State ex rel. James Masterson, [Decedent] c/o Elaine Masterson (Widow), Relator,
Industrial Commission of Ohio et al., Respondents.
MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION
Heller, Maas, Moro & Magill Co., L.PA., and Robert J.
Foley, for relator.
Michael DeWine, Attorney General, and Eric J. Tarbox, for
respondent Industrial Commission of Ohio.
1} Relator, Elaine Masterson, the widow of James
Masterson ("decedent"), has filed an original
action requesting this court issue a writ of mandamus
ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order which
apportioned loss of use benefits between relator and Trevor
Masterson, son of decedent, and issue an order finding she is
entitled to the entire award.
2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the
Tenth District Court of Appeals, this matter was referred to
a magistrate of this court who issued a decision, including
findings of fact and conclusions of law, which is appended
hereto. The magistrate recommended this court deny
relator's request for a writ of mandamus.
3} Relator has filed objections to the
magistrate's decision arguing that dependent children are
only eligible for scheduled loss benefits when there is no
surviving spouse. Relator contends the commission erred in
failing to follow the language of the scheduled loss statute,
R.C. 4123.57(B), choosing instead to rely on R.C. 4123.60,
pertaining to benefits available to dependents of deceased
4} Relator argues, in the alternative, that even if
Trevor is entitled to a portion of the scheduled loss
benefits, the commission abused its discretion in finding he
was entitled to a percentage of the entire amount. Relator
maintains that Trevor would only be entitled to the scheduled
loss benefits during the period he was a dependent, and that
any dependency ended when he reached the age of 25 (February
5} R.C. 4123.57(B) provides for compensation
"payable to an employee when the employee suffers the
loss of a body part that is listed on a schedule set forth in
the statute." State ex rel. Moorehead v. Indus.
Comm., 112 Ohio St.3d 27, 2006-Ohio-6364, ¶ 7. R.C.
4123.57(B) states in part:
When an award under this division has been made prior to the
death of an employee all unpaid installments accrued or to
accrue under the provisions of the award shall be payable to
the surviving spouse, or if there is no surviving spouse, to
the dependent children of the employee and if there are no
such children, then to such dependents as the administrator
When an employee has sustained the loss of a member by
severance, but no award has been made on account thereof
prior to the employee's death, the administrator shall
make an award in accordance with this division for the loss
which shall be payable to the surviving spouse, or if there
is no surviving spouse, to the dependent children of the
employee and if there are no such children, then to such
dependents as the administrator determines.
6} R.C. 4123.60 addresses eligibility of dependents
to receive compensation for which a deceased worker was
entitled to but did not receive prior to death. See,
e.g., State ex rel. Nyitray v. Indus. Comm., 2 Ohio
St.3d 173, 174 (1983) (Pursuant to R.C. 4123.60,
"[dependents may be awarded the compensation the worker
was entitled to receive prior to death."). R.C. 4123.60
states in part:
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 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.
7} Thus, R.C. 4123.60 "permits the deceased
claimant's dependents to receive awards made on account
of 'temporary, or permanent partial, or total
disability,' when there remains an unpaid balance of
accrued payments due to the claimant at the time of the
claimant's death," and the statute "also
permits the deceased claimant's dependents to receive an
award up to the amount the decedent would have received if he
had made application for an award of benefits to which he was
lawfully entitled during his lifetime." Fulton, Ohio
Workers' Compensation Law, Section 11.2, 618-19 (5th
Ed.2018). Further, "the dependents are entitled to
receive the award only if an application was filed during the
deceased claimant's lifetime or within one year after his
death." Fulton, Ohio Workers' Compensation
Law, Section 11.2, 619 (5th Ed.2018). See also State
ex rel. Scott v. Ohio Bur. of Workers' Comp., 73
Ohio St.3d 202, 204 (1995) (applying one-year statute of
limitations under R.C. 4123.60 to claim for scheduled-loss
award under R.C. 4123.57).
