State ex rel. McDonald v. Indus. Comm.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. McDonald v. Indus. Comm., Slip Opinion No. 2023-Ohio-1620.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2023-OHIO-1620

THE STATE EX REL . MCDONALD [DECEASED], C/O CARPENTER

(DEPENDENT), A PPELLEE, v. INDUSTRIAL COMMISSION OF OHIO, APPELLANT,

ET AL.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State ex rel. McDonald v. Indus. Comm., Slip Opinion No.

2023-Ohio-1620.]

Workers’ compensation—R.C. 4123.59(D)—Death benefits—Industrial

Commission must determine whether a claimant who was not married to

the deceased employee at the time of the injury that resulted in the

employee’s death but who seeks workers’ compensation death benefits was

a member of the deceased employee’s family under R.C. 4123.59(D) and, if

so, the extent of the claimant’s dependency—Judgment affirmed.

(No. 2022-0143—Submitted January 10, 2023—Decided May 17, 2023.)

APPEAL from the Court of Appeals for Franklin County,

No. 20AP-386, 2021-Ohio-4494.

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SUPREME COURT OF OHIO

Per Curiam.

{¶ 1} Appellee, Amanda Carpenter, filed a request for death benefits after

her fiancé, Christopher R. McDonald, died in an industrial accident. Appellant, the

Industrial Commission of Ohio, denied Carpenter’s request because she was not

McDonald’s surviving spouse. Carpenter brought this action in McDonald’s name,

asking the Tenth District Court of Appeals for a writ of mandamus ordering the

commission to reverse its decision. The Tenth District concluded that although she

was not McDonald’s surviving spouse, Carpenter could potentially qualify for

death benefits as a member of McDonald’s family. The court issued a limited writ

directing the commission to vacate its order and to determine whether Carpenter

was a member of McDonald’s family under R.C. 4123.59(D) and, if so, the extent

of her dependency. The commission appealed. We affirm the Tenth District’s

judgment.

I. BACKGROUND

{¶ 2} McDonald died in April 2019 in a ditch collapse while working for J

& J Schlaegel, Inc. Carpenter, the mother of McDonald’s two minor children,

applied to the Bureau of Workers’ Compensation for death benefits on behalf of the

children and herself. Carpenter identified herself on the application as McDonald’s

fiancée. She also submitted an affidavit in which she averred the following: she

had been in a relationship with McDonald for 11 years; she is the mother of his two

children; she and McDonald had owned real property jointly with a right of

survivorship; they had been jointly responsible for the mortgage on the real

property; they had been jointly liable for several credit-card accounts and vehicle

leases or payments; they each had life-insurance policies naming the other as the

sole beneficiary; she worked part-time, roughly eight hours per week; McDonald

had provided the primary financial support for her and for their children; and they

had been “engaged to be married and had every intention of being married if not

for this accident.”

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{¶ 3} R.C. 4123.59 provides that workers’ compensation death benefits are

payable to persons who were dependent for their support—in whole or in part—on

a deceased employee. The statute identifies who is “presumed to be wholly

dependent,” including a “surviving spouse who was living with the employee at the

time of death,” and who may be considered a “prospective dependent,” including a

surviving spouse who is not presumed to have been dependent. R.C. 4123.59(D).

The question of dependency in all other cases—i.e., cases in which dependency is

neither presumed nor prospective—“shall be determined in accordance with the

facts in each particular case * * *, but no person shall be considered as dependent

unless such person is a member of the family of the deceased employee, or bears to

the deceased employee the relation of surviving spouse, lineal descendant, ancestor,

or brother or sister.” Id.

{¶ 4} In this case, a district hearing officer awarded death benefits to the

children but denied them to Carpenter. Carpenter appealed, and a staff hearing

officer (“SHO”) awarded her death benefits as well. The SHO found that “despite

not being entitled to the presumption of dependency” as a surviving spouse,

Carpenter had “met her burden of proving that she was actually wholly dependent

upon the Decedent for support * * * because she was a ‘member of the family of

the deceased employee’ based upon the * * * specific facts of this case.” The

bureau appealed.

