Lead Opinion
This сase presents us with two questions. First, does R.C. 4123.57(B) require the Industrial Commission to aggregate all permanent partial disability awards, including those granted for injuries occurring prior to October 1, 1963, to determine when the one hundred percent permanent partial disability ceiling of R.C. 4123.57(B) has been reached? Second, is the statute unconstitutionally retroactive because it provides for aggregation of permanent partial compensation awards frоm injuries sustained before the 1963 amendment of R.C. 4123.57(B) with awards for injuries sustained after the 1963 amendment? We answer both questions in the affirmative. For the reasons that follow, we reverse the Court of Appeals for Franklin County, which issued a writ of mandamus ordering the commission to vacate its awards to Bednar for his 1982 and 1983 injuries, because “* * * when these awards are included with the other percentages of permanent disability awarded claimant, they exceed the one hundrеd percent limitation in violation of R.C. 4123.57(B).”
I
It is settled law that a relator has the burden of showing a clear legal right to a writ of mandamus as a remedy from a determination of the Industrial Commission. State, ex rel. Pressley, v. Indus. Comm. (1967),
R.C. 4123.57 (entitled “Partial disability compensation”) governs the schedule and number of weekly payments a claimant may receive for specified injuries arising out of and in the course of claimant’s employment. Effective October 1, 1963, the General Assembly amended paragraph (B) of this section by adding the following language:
“No award shall be made under this division based upon a percentage of disability which, when takеn with all other percentages of permanent disability, exceeds one hundred per cent.” (Emphasis added.)
The first controversy of this case concerns the interpretation of this amendment. The commission, Bednar, and the amici curiae all urge this court to adopt the position that the amendment refers only to percentages of permanent disability resulting from injuries occurring after October 1, 1963, the amendment’s effective date. Under this interpretation, Bednar’s seventy-seven percent permanent partial compensation award received for the 1961 injury would not be aggregated with Bednar’s other permanent partial compensation percentage awards. Since Bednar’s awards would then total only fifty-eight percent,
Conversely, Sears urges this court to аdopt the position that the amendment expressly refers to all prior awards, and thus that the seventy-seven percent permanent partial compensation award received for this 1961 injury must be included when calculating the aggregate total for permanent partial compensation percentage awards. Since Bednar’s percentage award would exceed one hundred percent when including the seventy-seven percent pre-1963 award, Bednar would be ineligible to receive the twelve percent and thirty percent awards for injuries occurring in 1982 and 1983, respectively. This is because Bednar would have already exceeded the statutory ceiling of one hundred percent
We believe the legislature ex
The commission, Bednar, and the amici curiae would have this court insert the following italicized phrase, so that the amendment would read, in effect:
“* * * when taken with all other percentages of permanent disability resulting from injuries occurring after October 1, 1963 * * *.”
“[I]n determining the legislative intent of a statute ‘it is the duly of this court to give effect to the words used [in a statute], not to delete words used or to insert words not used. ’ (Emphasis added.)” Wheeling Steel Corp. v. Porterfield (1970),
II
Having found the 1963 amendment to R.C. 4123.57(B) to have a clear and unambiguous meaning, we must next answer the question of whether the amendment retroactively affects a claimant’s substantive rights. In re Nevius (1963),
To answer the question, we must determine what it was Bednar lost in 1963. It is undisputed that his pre-1963 seventy-seven percent permanent partial compensation award remained undisturbed. State, ex rel. Frank, v. Keller, supra, at paragraph two of the syllabus. As of 1963, the seveniy-seven percent award was the only one in which he had a vested right when R.C. 4123.57(B) was amended. Sears asserts that this right is the only vested substantive right at issue in this case, and that because the 1963 amendment tо R.C. 4123.57(B) did not affect that right, the amendment was not applied retrospectively.
We believe, however, that this analysis ignores another right that Bednar lost when R.C. 4123.57(B) was amended. The nature of this other right becomes apparent if permanent partial compensation claims are analyzed in terms of damage remedies. In State, ex rel. Latino, v. Indus. Comm. (1968),
Workers’ compensation was instituted to deal with workers’ claims against their employers administratively, providing a tribunal to hear claims that would otherwise have been resolved by the courts. Section 35, Article II, Ohio Constitution; State, ex rel. Engle, v. Indus. Comm. (1944),
Section 35, Article II, Ohio Constitutiоn begins by announcing its “* * * purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment * * (Emphasis added.) Aggregating Bednar’s seventy-seven percent pre-1963 permanent partial compensation award with post-1963 awards would mean that Bednar could have been precluded from any remedy for a post-1963 injury that exceeded the remaining twenty-three percent of permanent partiаl compensation available to him. This could have left him with the 1982 and 1983 injuries for which he had no remedy under R.C. 4123.57(B). He therefore would have lost the right to press a claim for those injuries that was guaranteed by the Ohio Constitution.
