State ex rel. Tweed v. Columbus Parcel Services, Inc.

Krupansky, J. The issue presented in this appeal is whether the Industrial Commission abused its discretion in finding the relators to be only partially dependent on their natural father at the time of his death. In order to determine whether an abuse of discretion has occurred we need only determine whether there is “some evidence” to support the commission’s finding. See State, ex rel. Wallace, v. Indus. Comm. (1979), 57 Ohio St. 2d 55, 58. Or, as stated in Consolidation Coal Co. v. Indus. Comm. (1979), 58 Ohio St. 2d 127, at 129: “ * * * only where there is no evidence of probative value in the record will a writ of mandamus be granted.” (Emphasis added.) [333] R. C. 4123.59 is the statue authorizing the payment of benefits to those individuals found to be either wholly or partially dependent upon a deceased employee. This code section provides a statutorily defined amount is to be awarded individuals deemed to be wholly or partially dependent. In making its determination of whether a claimant is partially or wholly dependent the commission is guided by subdivision (D) of R. C. 4123.59 which states in relevant part: “The following persons shall be presumed to be wholly dependent for their support upon a deceased employee: íí(1) * * * “(2) A child under the age of eighteen years, * * * upon only the one parent who is contributing more than one-half of the support for such child and with whom he is living at the time of the death of such parent, or for whose maintenance such parent was legally liable at the time of his death.” As stated above, once the commission has made a determination on whether a claimant is wholly or partially dependent, this finding can be disturbed only if “ * * * that order constitutes an abuse of discretion. * * * ” (Citations omitted.) State, ex rel. City Iron Works, v. Indus. Comm. (1977), 52 Ohio St. 2d 1, 3. Stated more clearly: “ * * * the degree of dependency is a question of fact to be determined by the Industrial Commission from the proof before it, and when it has assumed jurisdiction of a claim and has made a determination upon the evidence, such determination is final, unless a gross abuse of discretion is clearly indicated, or an unlawful procedure has been followed.” State, ex rel. Pivk, v. Indus. Comm. (1935), 130 Ohio St. 208, at 212. Relators contend there has been such an abuse of discretion because there was no evidence adduced to support the decision of the commission that relators were only partially dependent upon their father, Robert Tweed, at the time of his death. For two reasons we disagree with the relators’ assertion. Firstly, the parties to the instant action stipulated the decedent was to make support payments of $17.50 per week, per child. The relators assert the legal obligation placed upon the decedent to make these support payments rendered him legally liable for their maintenance within R. C. 4123.59(D) [334] such that they were wholly dependent upon the decedent at the time of his death. We admit Robert Tweed was legally required to make these support payments totalling $35 per week for both children. However, as succinctly stated by the Court of Appeals below: “ * * * Although the decedent parent was legally required to make child support payments at the time of his death, his legal obligation was definitely short of liability for their maintenance, since the required payments were clearly inadequate for such. * * * Thus, while decedent was legally liable to make support payments, the commission did not abuse its discretion in finding he was not legally liable for their maintenance.” Secondly, there is another reason apart from the Tweed’s divorce settlement which mandates upholding the commission’s finding of partial dependency in this case; viz., the application for death benefits filed for the relators by their mother who was employed at the time of decedent’s death. This application clearly stated the relators were only partially dependent on the deceased for support at the time of his death. Perhaps it could be argued Patricia J. Smith is a layperson unversed in the area of workers’ compensation law, and therefore, her conclusion on this issue is totally irrelevant. It may be true that Mrs. Smith is not an expert in the field of workers’ compensation, however, we feel her categorization of this claim as being one for partial dependency is relevant and was properly considered. Perhaps she, the mother and custodial parent, was in the best position, practically speaking, to make this determination of partial dependency. At the time of Robert Tweed’s death he was making support payments for the relators in the amount of $17.50 per child, per week. In comparison, an affirmance of the commission’s order will result in an award of $30 per week, per child. It is difficult to understand how the commission could be held to have abused its discretion when its order results in an increase in each relator’s support payment of $12.50 per week. Accordingly, we find there is some evidence to support the commission’s finding of partial dependency, and therefore, the judgment of the Court of Appeals denying relators’ writ of mandamus is affirmed. Judgment affirmed. [335] Celebrezze, C. J., W. Brown, Sweeney, Locher and Holmes, JJ., concur.