Summary
In Zupp, this court took the view that the widow-appellant had misread the statutory language as presenting an entitlement rather than an eligibility contingent on the triggering circumstance of a high AWW.
Summary of this case from State ex Rel. King v. Indus. CommOpinion
No. 86-1998
Submitted February 16, 1988 —
Decided June 22, 1988.
Workers' compensation — Death benefits to wholly dependent persons calculated, how — R.C. 4123.59(B).
APPEAL from the Court of Appeals for Franklin County, No. 85AP-425.
Decedent, Guy N. Zupp, sustained a compensable injury on November 5, 1975, while employed by the city of Youngstown Fire Department. His claim was subsequently allowed and workers' compensation benefits were paid. Pursuant to decedent's 1978 application, he was found to be permanently and totally disabled as of January 22, 1979, by the Industrial Commission. He died on June 13, 1983. Shortly thereafter, appellant, Ann Zupp, the widow-claimant, filed an application for death benefits. A district hearing officer granted appellant's application and awarded her death benefits of $160.50 per week as of June 14, 1983.
Appellant later filed a C-86 motion requesting an adjustment of her weekly death benefits to $321 per week pursuant to R.C. 4123.59. This motion was denied by a district hearing officer. The denial was subsequently affirmed by the Canton Regional Board of Review, and the Industrial Commission refused further appeal.
On May 22, 1985, the appellant filed a mandamus action in the Court of Appeals for Franklin County, alleging that the decision of the commission was contrary to law and seeking an order to compel payment of death benefits to appellant of $321 per week. On October 14, 1986, the appellate court denied the writ.
The cause is now before this court on an appeal as of right.
John A. Jeren, Jr., for appellant.
Edwin Romero, law director, and Cheryl L. Waite, for appellee city of Youngstown.
Anthony J. Celebrezze, Jr., attorney general, and Gerald H. Waterman, for appellee Industrial Commission.
Appellant contends that the commission improperly applied R.C. 4123.59(B) in determining her weekly death benefits. We disagree. As to wholly dependent persons, this section provides for benefit calculation as follows:
"* * * [T]he weekly payment shall be sixty-six and two-thirds per cent of the average weekly wage, but not to exceed a maximum aggregate amount of weekly compensation which is equal to sixty-six and two-thirds per cent of the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code, and not in any event less than a minimum amount of weekly compensation which is equal to fifty per cent of the statewide average weekly wage as defined in division (C) of Section 4123.62 of the Revised Code, regardless of the average weekly wage; * * *."
R.C. 4123.59(B) also states that "* * * when any claimant is receiving total disability compensation at the time of death the wholly dependent person shall be eligible for the maximum compensation provided for in this section." (Emphasis added.)
Appellant relies on this latter provision contending that it imposes an entitlement as of right to maximum compensation. This argument is not persuasive. R.C. 4123.59(B) states that dependents of decedents receiving total disability at the time of death are eligible for maximum compensation. It does not establish a mandatory entitlement, but merely a prerequisite to consideration. Moreover, R.C. 4123.59(B) sets forth the statutory formula for the calculation of death benefits, which are primarily determined by reference to the decedent's average weekly wage and the state-wide average weekly wage. Appellant's assertion of a mandatory entitlement ignores this statutory scheme.
Thus, we hold that the Industrial Commission properly applied R.C. 4123.59(B) in determining appellant's benefits, and affirm the judgment of the court of appeals denying appellant's request for a writ of mandamus.
Judgment affirmed.
SWEENEY, LOCHER, HOLMES, WRIGHT and H. BROWN, JJ., concur.
DOUGLAS, J., dissents.
MOYER, C.J., not participating.