State ex rel. Patterson v. Indus. Comm.

[This opinion has been published in Ohio Official Reports at 77 Ohio St.3d 201.]

THE STATE EX REL. PATTERSON, APPELLANT, v. INDUSTRIAL COMMISSION OF

OHIO ET AL., APPELLEES.

[Cite as State ex rel. Patterson v. Indus. Comm., 1996-Ohio-263.]

Workers’ compensation—R.C. 4127.04 unjustifiably discriminates against

dependents of work-relief employees by preventing such dependents from

receiving the same benefits as dependents of other employees whose death

is caused by a work-related injury or disease—R.C. 4127.04 violates the

Equal Protection Clauses of the Ohio and United States Constitutions.

R.C. 4127.04 unjustifiably discriminates against dependents of work-relief

employees by preventing such dependents from receiving the same benefits

as dependents of other employees whose death is caused by a work-related

injury or disease. Therefore, R.C. 4127.04 violates the Equal Protection

Clauses of the Ohio and United States Constitutions.

(No. 94-1776—Submitted May 21, 1996—Decided December 24, 1996.)

APPEAL from the Court of Appeals for Franklin County, No. 93APD03-318.

__________________

{¶ 1} In 1984, Frank H. Patterson was exposed to pigeon droppings while

in the course of his employment as a work-relief employee for appellee Guernsey

County Welfare Department, and, as a result, he contracted histoplasmosis.

Patterson filed a workers’ compensation claim, and he was awarded temporary total

disability compensation. Patterson died in 1985 as a result of the disease.1

Thereafter, Patterson’s widow, appellant Viola Patterson, filed an application for

1. At the time of Patterson’s death, he also had a claim for benefits for permanent total disability

pending before the Industrial Commission. In a document prepared by an attorney for the

commission, it was recommended that his application be granted. However, the claim was

ultimately abated by the commission as a result of Patterson’s death.

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death benefits. A district hearing officer for appellee Industrial Commission

granted the claim, and appellant was awarded a weekly death benefit of $33.11, the

same rate at which Patterson had received temporary total disability compensation

prior to his death.

{¶ 2} Appellant appealed the amount of the award to the regional board of

review. The board affirmed the hearing officer’s order. Appellant further contested

the amount of the award, but it was ultimately administratively affirmed.

{¶ 3} On March 9, 1993, appellant filed a complaint in mandamus in the

court of appeals, claiming that the commission abused its discretion in awarding

her death benefits below the minimum set forth in R.C. 4123.59(B). Appellant

further alleged that she was denied equal protection under the law because she was

granted a lesser award than she would have received as a dependent of a non-work-

relief employee.

{¶ 4} The matter was initially heard by a referee, who recommended that

the court of appeals deny the writ. The referee concluded that R.C. 4123.59(B) was

not applicable in this case, that appellant’s claim was governed by R.C. Chapter

4127, and that the commission properly awarded appellant weekly benefits of

$33.11 pursuant to R.C. 4127.04. The referee also rejected appellant’s equal

protection argument, concluding that the General Assembly was justified in

differentiating between awards to dependents of deceased employees who received

public assistance and dependents of deceased employees who received other

employer-paid wages. The court of appeals adopted the referee’s report and denied

the writ.

{¶ 5} The cause is now before this court upon an appeal as of right. Neither

the commission nor the welfare department has responded to appellant’s appeal.

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Daniel D. Connor Co., L.P.A., and Daniel D. Connor, for appellant.

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January Term, 1996

DOUGLAS, J.

{¶ 6} Appellant’s weekly award of $33.11 was based upon R.C. 4127.04,

which provides:

“The basis upon which compensation or benefits shall be computed, is the

amount of work-relief which would have been afforded to the injured person for

the calendar week in which the injury or death occurred. In no event shall such

compensation exceed the maximum reimbursement relief award established by the

state which the claimant would have been entitled to had he not been injured.”

