State ex rel. Kinzig v. Industrial Commission

[23] OPINION By HORNBECK, J. Relator, on the 17th day of January, 1.935, and for many years prior thereto had been employed by the Burkhardt Packing Company of Dayton, Ohio, and on that date suffered an injury while in the course of his employment resulting in temporary disability. A claim was filed with respondent Commission which found that relator had been injured at the time and in the manner therein set forth resulting in his temporary total disability, and paid for medical services incurred by reason thereof. Up- or the report filed by relator’s employed the Commission found that the relator had been paid his full wage of $38.25 per week from the date of his injury until April 13, 1035, and during that period awarded him no compensation, and further found that from April 14, 1935, to the date when he returned to work on July 21, 1935, his employer had reduced his wage to $15.00 per week, which sum it paid.to him and for that period the Commission awarded relator the sum of 2-3 of the difference between his actual wage of $38.25 and the sum which his employer was paying him weekly, namely, $15.00, which award was in the amount of $15.50 per week. It is the claim of relator that he is entitled by virtue of §1465-68 and 1465-79, GC., to an award of the full two-thirds of his weekly wage from the date of his injury, January 17, 1935, to July 21, 1935 when he returned to work, allowing as a credit thereon the amount which was paid to him by the respondent from April 14, 1935, to July 21, 1935. The action is for a writ commanding the respondent to pay to the relator the amount which he claims as heretofore set forth. The facts appearing upon the question presented are that during the period from January 17, 1935, to April 13, 1935, the employer paid to the relator an amount equal to his full weekly wage at the time of his injury, and thereafter during his disability paid him the full amount of his weekly wage less that which was paid to another employee who was required 'to be hix-ed in relator’s place. The respondent takes the view that during the period when he received an amount equal to his full wage he suffered no loss and that for the remaining period the loss which he. suffered was the difference between that which he was paid and the amount of his weekly wage when he was injured. It is the claim of the relator that the Workmen's Compensation fund is available to employees who have been injured or their beneficiaries if the injured person suffers death, and that in the interpretation of the act the most liberal construction should be given favorably to the employees. Supporting this position we are cited to the well known cases of Roma v Industrial Commission, 97 Oh St., 247; Industrial Commission v Weigant, 102 Oh St., 1; Baker v Industrial Commission, 44 Oh Ap., 539, (14 Abs 315) and others. It is further claimed that the benefits to which injured employees are entitled are comparable to the benefits to which an insured is entitled when covered by accident insurance and has suffered an accident included within the terms of the policy. To this effect, Brunk, Admx., v C.C.C. & St. L. Ry. Co., 20 O.N.P. N.S., 360, is cited, where it is held: “The court is convinced that the compensation provided ay the Workmen’s Compensation Act is in the nature of occupational insurance and that the same rule which is applicable to general insurance is applicable to the payment of compensation under the act; the act being silent on this point.” The germane sections are 1465-68, GC which insofar as pertinent provides: “Every employee mentioned in §1465-61, who is injured, * * * shall be paid such compensation out of the state insurance iund for loss sustained on account of such injury * * ~ as is provided in the case of other injured * * * employees.” Sec 1465-79, GC. “In case of temporary disability, the employee shall receive 66 2-3 per cent, of his average weekly wages so long as such disability is total, not to exceed a maximum of $18.75 per week. * * * ” Our attention is directed to the fact that 1465-79 is mandatory in terms and provides that in case of temporary disability the employee shall receive, etc. It is our judgment that §1465-68 and 1465-79 [24] must be read together and that payment by virtue of §1465-79 which fixes the amount thereof is only to be made to those who come within the terms of §1465-68. We grant that in many particulars the liability of the respondent to pay to an injured employee who receives his injury in the course of his employment is the same under §1465-68 as in the liability of the insurer to an insured who suffers an injury covered by the terms of his policy. The extent of liability in the former is fixed by the terms of the act, in the latter by the terms of the policy, which is a contract between the engaging parties and under which the insured pays a premium to the insurer. Under the Workmen’s Compensation Act the employee pays no money toward the creation of the fund from which the benefits are paid. The employers who participate in the Workmen’s Compensation Act provide the fund which is to be expended according to the express language of the Act. The amount which the employers pay into the fund annually is lessened in the proportion that the number of accidental injuries occurring among their employees, upon which the Commission is required to make payments, is decreased. This is but a discussion of the insurance phase of the case and in no sense controlling of our conclusion, which is grounded upon the express language of §1465-68, GC. In this case, when the employer made report to the Commission it gave the information that it had paid the relator his full wages as such for a certain period and part of his wages for the remainder of the period of his injury. This designation of the payment was also carried into the books of the employer. It is true that the manager of the employing company said that this payment was virtually a gift' and that no services were rendered for it. Obviously,, this conclusion cou^d be drawn but the company carried the payment as though the employee was continuing in the employ of his employer and to the extent that he was thus paid he suffered no monetary loss by reason of his injury. It is our judgment that §1465-68 does not contemplate that payment will be made out of the compensation fund to an injured employee who has suffered disability if his employer continues to keep him on the payroll as though he were actually on the job rendering services. In this situation he does not sustain a loss as to such payment which is contemplated by the section. Had the empioyer chosen to make a gift to relator, a worthy and deserving employee, this case no doubt would not be before us. Without changing the facts in this case in the slightest degree, let us suppose that relator’s employer had been a selfinsurer and had opposed an order for payment of any sum to relator during the period that he was paid the full amount of his weekly wage. Would not the objection have been, well made. The employer could have urged that relator had received full wage and that he had lost nothing by reason of the fact that he had been incapacitated for work; that the company was willing to pay him the same sum he had been receiving when he was able to work, although during his disability he could not report for duty or perform any manual labor. We have read many cases from other states with the hope that we might find some in point. Because of the difference in the text of the Workmen’s Compensation Acts in many of the states other than Ohio, cases from them are not especially helpful. However, there is one that by analogy is of some benefit on the question presented here, namely, Tulsa Rolling Mills Co v Krejci, et al., (Okla.) 299 Pac. 225, the syllabus of which holds: “Wages received by salaried employee during period of temporary total disability resulting from accident held deductible from compensation award for such disability.” The applicant was on a monthly salary of $250.00 and was injured in the course of his employment on March 5, 1930. He recovered from his injury on September 24, 1930. The amount which would probably have been awarded to the applicant for the period of his temporary total disability was $468.00 and it appeared that he bad not worked any after his injury, although he was paid his regular salary for the whole period of his disability. He filed his application for compensation after his recovery. We restrict our opinion in this case to the facts and do not undertake to say that no situation could arise wherein an employer could not advance money to an employee over and beyond the benefits to which he was entitled and which he received from the Workmen’s Compensation Fund. But in this case the employer to ah intents and purposes treated the employee as though he were yet on the job earning his weekly wage, though, of course, [25] he was incapacitated from earning any stipend which could properly be classified as personal earnings or wages. We do not find that the facts in this case under the law as we interpret it, cjearly require that the writ of mandamus issue. It will therefore be denied. BARNES, PJ-, concurring.