Opinion
No. 35342
Decided February 5, 1958.
Workmen's compensation — Disabled Workmen's Relief Fund — Payments therefrom — Computation of amount allowable — No reduction for additional award for violation of specific requirement.
1. Section 4123.414, Revised Code, provides that each participant in the Disabled Workmen's Relief Fund (established by Section 4123.412, Revised Code) shall be entitled to receive from said fund a weekly amount equal to the difference between 25 dollars and such lesser sum as he shall be receiving weekly under the workmen's compensation laws for permanent and total disability.
2. In computing such amount allowable from the Disabled Workmen's Relief Fund, no reduction shall be made by reason of additional compensation being paid to a disabled workman as a result of a determination that his injuries were the result of a violation by his employer of a specific safety requirement.
IN MANDAMUS.
In his petition for a writ of mandamus, relator alleges that on October 6, 1941, he sustained an injury in the course of his employment, as a result of which he was subsequently declared to be permanently and totally disabled and entitled to compensation therefor at the rate of $15.69 a week.
He was later awarded additional compensation at the rate of $6.30 a week, assessed against and paid by his former employer as a result of a determination that his injuries were the result of a violation by such employer of a specific safety requirement.
Relator says further that by the provisions of Section 4123.414, Revised Code, he has been entitled since January 2, 1954, to an additional payment sufficient to bring his compensation for permanent and total disability under the Workmen's Compensation Act to $25 a week, but that the respondent, Industrial Commission, in calculating the amount of such additional payment, has taken credit for the $6.30 being paid to the relator by his employer.
Relator prays for a writ of mandamus to compel the respondent to increase the payments to relator under Section 4123.414, Revised Code, to the extent of $6.30 a week.
To this petition, respondent demurs for the reason that said petition fails to state a cause of action.
It is stipulated by the parties that the ruling on the demurrer will be dispositive of the case.
Messrs. Hoover, Beall, Whitman Eichel, for relator.
Mr. William Saxbe, attorney general, Mr. John R. Barrett and Mr. Daniel B. Quillin, for respondent.
Section 4123.414, Revised Code, so far as pertinent here, reads as follows:
"Each participant shall be entitled to receive payments without application from said fund of a weekly amount equal to the difference between 25 dollars and such lesser sum as he shall be receiving weekly under the workmen's compensation laws for permanent and total disability * * *." (Emphasis added.)
The statement by the respondent in its brief of the question to be decided exemplifies the fallacy of the position it has taken in this matter. Respondent defines the issue thus:
"Does the term `workmen's compensation' as therein used [Section 4123.414 and others, Revised Code] include an award based upon the violation of a specific safety requirement?"
If such were the question presented, it would be easily disposed of on the authority of the unanimous decision of this court in State, ex rel. Emmich, v. Industrial Commission, 148 Ohio St. 658, 76 N.E.2d 710, where it was held specifically in paragraph three of the syllabus:
"The additional award provided by Section 35, Article II of the Constitution of Ohio, for failure by an employer to comply with any specific safety requirement for the protection of his employees is compensation so far as the employee is concerned, but is in the nature of a penalty so far as such award affects the employer."
The real question is whether such award is compensation for permanent and total disability. Obviously, the payment of the additional compensation as a result of the violation of a specific safety requirement has no relation either to the permanence or totality of the disability, because once an additional award is made it continues to be paid regardless of the extent or continuance of disability. See State, ex rel. Engle, v. Industrial Commission, 142 Ohio St. 425, 52 N.E.2d 743.
The wording of Section 4123.414, Revised Code, appears to us to be plain and unambiguous and to mean just what it says, i.e., that the injured employee is entitled to the difference between 25 dollars and such lesser sum as he shall be receiving for permanent and total disability.
It is argued by the respondent that Section 4123.414, Revised Code, must be read in connection with Sections 4123.412 (which establishes the relief fund out of which the additional award allowed by Section 4123.414 is paid) and 4123.413, Revised Code, neither of which sections contains the limiting language emphasized above. Respondent suggests that such language was included in Section 4123.414 by inadvertence. In that suggestion we cannot concur. The language used by the Legislature is too plain.
Even if an ambiguity exists in the three sections, which we do not concede, the decisions of this court would require that such ambiguity be resolved in favor of the injured workman. Bowling v. Industrial Commission, 145 Ohio St. 23, 60 N.E.2d 479; 42 Ohio Jurisprudence, 578, Section 5, and cases cited therein.
Demurrer overruled and writ allowed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS and HERBERT, JJ., concur.