{¶ 7} Appellant claims that her award should not have been based upon

R.C. 4127.04, but, rather, former R.C. 4123.59(B), which provided:

“In case an injury to or an occupational disease contracted by an employee

causes his death, benefits shall be in the amount and to the persons following:

“* * *

“(B) If there are wholly dependent persons at the time of the death, the

weekly payment shall be sixty-six and two-thirds per cent of the average weekly

wage, but not to exceed a maximum aggregate amount of weekly compensation

which is equal to sixty-six and two-thirds per cent of the statewide average weekly

wage as defined in division (C) of section 4123.62 of the Revised Code, and not in

any event less than a minimum amount of weekly compensation which is equal to

fifty per cent of the statewide average weekly wage as defined in division (C) of

section 4123.62 of the Revised Code, regardless of the average weekly wage * *

*.”2 (Emphasis added.) 136 Ohio Laws, Part I, 1167.

{¶ 8} In support of her position that her weekly death benefit award should

have been based upon R.C. 4123.59(B), appellant relies, inter alia, on R.C. 4127.03

and 4127.13. Former R.C. 4127.03, 1953 H.B. No. 1, provided, in part, that

2. There has been no substantive change to the quoted portion of this version of the statute, or to

the portions of former versions of other statutes quoted in this opinion.

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“[e]very work-relief employee who sustains an injury and the dependents of such

as are killed, in the course of and arising out of employment, * * * shall be entitled

to receive out of the public work-relief employees’ compensation fund,

compensation [and] death benefits * * * for loss sustained on account of such injury

or death, as is provided for by sections 4123.01 to 4123.94, inclusive, of the Revised

Code.” (Emphasis added.) Relying on this italicized language, appellant points out

that R.C. 4123.59(B) falls within R.C. Chapter 4123 and, therefore, she is entitled

to at least fifty percent of the statewide average weekly wage.

{¶ 9} Further, former R.C. 4127.13, 137 Ohio Laws, Part II, 3964, provided

that “[s]ections 4123.01 to 4123.94, except sections 4123.519, 4123.62, and

4123.64, apply to sections 4127.01 to 4127.14, of the Revised Code.” Appellant

contends that because R.C. 4127.13 does not specifically exclude R.C. 4123.59

from applying to R.C. Chapter 4127, the General Assembly intended that R.C.

4123.59(B) govern the amount of benefits available to dependent persons of work-

relief employees.

{¶ 10} At first glance, appellant’s statutory arguments regarding R.C.

4127.03 and 4127.13 appear to have some merit. Appellant’s position is arguable

given the general policy of workers’ compensation legislation, which requires a

liberal construction of such laws. See R.C. 4123.95.3 However, it is apparent that

the General Assembly, in enacting R.C. Chapter 4127 and, particularly, R.C.

4127.04, intended to establish a separate method for determining benefits for work-

relief employees and their dependents. The last paragraph of R.C. 4127.03

provided that “[a]ll compensation payable under sections 4127.01 to 4127.14,

inclusive, of the Revised Code, shall be paid on the basis of computation provided

for in such sections.” Further, R.C. 4127.13 specifically excludes from application

3. R.C. 4123.95 provides that “[s]ections 4123.01 to 4123.94, inclusive, of the Revised Code shall

be liberally construed in favor of employees and the dependents of deceased employees.”

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January Term, 1996

to work-relief claims the foundational statute (R.C. 4123.62[C]) for calculating

benefits under R.C. 4123.59(B). Hence, it is evident that the General Assembly

intended that R.C. 4127.04 be the applicable statute when determining awards to

work-relief employees and their dependents.

{¶ 11} Appellant also contends that even if we conclude that the

commission’s interpretation of R.C. 4127.04 was proper, its classification scheme,

which treats dependents of work-relief employees differently from dependents of

non-work-relief employees, violates the Equal Protection Clauses of both the Ohio

and United States Constitutions. We agree. R.C. 4127.04 clearly violates

appellant’s right to equal protection of the laws. R.C. 4127.04 also contravenes the

public policy which prompted Ohio’s system of workers’ compensation legislation

and defeats the purpose of Section 35, Article II of the Ohio Constitution.

{¶ 12} In considering appellant’s constitutional claim, we are mindful of the

fundamental principle that legislative enactments are presumed constitutional.

