State ex rel. Scott v. Ohio Bur. of Workers' Comp. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Scott, Appellant, v. Bureau of Workers'
Compensation et al., Appellees.
[Cite as State ex rel. Scott v. Ohio Bur. of Workers' Comp.
(1995), Ohio St.3d .]
Workers' compensation -- Claim for scheduled-loss award --
Former R.C. 4123.57(C) -- Claim barred by statute of
limitations -- Former R.C. 4123.60.
(No. 94-263 -- Submitted May 23, 1995 -- Decided August
16, 1995.)
Appeal from the Court of Appeals for Franklin County, No.
92AP-1743.
Decedent, Teddy R. Scott, had both legs severed in a 1977
industrial accident while employed at American Colloid
Company. He survived the accident, but died en route to the
hospital. A violation of a specific safety requirement was
found, and a death claim was also allowed by appellee
Industrial Commission of Ohio.
In 1991, decedent's widow, appellant, Joy M. Scott, filed
an "application for payment of compensation accrued at time of
death," alleging that, had decedent lived, he would have
qualified for R.C. 4123.57(C) (now 4123.57[B]) benefits for his
amputated limbs. A district hearing officer ordered
compensation to be paid, and that order was not appealed.
Prior to payment on the order, however, the commission
exercised its continuing jurisdiction and vacated the district
hearing officer's order, finding that appellant's application
was barred by former R.C. 4123.60's one-year statute of
limitations.
Appellant filed a complaint in mandamus in the Court of
Appeals for Franklin County, alleging that the commission
abused its discretion in denying compensation. The appellate
court denied the writ.
This cause is now before this court upon an appeal as of
right.

Timothy G. Chasser and James T. Sullivan, for appellant.
Betty D. Montgomery, Attorney General, and Yolanda L.
Barnes, Assistant Attorney General, for appellees Bureau of

Workers' Compensation and Industrial Commission.

Per Curiam. Appellant seeks a scheduled-loss award under
former R.C. 4123.57(C). The commission held, and the court of
appeals concurred, that former R.C. 4123.60's statute of
limitations barred the award. We agree.
Former R.C. 4123.60 read:
"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 the decedent at the time
of his death, the commission may * * * award or pay any unpaid
balance of such award to such of the dependents of the decedent
* * * . If decedent would have been lawfully entitled to have
made application for an award at the time of his death, the
commission may * * * 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, * * * but such payments
may only be made in cases in which application for compensation
was made * * * within one year after the death of such injured
or disabled person."
No application for paragraph (C) compensation was made
until fourteen years after decedent died. Appellant responds
that to have filed within a year of death would have been
futile, since the law, at that time, did not permit payment of
accrued compensation to survivors of those killed in industrial
accidents.
Appellant accurately restates past law. State ex rel.
Spiker v. Indus. Comm. (1943), 141 Ohio St.174, 25 O.O. 271, 47
N.E.2d 217, citing the introductory language to R.C. 4123.60's
predecessor statute, held that industrially induced death
barred survivors from receiving accrued benefits. Spiker
controlled until 1983 when State ex rel. Nyitray v. Indus.
Comm. (1983), 2 Ohio St.3d 173, 2 OBR 715, 443 N.E.2d 962,
ruled that keying eligibility for accrued compensation to the
cause of death offended equal protection of the laws.
The lengthy period between Spiker and Nyitray may be
unfortunate, but the fact remains that appellant has no right
to accrued compensation, absent R.C. 4123.60. Because she must
rely on that statute to establish an entitlement, she must
abide by it in its entirety, including its
limitation-of-actions period. Appellant cannot selectively
designate the passages that she wishes to see enforced and
ignore the rest.
Accordingly, we find that R.C. 4123.60's one-year statute
of limitations controls. Perhaps anticipating this result,
claimant alternatively argues that medical documents submitted
soon after decedent's death notified the commission that had
decedent survived, he would have qualified for R.C. 4123.57(C)
benefits and, therefore, this submission tolled the statute of
limitations. We find otherwise. Appellant's documents could
not have served as timely notification of an exercise of her
right to accrued compensation, since appellant had no such
right to exercise.
Appellant also attacks the commission's exercise of

continuing jurisdiction. We find this challenge to be
meritless. State ex rel. Manns v. Indus. Comm. (1988), 39 Ohio
St.3d 188, 529 N.E.2d 1379, approves the commission's exercise
of continuing jurisdiction in situations where a subordinate
hearing officer has erred. State ex rel. B & C Machine Co. v.
Indus. Comm. (1992), 65 Ohio St.3d 538, 605 N.E.2d 372, also
authorizes continuing jurisdiction where a prior order contains
a mistake of law. Because such a mistake existed, the
commission's intervention was proper.
Having found appellant's application to be statutorily
barred, we find it unnecessary to address the commission's
laches argument.
For the reasons stated above, we hereby affirm the
judgment of the court of appeals.
Judgment affirmed.
Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney,
Pfeifer and Cook, JJ., concur.