State ex rel. Liposchak v. Indus. Comm.

[This opinion has been published in Ohio Official Reports at 90 Ohio St.3d 276.]

THE STATE EX REL. LIPOSCHAK ET AL., APPELLANTS, v. INDUSTRIAL

COMMISSION OF OHIO ET AL., APPELLEES.

[Cite as State ex rel. Liposchak v. Indus. Comm., 2000-Ohio-73.]

Workers’ compensation—Although death benefits may be granted or denied

based on dependent status as defined in R.C. 4123.59, the denial or grant

of benefits is not appealable unless it concerns the causal connection

between injury, disease, or death and employment—R.C. 4123.60

dependency issues are not appealable under R.C. 4123.512—Decedent’s

estate can be entitled to R.C. 4123.60 compensation that accrued but was

not paid to the decedent.

(No. 98-2287—Submitted June 6, 2000—Decided November 15, 2000.)

APPEAL from the Court of Appeals for Franklin County, No. 97APD10-1427.

__________________

{¶ 1} Appellant Edith Liposchak,1 now deceased, sought a writ of

mandamus ordering appellee Industrial Commission of Ohio (1) to vacate its order

denying her application, filed pursuant to R.C. 4123.60, for the permanent partial

and permanent total disability compensation that had accrued to her son, Robert E.

Liposchak, but had not been paid before his death, and (2) to grant that application.

Appellant Walter Liposchak, Robert’s brother, also sought the writ to obtain R.C.

4123.60 relief in his capacity as executor of Robert’s estate. The court of appeals

dismissed the Liposchak complaint for failure to state a claim for relief, finding that

Edith had an adequate remedy in the ordinary course of law and that Walter had no

legal right to relief.

1. Edith died during this appeal, and her estate’s motion for substitution has been granted.

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{¶ 2} Robert contracted an occupational disease while working for appellee

Wheeling-Pittsburgh Steel Corporation. His claim was allowed for “malignant

mesothelioma,” and he qualified for PTD based on the order in State ex rel.

Liposchak v. Indus. Comm. (1995), 73 Ohio St.3d 194, 652 N.E.2d 753; however,

he died before payment. Edith filed a death claim under R.C. 4123.59, which

affords benefits for dependents of employees who die as a result of occupational

disease or industrial injury. She, together with Walter,2 also filed a claim under

R.C. 4123.60, which allows dependents to collect compensation that had accrued

but had not been paid to an employee prior to his or her death. The commission

granted payment for medical and funeral expenses pursuant to R.C. 4123.66, but

denied any other relief. Finding that Edith could not prove that she was Robert’s

dependent, the commission ruled:

“It is the order of the Staff Hearing Officer that the record is clear that

[Robert] had no direct lineal descendents. Further, decedent’s mother cannot

reasonabl[y] be viewed as a dependent in any form; prospective, presumed or

otherwise, for the following reasons:

“1) Decedent’s mother never lived with the decedent during his adult life

nor did he ever support her in any manner.

“2) File evidence * * * indicates [that Robert] was mentally retarded and

that he was a man of little means.

“3) Decedent lived with his brother at the time of his death and was quite

dependent on his brother.

“All these factors lead to the inevitable conclusion that decedent’s mother

was never depend[e]nt upon him nor was she ever likely to be depend[e]nt upon

him.”

2. Although the Liposchaks represent and the parties do not dispute that Edith and Walter filed a

joint application, the commission’s orders refer only to Edith.

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{¶ 3} Before filing this mandamus action, the Liposchaks appealed the

commission’s order to the Jefferson County Common Pleas Court on the theory

that the commission had denied their right to participate in the workers’

compensation system and, therefore, that R.C. 4123.512 afforded judicial review.

On the commission’s Civ.R. 12(B)(1) motion to dismiss for lack of subject-matter

jurisdiction, the common pleas court dismissed the R.C. 4123.60 claims, holding

that they were not appealable under R.C. 4123.512; however, it retained the R.C.

4123.59 death benefit claim of Edith Liposchak. By the time of that ruling, the

Liposchaks had already filed for this writ seeking both R.C. 4123.60 and 4123.59

relief.