{¶ 5} The commission vacated the SHO’s order and denied death benefits

to Carpenter. The commission found that Carpenter was not dependent on

McDonald as a surviving spouse, because she and McDonald were never married

and because common-law marriage has been abolished in Ohio since 1991. The

commission also stated that “case law has not extended the language of R.C.

4123.59(D)(2) to an unmarried person in a relationship with a decedent, such as is

present in this claim. Consideration of Blair v. Keller, 16 Ohio Misc. 157, 241

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N.E.2d 767 (C.P.1968) does not compel a contrary result, as the facts in that case

are distinguishable.”1

{¶ 6} Carpenter filed this mandamus action, asking the Tenth District for a

writ ordering the commission to reverse its decision and award her death benefits.

The Tenth District concluded that because the last paragraph of R.C. 4123.59(D)

says that a dependent can be “a member of the family of the deceased employee”

or a person that “bears to the deceased employee the relation of surviving spouse,

lineal descendant, ancestor, or brother or sister,” Carpenter could potentially

qualify for death benefits as a member of McDonald’s family, even though she was

not his surviving spouse. 2021-Ohio-4494, 182 N.E.3d 482, ¶ 17-19, 31. The Tenth

District granted a limited writ, directing the commission to vacate its order and

issue a new order determining “whether under the particular facts of this case

Carpenter has established that she is a member of the family pursuant to R.C.

4123.59(D) and 4123.95,2 and if so, the extent of dependency in whole or in part.”

(Footnote added.) Id. at ¶ 33. The commission appealed.3

II. LEGAL STANDARDS

A. Mandamus

{¶ 7} On direct appeal of a mandamus action originating in the court of

appeals, we review the judgment as if the action had been originally filed here.

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 228 N.E.2d 631 (1967),

paragraph ten of the syllabus. The commission’s denial of death benefits based on

its determination that the claimant was not a dependent of a deceased employee

1. In Blair, a common pleas court held that the deceased employee’s unadopted stepchildren were

entitled to death benefits as members of the decedent’s family under the last paragraph of R.C.

4123.59(D). Blair at 159-160.

2. R.C. 4123.95 provides that the Workers’ Compensation Act “shall be liberally construed in favor

of employees and the dependents of deceased employees.”

3. J & J Schlaegel, Inc., filed a “Brief of Appellee.” Its position, however, is aligned with that of

the commission.

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January Term, 2023

does not “concern[] the causal connection between injury, disease, or death and

employment” and, as such, is not appealable. See State ex rel. Liposchak v. Indus.

Comm., 90 Ohio St.3d 276, 281, 737 N.E.2d 519 (2000); R.C. 4123.512(A).

Because she has no adequate remedy in the ordinary course of the law, Carpenter

is entitled to a writ of mandamus if she shows by clear and convincing evidence

that she has a clear legal right to the requested relief and that the commission has a

clear legal duty to provide it. See State ex rel. Zarbana Industries, Inc. v. Indus.

Comm., 166 Ohio St.3d 216, 2021-Ohio-3669, 184 N.E.3d 81, ¶ 10. To do so,

Carpenter must demonstrate that the commission “abused its discretion in carrying

out its duties.” See State ex rel. Sheppard v. Indus. Comm., 139 Ohio St.3d 223,

2014-Ohio-1904, 11 N.E.3d 231, ¶ 12. Carpenter maintains that the commission’s

application of R.C. 4123.59(D) was an abuse of discretion.

B. R.C. 4123.59(D)

{¶ 8} The commission may grant or deny death benefits based on a

claimant’s dependent status as outlined in R.C. 4123.59(D), which provides:

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 * * *.

It is presumed that there is sufficient dependency to entitle a

surviving natural parent or surviving natural parents, share and share

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alike, with whom the decedent was living at the time of the

decedent’s death * * *.

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 the deceased

employee the relation of surviving spouse, lineal descendant,

ancestor, or brother or sister. * * *

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 the deceased employee the relation of

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

(Emphasis added.)

III. ANALYSIS

{¶ 9} The last paragraph of R.C. 4123.59(D) applies to claims for death

benefits brought by persons who are not entitled to a presumption of dependency.

