I respectfully dissent from the judgment and opinion overruling appellant's assignment of error and affirming the judgment of the common pleas court.
Appellant's assignment of error asserts that the trial court erred in granting appellee Cannon's motion for attorney fees. R.C. 4123.519(E) provides:
"The cost of any legal proceedings authorized by this section, including an attorney's fees to the claimant's attorney to be fixed by the trial judge, based upon the effort expended,in the event the claimant's right to participate or to continueto participate in the fund is established upon the finaldetermination of an appeal, shall be taxed against the employer * * *." (Emphasis added.)
This appeal involves the statutory interpretation of the foregoing provision. In construing a statute, a court's paramount concern is the legislative intent in enacting the statute. State v. S.R. (1992), 63 Ohio St. 3d 590, 594,589 N.E.2d 1319, 1322. Under Ohio law, it is a cardinal rule that a court must first look to the language of the statute itself to determine the legislative intent. Shover v. Cordis Corp. (1991),61 Ohio St. 3d 213, 218, 574 N.E.2d 457, 461. In interpreting a statute, the words must be taken in their usual, normal, or customary meaning. Indep. Ins. Agents of Ohio, Inc. v. Fabe (1992), 63 Ohio St. 3d 310, 314, 587 N.E.2d 814, 817. Although workers' compensation statutes are to be liberally construed in favor of employees, R.C. 4123.95, courts do not have authority to ignore the plain and unambiguous language of a statute under the guise of statutory interpretation, but must give effect to the words used. Wray v. Wymer (1991), 77 Ohio App. 3d 122, 132,601 N.E.2d 503, 509. In other words, courts may not delete words used or insert words not used. Cline v. Ohio Bur. of MotorVehicles (1991), 61 Ohio St. 3d 93, 97, 573 N.E.2d 77, 80.
The only decisions reviewable pursuant to R.C. 4123.519 are those decisions involving a claimant's right to participate or to continue to participate in the fund. *Page 498 Afrates v. Lorain (1992), 63 Ohio St. 3d 22, 584 N.E.2d 1175, paragraph one of the syllabus. The decision regarding whether the statute of limitations barred appellee's claim "involved" his right to participate. However, in order to be entitled to attorney fees pursuant to R.C. 4123.519(E), the plain language of the statute requires that the right to participate or to continue to participate must not merely be "involved"; it must be "established." The word "establish" means "[t]o settle firmly, to fix unalterably." Black's Law Dictionary (5 Ed. 1979) 490. This appeal does not settle or fix unalterably claimant's right to participate or to continue to participate in the fund. Instead, it merely decides a preliminary procedural issue. When the claimant is victorious and his right to participate in the fund is upheld in the trial court, attorney fees shall be taxed against the employer, if it was the employer who contested the claimant's right to benefits. Painter, supra,65 Ohio App.3d at 278, 583 N.E.2d at 1021. The right to participate is established by examining the injury suffered by the claimant to a specific part of his body to determine whether the injury in fact exists and was proximately caused by the claimant's employment.Boston v. Daugherty (1983), 12 Ohio App. 3d 4, 12 OBR 88,465 N.E.2d 1317. In the case at bar, there was no determination to this effect by the Industrial Commission regarding appellee Cannon's claim of asbestosis. In fact, its order mailed June 21, 1990 explicitly stated that it was "not to be construed as a ruling on the merits." Moreover, as the principal opinion admits, the Ohio Supreme Court's decision in Hospitality MotorInns is distinguishable since, in that case, the claimant's right to participate in the fund had already been established. To the extent that the appellate court in Moellendick, supra, expands the language of R.C. 4123.519(E) and the holding ofHospitality Motor Inns, I am unpersuaded by its result.
Although the concurring opinion also notes that "[t]o hold otherwise would be to require the injured worker to expend nonrecoverable attorney fees to protect his claim * * *," judicial policy preferences may not be used to override valid legislative enactments, for the General Assembly should be the final arbiter of public policy. See State v. Smorgala (1990),50 Ohio St. 3d 222, 223, 553 N.E.2d 672, 673. To hold as the majority does in this case is to treat the limiting phrase of R.C. 4123.519 as mere surplusage and to ignore the plain meaning of the words used by the General Assembly. In effect, the majority is judicially amending R.C. 4123.519(E) to allow attorney fees "in the event a preliminary issue to the claimant's right to participate or to continue to participate in the fund is decided in the claimant's favor * * *." (Emphasis added.) Any policy arguments mentioned by appellee and the majority opinions that might favor an award of attorney fees in these cases are better resolved by legislative action in the General Assembly. *Page 499
It should also be noted that aggrieved workers are not entirely without any remedy in these cases because if they can demonstrate that there was no good-faith basis for the employer's appeal on the procedural issue, they may seek attorney fees pursuant to the frivolous conduct statute, or if they are able to show willful misconduct on the part of the employer's counsel, they may seek attorney fees pursuant to Civ.R. 11.
In sum, the majority would allow a claimant, who is ultimately unsuccessful on the merits of the application, to recover attorney fees at several preliminary stages of the determination, even though the application is totally meritless. I do not believe that was the intent of the General Assembly.
Accordingly, since appellee and the common pleas court's interpretation of R.C. 4123.519(E) would judicially amend the statute to provide for the award of attorney fees prior to the establishment of a claimant's right to participate in the fund, I would sustain appellant's assignment of error and reverse the award of attorney fees.