Adamsky v. Buckeye Local School Dist. (1995), 73 Ohio St.3d 360, 361, 653 N.E.2d

212, 214; State v. Gill (1992), 63 Ohio St.3d 53, 55, 584 N.E.2d 1200, 1201; and

Arnold v. Cleveland (1993), 67 Ohio St.3d 35, 38, 616 N.E.2d 163, 166. We are

also aware that “discrimination against individuals or groups is sometimes an

inevitable result of the operation of a statute. The mere fact that a statute

discriminates does not mean that the statute must be unconstitutional.” Roseman v.

Firemen & Policemen’s Death Benefit Fund (1993), 66 Ohio St.3d 443, 446-447,

613 N.E.2d 574, 577. See, also, Adamsky, supra, 73 Ohio St.3d at 362, 653 N.E.2d

at 214. However, all laws, including legislation involving workers’ compensation,

are subject to the limitations imposed by the Equal Protection Clauses of the United

States and Ohio Constitutions. See Kinney v. Kaiser Aluminum & Chem. Corp.

(1975), 41 Ohio St.2d 120, 122, 70 O.O.2d 206, 207-208, 322 N.E.2d 880, 882, fn.

2.

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{¶ 13} The Fourteenth Amendment to the United States Constitution

provides, in part, that “[n]o State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States; * * * nor deny to any

person within its jurisdiction the equal protection of the laws.” Similarly, Section

2, Article I of the Ohio Constitution states that “[a]ll political power is inherent in

the people. Government is instituted for their equal protection and benefit, and they

have a right to alter, reform, or abolish the same, whenever they may deem it

necessary; and no special privileges or immunities shall ever be granted, that may

not be altered, revoked, or repealed by the general assembly.”

{¶ 14} These constitutional guarantees require that all similarly situated

individuals be treated in a similar manner. State ex rel. Doersam v. Indus. Comm.

(1989), 45 Ohio St.3d 115, 119, 543 N.E.2d 1169, 1173. In other words, laws are

to operate equally upon persons who are identified in the same class.

{¶ 15} Ohio’s system of compensating employees and their dependents is

predicated upon Section 35, Article II of the Ohio Constitution. This provision

establishes that one objective of such a system is to compensate “workmen and their

dependents, for death, injuries or occupational disease, occasioned in the course of

such workmen’s employment.” (Emphasis added.) Clearly, R.C. 4127.04 and

4123.59 were enacted to fulfill this objective of compensating employees and their

dependents.

{¶ 16} Appellant’s decedent was a “work-relief employee” as defined in

R.C. 4127.01(A), and his death occurred as a result of a disease contracted in the

course of his employment. Further, R.C. 4123.01(A)(1)(a) defines “employee” to

include “[e]very person in the service of the state, or of any county, municipal

corporation, township, or school district therein.” Appellant’s decedent was thus

an “employee” for purposes of receiving compensation due. See Indus. Comm. v.

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January Term, 1996

McWhorter (1934), 129 Ohio St. 40, 1 O.O. 353, 193 N.E. 620, syllabus.4

Notwithstanding, appellant was awarded a weekly benefit of $33.11, as a dependent

of a work-relief employee, which was far below the minimum benefit available to

dependents of non-work-relief employees set forth in R.C. 4123.59(B).

{¶ 17} In State ex rel. Nyitray v. Indus. Comm. (1983), 2 Ohio St.3d 173,

176, 2 OBR 715, 717, 443 N.E.2d 962, 965, relying on Kinney, supra, we noted

that legislation could survive constitutional scrutiny if the statute at issue were

“rationally related to the accomplishment of some state objective at least as

important as the purpose contained in the Constitution [Section 35, Article II] and

reflected in the statute.” In Doersam, 45 Ohio St.3d at 120, 543 N.E.2d at 1174,

we stated that “a classification of persons will not be suspect when the law

establishing the classification relates to a legitimate governmental purpose. If the

means employed by the law to achieve its ends is the classification of persons who

are accorded differing benefits or assessed differing burdens, the law will be tested

under the equal protection guarantee. If the classification does not meet or does not

have a sufficient relationship to a required governmental purpose, then the law

cannot withstand scrutiny under the Equal Protection Clause.” We noted further

that “‘[e]qual protection of the laws requires the existence of reasonable grounds

for making a distinction between those within and those outside a designated

class.’” Id., quoting Nyitray, 2 Ohio St.3d at 175, 2 OBR at 717, 443 N.E.2d at

964.