{¶ 4} In the Franklin County Court of Appeals, the commission again

moved to dismiss for lack of subject-matter jurisdiction, this time contending that

jurisdiction over dependency remained exclusively in the Jefferson County

Common Pleas Court that was deciding Edith’s death benefit claim. The court of

appeals dismissed the Liposchaks’ action, but in doing so it applied Civ.R. 12(B)(6)

to determine that the complaint failed to state a cause of action in mandamus.

Pursuant to this rule, the court of appeals confined its review to the allegations in

the complaint, which did not reveal the earlier common pleas court ruling retaining

jurisdiction over only Edith’s R.C. 4123.59 claim. It held, contrary to the common

pleas court’s decision, that the dependency issues in Edith’s R.C. 4123.60 and

4123.59 claims both invoked the right to participate and, therefore, were both

appealable pursuant to R.C. 4123.512. With respect to Walter’s R.C. 4123.60

claim, the court held that Robert’s estate had no right to receive his accrued unpaid

benefits because the estate could not establish dependency as a matter of law.

{¶ 5} Earlier this year, the Court of Appeals for Jefferson County issued

Liposchak v. Ohio Bur. of Workers’ Comp. (Mar. 23, 2000), Jefferson App. No. 98-

JE-26, unreported, 2000 WL 310545, in which the Liposchaks challenged the

Jefferson County Common Pleas Court’s dismissal of Edith and Walter’s R.C.

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4123.60 claims and its subsequent grant of summary judgment against Edith in her

R.C. 4123.59 claim. Since the dismissal of Edith and Walter’s R.C. 4123.60 claims

had been without prejudice, that court first determined that the dismissal order was

not final and appealable. But the court also recognized the conflict between the

Jefferson County Common Pleas Court and Franklin County Court of Appeals

decisions in this case, so it additionally observed that Edith and Walter will be able

to refile their R.C. 4123.60 claims if the outcome of their appeal to this court is

favorable. The Jefferson County Court of Appeals further affirmed the summary

judgment, holding that Edith had not established her dependency to the extent

required in an R.C. 4123.59 death claim and that the statute did not violate the Equal

Protection Clauses of the Ohio and United States Constitutions.

{¶ 6} The cause is now before this court upon an appeal as of right.

__________________

Stewart Jaffy & Associates Co., L.P.A., Stewart R. Jaffy, Marc J. Jaffy and

Eric S. Bravo, for appellants.

Betty D. Montgomery, Attorney General, and Craigg E. Gould, Assistant

Attorney General, for appellee Industrial Commission.

__________________

PFEIFER, J.

{¶ 7} Two issues are presented for our review: (1) Can a claimant who was

denied R.C. 4123.60 compensation for failure to show dependency appeal to the

common pleas court pursuant to R.C. 4123.512 and (2) Can Robert’s estate collect

his accrued R.C. 4123.60 compensation For the reasons that follow, we hold that

dependency issues do not invoke the basic right to participate in the workers’

compensation system and, therefore, are not appealable. We further hold that a

decedent’s estate can be entitled to R.C. 4123.60 compensation that accrued but

was not paid to the decedent. Accordingly, we reverse the dismissal of the

Liposchak complaint and remand to the court of appeals for further proceedings.

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Right to Participate

{¶ 8} Under R.C. 4123.512, claimants and employers can appeal Industrial

Commission orders to a common pleas court only when the order grants or denies

the claimant’s right to participate. Determinations as to the extent of a claimant’s

disability, on the other hand, are not appealable and must be challenged in

mandamus. Thomas v. Conrad (1998), 81 Ohio St.3d 475, 477, 692 N.E.2d 205,

207; Felty v. AT&T Technologies, Inc. (1992), 65 Ohio St.3d 234, 237, 602 N.E.2d

1141, 1144; Zavatsky v. Stringer (1978), 56 Ohio St.2d 386, 10 O.O.3d 503, 384

N.E.2d 693, paragraph one of the syllabus.

{¶ 9} These principles seem simple enough, but distinguishing between

appealable right-to-participate orders and nonappealable extent-of-disability

orders, as we must do in this case, has never been easy. Cook v. Mayfield (1989),

45 Ohio St.3d 200, 202, 543 N.E.2d 787, 790. The task is even more difficult in

this appeal because (1) Edith’s estate has not argued in favor of her R.C. 4123.59

death benefit claim,3 and (2) R.C. 4123.59 specifically provides for appeal under

R.C. 4123.512, whereas R.C. 4123.60 explicitly forbids this appeal.4

{¶ 10} The court of appeals relied mainly on State ex rel. Ross v. Indus.