8} In the present case, the commission discussed the
interplay, as well as the "conflicts," between R.C.
4123.57(B) and 4123.60. Specifically, the commission noted
that "R.C. 4123.60 limits payment of accrued awards to
the period prior to the decedent's death" while, by
contrast, "R.C. 4123.57(B) provides no such limitation
for payment of accrued awards." The commission further
observed that "R.C. 4123.57(B) authorizes payment to
dependent children if there is no surviving spouse, but R.C.
4123.60 authorizes payment to the dependents as determined by
the Administrator." In addressing and seeking to resolve
those conflicts, the commission concluded that "R.C.
4123.60 establishes the one-year statute of limitation as
well as the beneficiaries for payment, while * * * R.C.
4123.57(B) controls the method, calculation, and amount of
the payment of the accrued award." The commission deemed
this interpretation "appropriate as Ohio's
workers' compensation laws favor coverage for dependent
9} The Supreme Court of Ohio has "consistently
recognized and generally deferred to the commission's
expertise in areas falling under the agency's
jurisdiction." State ex rel. FedEx Ground Package
Sys., Inc. v. Indus. Comm., 126 Ohio St.3d 37,
2010-Ohio-2451, ¶ 27, citing State ex rel. Hina v.
Indus. Comm., 121 Ohio St.3d 4, 2009-Ohio-250, ¶
19. Similarly, with respect to interpretation of statutes,
courts "must give due deference to an administrative
interpretation formulated by an agency which has accumulated
substantial expertise, and to which the legislature has
delegated the responsibility of implementing the legislative
command." State ex rel. McLean v. Indus. Comm.,
25 Ohio St.3d 90, 92 (1986), citing Jones Metal Prods.
Co. v. Walker, 29 Ohio St.2d 173, 181 (1972).
10} In Moorehead, the Supreme Court,
addressing a claim by a widow for scheduled loss benefits,
noted in part that the commission's determination as to
benefits "should be made in light of all relevant
statutes," which included the court's consideration
of both R.C. 4123.57(B) and 4123.60. Id. at ¶
21. In the present case, the commission exercised its
discretion in construing R.C. 4123.57(B) and 4123.60 to
conclude that "R.C. 4123.60 establishes the one-year
statute of limitation as well as the beneficiaries for
payment, while * * * R.C. 4123.57(B) controls the method,
calculation, and amount of the payment of the accrued
award." Finding the commission's interpretation not
unreasonable, we afford deference to that interpretation and
conclude the commission did not abuse its discretion in its
apportionment of the scheduled loss benefits.
11} As noted, relator argues, in the alternative,
Trevor is not entitled to a full allocation of compensation
for the scheduled loss and facial disfigurement because he
was no longer a dependent upon reaching the age of 25
(February 11, 2016). In support, relator contends death
benefits are essentially wage replacement benefits.
12} This court has previously noted that the intent
of R.C. 4123.59 (benefits in case of death) "is to
compensate dependents for the 'loss of support'
resulting from the employee's death." State ex
rel. PolyOne Corp. v. Indus. Comm., 10th Dist. No.
12AP-313, 2014-Ohio-1376, ¶ 9. However, "[b]y
contrast, 'benefits for partial disability [under R.C.
4123.57(B)] are more akin to damages for work-related
injuries.'" Id., quoting State ex rel.
Gen. Motors Corp. v. Indus. Comm., 42 Ohio St.2d 278,
282 (1975). As noted by the commission, while R.C. 4123.59
provides for termination of death benefits at age 25, there
is no such age limitation under either R.C. 4123.57(B) or
4123.60. We therefore find unpersuasive relator's
contention that the commission abused its discretion in
allocating to Trevor a portion of the entire amount of the
scheduled loss benefits.
13} Based on this court's independent review, we
find the magistrate has properly determined the pertinent
facts and applied the appropriate law. We therefore overrule
relator's objections to the magistrate's decision and
adopt the magistrate's decision as our own, including the
findings of fact and ...