461 N.E.2d 24 | Ohio Ct. App. | 1983
Plaintiff-appellant, Isabell Mentzer, appeals from a judgment of the Franklin County Court of Common Pleas and raises a single assignment of error, as follows:
"The trial court erred in granting defendant's motion to dismiss plaintiff's claim as being barred by the six-year limitation period of Ohio Revised Code Section
Plaintiff's decedent, Ownie Mentzer, sustained an industrial injury in March 1965 while in the course of his employment with defendant-appellee Westinghouse Corporation. Mentzer filed an industrial claim which was allowed in 1974 by the Bureau of Workers' Compensation, which decision was reversed on appeal by the Industrial Commission. He appealed to the court of common pleas but died during the pendency of that appeal. Thereupon, plaintiff filed an application pursuant to R.C.
This application for death benefits was denied at the administrative level upon the ground that the cause of death was not related to the industrial injury. Upon appeal to the Franklin County Court of Common Pleas, that court dismissed the appeal, holding that: "Defendant Westinghouse's Motion to Dismiss is found to be well taken and is sustained as the six-year limitation of R.C. Section
Although the appeal is from its order, the Industrial Commission now agrees with plaintiff and urges reversal of the decision of the court of common pleas conceding that R.C.
"The jurisdiction of the industrial commission over each case shall be continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified. No such modification or change nor any finding or award in respect of any claim shall be made with respect to disability, compensation, *200
dependency, or benefits, after six years from the date of injury in the absence of the payment of compensation for total disability * * * except in cases where compensation has been paid under section
Technically, the trial court erred because the complaint expressly alleges that plaintiff filed her application within the time provided by law, and there are no factual allegations to the contrary, the claim not having been denied at the administrative level upon this basis and the issue being submitted to the trial court upon motion to dismiss prior to any answer being filed by defendants. Plaintiff indicates, however, that the factual situation is such that a reversal for this reason would be only technical in nature and that the essential facts are as set forth above. With that understanding, we proceed to consideration of the basic statute-of-limitations issue. Nevertheless, we note that, pursuant to Felske v. Daugherty (1980),
Nevertheless, the basic issue before us is whether a potential claim for death benefits is barred where the Industrial Commission had denied the decedent's application for allowance of the claim upon the ground that it was without jurisdiction pursuant to R.C.
"1. The cause of action of an injured employe accrues at the time he receives an injury in the course of his employment, and the cause of action of a dependent of a killed employe accrues at the time of the death of such employe from an injury received in the course of his employment. (Industrial Commission v. Kamrath,
"2. Such causes of action are separate and independent, neither being dependent upon nor affected by the determination of the other."
Under the theory advanced by defendant Westinghouse, plaintiff's claim would have been barred some nine years before it accrued. Davis, however, clearly indicates that the denial of decedent's claim by the Industrial Commission cannot operate to bar plaintiff's claim for death benefits, irrespective of the application of R.C.
Under the trial court's application of R.C.
R.C.
For the foregoing reasons, the assignment of error is sustained, and the judgment of the Franklin County Court of Common Pleas is reversed, and this cause is remanded to that court for further proceedings in accordance with law consistent with this decision.
Judgment reversed and cause remanded.
REILLY and MCCORMAC, JJ., concur.