Families of workers who die as the result of industrial injuries are entitled to death benefits under the Workers' Compensation Act. This statute also provides that partial disability benefits cease at the time of a worker's death, if the family is entitled to death benefits. The majority decision in the case at bar holds that the Equal Protection Clauses of the Constitutions of the United States and the state of Ohio require that both death benefits and partial disability benefits are payable to families of workers who die from industrial injuries.
This decision is without support in law. The extension by the majority of the holding of State, ex rel. Nyitray, v. Indus.Comm. (1983), 2 Ohio St.3d 173, to unaccrued partial disability benefits creates a significant change in the workers' compensation system, and significantly impacts industrial liability during a most crucial phase of industrial transformation in this nation. Consequently, I respectfully dissent.
The decedent, Reginald LaCavera, was mortally injured in an industrial accident on August 1, 1981. His left leg was amputated below the knee on August 13, 1981. He died from his wounds on August 15, 1981.
Benefits for partial disability such as loss of a limb are payable under R.C. 4123.57. The relevant portions of R.C.4123.57(C) provide:
"In cases included in the following schedule the compensation payable per week to the employee shall be sixty-six and two-thirds per cent of his average weekly wage * * * and shall continue during the periods provided in the following schedule:
"* * *
"For the loss of a leg, two hundred weeks.
"* * *
"When an employee has sustained the loss of a member by severance, but no award has been made on account thereof prior to his death from a cause other than the injury or occupational *Page 219 disease which caused such severance, the commission shall make an award in accordance with this division for such loss which shall be payable to the surviving spouse, or if there is no surviving spouse, to the dependent children of such employee and if there be no such children, then to such dependents as the commission may determine."
The Bureau of Workers' Compensation and the Industrial Commission denied the application of the appellee Mrs. LaCavera for benefits allegedly due her husband under R.C. 4123.57(C), presumably for the reason that her husband had died from the same industrial accident which had caused the loss of his left leg. Subsequently, on January 5, 1983, the Ohio Supreme Court decidedState, ex rel. Nyitray, v. Indus. Comm., supra, in which it invalidated an analogous provision in R.C. 4123.60. The syllabus in Nyitray is as follows:
"That portion of R.C. 4123.60 which in effect denies accruedbut unpaid workers' compensation to dependents of workers who died from work-related causes, while compensating dependents of workers who died from causes other than a compensable injury or occupational disease, violates the Equal Protection Clauses of the Ohio and United States Constitutions." (Emphasis added.)
Mrs. LaCavera appealed the adverse administrative decision to the court of common pleas. The court, relying on Nyitray, reversed the decision of the Industrial Commission and awarded Mrs. LaCavera benefits relating to the amputation. The majority of this court has affirmed that decision, again relying uponNyitray.
The Ohio Supreme Court held in Nyitray that accrued but unpaid benefits must be paid to the surviving dependents of a worker who died from the same industrial accident which caused his period of total disability. The court's opinion applied only to all compensation which the worker was entitled to receive during his lifetime. The court stated, at (2 Ohio St. 3d) 178:
"For these reasons, there is no rational basis for denying dependents of workers who died from work-related injuries or diseases the compensation the decedent was entitled to during hislifetime. Clearly, the workers' compensation system is designed to aid workers and their dependents and not intended to penalize victims by denying compensation where due. We hold that the portion of R.C. 4123.60 which in effect denies accrued but unpaidworkers' compensation to dependents of workers who died from work-related causes, while compensating dependents of workers who died from causes other than a compensable injury or occupational disease, violates the Equal Protection Clauses of the Ohio and United States Constitutions." (Emphasis added.)
This court of appeals is bound to follow precedent established by the Ohio Supreme Court. Nyitray indisputably forbids discrimination between families of workers who died from industrial accidents, and families of workers who did not, with respect to payments which accrued prior to the death of the worker. The unfairness of such discrimination is pointed out in the following passage from Nyitray, at 177:
"Following the [statutory] scheme * * * could lead to absurd results. For example, the facts may be identical in two situations: two workers were injured to the same extent, in the same accident, and have the same number of dependents, and both workers applied for and had been granted compensation. However, the checks were mailed at different times due to administrative management of the claims. As a result, one worker received and cashed the check before dying while the other, Nyitray here, died before receiving the payment. Clearly, both workers are entitled to compensation for their work-related *Page 220 injuries, and we can see no rational basis for denying Nyitray's dependents the compensation which he had been granted."
In the case at bar, Mr. LaCavera died two days after his left leg was amputated. Benefits accrued prior to his death for thattwo-day period. Under Nyitray, such benefits are payable to the surviving family. It is unnecessary for purposes of this appeal to determine the amount (if any) of accrued benefits payable with respect to this two-day period.
