Opinion
No. 70-19
Decided May 27, 1970.
Workmen's compensation — Fireman injured while performing duties as municipal employee — Eligible to participate in firemen's pension fund — Entitled to workmen's compensation, when.
APPEAL from the Court of Appeals for Franklin County.
This is an action in mandamus originating in the Court of Appeals for Franklin County, brought by appellee to require appellant to pay workmen's compensation benefits.
As a result of injuries sustained in the performance of his duties as a firefighter for the city of Cincinnati on January 27, 1961, appellee was rendered, and remains, permanently and totally disabled. A report of industrial injury was filed with appellant, presenting appellee's claim for workmen's compensation. The claim was certified by appellee's employer, the city of Cincinnati, and the claim was allowed by the Bureau of Workmen's Compensation for medical services totaling $44,649.11. On January 27, 1963, appellee retired, and since that date he has received a pension of $340 per month from the Police and Firemen's Disability and Pension Fund.
On September 30, 1968, appellee filed with appellant an application for determination of the percentage of permanent partial disability, seeking a determination and award of disability benefits. Pursuant to the application, appellant determined that appellee was permanently and totally disabled, but refused to award disability benefits to appellee, and dismissed the application with the following order, dated February 27, 1968:
"That the form C-92, Application for the Determination of Percentage of Permanent Partial Disability, filed September 30, 1968, be dismissed for the reason that the claimant is receiving a pension from Firemen's Pension Fund and is therefore not entitled to compensation pursuant to Section 4123.02 R.C."
Appellee then filed this mandamus action in the Court of Appeals, which issued the writ, ordering payment of benefits from January 1, 1967. State, ex rel. Currin, v. Indus. Comm. (1969), 20 Ohio App.2d 175, 252 N.E.2d 652. The cause is now before this court upon an appeal as of right.
Messrs. George, Greek, King, McMahon McConnaughey and Mr. William C. Moul, for appellee.
Mr. Paul W. Brown, attorney general, Mr. James Maurer and Mr. Charles W. Waterfield, for appellants.
In the syllabus to the Court of Appeals' opinion ( 20 Ohio App.2d 175), the court stated:
"1. The Police and Firemen's Disability Fund created by Section 742.26, Revised Code, as of January 1, 1967, is not a fund `established and maintained by a municipal corporation.'
"2. Section 4123.02, Revised Code, providing that Sections 4123.01 to 4123.94, inclusive, of the Revised Code (the Workmen's Compensation Act) do not apply to firemen in municipal corporations where the injured firemen are eligible to participate in any firemen's pension funds `established and maintained by a municipal corporation,' does not apply to a fireman injured in the performance of his duties as a municipal employee, rendered and remaining totally disabled, and who is receiving a pension from the fund created by Section 742.26, Revised Code."
In rendering its decision, the Court of Appeals thought it necessary to discuss the constitutionality of R.C. 4123.02. However, it is the opinion of this court that the other issues discussed by the Court of Appeals, as reflected in the syllabus of its opinion, are dispositive of the cause. Accordingly, we affirm the judgment of the Court of Appeals for the other reasons stated in its decision, without expressing an opinion on the constitutional issue.
The judgment appealed from is affirmed.
Judgment affirmed.
O'NEILL, C.J., HOFSTETTER, SCHNEIDER, HERBERT, DUNCAN and CORRIGAN, JJ., concur.
HOFSTETTER, J., of the Eleventh Appellate District, sitting for MATTHIAS, J.