4. In Indus. Comm. v. McWhorter (1934), 129 Ohio St. 40, 1 O.O. 353, 193 N.E. 620, syllabus, this

court held:

“One who applies to a municipality for relief and is given the opportunity, and required, to

work for the support which he is to receive, and who, in response to such opportunity and

requirement, works in one of the municipal departments which employs labor, under the direction

of a municipal foreman, at a regular daily wage, payable alternately in groceries and in cash, is in

the service and is an employee of the municipality within the meaning of Section 1465-61 of the

General Code; and if he sustains an injury while engaged in such work, is entitled to the benefits of

Workmen’s Compensation Law.”

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{¶ 18} R.C. 4127.04 creates a separate classification of dependent persons

based only on the status of the employee. The statute does not treat similarly

situated persons—all employees and their dependents—in a similar manner. Thus,

we must determine whether this disparate treatment is based upon “any legitimate

governmental purpose. If it was, then the legislation meets constitutional muster.

If not, then a violation of equal protection must be found.” Doersam, 45 Ohio St.3d

at 120, 543 N.E.2d at 1174.

{¶ 19} The Public Works Relief Compensation Act (R.C. Chapter 4127)

was originally enacted as emergency legislation “necessary for the immediate

preservation of the public peace, health and safety.” Section 17, Am.Sub.H.B. No.

495, 116 Ohio Laws, Parts I, 212, 217. Section 17 also provided that “[t]he reason

for such necessity lies in the fact that it has become immediately necessary to

provide a separate system of compensation for public work-relief employes and

their dependents, due to the fact that considerations arise with respect to the hazards

of employment and injuries of such employes which do not apply to the other

employes mentioned in the workmen’s compensation law of Ohio, and also because

of the fact that this class of employment was neither foreseen nor contemplated by

the legislature in originally framing the workmen’s compensation law of Ohio, and

there has been accordingly an unexpected increased burden placed upon the state

insurance fund in compensating such employes out of that fund.” 116 Ohio Laws

at 217-218.

{¶ 20} However, this court has previously rejected classifications in

legislation to ensure the financial security of the workers’ compensation insurance

fund. See Doersam, 45 Ohio St.3d at 120, 543 N.E.2d at 1174. In fact, we have

specifically held that “‘conserving funds is not a viable basis for denying

compensation to those entitled to it.’” Id. at 121, 543 N.E.2d at 1174, quoting

Nyitray, supra, 2 Ohio St.3d at 177, 2 OBR at 719, 443 N.E.2d at 966. Moreover,

it escapes us how the classifications created by R.C. 4127.04 tend to further the

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January Term, 1996

“health, peace, morals, education or the good order of the people. Nor do the

classifications increase the industry of the state, develop our resources, or add to

the state’s wealth or prosperity.” Doersam, 45 Ohio St.3d at 121, 543 N.E.2d at

1174.

{¶ 21} The court of appeals held that R.C. 4127.04 is rationally related to a

legitimate government objective. Specifically, the court of appeals adopted the

referee’s finding that “different social and economic goals” justified the disparate

treatment afforded employees and their dependents under R.C. 4127.04. While the

court of appeals did not expand on this statement, we take it to mean that providing

lesser benefits to dependents of a deceased employee who engaged in work relief

would somehow discourage reliance on public assistance. We cannot accept this

argument as being a rational basis for such blatant disparate treatment.

{¶ 22} R.C. 4127.04 treats those who are less fortunate, simply because

they are less fortunate, differently from others similarly situated. Appellant’s

decedent was an employee. He was working in accordance with the requirements

to receive public assistance. He contracted a disease as part of that employment,

and died as a result of the disease. Appellant’s widow should be afforded the

protection that other widows of other deceased injured employees receive. In this

regard, we view R.C. 4127.04 as inherently unfair and contrary to the purpose of

compensating employees and dependents stated in Section 35, Article II of the Ohio

Constitution. See, e.g., Nyitray, 2 Ohio St.3d at 175-176, 2 OBR at 717, 443 N.E.2d

at 964-965.