The constitutional guarantee of compensation for such injuries is a substantive right. Because R.C. 4123.57(B) affected that right when the seventy-seven percent permanent partial compensation award was aggregated with post-1963 disability percentages, the statute operated to use prior awards to deprive Bednar of a substantive right. This constitutes a retroactive impairment of remedy for an injury in violation of Section 28, Article II, Ohio Constitution. It is retroactive because workers who had suffered injuries prior to the 1963 amendment were not afforded the equal opportunity to recover compensation for injuries as were those workers who had not sustained a compеnsable injury prior to the 1963 amendment. In other words, the statutory scheme attaches a consequence to pre-1963 awards which was not present when those awards were made.
However, we reject the notion that the General Assembly may not preclude permanent partial compensation percentages from aggregating more than one hundred percent on a prospective basis.
Ill
In light of the unconstitutionality of aggregating pre-1963 permanent partial compensation award percentages with post-1963 award percentages, we cоnclude that the commission had some evidence before it upon which to base its factual conclusion that Bednar was entitled to receive the twelve percent and thirty percent awards for his 1982 and 1983 injuries, respectively. See State, ex rel. Burley, v. Coil Packing, Inc. (1987),
Judgment reversed.
Notes
If the award for the 1961 injury is excluded, Bednar’s total permanent partial compensation percentage awards for injuries occurring in 1966 and 1981 would be fifty-eight percent (forty-eight percent and ten percent, respectively). If Bednar were allowed to receive his awards for the 1982 and 1983 injuries, his total under this interpretation would then be one hundred percent, meeting but not exceeding the statutоry ceiling found in R.C. 4123.57(B).
If the award for the 1961 injury is included, Bednar’s total permanent partial compensation percentage awards for pre-1982 injuries would already exceed the one hundred percent statutory ceiling. In fact these awards would total one hundred
It has been suggested that the issue of the constitutionality of prospective application of the provision in former R.C. 4123.57(B) mandating a one hundred percent ceiling on awards for permanent partial compensation under workers’ compensation is not before us. The Industrial Commission raised this issue, however, on page three of the brief it submitted to us: “This case offers this court the oppоrtunity to examine the extent of constitutional protection pursuant to the amendment under R.C. 4123.57(B).” The Attorney General then went on at length in support of our conclusion herein.
Concurrence in Part
concurring in part and dissenting in part. I concur in paragraph two of the syllabus, Part III of the opinion, and the judgment reversing the holding of the court of appeals and reinstating the decision of the Industrial Commission. I respectfully dissent, for the reasons that follow, as to paragraph one of the syllabus and the remainder of the majority opinion.
It is a basic tenet that courts will not decide a constitutional issue when a case before the court can be decided on a non-constitutional basis. Kinsey v. Bd. of Trustees of Police & Firemen’s Disability & Pension Fund of Ohio (1990),
“The Industrial Commission of Ohio had not abused its discretion or otherwise act [sic] unlawfully when by order dated March 1, 1985 and January 27, 1986 it found John Bednar, Claimant, entitled to an award of twelve percent of permanent partial disability in Claim Number 845368-22 and an award of thirty percent for permanent partial disability in Claim Number 818804-22.”
Nothing in this proposition of law presents the issue of the constitutionality of the prospective application of former R.C. 4123.57(B).
Appellee Sears, Roebuck & Company’s proposition of law is:
“The one hundred percent limitation of R.C. 4123.57 requires that in сlaims with a date of injury subsequent to October 1, 1963, all permanent partial disability awarded to the claimant be aggregated. Such aggregation would, of necessity, include claims accruing prior to October 1, 1963.”
Nothing in this proposition of law presents the issue of the constitutionality of the prospective application of former R.C. 4123.57(B).
Amici, the Ohio Academy of Trial Lawyers, the Ohio AFL-CIO and the United Autoworkers, do, in their proposition of law number two, present, in some measure, the prospective application question. Amici are not, of course, parties to the action and may not present original issues for the court to decide.
Applying paragraph two of the syllabus of the majority opinion answers the inquiry presented to us. This is so because only the retrospective application of former R.C. 4123.57(B) would deprive claimant Bednar of the two awards in question.
The law in question was effective October 1, 1963. That is the date to be used in settling the dispute between appellant and appellee which, of course, materially affects Bednar. The language of former R.C. 4123.57(B) to be interpreted states:
“No award shall be made under this division based upon a percentage of disability which, when taken with all other percentages of permanent disability, exceeds one hundred per cent.” (Emphasis added.)
For the 1961 injury, Bednar was awarded permanent partial disability of seventy-seven percent. This injury obviously occurred before the 1963 change in the law. For the 1966 injury, Bednar was awarded forty-eight percent permanent partial disability. For the 1981 injury, Bednar was awarded ten percent permanent partial disability. For the 1982 injury, Bednar was awarded twelve percent permanent partial disability. For the 1988 injury, Bednar was awarded thirty percent permanent partial disability.
Since it is clear that the injuries sustained by Bednar after 1963 total exactly one hundred percent permanent partial disability, if the law is not applied retrospectively then Bednar has not received an amount which “exceeds one hundred per cent” and the question of prospective application of the law is, in addition to not being before us, not necessary to decide.
