pleas by the claimant in the event of such a denial, or by the employer in the event of such an allowance. “2. A determination of ‘extent of disability’ under R.C. 4123.519 presupposes that claimant has been allowed the ‘right to participate’ in the Workers’ Compensation Fund for injury to a specific part or parts of the body involving the loss or impairment of bodily functions. The decision of the Industrial Commission as to ‘extent of disability’ constitutes a determination of the basis for the computation of the compensation or benefits payable under the provisions of the workers’ compensation law for those losses or impairments of bodily functions allowed as compensable injuries. “3. The right of either the claimant or the employer to appeal to the Court of Common Pleas from a decision of the Industrial Commission which is ‘other than a decision as to the extent of disability’ is not affected by the fact that the claimant is receiving or will receive compensation or benefits for allowed injuries involving losses or impairments of bodily functions other than those which are the subject of the appeal. Such right of appeal may be exercised by either the claimant or the employer, regardless of whether the decision granting or denying the right to so participate is a part of the same order or is part of a prior order which also grants or denies a right to participate for other injuries involving loss or impairment of other bodily functions.” The facts of this case indicate a claim for the “right to participate” in the fund for a specific injury (the loss of a member by severance), rather than the extent of disability and is therefore ap-pealable. Further, appellee’s claim to the trial court questioned whether the statutory scheme set forth in R.C. 4123.57(C) which distinguished between surviving families of deceased workers was constitutional. As stated by this court in Rose v. Conner (Oct. 28, 1982), Cuyahoga App. No. 44988, unreported, “matters involving the jurisdiction of the Industrial Commission to make an award, or the constitutionality of a statute governing this area, are appealable to court.” The instant cause was properly before the trial court. The first assignment of error is overruled. II Appellant’s second assignment of error states: *215 “The common pleas court erred in ■ finding that appellee is entitled to recover for the loss of her deceased husband’s leg under O.R.C. § 4123.57(C).” R.C. 4123.57(C) provides for benefits due to loss of a member. The benefit is akin to a personal injury award and is payable for a set number of weeks depending upon which member is lost. A loss of a leg entitles the worker to benefits for two hundred weeks. Division (C) further provides: “When an award under this division has been made prior to the death of an employee from a cause other than the injury or occupational disease on which the award is based, all unpaid installments accrued or to accrue under the provisions of the award shall be payable to the surviving spouse, or if there is no surviving spouse, to the dependent children of such employee and if there are no such children, then to such dependents as the commission may determine. “When an employee has sustained the loss of a member by severance, but no award has been made on account thereof prior to his death from a cause other than the injury or- occupational disease which caused such severance, the commission shall make an award in accordance with this division for such loss which shall be payable to the surviving spouse, or if there is no surviving spouse, to the dependent children of such employee and if there be no such children, then to such dependents as the commission may determine.” (Emphasis added.) At the trial court appellee successfully argued that State, ex rel. Nyitray, v. Indus. Comm. (1983), 2 Ohio St. 3d 173, was applicable to the case at bar, which would invalidate that portion of the statute which distinguished between surviving families of workers who died from industrial-related causes and surviving families of workers who died from other causes. The syllabus of Nyitray provides: “That portion of R.C. 4123.60 which in effect denies accrued but unpaid workers’ compensation to dependents of workers who died from work-related causes, while compensating dependents of workers who died from causes other than a compensable injury or occupational disease, violates the Equal Protection Clauses of the Ohio and United States Constitutions.” We hold that the trial court properly applied Nyitray to the instant case. As noted above, R.C. 4123.57(C) provides that the surviving spouse or appropriate dependents are entitled to all unpaid accrued and unaccrued benefits arising under that division where the employee died from a cause other than the injury or occupational disease upon which the award was based. The Supreme Court in Nyitray held that the distinction between families of workers who died from the industrial accident which injured the worker and the families of workers who died from other causes was impermissible discrimination upon which to differentiate the payment of accrued benefits under R.C. 4123.60. R.C. 4123.60 only provides for the award of accrued benefits and specifically limits any award after the death of the worker to “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 * * V’ 1 R.C. 4123.57(C) *216 does not limit an award after death to benefits so accrued, but it does attempt to limit the award to families of workers who died from causes other than those which injured the worker. We hold that the distinction between the two types of families is equally impermissible under R.C. 4123.57(C) and that the families of workers who died from industrial accidents are entitled to the full range of payments provided for under the division. The General Assembly made a decision to permit the families of certain deceased workers to obtain payment of accrued and unac-crued benefits. The only reason to maintain a distinction between the two types of surviving families is to reduce the cost to the Workers' Compensation Fund. As stated by the Supreme Court in Nyitray at 177: “[CJonserving funds is not a viable basis for denying compensation to those entitled to it.” That portion of R.C. 4123.57(C) which distinguishes between the dependents of workers who died from work-related injuries or occupational disease and those of workers who died from causes other than compensable injuries or disease for the payment of unaccrued and accrued benefits for a loss of member violates the Equal Protection Clauses of the Ohio and the United States Constitutions. Accordingly, appellee was entitled to loss of leg benefits under the statute. The second assignment of error is overruled. Ill Appellant’s third assignment of error states: “The common pleas court erred in applying the Ohio Supreme Court’s decision in State, ex rel. Nyitray, v. Industrial Commission, 2 Ohio State 3rd 173 (1983), retroactively.” This assignment of error is without merit. The Supreme Court in Peerless Electric Co. v. Bowers (1955), 164 Ohio St. 209, 210 [57 O.O. 411], stated: “The Board of Tax Appeals was correct in affirming the orders of the Tax Commissioner on authority of the Fifth Third Union Trust Co. case, supra [(1954), 161 Ohio St. 169 (53 O.O. 75)]. The equal protection clause of the federal Constitution does not assure uniformity of judicial decisions. The general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law. The one general exception to this rule is where contractual rights have arisen or vested rights have been acquired under the prior decision. The assessment and payment of a tax does not grow out of a contractual relationship, and there is no showing that any rights have become vested in the appellants under such prior decision.” Rights and obligations under the Workers' Compensation Act arise by statute and are not contractual in nature. Due to the nature of these rights and obligations, retroactive application of Nyitray cannot impair contractual obligations. Accordingly, the holding of Nyitray is retroactive and was properly applied to the facts of this case. *217 The decision of the trial court is affirmed. Judgment affirmed. Markus, J., concurs. Jackson, J., dissents. Footnotes [1] The pertinent part of R.C. 4123.60 reads: “* * * jf 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 *216 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 in each such 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.)