Comm. (1998), 82 Ohio St.3d 411, 696 N.E.2d 585 (“Ross I”), from which the

appellate court inferred that dependency represents “a” most basic right-to-

participate issue. This suggests that the appeals court considered dependency just

one of several issues appealable under R.C. 4123.512. But the discussion in Ross

I actually referred to “the” basic right to participate. Id. at 414, 696 N.E.2d at 588.

Though Ross I was reversed on reconsideration in State ex rel. Ross v. Indus.

Comm. (1999), 84 Ohio St.3d 364, 703 N.E.2d 1276 (“Ross II”), Ross II reiterated

3. Presumably, Edith has not pursued this claim here because the Franklin County Court of Appeals

and the Jefferson County Common Pleas Court agreed that that dependency dispute presented an

appealable issue.

4. The complete texts of R.C. 4123.59 and 4123.60 appear in the appendix to this opinion.

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that “only decisions involving a claimant’s right to participate in the fund could be

appealed.” Id. at 367, 703 N.E.2d at 1278.

{¶ 11} The only right-to-participate question that is appealable is whether

an employee’s injury, disease, or death occurred in the course of and arising out of

his or her employment. Felty, 65 Ohio St.3d 234, 602 N.E.2d 1141, at paragraph

two of the syllabus; Afrates v. Lorain (1992), 63 Ohio St.3d 22, 584 N.E.2d 1175,

paragraph one of the syllabus; State ex rel. Evans v. Indus. Comm. (1992), 64 Ohio

St.3d 236, 594 N.E.2d 609; and Zavatsky, 56 Ohio St.2d 386, 10 O.O.3d 503, 384

N.E.2d 693, paragraph one of the syllabus. When the answer to this question is

“no,” all compensation, expenses, and awards of every kind must be denied because

the commission has no jurisdiction in such cases. Lewis v. Trimble (1997), 79 Ohio

St.3d 231, 244, 680 N.E.2d 1207, 1217, citing 3 Larson, Workmen’s Compensation

Law (1996) 15-959 to 15-961, Section 80.41. When the answer is “yes,” the

claimant has cleared the first hurdle, and then may attempt to establish his or her

extent of disability. It follows that these claimants may qualify based either on the

extent of their own disability or the extent to which they were legally dependent on

the injured employee. But either way, the issue is no longer whether the

commission has jurisdiction to award benefits in the employee’s case; the question

instead becomes how much the system must pay. Zavatsky, 56 Ohio St.2d at 396,

10 O.O.3d at 509, 384 N.E.2d at 699.

{¶ 12} Ross I and Ross II applied the rule that the right to participate is

invoked when it is determined that an employee has sustained an injury, disease, or

death in the course of and arising out of employment. Ross I at 414-415, 696 N.E.2d

at 588; Ross II, 84 Ohio St.3d at 367-368, 703 N.E.2d at 1278. Ross II went further,

holding that when the commission finds merely that a particular type of

employment caused an employee’s injury, disease, or death, the employee’s

baseline right to participate has already been established and an order finding the

wrong employer responsible is not appealable. Id. at 368-369, 703 N.E.2d at 1279.

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According to Ross II, the identity of the responsible employer’s identity can only

be challenged in mandamus. Id. at 369, 703 N.E.2d at 1279.

{¶ 13} Thus, under our most recent precedent, any issue other than whether

the injury, disease, or death resulted from employment does not constitute a right-

to-participate issue. From a logical standpoint, the rule is the same whether the

claim is for accrued but unpaid compensation under R.C. 4123.60 or for death

benefits under R.C. 4123.59.

{¶ 14} Unfortunately, the dispute in this case is not so easily settled because

of the differing appeal provisions in R.C. 4123.60 and 4123.59. While R.C.