{¶ 23} The arbitrary nature of R.C. 4127.04 can best be illustrated by an

example which considers the minimum award available to non-work-relief

dependents, regardless of the employee’s weekly wage. For instance, if appellant’s

decedent had been engaged the week preceding his death in non-work-relief

employment paying a weekly wage of $33.11, appellant would not have been

limited to a weekly death benefit of $33.11. Rather, appellant would have been

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entitled to a benefit equal to fifty percent of the statewide average weekly wage,

according to R.C. 4123.59(B), which is considerably greater than $33.11. See R.C.

4123.62(C). We can conceive of no reasonable justification for such disparate

treatment between work-relief employees and non-work-relief employees.

{¶ 24} The classification created by R.C. 4127.04 is not rationally related

to a legitimate government objective. “Clearly, the workers’ compensation system

is designed to aid workers and their dependents and not intended to penalize victims

by denying compensation where due.” Nyitray, 2 Ohio St.3d at 178, 2 OBR at 719,

443 N.E.2d at 966. As was eloquently stated by Judge Wilkin in McWhorter, supra,

129 Ohio St. at 46, 1 O.O. at 355-356, 193 N.E. at 622:

“It seems to this court more in harmony with the spirit of work-relief

legislation to hold the claimant to be an employee than to hold him to be a pauper

or ward. A sound public policy prompts the efforts of the state to preserve the self-

reliance of its citizens, even if at extra expense. It is as important to preserve the

character as to preserve the lives of its citizens. ‘Ill fares the land * * * where

wealth accumulates and men decay.’”

{¶ 25} Accordingly, we hold that R.C. 4127.04 unjustifiably discriminates

against dependents of work-relief employees by preventing such dependents from

receiving the same benefits as dependents of other employees whose death is

caused by a work-related injury or disease. Therefore, R.C. 4127.04 violates the

Equal Protection Clauses of the Ohio and United States Constitutions.

{¶ 26} For the foregoing reasons, the judgment of the court of appeals

denying appellant’s writ of mandamus is reversed, and the commission is ordered

to determine appellant’s benefits in accordance with this decision. Appellant is a

dependent person of a decedent whose injury and subsequent death was caused by

a work-related disease, and, therefore, she is entitled to the minimum benefit set

forth in R.C. 4123.59(B).

Judgment reversed

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January Term, 1996

and writ granted.

RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

PFEIFER, J., concurs separately.

MOYER, C.J., COOK and STRATTON, JJ., dissent.

__________________

PFEIFER, J., concurring.

{¶ 27} I write only to express my incredulity that this matter has reached

this court. Ohio’s welfare and workers’ compensation systems heartlessly

memorialized the difficult life of Frank Patterson with a cruel epitaph: “He

Shouldn’t Have Tried.” Patterson attempted to live his life with some dignity. He

did not take a handout—he was willing to work in order to receive public assistance.

God knows it was not pleasant work—his on-the-job exposure to pigeon droppings

caused his mortal illness. But “workfare” and its promise of improved self-esteem

and self-reliance left Patterson dead and his widow with an insulting $33.11 per

week. How poor off are we that this state cannot offer the families of work-relief

employees killed on the job the same treatment as other workers killed on the job?

Is death on work relief jobs so prevalent that the Department of Human Services

cannot afford to reimburse the workers’ compensation fund for the cost of the

benefits? Did the General Assembly really intend that the widow Patterson should

survive on $1,721.72 per year? Would the extra seven thousand dollars a year Mrs.

Patterson requests bust Ohio’s $16 billion budget? Or is our deficit not monetary

but rather a shortfall in compassion and humanity?

__________________

Cook, J., dissenting.

{¶ 28} I respectfully dissent on the basis that the appellant has not shown

an equal protection violation.