For example, even a surviving spouse may not be presumed wholly dependent if,

at the time of the employee’s death, the surviving spouse was not living with the

employee and was not separated from the employee because of the employee’s

aggression. See R.C. 4123.59(D)(1). For persons who are not entitled to the

presumption of dependency, the last paragraph of R.C. 4123.59(D) instructs that

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January Term, 2023

actual dependency, in whole or in part, must be determined according to the facts

that existed at the time of the injury that resulted in the employee’s death.

{¶ 10} The last paragraph of R.C. 4123.59(D) sets forth two categories of

potential dependents: (1) “a member of the family of the deceased employee” or

(2) a person who “bears to the deceased employee the relation of surviving spouse,

lineal descendent, ancestor, or brother or sister.” Id. The legislature conspicuously

used the disjunctive “or” instead of the conjunctive “and,” which it used in the

nearly identical sentence in the immediately preceding paragraph regarding

prospective dependency. Thus, marital status is not determinative of whether a

person is eligible to receive death benefits under the last paragraph of R.C.

4123.59(D)—any person may be eligible if it is determined that the person is “a

member of the family of the deceased employee” under the facts of the particular

case. However, the phrase “member of the family” is not defined in the Workers’

Compensation Act.

{¶ 11} In denying death benefits to Carpenter, the commission did not

consider or determine whether she was a member of McDonald’s family. Relying

on the fact that Carpenter is not a surviving spouse, the commission stated that

“case law has not extended the language of R.C. 4123.59(D)[] to an unmarried

person [who was] in a relationship with [the deceased employee].” The

commission argues that for over 80 years, the law in Ohio has been that a legal

marriage is required. The commission also emphasizes that common-law marriage

is no longer recognized under Ohio law. See R.C. 3105.12(B)(1).

{¶ 12} In support of its position, the commission relies on two opinions that

were decided early in the history of Ohio’s workers’ compensation system: Indus.

Comm. v. Dell, 104 Ohio St. 389, 135 N.E. 669 (1922), and Evans v. Indus. Comm.,

166 Ohio St. 413, 143 N.E.2d 705 (1957). Both cases involved acts of bigamy: the

deceased employees had married, abandoned their spouses, and then married

another person without divorcing their first spouses. Dell at 390-392; Evans at 413.

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This court concluded that the party claiming the validity of the second marriage

must overcome the presumption that a lawful first marriage continues. Dell at

paragraph three of the syllabus; Evans at 414. Because the second wife in each of

these cases did not overcome that presumption, she was not entitled to death

benefits as a surviving spouse under R.C. 4123.59 (or its nearly identical General

Code precursor, former G.C. 1465-82). Dell at 403-405; Evans at 414.

{¶ 13} In Dell, motivated by the “much-discussed divorce evil,” this court

declared that it should not “encourage marriage between comparative strangers

without any inquiry by either into the past life or antecedents of the other.” Dell at

404-405. In Evans, this court pronounced that “ ‘dependency’ under the

Workmen’s Compensation Act [does] not encompass[] relationships not

recognized by law,” relying primarily on cases that refused to classify children as

dependents when born to a person who was not legally married to the deceased

employee. Evans at 414. For instance, Evans pointed to Staker v. Indus. Comm.,

127 Ohio St. 13, 186 N.E. 616 (1933), paragraph one of the syllabus, in which this

court held that “[a]n illegitimate, posthumous child, unacknowledged by its

putative father, is not a dependent child” under the Workers’ Compensation Act.

{¶ 14} The considerations discussed in Dell and Evans of legitimacy and

“divorce evil” do not derive from the statutory language, however, and this court

did not apply the language of the last paragraph in R.C. 4123.59(D) pertaining to

“a member of the family.” Therefore, neither case speaks to or controls the question

at hand. Instead, contrary to the commission, we find the analysis in Blair, 16 Ohio

Misc. 157, 241 N.E.2d 767, relevant and persuasive.

{¶ 15} In Blair, a common pleas court found that four stepchildren of the

deceased employee were “members of his family” who were entitled to death

benefits. Id. at 159-160. Although the deceased employee had never adopted his

stepchildren, they had “been fully supported by the deceased since the time of the

marriage of the deceased to the mother of the children. They lived in the same

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house with the deceased and their mother, ate at the table of the deceased and

enjoyed the privileges of the deceased and his wife.” Id. at 159. The court noted

the legislature’s use of a comma and the word “or” in the last paragraph of R.C.