4123.60 is consistent with the rule that only the causal connection between an

employee’s condition and employment is appealable, R.C. 4123.59, which defines

dependency, is not. Regarding claims for accrued but unpaid compensation, the

last paragraph of R.C. 4123.60 provides:

“An order issued by the administrator under this section is appealable

pursuant to section 4123.511 of the Revised Code [administrative appeal to the

commission] but is not appealable to court under section 4123.512 of the Revised

Code.” (Emphasis added.)

{¶ 15} Regarding death benefits, R.C. 4123.59 specifies in its last

paragraph:

“(E) An order issued by the administrator under this section is appealable

pursuant to sections 4123.511 to 4123.512 of the Revised Code.” (Emphasis added.)

{¶ 16} The court of appeals dismissed the last paragraph of R.C. 4123.60 as

irrelevant to the question of appealability in this case because it precluded R.C.

4123.512 appeals from the administrator, but not from the commission. But as the

Liposchaks argue, the administrator’s allowance or disallowance of a claim is

never appealable to common pleas court; R.C. 4123.512 authorizes appeal only for

final commission orders. Furthermore, the similarity of these two closing

paragraphs suggests legislative intent to distinguish the applicable appeal

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procedures. In fact, the General Assembly enacted these provisions in 1993, the

year after the Felty, Evans, and Afrates decisions in an apparent attempt to settle

the matter. See 145 Ohio Laws, Part II, 2990, 3170-3171.

{¶ 17} In State ex rel. Nicholson v. Copperweld Steel Co. (1996), 77 Ohio

St.3d 193, 672 N.E.2d 657, and State ex rel. Yancey v. Firestone Tire & Rubber Co.

(1997), 77 Ohio St.3d 367, 673 N.E.2d 1374, we recently recognized mandamus as

the sole means to enforce a claimant’s right to accrued but unpaid compensation.

The court of appeals distinguished Nicholson and Yancey because neither turned on

dependency. Each case involved a widow whose dependency was unquestioned,

seeking to establish her husband’s eligibility for permanent total disability benefits,

which is an accepted extent-of-disability issue. That aspect of the claims in

Nicholson and Yancey differs from Edith’s R.C. 4123.60 claim. However, the only

appealable right-to-participate issue is whether an employee has contracted a

disease or been injured or killed as a result of his or her employment; the extent to

which a claimant is a dependent of that injured, sick, or deceased employee does

not invoke the right to appeal under R.C. 4123.512.

{¶ 18} The determination that issues of dependency arising in an R.C.

4123.60 claim are not appealable does not resolve the related question that pervades

this appeal—whether these same issues may be appealed in an R.C. 4123.59 claim.

In the interest of consistency, we hold that they cannot. While these issues arguably

fall under the broad heading of what may be appealed under R.C. 4123.59, we

refuse to obscure the rule that R.C. 4123.512 permits only those appeals that

concern whether the employee’s injury, disease, or death occurred in the course of

and arising out of his or her employment. We read R.C. 4123.59 in pari materia

with R.C. 4123.512 and find that the latter statute restricts the appeals authorized

by R.C. 4123.59. Accordingly, we hold that although death benefits may be granted

or denied based on dependent status as defined in R.C. 4123.59, the denial or grant

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of such benefits is not appealable unless it concerns the causal connection between

injury, disease, or death and employment.

{¶ 19} Our decision, therefore, does more than simply overturn the

judgment of the Franklin County Court of Appeals; it also undermines the Jefferson

County Common Pleas Court’s recognition of dependency as an appealable issue

in Edith’s death benefit claim. Under R.C. 4123.66(A), funeral expenses can be

paid only “in case death ensues from the [employment-related] injury or

occupational disease.” By granting funeral expenses to Edith, the commission has

effectively already determined the basic right to participate. Indeed, had the

commission not concluded that Robert died as a result of his occupational disease,

it would not have had jurisdiction to order any benefits at all.

Accrued Compensation

{¶ 20} Having found that R.C. 4123.60 dependency issues are not

appealable under R.C. 4123.512, we turn to whether Robert’s estate can collect the

permanent partial and permanent total disability compensation that accrued but had

not been paid to him before his death.

