THE STATE EX REL. PLAVCAN, APPELLEE, v. SCHOOL EMPLOYEES RETIREMENT SYSTEM OF OHIO, APPELLANT.
No. 93-2532
Supreme Court of Ohio
December 20, 1994
71 Ohio St.3d 240 | 1994-Ohio-91
Schools—Public School Employees Retirement System—Retirement—Disability coverage—R.C. 3309.39, construed. Submitted October 24, 1994. Appeal from the Court of Appeals for Franklin County, No. 93AP-324.
{¶ 2} Before July 29, 1992, persons sixty and over could not receive disability benefits from SERS. See former
{¶ 3} Appellee, Lillian Plavcan, was a member of appellant SERS with over five years service credit on July 29, 1992, when Am. S.B. No. 346 took effect. She applied for disability benefits on October 1, 1992, some two months later. On November 2, 1992, SERS‘s medical examiner stated that appellee had become incapacitated in December 1991, i.e., some seven months before Am. S.B. No. 346‘s effective date, which was also the same month she became sixty. She last received compensation for work in January 1992, which presumably was also her last contributing service, and was some six months before Am. S.B. 346‘s effective date, but well within the two years prior to the application for benefits.
{¶ 4} SERS began paying benefits to the appellee on August 1, 1992, the first day of the first month after Am. S.B. No. 346 took effect, rather than February 1, 1992, the first day of the month following the last day she received compensation, as required by literal compliance with
{¶ 5} SERS brings this appeal as of right.
Martin, Pergram, Browing & Parker Co., L.P.A., Robin L. Parker and James M. Detz, for appellee.
Lee Fisher, Attorney General, and Christopher S. Cook, Assistant Attorney General, for appellant.
{¶ 6} We affirm the decision of the court of appeals for the following reasons.
{¶ 7} As amended by Am. S.B. No. 346, effective July 29, 1992,
“Sec. 3309.39(A) The school employees retirement system shall provide disability coverage to each member who has at least five years of total service credit.
“Not later than October 16, 1992, the school employees retirement board shall give each person who is a member on the effective date of this amendment [July 29, 1992] the opportunity to elect disability coverage either under section 3309.40 of the Revised Code or under section 3309.401 of the Revised Code.
“* * *
“(B) Application for a disability benefit may be made by a member, by a person acting in the member‘s behalf, or by the member‘s employer, provided the member has at least five years of total service credit and has disability coverage under Section 3309.40 or 3309.401 of the Revised Code.* * * The benefit payable to any member who is approved for a disability benefit shall become effective on the first day of the month next following the later of the following:
“(1) The last day for which compensation was paid;
“(2) The date on which the member was first incapacitated by the disabling condition.
“* * *
“(D) Application for a disability benefit must be made within two years from the date the member‘s contributing service terminated.* * *”
{¶ 8} In its first proposition of law, SERS argues that
“A statute is presumed to be prospective in its operation unless expressly made retrospective.”
{¶ 9} In Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 522 N.E.2d 489, paragraph one of the syllabus, this court stated in part:
“Upon its face, R.C. 1.48 establishes a threshold analysis which must be utilized prior to inquiry under Section 28, Article II of the Ohio Constitution [constitutionally prohibited retroactivity].”
{¶ 10} The court of appeals held that although Am. S.B. No. 346 contained no express provision concerning retroactivity, it was “obvious” that the bill was intended to comply with the federal Older Workers Benefit Protection Act “at the first available time.” The court of appeals apparently, though not expressly, based this conclusion on Section 5 of Am. S.B. No. 346, the necessitated by the federal act, “which requires that state retirement systems amend by October 16, 1992, any disability benefit law that discriminates among system members on the basis of age.”
{¶ 11} The federal act was not otherwise cited or entered into evidence in the court of appeals. SERS attaches a copy of the act and some excerpts from the Congressional Record concerning the act to its appellate brief, and both parties refer to the federal act in their briefs. However, these materials are outside the record. States apparently had to comply with the federal law by October 16, 1992 (Section 5 of Am. S.B. No. 346), but this did not prove that retroactivity of state laws was required. Accordingly, we decline to affirm the court of appeal‘s decision on grounds that the federal act required retroactivity.
{¶ 12} Upon further examination, however, we conclude that
“It [R.C. 3513.191] is not retroactive simply because the test involves a time factor extending prior to the effective date of the amendment. The test is to be applied to future cases, i.e., cases after its effective date.” 165 Ohio St. at 192, 59 O.O. at 262, 134 N.E.2d at 835.
{¶ 13} Similarly, eligibility under
{¶ 14} Nor do we view the payments due to appellee as being retroactive. Appellee‘s “benefit payable” date under
“* * * a payment, other than a retirement allowance or the annuity paid under section 3309.341 of the Revised Code, payable from the accumulated contributions of the member or the employer, or both, under this chapter and includes a disability allowance or disability benefit.”
{¶ 15}
“* * * The allowance shall be an annual amount equal to the greater of the following:
“(1) Forty-five per cent of the member‘s final average salary;
“(2) The member‘s total service credit multiplied by two and one-tenth per cent of his final average salary, not exceeding sixty per cent of his final average salary.” (Emphasis added.)
{¶ 16} Thus, the allowance is computed as an “annual amount” relative to the present. We hold that this establishes a present right to payment, based on past events. If the right to receive certain benefits is a present right, it is not retroactive because it references past events. Bouse, supra.
{¶ 17} SERS argues that Smith v. Ohio Valley Ins. Co. (1971), 27 Ohio St.2d 268, 56 O.O.2d 160, 272 N.E.2d 131, supports its contention that payment of benefits for a period prior to a bill‘s effective date must constitute retroactive law which the General Assembly must identify as such in order to comply with
{¶ 18} Claimants whose claims arose prior to September 4, 1970, OIGA‘s effective date, sought payment from the fund. The trial court held that the fund was available to pay all claims, those arising before and after the effective date of the act. The court of appeals held that the act was indeed retroactive as to claims arising before September 4, 1970, and was therefore unconstitutional to that extent, but was not retroactive as to claims arising between September 4 and November 27, 1970, the date the insolvency was judicially declared.
{¶ 19} We affirmed the judgment of the court of appeals, but not on constitutional grounds. Rather, we held that OIGA applied only to “covered claims,” a defined term applicable to only claims against insurance companies that became insolvent on and after the effective date of the act. Thus, the court found a statutory basis for limiting claims to those arising only on and after the act‘s effective date.
{¶ 20} In the instant case, there is no statute to indicate prospectivity only and limit benefits to those accruing after the bill‘s effective date. Thus, Smith fails to support SERS‘s contentions in this regard.
{¶ 21} Finding that appellee has established a present right to payment as of February 1, 1992, we affirm the decision of the court of appeals, but upon different reasoning.
Judgment affirmed.
MOYER, C.J., A.W. SWEENEY, DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.