Breidenbach v. Mayfield

H. Brown, J.,

dissenting. R.C. 4123.519 gives a “claimant” a right of appeal from decisions of the Industrial Commission. “Claimant” is not defined in the workers’ compensation statutes. Nevertheless, the majority, in contravention of established law, has defined “claimant” to exclude the claimant’s executor or legal representative.

The estate of a dependent essentially encompasses all that the decedent owned at the time of his death, including choses in actions. The executor of an estate personally represents the deceased in settling his affairs and distributing his assets. Service Transport Co. v. Matyas (App. 1952), 63 Ohio Law Abs. 236, 108 N.E. 2d 741, reversed on other grounds (1953), 159 *142Ohio St. 300, 50 O.O. 298, 112 N.E. 2d 20. The executor, as a legal representative, stands in the shoes of the decedent. See Hopper v. Nicholas (1922), 106 Ohio St. 292, 302, 140 N.E. 186, 189; Freeze v. Donegal Mut. Ins. Co. (1983), 504 Pa. 218, 224, 470 A. 2d 958, 961 (“A personal representative in the person of the executor or administrator of his estate stands in the shoes of the deceased victim as far as entitlement to benefits is concerned.”); Ames Trust & Savings Bank v. Reichardt (1963), 254 Iowa 1272, 121 N.W. 2d 200; Illinois v. Continental Illinois Natl. Bank & Trust Co. of Chicago (1935), 360 Ill. 454, 458, 196 N.E. 515, 518 (“An executor stands in the shoes of his testator with respect to his personal property, and his ownership of the property is but a continuation of the ownership of the decedent.”); Keogh v. Bridgeport (1982), 187 Conn. 53, 444 A. 2d 225; Waugh v. Lennard (1949), 69 Ariz. 214, 211 P. 2d 806; Hanks v. Admr. of Estate of Jensen (Utah 1974), 531 P. 2d 363.

The executor is like a guardian of a ward. Just as the guardian of an insane or incompetent dependent should be able to prosecute an appeal on behalf of th$ claimant-ward, so too should the executor of a claimant’s estate be allowed to prosecute an appeal on behalf of the claimant-decedent.

This court has long allowed the legal representative of the estate of a widow-dependent to pursue the widow’s claim throughout the administrative and judicial process. In paragraph four of the syllabus in Indus. Comm. v. Dell (1922), 104 Ohio St. 389, 135 N.E. 669, we held:

“The right of a widow to participate in the state insurance fund is not lost by the death of such widow before an award has been rendered thereon, but the legal representative of such widow * * * is entitled to an award covering the period from the time of the death of the employee until the death of such widow.”

In Whitmore v. Indus. Comm. (1922), 105 Ohio St. 295, 136 N.E. 910, we affirmed our holding in Dell, supra, and allowed the administrator of a widow-dependent’s estate to both file an application with the Industrial Commission for death benefits and appeal the Industrial Commission’s denial of the award to the court of common pleas. See, also, State, ex rel. Hoper, v. Indus. Comm. (1934), 128 Ohio St. 105, 190 N.E. 222.

These are sound holdings because a widow-dependent has an interest in her entitlement which survives her death. The entitlement is a property right which can be passed on, through a will, to the people of the dependent’s choosing.

The majority seeks to circumvent these cases, claiming they were decided at a time when the workers’ compensation statute explicitly permitted the legal representative of a deceased employee to prosecute a claim. However, at the time of Dell, supra, and Whitmore, supra, the statutory right to appeal decisions of the Industrial Commission was given to a “claimant,” with no mention of legal representatives, just as it currently is under R.C. 4123.519. G.C. 1465-90 (103 Ohio Laws 88 and 107 Ohio Laws 162). The provision upon which the majority relies, G.C. 1465-76 (104 Ohio Laws 194), governed a special section of workers’ compensation claims relating to injury arising from the “wilful act” of the employer. Neither Dell, supra, nor Whitmore, supra, involved an employee’s “wilful” injury claim. They involved claims by the dependent of a deceased employee pursuant to the death benefits provision, G.C. 1465-82 (103 Ohio Laws 86-87), *143which provision is void of reference to “legal representatives.”5

Dell, supra, Whitmore, supra, and Hoper, supra, should remain the rule of this court. To deny benefits because a claimant fails to live long enough to survive delays in the administrative process is illogical and unfair. The majority’s holding could encourage delay in processing claims, contrary to our statement in Hoper, supra, that: “It must at all times be remembered that one of the fundamental purposes of the Workmen’s Compensation Law is prompt and certain compensation to those rightfully entitled to receive it.” Id. at 108, 190 N.E. at 224.

Further, the rule read into the statute by the majority works inequities. Claimants having identical claims could file on the same day, prosecute their claims through the system, and be awarded an entitlement to benefits on the same day. However, under the majority’s decision, if one claimant died the day before entitlement was decided and the other the day after, the estate of one would receive benefits while the estate of the other would not. That result is absurd. The legislature surely did not intend that a claimant’s right to recovery be contingent upon the ability to outlive the administrative process.

Finally, the majority’s holding contravenes Ohio’s survival of actions statute. R.C. 2305.21 provides: “In addition to causes of action which survive at common law, causes of action for * * * injuries to the person or property * * * shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.” Pursuant to this statute, a widow-dependent’s entitlement to death benefits should survive her death.

The court of appeals unanimously held that a workers’ compensation claim does not abate when the claimant dies before the administrative decision has been made. I agree.

Sweeney, J., concurs in the foregoing dissenting opinion.

If the majority’s reasoning in distinguishing Dell, supra, and Whitmore, supra, is that giving rights to a “legal representative” under one section of the workers’ compensation law justifies extending those rights in other sections, the legal representative of a dependent should be allowed to prosecute the dependent’s claim since R.C. 4123.01(A)(1) currently provides that “employees or their legal representatives or beneficiaries” (emphasis added) may elect, in certain circumstances, whether to regard an independent contractor as the employer.