{¶ 21} In State ex rel. Nossal v. Terex Div. of I.B.H. (1999), 86 Ohio St.3d

175, 712 N.E.2d 747, syllabus, we held that the estates of deceased dependents can

recover R.C. 4123.60 compensation to which the dependent was entitled from the

State Insurance Fund. Thus, Walter, as executor of Robert’s estate, reasonably asks

why estates of workers should not be able to collect accrued compensation when

the estates of dependents are able to collect. We see no reason for such an inequity.

Accordingly, we follow Nossal, and hold that Robert’s estate is entitled under R.C.

4123.60 to compensation that accrued to Robert, but had not been paid to him at

the time of his death.

{¶ 22} The court of appeals’ judgment dismissing the underlying complaint

is reversed, and this cause is remanded to that court for further proceedings.

Judgment reversed

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and cause remanded.

RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.

DOUGLAS, J., concurs in judgment.

MOYER, C.J., and COOK, J., concur in part and dissent in part.

__________________

COOK, J., concurring in part and dissenting in part.

{¶ 23} At first, the majority states that only two issues are before us in this

case—whether a claimant who was denied R.C. 4123.60 compensation for failure

to show dependency may appeal under R.C. 4123.512, and whether Robert’s estate

may collect Robert’s accrued R.C. 4123.60 compensation. But in addition to

resolving these two questions, the majority also decides that issues of dependency

arising under R.C. 4123.59 may not be appealed under R.C. 4123.512. I discuss

these three distinct issues separately below.

I

{¶ 24} I agree with the majority’s conclusion, in the first part of its opinion,

that whether a claimant is an injured, sick, or deceased employee’s dependent for

purposes of R.C. 4123.60 is not an issue that is appealable to the common pleas

court under R.C. 4123.512. But because R.C. 4123.60 expressly provides that

orders issued thereunder are not appealable pursuant to R.C. 4123.512, there is no

need for this court to justify this conclusion by distinguishing the nature of the order

issued here from the types of orders that this court has previously deemed

appealable under R.C. 4123.512. Orders issued by the administrator under R.C.

4123.60 are appealable under R.C. 4123.511. R.C. 4123.60. R.C. 4123.511 would,

then, permit an appeal of the administrator’s order to the district hearing officer

(Division [C]), the staff hearing officer (Division [D]), and, finally, the commission

(Division [E]). R.C. 4123.511(E) permits appeals from orders of the commission

under Division (E) to be taken under R.C. 4123.512 “[e]xcept as otherwise

provided in this chapter.” (Emphasis added.) R.C. 4123.60 expressly provides

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otherwise. Accordingly, though I concur with the majority’s conclusion that an

order denying benefits under R.C. 4123.60 is not appealable under 4123.512, the

majority’s discussion concerning whether dependency issues invoke the basic right

to participate is gratuitous.

II

{¶ 25} I respectfully disagree with the majority’s holding that appeals under

R.C. 4123.59 must be treated the same as appeals under R.C. 4123.60. First, as the

majority concedes, whether the denial of death benefits under R.C. 4123.59 is

appealable under R.C. 4123.512 is not one of the two issues before the court in this

case. Assuming, for the sake of argument, that the issue is properly before us, I am

not persuaded by the majority’s analysis. The majority ignores the express

language of R.C. 4123.59—which permits appeals from R.C. 4123.59 orders to

occur (eventually) under R.C. 4123.512—and concludes that such appeals are

precluded solely in the “interest of consistency.”

{¶ 26} As I noted, supra, the General Assembly knew how to expressly

permit administrative appeals to occur under R.C. 4123.511, but then to preclude

the appeal of commission orders resulting therefrom to the common pleas court

under R.C. 4123.512. It did precisely that in R.C. 4123.60. In R.C. 4123.59,

however, the General Assembly apparently intended to permit orders issued by the

administrator under that section to be appealed administratively under R.C.

4123.511, and then to the common pleas court under R.C. 4123.512. R.C.

4123.59(E) provides that “[a]n order issued by the administrator under this section

is appealable pursuant to sections 4123.511 to 4123.512 of the Revised Code.” So,

once the administrator issues an order under R.C. 4123.59, that order may be

appealed administratively under R.C. 4123.511 to the district hearing officer

(Division [C]), the staff hearing officer (Division [D]), and, finally, to the

commission (Division [E]). The commission’s order could, then, be appealed under

R.C. 4123.512—for unlike R.C. 4123.60, 4123.59 does not “otherwise provide”

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that an appeal under R.C. 4123.512 is precluded. The majority asserts no legal

basis for its conclusion that the appellate procedures under R.C. 4123.59 and

4123.60 must be entirely consistent.