{¶ 29} In order for this court to strike down a democratically produced

statute based on equal protection, we must follow a legitimate process independent

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of our social or moral preferences. We start with the presumption of

constitutionality and must uphold the statute unless its unconstitutionality is shown

beyond a reasonable doubt. State ex rel. Dickman v. Defenbacher (1955), 164 Ohio

St. 142, 57 O.O. 134, 128 N.E.2d 59, paragraph one of the syllabus; State v.

Thompkins (1996), 75 Ohio St.3d 558, 560, 664 N.E.2d 926, 928. In this case, the

challengers must show that the classification is wholly irrelevant to any state

purpose. Roseman v. Firemen & Policemen’s Death Benefit Fund (1993), 66 Ohio

St.3d 443, 447, 613 N.E.2d 574, 577.

{¶ 30} The majority finds appellant has met the burden of demonstrating

the unconstitutionality of the separate compensation system for work-relief

employees with broad conclusions sounding in the realm of social “rightness,” such

as “inherently unfair,” “blatant disparate treatment,” “those who are less fortunate,”

and this “widow should be afforded the protection that other widows * * * receive.”

{¶ 31} My personal preference about the treatment of widows falls right in

line with the majority’s. Such personal preferences necessarily aside, however, I

believe the appellant has failed to demonstrate that the legislative decision to set up

different systems for compensating relief-workers and wage-earning workers upon

death or injury is wholly irrelevant to any state purpose. The majority outlines the

origins of this separate system for relief workers and the case to which the

legislature was responding. Classifying such workers differently need only bear

some rational relationship to a legitimate governmental objective. Id. The

legitimacy of the objective is judged by relevance to a state purpose — not by

whether we judges personally can abide such objective.

{¶ 32} I agree with the court of appeals that the challenged statute does not

offend equal protection principles. I would, therefore, affirm the judgment and

deny the writ.

MOYER, C.J., concurs in the foregoing dissenting opinion.

__________________

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January Term, 1996

STRATTON, J., dissenting.

{¶ 33} I respectfully dissent and join Justice Cook’s dissent. This was a

tragic death and my sympathies are the same as those of the majority of this court.

There is great temptation to award Patterson’s widow a sum greater than $33.11

per week. It is easy to do with the stroke of a pen. But to do so requires that we

invalidate an entire statutory system based solely on the definition of “employee,”

without taking into account all of the other circumstances that legitimately surround

that single word.

{¶ 34} Ohio’s workers’ compensation system is designed to provide

protection to the employee for work-related injuries without relation to fault. In

return, the employer is protected from suits, but funds the system. Thousands of

Ohio companies, large and small, contribute to provide the financial basis of

workers’ compensation. The cost and risks are spread broadly throughout the

system, but those who benefit from the employee’s work shoulder the burden of its

costs.

{¶ 35} The work-relief system is wholly different in character and purpose.

It is a system of public works designed to supplement welfare. It is not funded by

employers who benefit from such work. Instead, it is funded by the taxpayer, as is

the rest of the welfare system. Although the legislature added a workfare-related

compensation plan, the plan specifically related to the workfare and was an

extension of welfare protection. It is distinguished by statute from the employer-

funded workers’ compensation system.

{¶ 36} The majority would now discard the entire system under an equal

protection argument because appellant’s decedent was an “employee” and because

cost should be no deterrent. But as Justice Cook pointed out, the equal protection

argument fails because the two systems are wholly unequal in purpose, character,

and basis. The beneficiary of a workfare employee who dies as a result of a work-

related injury will now receive far greater benefits than the workfare employee

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received when alive from a system funded by the taxpayer—an extended, increased

welfare benefit.

{¶ 37} This is a decision that should not be made by the courts under the

guise of “equal protection.” There are enormous costs associated with this decision.

How will these new expenses be funded? These are issues that require debate,

testimony, studies, compromise—all part of the legislative process. We as a court

are not equipped to play that role, as tempting and sympathetic as the facts in this

case are.

{¶ 38} The reality is that a workfare recipient is a welfare recipient whereas

a wage-earner is supported by the Ohio employers who fund the workers’

compensation system. These employees are not similarly situated. Equal

protection does not apply. Any such massive changes in the compensation system

are best left to the legislature.

MOYER, C.J., concurs in the foregoing dissenting opinion.

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