Amos v. Keller

ZimmeemaN, J. Section 4123.59, Revised Code, sets forth the requirements and conditions necessary to establish a right to death benefits and reads, in part: [31] “In ease an injury to * # # an employee causes his death, and if (1) his death ensues, within a period of three years after the injury * * * or (2) compensation for total disability, or partial disability as provided in division (A) of Section 4123.57 of the Revised Code, on account of the injury * * * which caused his death has been paid for any portion of the year next preceding the date of the death of such employee, or (3) the administrator or Industrial Commission finds that a decedent, who applied for compensation as described in division (2) of this paragraph, and who was examined by a licensed physician, would have been entitled to an award of compensation had not death ensued * * * benefits shall be in the amount and to the persons following * * (Emphasis added.) The petition discloses that a span of nearly 21 years elapsed between Eenjamin K. Amos’ leg injury and his death. There are no allegations in the petition which bring the case within divisions (1) and (2) of the quoted section. Consequently, plaintiff must rely on division (3). That division demands a finding by the administrator or the Industrial Commission that the decedent, upon the condition stated, would have been entitled to an award of compensation had he not died. It is alleged in that part of the petition quoted in the statement of the case only “that had the decedent lived, he would have been awarded compensation for permanent and total disability.” Entirely absent is any averment of a finding that had the decedent lived he would have been entitled to a compensation award. The absence of an allegation of such a “finding” renders the petition fatally defective. Such was the position taken by both of the lower courts, and we are in accord with that position. Therefore, the judgment of the Court of Appeals is affirmed. Judgment affirmed. Tapt, C. J., Matthias, O’Neill and Sohneideb, JJ., concur.