III

{¶ 27} I must also respectfully dissent from the majority’s reliance on our

Nossal case, in the second part of its opinion, to justify its holding that Robert’s

estate may recover Robert’s accrued but unpaid compensation under R.C. 4123.60.

Our Nossal syllabus provides only that “[w]here the commission awards death

benefits to the surviving spouse of a deceased employee, but the spouse dies before

the funds are disbursed, accrued benefits for the period between the deceased

employee’s death and the spouse’s death shall be paid to the spouse’s estate.”

(Emphasis added.) State ex rel. Nossal v. Terex Div. of I.B.H. (1999), 86 Ohio St.3d

175, 712 N.E.2d 747, syllabus. In Nossal, the worker’s sole dependent had actually

been awarded $298 per week in benefits, but died before those funds were

disbursed. Because the award had already vested in the worker’s dependent, we

permitted the dependent’s estate to recover the benefits that the dependent would

have received—but for administrative delays—during the limited period between

the worker’s death and her own. Nossal thus only permits a dependent’s estate to

recover where an award to the worker’s dependent has actually vested in that

dependent prior to the dependent’s death. Nossal does not support the majority’s

much broader holding that a worker’s estate can actually collect accrued/unpaid

benefits itself under R.C. 4123.60.

{¶ 28} Here, unlike the situation we confronted in Nossal, no dependent of

Robert has been deemed eligible to receive accrued/unpaid benefits. No R.C.

4123.60 award has vested yet been administratively delayed. Moreover, any right

to the receipt of accrued/unpaid benefits under R.C. 4123.60 is the right of a

“dependent,” and Robert’s estate cannot itself qualify as a “dependent” under R.C.

4123.60. Dependents are “person[s]” such as surviving spouses and children who

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either partly, wholly, or prospectively relied on the deceased worker for

maintenance and support. See R.C. 4123.59(C) and (D). A deceased worker’s

estate is no such “person.” A deceased worker’s estate is an aggregate comprising

the assets and liabilities of the decedent. See Black’s Law Dictionary (7 Ed.1999)

567. Individual beneficiaries of a deceased worker’s estate could seek to recover

accrued/unpaid benefits as dependents, upon satisfactory proof to the administrator

of their status as dependents under R.C. 4123.60. But a worker’s estate cannot be

said to have relied on the worker for maintenance and support—even

prospectively—for the estate does not even exist as a legal construct until the

worker is deceased. We have recognized this distinction before. Seventy years

ago, this court held that a dependent (or personal representative thereof) could

maintain an action for the unpaid balance of an award, but “not * * * the

administrator of the decedent.” Bozzelli v. Indus. Comm. (1930), 122 Ohio St. 201,

207, 171 N.E. 108, 110.

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

__________________

APPENDIX

R.C. 4123.59 provides:

“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:

“(A) If there are no dependents, the disbursements from the state

insurance fund is [sic] limited to the expenses provided for in section

4123.66 of the Revised Code.

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

the weekly payment is 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

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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;

provided however, that if the death is due to injury received or occupational

disease first diagnosed after January 1, 1976, the weekly payment is 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 the

statewide average weekly wage as defined in division (C) of section

4123.62 of the Revised Code; provided that when any claimant is receiving

total disability compensation at the time of death the wholly dependent

person is eligible for the maximum compensation provided for in this

section. Where there is more than one person who is wholly dependent at

the time of the death of the employee, the administrator of workers’

compensation shall promptly apportion the weekly amount of compensation

payable under this section among the dependent persons as provided in

division (D) of this section.

“(1) The payment as provided in this section shall continue from the

date of death of an injured or disabled employee until the death or

remarriage of such dependent spouse. If the dependent spouse remarries, an

amount equal to two years of compensation benefits at the weekly amount

determined to be applicable to and being paid to the dependent spouse shall

be paid in a lump sum to such spouse and no further compensation shall be

paid to such spouse.

