Opinion
No. 25460
Decided November 20, 1935.
Workmen's compensation — Degree of dependency — Jurisdiction of Industrial Commission final, when — Husband and wife — Living together — Average weekly wage.
IN MANDAMUS.
This matter is submitted upon petition, amended answer and reply.
Relatrix, Mary Pivk, seeks a writ of mandamus from this court to require respondent, the Industrial Commission of Ohio, to find her and certain of her minor children wholly dependent upon Jacob Pivk, her deceased husband and father of such children, who died of injuries sustained in the course of his employment, and to grant relatrix and her children the maximum award of compensation allowable under the Ohio Workmen's Compensation Act.
The salient facts alleged in the petition are that relatrix and Jacob Pivk were duly married in 1904. They were then residents and subjects in that part of the former Austro-Hungarian Empire which is now included in the Kingdom of Yugoslavia. Four children were born of such marriage, Frances in 1905, Leopold in 1910, Mary in 1912 and Jacob in 1913.
Jacob Pivk, the elder, came to the United States to work, without intention of severing family ties or of changing his national status, according to the petition. It is asserted that he sent to relatrix in Europe for the support of herself and her children the following amounts at the following times: $162 in 1913; $157 in 1914; $69 in 1915; $40 in 1923; $50 in 1924; $500 in 1925. Absence of remittances between 1915 and 1923 is attributed to complications arising out of the World War. In 1927, a sister of the relatrix, a resident in the United States, is averred to have visited Yugoslavia and to have personally delivered to relatrix a contribution from Jacob Pivk of an unstated amount.
On January 5, 1928, Jacob Pivk, while in the employ of Geo. W. Jennings, Inc., of Cleveland, a contributor to the State Insurance Fund of Ohio, suffered injuries in the regular course of his employment, from which he died on January 23, 1928.
In September of 1929 relatrix applied to respondent for a compensation award on behalf of herself and her children as persons wholly dependent for support upon the decedent, Jacob Pivk. Respondent assumed jurisdiction of the claim and found that relatrix and the minor child, Jacob, were partially dependent upon the decedent at the time of his death, and made them an award amounting to a fraction over $2011, apportioned two-thirds to relatrix and one-third to Jacob. Respondent further found that decedent's average weekly wage was $17.75. The award was made payable over a period of 170 weeks, at the weekly rate of two-thirds of such average weekly wage.
Relatrix complains that the average weekly wage of Jacob Pivk as found by respondent is too low as compared with his earnings for two months and about five days before his injury; that Mary Pivk, daughter of relatrix and decedent, was a minor under sixteen years of age at the time of decedent's injury and death, totally dependent for support upon her father and could not be ignored, and that respondent has failed to grant the statutory amount allowable for funeral expenses.
Answering, respondent admits the employment of Jacob Pivk, his injury in the regular course of employment, and his subsequent death, as alleged in the petition; that relatrix and Jacob Pivk were married and that the named children were born to them; that relatrix filed her application for compensation on behalf of herself and her children on account of the death of Jacob Pivk, and that respondent made the findings and order set out in the petition. Then follows a general denial of all other allegations of the petition.
The answer continues with the statement that, "This respondent further presents to this Court that in determining partial dependency, the Industrial Commission first determines the amount of compensation that would be just and equitable for such partial dependency and then uses that as a basis for determining the number of weeks during which compensation should be paid as provided for by Section 1465-82, General Code, and that the slight variation in the fixing of the average weekly wage would not affect the final amount of compensation awarded but would only affect the length of time during which award would be paid."
As a part of the second defense of the answer this statement is made: "The respondent further presents to the Court that upon inquiring into the question of dependency in connection with this claim it found that the remittances, if any, which the decedent made to relatrix were at very irregular intervals and not sufficient to support relatrix or her family, and further found from the evidence presented to it for the purpose of determining the amount of compensation that the relatrix and her children all worked in the home country and supported this relatrix and themselves, and that by reason thereof this respondent found that the evidence was sufficient to overcome the presumption which might exist in favor of this relatrix by virtue of the provisions of Section 1465-82, General Code, and was sufficient to show that the relatrix and the children were not wholly dependent upon the decedent at the time of his injury or death."
The reply challenges the validity of the procedure followed by respondent in fixing the compensation award, and denies all affirmative matter contained in the answer.
Messrs. Cerrezin Wilson, for relatrix.
Mr. John W. Bricker, attorney general, and Mr. R.R. Zurmehly, for respondent.
