Thompson v. Industrial Commission

Krupansky, J.,

dissenting. The transfer of funds from the State Insurance Fund (SIF) to the Disabled Workers’ Relief Fund (DWRF) pursuant to R.C. 4123.411 is unconstitutional since it violates Section 28, Article II, and/or Section 35, Article II, of the Ohio Constitution; therefore, I must respectfully dissent.

Section 28, Article II, of the Ohio Constitution states in part: “The general assembly shall have no power to pass retroactive laws, * * *.” The basic tenets of workers’ compensation law, which has existed since the system’s inception are as follows:

“ ‘1. The rights of injured employees and the dependents of killed employees to participate in the state insurance fund are such, and such only, as are conferred by statutory law.

“ ‘2. The provisions of the General Code relating to compensation of injured employees or 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. [Emphasis added.]

“ ‘3. The cause of action of an injured employee accrues at the time he receives an injury in the course of his employment.’ ” State, ex rel. Schmersal, v. Indus. Comm. (1944), 142 Ohio St. 477, 478 [27 O.O. 404], quoting from the syllabus in Indus. Comm. v. Kamrath (1928), 118 Ohio St. 1.

In 1953 the General Assembly enacted R.C. 4123.412, which created the DWRF because it recognized the inadequacy of payments being received by individuals and dependents of individuals declared permanently and totally disabled. The DWRF was to provide supplemental relief benefits — not compensation — to disabled workers and was to be a separate and distinct fund from the SIF.

For example, the workers’ compensation payments would not be increased because to increase compensation would be violative of Section 28, Article II of the Ohio Constitution prohibiting passage of retroactive laws. Rather the worker was paid a relief benefit to supplement his compensation payments. With this' arrangement there was no violence perpetrated upon Section 28, Article II of the Ohio Constitution dealing with retroactivity.

In 1975, however, R.C. 4123.411 was amended to provide:

*253“In the event the amount produced by the assessment [for the DWRF] is not sufficient to carry out such sections the additional amount necessary shall be provided from the income produced as a result of investments made pursuant to section 4123.44 of the Revised Code.”

In effect, therefore, R.C. 4123.411 allowed the investment income from the SIF to be channeled into the DWRF. These interest payments being funneled into the DWRF from the SIF are clearly a part of the SIF. Several Ohio statutes unambiguously exhibit interest earned on the assets of the SIF being funneled into the DWRF is part of the trust fund’s belonging to the SIF. For example, R.C. 4123.30 provides in part:

“* * * the net premiums contributed thereto [the SIF] by employers after adjustments and dividends * * * constitute a trust fund for the benefit of employers and employees mentioned in sections 4123.01, 4123.03, and 4123.73 of the Revised Code for the payment of compensation, medical services, examinations, recommendations and determinations, nursing and hospital services, medicine, rehabilitation, death benefits, funeral expenses, and like benefits for loss sustained on account of injury, disease or death provided for by sections 4123.01 to 4123.94, inclusive, of the Revised Code, and for no other purpose. ” (Emphasis added.)

And, R.C. 4123.44(D)(1) states:

“* * * The treasurer of state shall collect the interest thereon [investment of surplus or reserve belonging to the state insurance fund] as the same becomes due, and also the principal thereof, and pay the same, when collected, into the state insurance fund. ” (Emphasis added.) Therefore, the mere fact that these funds have taken a circuitous route, i.e., from the SIF through the DWRF and then to the worker or the worker’s dependents, does not alter the conclusions that the payment is from the SIF and must be compensation.

The SIF requires payment to be for “the purpose of providing compensation to workmen and their dependents, * * (Emphasis added.) Section 35, Article II of the Ohio Constitution. If this payment is compensation, it is clearly in violation of the prohibition found in Section 28, Article II of the Ohio Constitution against retroactive laws. If this payment is not compensation and is a relief benefit then it cannot be paid from the SIF.

Even if one accepts the proposition that these payments are not in the form of compensation, but are actually in the form of relief, the portion of R.C. 4123.411 at issue still violates Section 35, Article II of the Ohio Constitution since trust funds from the SIF are being appropriated for purposes other than the purposes authorized in that article.

As stated, the SIF is a trust fund expressly limited by Article II, Section 35 of the Ohio Constitution, to providing compensation to workmen and their dependents. Therefore, clearly, the fund may not be used to make relief payments. As stated by this court in Welsh v. Indus. Comm. (1940), 136 Ohio St. 387, at 395-396 [16 O.O. 564]:

“Humanitarian as it would be to generously extend the distribution of the Workmen’s Compensation Fund indiscriminately to those in need of support *254and maintenance, such use and application of that fund would be wholly unauthorized. It has been suggested that insofar as support and maintenance for those in need is provided by payment out of this fund, there is a decreased demand upon public charity generally. That, of course, is true; but the Workmen’s Compensation Fund is not a charitable fund. It is created by assessments upon employers to make good, at least in a measure, the injuries caused to and damages suffered by workmen and the loss sustained by those dependent upon them where injury results in death and deprives dependents of their support. Whatever is due the workmen or those deprived of his support is theirs not as a matter of charity but as a matter of right; for it comes from a fund created for that very purpose and should be diverted to no other use or purpose. ” (Emphasis added.)

As well as violating constitutional mandates, I also feel R.C. 4123.411 violates the sound dictates of public policy. While the majority opinion effectively reduces the amount employers must expend now to satisfy the DWRF, the long term ramifications of the opinion have been totally ignored. R.C. 4123.29 requires the Industrial Commission to establish premium rates of employers for contribution to the SIF “at a level that assures the solvency of the fund.” Analyzing this situation it becomes clear the effects of the majority’s holding is two-fold: (1) employers are required to contribute less to the DWRF since the earned income from the SIF is being used to support the DWRF; and (2) the SIF is being rapidly depleted through this siphoning of funds which will ultimately increase the premiums required of employers for the SIF. As an example, between 1976 and 1981, $78,600,000 was transferred from the SIF to the DWRF. Therefore, the majority’s stance will not produce any long-term, overall reduction in the amount employers must expend for workers’ compensation coverage.

The majority in its opinion has orchestrated a variation on a theme much like the song of the Lorelei, although pleasant to hear but if followed will surely lead to ultimate disaster. It has proposed a blueprint for destruction by perpetuating a plan that puts in jeopardy the future solvency of the SIF. The majority’s scheme is designed to rape the SIF in order to placate the present situation at the expense of future generations of injured workers. The treatment proposed by the majority is much like offering a placebo to cure cancer. The futility of such treatment is self-evident, resulting in the ultimate demise of the patient. The only prescription to cure this present condition is bold legislative enactment to preserve the integrity of both funds, not incipient stop-gap measures contrived to rob Peter to pay Paul.

It also appears the majority is attempting to step into the shoes of the General Assembly rather than fulfilling its function as a judicial body. This court aptly stated in Indus. Comm. v. Kamrath, supra, at 9, as follows:

“The Workmen’s Compensation Law is still in the development stage. Each successive legislative enactment is intended to make its enforcement more practical and its operation more just, but rights of injured employees and of the dependents of killed employees to participate in such fund do not *255accrue in advance of legislation creating such rights, and the Legislature is as powerless to create or take away rights in retrospect, under the Workmen’s Compensation Law, as it is to create or take away any other legal right in retrospect. The courts by interpretation cannot do with enacted legislation that which the Legislature cannot do by enactment. ” (Emphasis added.)

The duty of the court is not to legislate but to have the courage to interpret the law as written in spite of advocates to the contrary.

For all the foregoing reasons, I respectfully dissent and would affirm the Court of Appeals.