Since the majority chooses to decide an issue not properly before us, I comment further on that issue. Is that language of R.C. 4123.57, which mandates a one hundred percent ceiling on awards for permanent partial disability, constitutional?
It is comforting to sеe the majority at least cites to Section 35, Article II of the Ohio Constitution. It is disquieting, however, to then have the majority completely ignore the mandates of the constitutional provision.
Section 35, Article II of the Ohio
By today’s decision, the majority, for all practical purposes, dictates a course of action for injured workers about which some members of the majority usually complain. Given today’s holding, any workman who is approaching or has reached one hundred percent permanent partial disability for which awards have been made will, rather than continuing to work for a willing employer, quit working and seek permanent total disability. How this makes any sense is difficult to comprehend.
For the foregoing reasons I concur in part and dissent in part..
After this dissent had been written and filed and after the case had been voted out of conference, the majority added fn. 5. No comment on the footnote need be made for the knowledgeable reader. Suffice to say, the thesis of the footnote has no basis in law and, in fact, literally applied, the dimensions it reaches are inconceivable.
Dissenting Opinion
dissenting. I must respectfully dissent from the majority’s opinion which, in my view, comрletely misconstrues the plain language of R.C. 4123.57(B), as amended effective October 1, 1963. The statute is not expressly made retrospective. Even if this threshold were met, R.C. 4123.57(B) does not contravene the ban upon retrospective legislation set forth in Section 28, Article II of the Ohio Constitution, as it does not take away or impair any vested substantive rights acquired prior to October 1, 1963.
The issue presented in this case is of a species with which the majority of this cоurt, as well as this writer, is well familiar: whether an enactment of the General Assembly is to be retroactively applied, and if so, whether such application violates the proscription in Section 28, Article II of the Ohio Constitution. In Van Fossen v. Babcock & Wilcox Co. (1988),
“The issue of whether a statute may constitutionally be applied retrospectively does not arise unless there has been a prior determination that the General Assembly specified that the statute so apрly. 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.” Van Fossen, supra, paragraph one of the syllabus. R.C. 1.48 provides that “[a] statute is presumed to be prospective in its operation unless expressly made retrospective.” The majority fails to apply this threshold analysis. Instead, the majority takes a clear and unam
The majority skips over R.C. 1.48 and the expressed intention of the General Assembly and concludes, notwithstanding the prospective operation of the 1963 amendment to R.C. 4123.57(B) (to injuries occurring after its effective dаte), that because the effect of this prospective application may, in some instances, involve consideration of pre-October 1963 permanent partial compensation awards the statute retroactively impairs a “remedy” for such pre-amendment injuries. This untenable leap in logic escapes me.
When faced with the application of a clear and unambiguous statute, this court has long declared that “[a] statute is nоt retroactive merely because it draws on antecedent facts for a criterion in its operation.” United Engineering & Foundry Co. v. Bowers (1960),
Moreover, this statute is not retrospective in its operation for the simple reason that aggregation of prior claims to calculate present “damages” has no effect whatsoever upon the validity or amount of such prior claims. It is well settled that “the maximum amount of compensation to which claimant is entitled [under R.C. 4123.57(B)] is a substantive right and is governed by the statutory law in effect on the date of injury.” (Emphasis added.) State, ex rel. Frank, v. Keller (1965),
The only “substantive right” conceivably involved in this context is the right to compensation for work-related injuries. This right exists by virtue of Section 35, Article II of the Ohio Con
The fact that awards under R.C. 4123.57(B) are in the nature of general damages, State, ex rel. Latino, v. Indus. Comm. (1968),
“It must be kept in mind that the workers’ compensation system is a product of a compromise between employers and employees. The court in Allen v. Eastman Kodak Co. (1976),
“ ‘The workers’ compensation laws of Ohio may well not be perfection in their attempt to compensate employees for their injuries, but they do provide a reasonably equitable balance between the rights, duties, and privileges of both the employee and the employer.’ ”
The Rose court, in a decision this court declined to review, soundly rejected the “equal opportunity to recover” argument espoused by the majority here, holding that the one hundred percent cap provided in amended R.C. 4123.57(B) does not violate the Equal Protection Clause of the United States Constitution or Section 26, Article II of the Ohio Constitution. Id. at 303, 20 OBR at 396,
Amended R.C. 4123.57(B) is not expressly made retrospective, and thus its constitutionality is not in issue. Because a сlaimant’s award under this statute is governed solely by the law in effect on the date of the claimant’s injury, the determination of awards for post-October 1963 injuries has no effect upon prior awards. Therefore, I dissent.
The amended statute does not, for example, call for the reduction of preamendment awards to an aggregate of one hundred percent. Nor does the amended statute preclude additional awards for the progression of a pre-amendment injury from eighty percent to ninety percent, for example, as any additional awards for such prior claims are governed by the law in effect at the time of the injury. See State, ex rel. Vaughn, v. Indus. Comm. (1982),