State ex rel Johnston v. Ohio Bureau of Workers' Compensation8/15/2001
As amended November 28, 2001.
THE STATE EX REL. JOHNSTON, APPELLANT
v.
OHIO BUREAU OF WORKERS' COMPENSATION ET AL., APPELLEES
SYLLABUS BY THE COURT
1. Ohio Adm.Code 4123-5-21(A), which provides that the death of a claimant abates action on any administratively pending application filed by the claimant, is generally applicable to joint applications for approval of a State Fund settlement filed pursuant to R.C. 4123.65, provided that the claimant's death occurs before the settlement is approved by the Administrator of Workers' Compensation.
2. Ohio Adm.Code 4123-5-21(A) is nullified in those circumstances where the Administrator of Workers' Compensation fails to process an application for approval of a State Fund settlement pursuant to R.C. 4123.65 within a reasonable period of time.
Appeal from the Court of Appeals for Franklin County, No. 98AP-1236.
Koltak & Gibson, L.L.P., Ronald J. Koltak and Peter J. Gibson, for appellant. Betty D. Montgomery, Attorney General, and Craigg E. Gould, Assistant Attorney General, for appellees.
The opinion of the court was delivered by: Alice Robie Resnick, J.
Workers' compensation - Ohio Adm.Code 4123-5-21(A) is generally applicable to joint applications for approval of a State Fund settlement filed pursuant to R.C. 4123.65, provided claimant's death occurs before settlement is approved by the Administrator of Workers' Compensation - Ohio Adm.Code 4123-5-21(A) is nullified by failure to process application within reasonable time.
Submitted April 24, 2001
On April 30, 1992, James Johnston, now deceased, received an injury in the course of, and arising out of, his employment with Trans-Fleet Enterprises, Inc., a State Fund employer. His workers' compensation claim was allowed for "sprain lumbar; lumbar disc displacement with myelopathy at L3-4 left & L5-S1 right." James received temporary total disability compensation from May 16, 1992 to November 29, 1994, and began receiving wage-loss compensation on September 7, 1996, at an average rate of approximately $395 per week.
On May 21, 1997, an "Application for Approval of Settlement Agreement," signed by James and his employer, was filed with the Ohio Bureau of Workers' Compensation ("bureau"), requesting that the bureau approve a final settlement of the entire claim in the lump-sum amount of $90,000. On January 18, 1998, while the application for settlement was still pending, James died of a myocardial infarction unrelated to his employment.
On January 21, 1998, James's daughter, Pam Falkner, notified the bureau of her father's death. Two days later, on January 23, 1998, the bureau notified James's counsel that it would approve a settlement in the amount of $50,000. In deciding on this amount, the bureau considered the value of prospective wage-loss benefits, an eventual permanent partial disability award, and the potential for permanent total disability compensation. On January 26, 1998, James's counsel, acting on the instructions of James's widow, appellant Judy Johnston, accepted the approved amount.
On January 27, 1998, the bureau notified James's counsel as follows:
"The application is denied-All parties do not agree with the settlement terms.
"Settlement application is abated by [injured worker's] death on 1-18-98."
On March 19, 1998, appellant filed a "First Report of an Injury, Occupational Disease or Death," requesting, "pursuant to R.C. 4123.60 * * *[,] pa
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