There is no authority requiring payment of unaccrued benefits to Mr. LaCavera's surviving spouse. Nyitray, both in the syllabus and in the body of the opinion, is limited to forbidding discrimination in the payment of benefits which accrued prior to the worker's death. This is because the statute under consideration in that case, R.C. 4123.60,2 only allows dependents to collect benefits which accrued prior to the death of the worker, in contrast to R.C. 4123.57(C), which allows dependents to collect benefits which have accrued and which willaccrue.
Payments for amputation which accrue following the worker's death are payable to the family of the decedent if the decedent died from a cause other than the accident which led to the amputation. If the worker's death resulted from the industrial accident, the surviving spouse is not entitled to benefits for the amputation under R.C. 4123.57(C), but he/she is entitled to death benefits under R.C. 4123.59.
The Supreme Court rejected the position of the dissenting opinion in Nyitray, that availability of death benefits to families of workers killed by an industrial accident justified with-holding from such families other benefits which accruedprior to decedent's death. The Supreme Court suggested that if the dissenting position prevailed, accrued benefits could be denied for such arbitrary reasons as a delay by the state or a self-insured employer in not issuing a check until the worker's death, or because the check, though issued, had been lost in the mail. The Supreme Court determined that denial of benefits for such reasons would be a violation of equal protection.
Arbitrary factors such as these, however, are not present with respect to benefits which accrue following the worker's death. Furthermore, to require payment of unaccrued benefits to surviving dependents in all cases would lead to results clearly inconsistent with the intent of the Workers' Compensation Act. In a single accident, two workers might be mortally wounded. One suffers the loss of one eye and the amputation of a leg and an arm; the other does not. Without regaining consciousness, both die one hour after the accident, from their wounds. I find no support in the Act, nor does the Equal Protection Clause require, that the dependents of one of the workers receive both death benefits under R.C. 4123.59 and an award of five hundred fifty weeks (more than ten years) of workers' compensation benefits under R.C. 4123.57(C), while the dependents of the other worker receive only death benefits.
The decision of the majority goes far beyond the decision of the Supreme Court in Nyitray. The majority extends to families of deceased workers continuing eligibility for unaccrued benefits which would otherwise terminate at the time of the worker's death. This decision will directly increase the workers' compensation taxes paid by employers, and will indirectly increase the cost of goods and services and reduce the level of employee's compensation in Ohio in *Page 221 order to pay for the extended benefits mandated by the majority.
The Nyitray decision requires only that the families of deceased workers be treated equally with respect to benefits which have accrued prior to the worker's death. Neither Nyitray nor reason and logic require the payment of both partial disability benefits and death benefits to families of workers who have died from industrial injuries.
It is not the prerogative of the court to employ the Constitution to strike down or modify laws with which they disagree. Statutory classifications are valid under the Equal Protection Clause so long as they do not infringe on fundamental rights, create no suspect classifications, and have a rational basis. San Antonio School District v. Rodriquez (1973),411 U.S. 1. Broad discretion is granted to the legislature in making classifications relating to eligibility for governmental benefits where there is a reasonable basis for the classification.Dandridge v. Williams (1970), 397 U.S. 471. The classification created by the General Assembly between families of persons who die from industrial accidents and those who do not, has a reasonable basis in that the former are eligible for death benefits and the latter are not. In my considered opinion the effect of the majority decision is to usurp the legislative function by striking down that classification, and extending partial disability benefits to families of all deceased workers.
Accordingly, I would reverse the decision of the trial court and remand for further proceedings.
APPENDIX R.C. 4123.60 provides, in relevant part:
"In all cases of death from causes other than the injury or occupational disease for which award had theretofore been made on account of temporary, or permanent partial, or total disability, in which there remains an unpaid balance, representing payments accrued and due to the decedent at the time of his death, the commission may, after satisfactory proof has been made warranting such action, award or pay any unpaid balance of such award to such of the dependents of the decedent, or for services rendered on account of the last illness or death of such decedent, as the commission determines in accordance with the circumstances in each such case. If the decedent would have been lawfully entitled to have made application for an award at the time of his death the commission may, after satisfactory proof to warrant an award and payment, award and pay an amount, not exceeding the compensation which the decedent might have received, but for his death, for the period prior to the date of his death, to such of the dependents of the decedent, or for services rendered on account of the last illness or death of such decedent, as the commission determines in accordance with the circumstances in each such case, but such payments may be made only in cases in which application for compensation was made in the manner required by sections 4123.01 to 4123.94 of the Revised Code, during the lifetime of such injured or disabled person, or within one year after the death of such injured or disabled person."
2 See Appendix attached. *Page 222