Halley v. Bur. of Workers' Comp. , 102 Ohio App. 3d 391 ( 1995 )

Being unable to concur in the conclusion reached by the majority, I respectfully dissent.

The factual background in this case is simply that claimant settled a disallowed claim pending in court and died before the settlement was finally approved by the commission. The commission and then the trial court ruled the settlement proceeds were not payable due to abatement, the settlement not having been approved before the claimant's death.

The majority either ignores the mandates of R.C. 4123.65 and Ohio Adm. Code 4123-5-21, or finds a way by inferences to avoid the consequences of the abatement mandated by long-standing rules of procedure.

The majority's major premise with respect to the claimant's entitlement to settlement proceeds centers on the conclusion that claimant "is entitled to the inference that the settlement agreement was authorized by a hearing officer acting within the scope of the authority granted to her by the commission." The majority then concludes a form of finality was achieved with respect to the settlement created by this circumstance and, therefore, the commission was obligated to pay the settlement proceeds notwithstanding the effects of the statute. From this reasoning also comes the majority's ultimate conclusion that the settlement agreement, as entered at court, itself served as an instrument fulfilling the requirements of R.C. 4123.65.

While R.C. 4123.65 governs the ultimate finalizing of settlement of a claim, the majority refers to R.C. 4121.35 in the following particulars to clothe the commission's attorney and the staff hearing officer with final authority to approve settlements:

"(B) Staff hearing officers of the commission may hear and decide the following matters:

"* * *

"(3) Final settlements pursuant to section 4123.65 * * *."

In my view, this analysis by the majority does not give proper recognition to the mandates of R.C. 4123.65 and reads into existence authority not granted in R.C. 4123.35. This statute grants authority to settle a claim, it does not eliminate the process required in R.C. 4123.65. Former R.C.4123.65, governing this case, stated in pertinent part:

"Before any final settlement agreement is approved by the industrial commission, application therefore shall be made to the commission. Such application shall be signed by the claimant and shall clearly set forth the circumstances by reason of which the proposed settlement is deemed desirable and the nature of the controversy. Notice of the hearing of such application shall be given to the employee and his representative and the employer and his representative. Such application shall be heard by the members of the industrial commission or a majority thereof sitting en banc. No member may delegate his authority to hear and determine the matters raised by such application."

And Ohio Adm. Code 4123-5-21 states that:

"(A) When a claimant dies, action on any application filed by the claimant, and pending before the bureau or the industrial commission at the time of his death, is abated by claimant's death."

It is interesting to note that R.C. 4123.65 has been amended as alluded to in the majority opinion. However, the new law, which is not controlling here, would not have benefitted the claimant, as no application for approval of settlement was filed by the claimant in this case.

The signing of the settlement agreement by an attorney or staff hearing officer of the commission does not equate to a hearing by members of the commission as required by R.C.4123.65. I do not argue with the fact that the settlement here was agreed to by an authorized representative of the commission. Except for the statutory scheme in place, requiring specific procedures to be carried out to finalize and approve settlement, this would be a simple case of breach of settlement agreement and a different result would obtain.

The court's reasoning in Finnerty v. Yellow Freight Systems,Inc. (1988), 47 Ohio App. 3d 186, 548 N.E.2d 949, supports a different result than reached by the majority here:

"In addition, the settlement agreement was contingent upon the approval by the Industrial Commission. To find otherwise would render the act of filing the application for approval of the settlement agreement with the Industrial Commission meaningless." Id. at 187, 548 N.E.2d at 951.

The clear mandates of the statutes and Ohio Administrative Code section compel a literal application of law to the facts. While the result may seem harsh, the statutes must be given their meaning without attempting to amend the very process the statute controls and without circumvention of the obvious intent of the statutory law.

As stated in Ratliff v. Flowers (1970), 25 Ohio App. 2d 113, 54 O.O.2d 213, 266 N.E.2d 848, quoting Indus. Comm. v. Kamrath (1928), 118 Ohio St. 1, 160 N.E. 470:

"`* * * In determining rights arising by force and out of the Workmen's Compensation Law it is well to remember that the duties of the Industrial Commission and its obligation to injured employees and dependents of killed employees are only such duties and obligations as are imposed by statute; that the rights of injured employees and the dependents of killed employees to recover from or participate in the state insurance fund are neither constitutional rights, inherent rights, nor common-law rights, but are wholly statutory; * that if the right to participate in such fund be not found in the Workmen's Compensation Law itself, the right does not exist; and that where it does exist the right is a legal right and does not differ from other legal rights.'" Id. at 115, 54 O.O.2d at 214, 266 N.E.2d at 849-850.

While the majority has admirably labored to achieve a just result, we should not ignore the clear language and intended effect of the statutory and administrative law controlling the settlement procedures here involved before the commission. For the foregoing reasons, I would affirm the decision of the Ohio Court of Claims.