465 N.E.2d 1321 | Ohio Ct. App. | 1984
In this appeal by an employer from an award of death benefits from the Workers' Compensation Fund, we conclude that the court of common pleas committed no error in ruling against the employer, even though we disagree with the court's reasoning. We believe that the court erred in holding that under R.C.
Franklin Carl Newland ("decedent") was killed on February 14, 1979, while in the course and scope of his employment in Ohio for defendant-appellant, Indiana Farm Bureau Cooperative Association ("Association"). Plaintiff-appellee, Linda Boston ("Linda"), filed a workers' compensation claim on behalf of herself as the decedent's common-law wife and on behalf of Tonia Newland ("Tonia") as their daughter. Initially both claimants were awarded benefits, the hearing officer finding the existence of a common-law marriage between the decedent and Linda. The Association appealed to the Dayton Regional Board of Review, which allowed the death claim but held that there was no common-law marriage and that no benefits were to be paid to either Linda or Tonia. The effect of this order was to rule that Linda was not the decedent's widow, and that Tonia was his illegitimate daughter. Nevertheless, benefits were denied Tonia. Linda appealed to the Industrial Commission. On August 28, 1981,2 the commission made the following order, which appellant now seeks to reverse:
"It is the decision of the Industrial Commission to grant the widow-claimant's Appeal to the following extent only; that the order of the Dayton Regional Board, dated 6-23-80, be modified to the following extent: That the death claim be allowed; that there was no Common Law Marriage and that therefore no benefits are to be paid Linda Boston; that Tonia Newland is the illegitimatedaughter of Franklin Newland, deceased, and Linda Boston; that evidence of record rebutes [sic] the presumption that Tonia Newland was fully dependent on her natural father at the time of his death.
"It is the further finding and order of the Commission thatTonia Newland is entitled to 50% of the full benefits in thisclaim; payable in accordance with the Statute with respect to payment of death benefits to minors." (Emphasis added.)
Linda did not appeal, but the Association did. There was later activity causing a separate and different appeal, not pertinent to this appeal.3
The record suggests that copies of the quoted order were mailed to Linda and the Association on September 21, 1981, but the uncontroverted evidence is that the Association did not receive notice of it until March 10, 1982, when a copy was delivered by an assistant attorney general to an attorney representing the Association. The reason for this anomaly is not disclosed. The instant appeal was filed by the Association in the court of common pleas on March 31, 1982, or twenty-one days later.
The appeal was dismissed by the court of common pleas on cross-motions for summary judgment, and Linda was awarded attorney fees pursuant to a separate motion. We find no error in these orders, but as suggested above, we do not agree with the trial court's reasoning. *10
That court held that the Association had filed its appeal to the court after the sixty-day period allowed in R.C.
The appeal to the court of common pleas was in good time because it was filed twenty-one days after "the date of receipt of the order appealed from," as required by R.C.
R.C.
The determination of whether the August 28, 1981 order was appealable under R.C.
"It is firmly established that, once the claimant's right to participate in the fund is established, the commission has the exclusive jurisdiction to determine the extent of theparticipation." (Emphasis added.)
The court went on to state:
"* * *the right to participate is appealable, but the extent ofparticipation is not appealable." (Emphasis sic.)
It is uncontrovertable that one of the *11
decisions reached in the August 28, 1981 order was to determine the extent to which Tonia could participate in the fund; it was fixed at fifty percent of the full death benefits. The order contains other decisions, however, and some of these are preliminary to the decision about Tonia's percentage of participation. One of them was that Tonia was entitled as an illegitimate child to participate in the fund. The order does not state this decision in haec verba, but it is necessarily and inevitably implicit in the order. The earlier administrative order (by the Dayton Regional Board of Review) was that Tonia could not receive any benefits at all, but on August 28, 1981 the commission modified that order by granting Tonia's claim to participate. Even though Tonia was illegitimate because her parents were not married, she was awarded benefits that the prior order had denied her. Thus the August 28, 1981 order contains decisions both about Tonia's right to participate and about the extent of her participation. If the juxtaposition of these two decisions in the same order were to be unappealable under R.C.
We hold that the Association had, under R.C.
As is abundantly clear from the Association's arguments in both of the briefs and oral argument before this court, and in its written memorandum before the trial court, the only issue sought to be raised by the Association is whether Tonia as an illegitimate child is entitled to recover death benefits from the Workers' Compensation Fund. We believe this legal issue, which requires no finding in fact under the cross-motions for summary judgment in this case, has been conclusively decided against the Association, and that the Association is not entitled to judgment as a matter of law. While Staker v. Indus. Comm. (1933),
"The status of illegitimacy has expressed through the ages society's condemnation of irresponsible liaisons beyond the bonds of marriage. But visiting this condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the illegitimate child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalizing the illegitimate child is an ineffectual — as well as an unjust — way of deterring the parent. Courts are powerless to prevent the social opprobrium suffered by these hapless children, but the Equal Protection Clause does enable us to strike down discriminatory laws relating to status of birth where — as in this case — the classification is justified by no legitimate state interest, compelling or otherwise." (Footnote omitted.)
The ultimate claim is feckless and summary judgment was properly granted.
As to the award of attorney fees to Linda, R.C.
We affirm.
Judgment affirmed.
PALMER, P.J., and KEEFE, J., concur.
"The claimant or the employer may appeal a decision of the industrial commission * * * in any injury or occupational disease case, other than a decision as to the extent of disability, to the court of common pleas. * * * Notice of such appeal shall be filed by the appellant with the court of common pleas withinsixty days after the date of the receipt of the decision appealedfrom or the date of receipt of the order of the commission refusing to permit an appeal from a regional board of review. Such filings shall be the only act required to perfect the appeal and vest jurisdiction in the court.
"* * *
"* * * The court, or the jury under the instructions of the court, if a jury is demanded, shall determine the right of theclaimant to participate or to continue to participate in thefund upon the evidence adduced at the hearing of such action.
"* * *
"The cost of any legal proceedings authorized by this section,including an attorney's fee to the claimant's attorney to befixed by the trial judge in the event the claimant's right toparticipate or to continue to participate in the fund isestablished upon the final determination of an appeal, shall betaxed against the employer or the industrial commission if the industrial commission or the administrator rather than the employer contested the right of the claimant to participate in the fund. * * *" (Emphasis added.)
"The employee, employer and their respective representatives shall be entitled to written notice of any hearing, determination, order, award or decision under the provisions of Chapter 4123. of the Revised Code.
"If any person to whom a notice is mailed shall fail to receive such notice and the industrial commission, upon hearing, shall determine that such failure was due to cause beyond the control and without the fault or neglect of such person or his representative and that such person or his representative did not have actual knowledge of the import of the information contained in such notice, such person may take the action afforded to such person within twenty days after the receipt of such notice of such determination of the industrial commission. Delivery of such notice to the address of such person or his representative shall be prima facie evidence of receipt of such notice by such person."