“(2) That portion of the payment provided in division (B) of this

section applicable to wholly dependent persons other than a spouse shall

continue from the date of death of an injured or disabled employee to a

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dependent as of the date of death, other than a spouse, at the weekly amount

determined to be applicable and being paid to such dependent other than a

spouse, until he:

“(a) Reaches eighteen years of age;

“(b) If pursuing a full time educational program while enrolled in an

accredited educational institution and program, reaches twenty-five years

of age;

“(c) If mentally or physically incapacitated from having any

earnings, is no longer so incapacitated.

“(C) If there are partly dependent persons at the time of the death

the weekly payment is sixty-six and two-thirds per cent of the employee’s

average weekly wage, not to exceed 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 shall continue for such time as the

administrator in each case determines.

“(D) The following persons are presumed to be wholly dependent

for their support upon a deceased employee:

“(1) A surviving spouse who was living with the employee at the

time of death or a surviving spouse who was separated from the employee

at the time of death because of the aggression of the employee;

“(2) A child under the age of eighteen years, or twenty-five years if

pursuing a full-time educational program while enrolled in an accredited

educational institution and program, or over said age if physically or

mentally incapacitated from earning, upon only the one parent who is

contributing more than one-half of the support for such child and 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.

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“It is presumed that there is sufficient dependency to entitle a

surviving natural parent or surviving natural parents, share and share alike,

with whom the decedent was living at the time of his death, to a total

minimum award of three thousand dollars.

“The administrator may take into consideration any circumstances

which, at the time of the death of the decedent, clearly indicate prospective

dependency on the part of the claimant and potential support on the part of

the decedent. No person shall be considered a prospective dependent unless

such person is a member of the family of the deceased employee and bears

to him the relation of surviving spouse, lineal descendant, ancestor, or

brother or sister. The total award for any or all prospective dependency to

all such claimants, except to a natural parent or natural parents of the

deceased, shall not exceed three thousand dollars to be apportioned among

them as the administrator orders.

“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 employee,

but no person shall be considered as dependent unless such person is a

member of the family of the deceased employee, or bears to him the relation

of surviving spouse, lineal descendant, ancestor, or brother or sister.

“(E) An order issued by the administrator under this section is

appealable pursuant to sections 4123.511 to 4123.512 of the Revised Code.”

R.C. 4123.60 provides:

“Benefits in case of death shall be paid to such one or more of the

dependents of the decedent, for the benefit of all the dependents as the

administrator of workers’ compensation determines. The administrator may

apportion the benefits among the dependents in such manner as he deems

just and equitable. Payment to a dependent subsequent in right may be

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made, if the administrator deems it proper, and operates to discharge all

other claims therefor. The dependents or person to whom benefits are paid

shall apply the same to the use of the several beneficiaries thereof according

to their respective claims upon the decedent for support, in compliance with

the finding and direction of the administrator.

“In all cases of death where the dependents are a surviving spouse

and one or more children, it is sufficient for the surviving spouse to apply

to the administrator on behalf of the spouse and minor children. In cases

where all the dependents are minors, a guardian or next friend of such minor

dependents shall apply.

“In all cases where an award had been made on account of

temporary, or permanent partial, or total disability, in which there remains

an unpaid balance, representing payments accrued and due to the decedent

at the time of his death, the administrator may, after satisfactory proof has

been made warranting such action, award or pay any unpaid balance of such

award to such of the dependents of the decedent, or for services rendered on

account of the last illness or death of such decedent, as the administrator

determines in accordance with the circumstances in each such case. If the

decedent would have been lawfully entitled to have applied for an award at

the time of his death the administrator may, after satisfactory proof to

warrant an award and payment, award and pay an amount, not exceeding

the compensation which the decedent might have received, but for his death,

for the period prior to the date of his death, to such of the dependents of the

decedent, or for services rendered on account of the last illness or death of

such decedent, as the administrator determines in accordance with the

circumstances in each such case, but such payments may be made only in

cases in which application for compensation was made in the manner

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required by this chapter, during the lifetime of such injured or disabled

person, or within one year after the death of such injured or disabled person.

“An order issued by the administrator under this section is

appealable pursuant to section 4123.511 of the Revised Code but is not

appealable to court under section 4123.512 of the Revised Code.”

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