4123.59(D), and it reasoned that to qualify as a dependent under that statutory

provision, “a person need not be in any way related to the deceased” and “need not

bear the relation to the deceased of ‘husband or widow, lineal descendant, ancestor,

or brother or sister.’ ” Id. Instead, the court observed that the legislature may have

“intended that any person, adult or child, who lived with the decedent and was

dependent upon him for support and a member of his family, such as a [person with

a physical or intellectual disability or an elderly] person taken in by the deceased,

* * * would be entitled to participate in the Workmen’s Compensation funds.” Id.

{¶ 16} Nearly 30 years before Blair, the Second District Court of Appeals

reached the same conclusion when applying former G.C. 1465-82, which contained

language nearly identical to the last paragraph of R.C. 4123.59(D). See Kloker v.

Indus. Comm., 31 Ohio Law Abs. 628 (2d Dist.1940). The deceased employee in

Kloker also had not adopted his stepchild. Id. at 629. Nevertheless, the court found

that the stepchild was “a member of the family” because the stepchild had lived

with his mother and the deceased employee since the time of their marriage and the

deceased employee had at all times provided for the stepchild. Id. The Second

District further recognized that the use of “or” permits “a member of the family” to

be “one other than a lineal descendant of the deceased employee” and that “[t]he

liberal construction that a stepchild and others than blood relatives may be

considered a member of the family has been adopted many times in jurisdictions

outside of the State of Ohio.” Id. at 629-630.

{¶ 17} Similarly here, the commission could determine that an unmarried

person who was in a relationship with a deceased employee was “a member of the

family of the deceased employee,” depending on the facts of that particular case.

Granted, under a certain definition of “family,” Carpenter is precluded from being

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considered “a member of the family of the deceased employee” under R.C.

4123.95(D). “Family” can be defined as “a group of persons connected by blood,

by affinity, or by law.” Black’s Law Dictionary 747 (11th Ed.2019). “Affinity”

means “the relation that one spouse has to the blood relatives of the other spouse.”

Id. at 73. Under this definition of “family,” it’s hard to see how Carpenter could be

considered part of McDonald’s family.

{¶ 18} But “family” can also be defined as “a group consisting of parents

and their children.” Id. at 747. Or it may be defined as “a group of people who live

together and usu[ally] have a shared commitment to a domestic relationship.” Id.

And recall that R.C. 4123.95 calls for the Workers’ Compensation Act to be

“liberally construed in favor of * * * the dependents of deceased employees.”

Accordingly—as these definitions show—it is very well possible that Carpenter

could qualify as a “member of the family of the deceased employee” under R.C.

4123.59(D).

{¶ 19} Whether Carpenter actually qualifies as a “member of the family of

the deceased employee” under the particular facts of this case is a question that the

commission will have to address. The commission did not address this question,

however, given its view that Carpenter could not possibly qualify as a dependent

because she was not McDonald’s surviving spouse. This was an incomplete and

incorrect application of the statute.

IV. CONCLUSION

{¶ 20} Carpenter has a clear legal right to have the commission apply R.C.

4123.59(D) correctly to her claim for death benefits, and the commission has a clear

legal duty to do so. Accordingly, a writ of mandamus is appropriate to compel the

commission to exercise its discretion in determining, in the first instance, whether

Carpenter was a member of McDonald’s family at the time of the injury that

resulted in his death. We therefore affirm the Tenth District Court of Appeals’

judgment granting a limited writ directing the commission to vacate its order and

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January Term, 2023

to consider and determine whether Carpenter was a member of McDonald’s family

under R.C. 4123.59(D) and, if so, the extent of her dependency.

Judgment affirmed.

KENNEDY, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER,

and DETERS, JJ., concur.

_________________

Graham & Graham Co., L.P.A., and Robert G. McClelland, for appellee

Amanda Carpenter.

Dave Yost, Attorney General, and John Smart, Assistant Attorney General,

for appellant.

Hahn, Loeser & Parks, L.L.P., Steven E. Seasly, and Andrew J. Wolf, for

J & J Schlaegel, Inc.

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