State ex rel. Truslow v. Industrial Commission

Per Curiam. We are asked to review the commission’s calculation of decedent’s average weekly wage. For the reasons to follow, we find that the wage was properly set. R.C. 4123.59 states: “In case an injury * * * to an employee causes his death, benefits shall be in the amount and to the persons following: “(B) If there are wholly dependent persons * * *, the weekly payment shall be sixty-six and two-thirds percent of the average weekly wage * * * if Appellant’s contention that the AWW should be based on wages for the year preceding death is negated by R.C. 4123.61, which provides in part: “In death claims * * * the decedent’s average weekly wage for the year preceding the injury * * * shall be the weekly wage upon which compensation shall be based. * * *” (Emphasis added.) Contrary to appellant’s representation, the fact that a dependent’s cause of action does not accrue until decedent’s death does not transform the AWW formula of R.C. 4123.61 into one based on pre-death earnings. A dependent’s right to participate in workers’ compensation benefits is “wholly statutory.” State, ex rel. Bessler, v. Indus. Comm. (1952), 157 Ohio St. 297, 299, 47 O.O. 179, 180, 105 N.E. 2d 264, 266; Indus. Comm. v. Kamrath (1928), 118 Ohio St. 1, 160 N.E. 470, paragraph one of the syllabus. Moreover, Kamrath ruled, at paragraph-two of the syllabus, that: “The provisions of the General Code relating to compensation of * * * the dependents of killed employees in force at the time the cause of action accrues are the measure of the right of such employees and dependents to participate in the state insurance fund.” Here, the Revised Code sections “in force at the time the cause of action accrue[d]” clearly state that the AWW for death claims is calculated based on wages for the year preceding injury. Appellant’s entreaty that we liberally construe R.C. 4123.61, citing R.C. 4123.95, is misplaced. “A direction to liberally construe a statute in favor of certain parties will not authorize a court to read into the statute something which cannot reasonably be implied from the language of the statute.” Szekely v. Young (1963), 174 Ohio St. 213, 218, 22 O.O. 2d 214, 217, [102] 188 N.E. 2d 424, 428. As to R.C. 4123.61: “The statute fixing the average weekly wage at the time of injury as the basis of compensation is about as plain as language can make it.” State, ex rel. Kildow, v. Indus. Comm. (1934), 128 Ohio St. 573, 581, 1 O.O. 235, 238, 192 N.E. 873, 876. Accordingly, we find that the accrual date of a dependent’s cause of action does not change the computational formula of R.C. 4123.61. Appellant also argues that calculation of AWW based on wages for the year prior to injury as applied to her violates equal protection. The commission initially contests appellant’s right to make this argument, claiming that it was not previously raised. We disagree, finding that equal protection implications, while not precisely articulated, were evident below and therefore preserved appellant’s constitutional challenge. See, generally, In re M.D. (1988), 38 Ohio St. 3d 149, 527 N.E. 2d 286. Examined on its merits, however, appellant’s equal protection argument fads. She maintains that dependents of decedents who die immediately from an industrial injury receive an AWW based on wages for the year prior to death, while all others, like herself, have the AWW based on wages for the year prior to injury. Appellant contends that this is discriminatory treatment with no rational relationship to a legitimate government purpose. Contrary to appellant’s representation, however, no disparate treatment exists here. All AWWs are based on wages for the year prior to injury. Appellant overlooks the obvious: Where injury and death are simultaneous, wages for the year preceding death and injury will be the same. This does not, however, mean that two different calculations are being used. Appellant’s reliance on State, ex rel. Doersam, v. Indus. Comm. (1989), 40 Ohio St. 3d 201, 533 N.E. 2d 321, is misplaced. First, Doersam involved the benefit cap of R.C. 4123.59(B), which is not at issue here. Moreover, in Doersam the relevant provision clearly set forth two different benefit categories based on decedent’s date of injury: Dependents of decedents injured before January 1,1976 were limited to a maximum of two thirds of the statewide average weekly wage, while others could get one hundred percent of the same figure. Here, there is no comparable distinction — the statute directs that all dependents receive benefits based on earnings in the year prior to injury. Appellant finally proposes that the lengthy period preceding decedent’s death and his continued employment therein is a “special circumstance” that warrants an alternative calculation pursuant to R.C. 4123.61. We find, however, that appellant has waived this argument by failing to raise it, even in general terms, below. State, ex rel. Gibson, v. Indus. Comm. (1988), 39 Ohio St. 3d 319, 530 N.E. 2d 916. For these reasons, the judgment of the court of appeals is affirmed. Judgment affirmed. Moyer, C.J., Holmes, Wright and H. Brown, JJ., concur. Sweeney, Douglas and Res-nick, JJ., dissent.