Section 1465-82, General Code, a part of the Ohio Workmen's Compensation Act, relates to the benefits payable to persons wholly or partially dependent upon a workman who dies within two years as a result of injury sustained in the course of his employment. The latter part of that section, as effective when Jacob Pivk died, provided:
"5. The following persons shall be presumed to be wholly dependent for the support upon a deceased employe:
"(A) A wife upon a husband with whom she lives at the time of his death.
"(B) A child or children under the age of sixteen years * * * upon the parent with whom he is living at the time of the death of such parent, or for whose maintenance such parent was legally liable at the time of his death.
"In all other cases, the question of dependency, in whole or in part, shall be determined in accordance with the facts in each particular case existing at the time of the injury resulting in the death of such employe * * *."
Relatrix maintains that she and the two minor children, Mary and Jacob, alleged to have been less than sixteen years old when their father died, occupy a position as his total dependents beyond dispute, because of the presumption of total dependency in favor of a widow and minor children established by Section 1465-82, General Code, and are therefore owed the maximum award allowable under that section, as a matter of right.
This contention is fallacious and we cannot approve it. While it is true, as said in State, ex rel. Person, v. Industrial Commission, 126 Ohio St. 85, 89, 183 N.E. 920, that "under the Workmen's Compensation Act, dependency is based upon the right to support, rather than upon the actual fact of support," the degree of dependency is a question of fact to be determined by the Industrial Commission from the proof before it, and when it has assumed jurisdiction of a claim and has made a determination upon the evidence, such determination is final, unless a gross abuse of discretion is clearly indicated, or an unlawful procedure has been followed.
A widow and minor children within the purview of paragraphs (A) and (B), sub-division 5 (now sub-division 4), of Section 1465-82, General Code, are, of course, entitled to the presumption of total dependency, but it is only a presumption, subject to rebuttal in the same manner as any other presumption.
In the instant case, upon a consideration of the evidence, the respondent reached the conclusion that only relatrix and the minor child, Jacob, were dependent on the decedent for support at the time of his death, and that such dependency was partial. The pleadings herein divulge at least some of the factors taken into account. Among them may be mentioned decedent's fifteen years' absence from his family, the amounts he sent them from time to time, the seven or eight years in which no contributions were made, and the successful efforts of relatrix and the children in providing for their own needs. Upon such a foundation, an assumption that the findings of respondent were arbitrary, capricious and without any basis, so as to constitute a gross abuse of discretion, would be unwarranted.
Relating to the question of dependency as it appears in this case, the query suggests itself as to whether relatrix and Jacob Pivk were living together at the time of his death so as to entitle her to the presumption of total dependency within the contemplation of Section 1465-82, General Code. While a physical living together is not necessary to constitute total dependency under our statute, the existence of such a situation between husband and wife should be reasonably plain before the presumption of total dependency in favor of the latter may be rightly invoked. In pursuance of this thought, attention is directed to the following cases: State, ex rel. Poulos, v. Industrial Commission, 128 Ohio St. 430, 191 N.E. 481; Stojic v. Industrial Commission, 188 Wis. 228, 205 N.W. 795; Kalcic v. Newport Mining Co., 197 Mich. 364, 163 N.W. 962; Klautka v. Stanley Works, 100 Conn. 345, 123 A. 839.
It is held in the case of Olson-Walker Co. v. Industrial Commission, 207 Wis. 576, 579, 242 N.W. 350, 351, that "What constitutes 'living together' where the facts are in dispute, or, if undisputed, where conflicting inferences can be drawn from the evidence, is a question of fact for the commission."
We find no substantial merit in the argument of relatrix as to the erroneous computation of decedent's average weekly wage. As pointed out by respondent in its answer and brief, the total amount of compensation to which dependents are considered to be justly entitled is first agreed upon, which is then disbursed at intervals on the basis of two-thirds of the average weekly wage as determined by the Industrial Commission from the information before it. Any error in determining Jacob Pivk's average weekly wage was not material. If fixed according to the contention of relatrix, the total amount of compensation would not be increased, but only the weekly installments to an inconsequential degree.
No time need be spent on the question of allowance of funeral expenses. Counsel for respondent asserted in his brief and repeated the statement in open court, that when proper funeral bills are presented to respondent it will pay them in a sum not exceeding that stipulated in the applicable statute.
We can discover nothing in this case to warrant the issuance of the extraordinary writ of mandamus, and such writ is therefore denied.
Writ denied.
WEYGANDT, C.J., STEPHENSON, WILLIAMS, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.