State ex rel. Pickrel v. Industrial Commission

Douglas, J.,

dissenting. The widows lose again! Because the statute dictates that they should win, I dissent. There are at least two major problems with the majority opinion.

First, a widow who is statutorily entitled to a specific award of compensation is being denied that award by strained statutory construction — when no construction is needed at all. The statute clearly provides for a substantially larger award for the widow. Second, the majority opinion ignores the only case pertinent to the issue (one recently decided by this court and relied upon by appellee Industrial Commission), Zupp v. Youngstown Fire Dept. (1988), 37 Ohio St. 3d 202, 525 N.E. 2d 9, and avoids the problem by providing no case citation for the proposition presented. The reason for all this is obvious — the majority’s position is indefensible as is the rationale of Zupp.

At the time of his death, Robert Pickrel was receiving total disability compensation. At the time of Robert’s death, Mary Pickrel, Robert’s widow, was a wholly dependent surviving spouse.

In the body of the opinion, the majority quotes from R.C. 4123.59(B). If the majority had just read a little further in the same section, it would have discovered that the section contains additional provisions, one of which mandates payment to the widow of an amount equal to the statewide average weekly wage: “* * * provided that when any claimant [Robert] is receiving total disability compensation at the time of death the wholly dependent person [Mary] shall be eligible for the maximum compensation provided for in this section. * * *” (Emphasis added.)

In not citing or discussing Zupp, the majority, at least, does not further perpetuate the fallacious “eligible” argument of Zupp. In Zupp at 203, 525 N.E. 2d at 10, the majority interpreted “eligible” to mean a prerequisite to consideration rather than a mandatory entitlement. Such a construction flies in the face of common usage as well as dictionary definition.

“Legally or morally qualified” is the definition of “eligible” found in Webster’s New World Dictionary, Second College Edition (1976) 453. “Entitled” is the definition of “eligible” found in Webster’s Ninth New Collegiate Dictionary (1984) 404. “[E]ntitled to something” is the definition of “eligible” found in Webster’s Third New International Dictionary (1986) 736.

To construe the word “eligible,” as the court did in Zupp, and as the commission asks us to do in the case at bar, permits the commission to pick and choose between various dependent claimants as to who should get the *131maximum and who, being less favored, may get a lesser amount. Surely this cannot be the intention of the General Assembly.

When a person reaches the age of eighteen and properly registers to vote, that person becomes “eligible” to vote. Short of having some disability because of a criminal conviction, that person is “entitled” to vote, and if that person reaches the polls in time and signs the necessary record book, no one may revoke the entitlement to vote. Yet, in discussing such qualifications, we generally ask, “Are you eligible to vote?”

I believe the widow-claimant herein is eligible and entitled to the maximum compensation allowable in accordance with the statute. That amount is the statewide average weekly wage which is the “maximum compensation provided for in this section.” Since the majority reaches a contra conclusion, I dissent.

Sweeney and Resnick, JJ., concur in the foregoing dissenting opinion.