State ex rel. Preston v. Peabody Coal Co.

Per Curiam. R.C. 4123.61 states in pertinent part: “The average weekly wage of an * * * employee * * * at the time disability due to the occupational disease begins shall be taken as the basis upon which to compute benefits.” The question presented in this appeal is whether “disability,” in the case of CMP, begins when the employee quits work or when he is found to be totally disabled. All parties concede that appellant was disabled to some degree when he quit his job. Appellant contends, however, that in the case of CMP, “disability,” as used in R.C. 4123.61, can refer only to total disability, inasmuch as there are never any benefits to be computed for anything less than total disability. Appellees essentially argue that “disability” is not defined in R.C. Chapter 4123 and should be given its ordinary meaning. Disability can reasonably be said to have begun when appellant’s ability declined to the point where he left his job due to his physical condition. R.C. 4123.68 restricts benefits for CMP to claimants who are suffering total disability. That section states in pertinent part: “Compensation and * * * expenses on account of * * * coal miners’ pneumoconiosis are payable only in the event of temporary total disability, permanent total disability, or death * * From this and other language in the Ohio Revised Code, it appears that the General Assembly is well able to distinguish among the various categories of disability. R.C. 4123.61 could have read, “at the time ‘total disability’ or ‘compensable disability’ due to the occupational disease begins.” Instead, the General Assembly chose not to modify the word “disability” at all. This court has often acknowledged that its duty is “* * *‘* * * “to give effect to the words used [in a statute], not to delete words used or to insert words not used.”’ ’’Dougherty v. Torrence (1982), 2 Ohio St. 3d 69, 70. (Emphasis sic.) It appears, therefore, that “disability,” under R.C. 4123.61, should be given its ordinary meaning. Black’s Law Dictionary (5 Ed. 1979) defines “disability” in pertinent part as follows: “As used in connection with Workers’ Compensation Acts, disability is a [74] composite of (1) actual incapacity to perform the tasks usually encountered in one’s employment and the wage loss resulting therefrom, and (2) physical impairment of the body that may or may not be incapacitating. * * * “* * * Inability to work * * *.” Webster’s New Collegiate Dictionary (1975) defines “disability” in pertinent part as follows: “* * * b: inability to pursue an occupation because of physical or mental impairment * * *[.]” Both of these definitions tie disability to the inability to work. The commission, in its order, determined the date disability began according to the date appellant last worked. Appellee-commission also notes, as did the court of appeals, that R.C. 4123.85 contains the statute of limitations for the filing of an occupational disease claim. It reads in pertinent part: “In all cases of occupational disease, * * * claims for compensation or benefits shall be forever barred unless, within two years after the disability due to the disease began, or within such longer period as does not exceed six months after diagnosis * * * by a licensed physician * * *, application is made to the industrial commission or to the employer * * (Emphasis added.) Appellant’s cause of action arose on March 19, 1973 when he was diagnosed as having an occupational disease. As this court said in Indus. Comm. v. Kamrath (1928), 118 Ohio St. 1, 4, “[t]he statutory law in force upon the date the cause of action accrued is the measure of the right, and is not subject to enlargement or diminishment by the Industrial Commission * * *.” The commission’s designation of the date of disability comports with this court’s determination regarding the measure of his right to benefits. This court has consistently held that, “[t]he determination of disputed factual situations * * * is within the final jurisdiction of the Industrial Commission.” State, ex rel. Allied Wheel Products, Inc., v. Indus. Comm. (1956), 166 Ohio St. 47, 50 [1 O.O.2d 190]. “[W]here the record contains evidence which supports the commission’s factual findings, this court will not disturb that determination.” State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St. 2d 278, 283 [71 O.O.2d 230]. The commission found that appellant’s disability due to occupational disease began on June 2, 1973, and the record shows the day prior to be his last day of work. No abuse of discretion having been shown, the commission’s conclusion is a reasonable one. The judgment of the court of appeals denying the writ is therefore affirmed. Judgment affirmed. Celebrezze, C.J., W. Brown, Sweeney, Locher, Holmes and J. P. Celebrezze, JJ., concur. C. Brown, J., dissents.