Fire Fighter with R.C. 4123.68(W) Occupational Disease Not Entitled to Wage Loss

State, ex rel. Justus v. Indus. Comm.(10/14/98), 83 Ohio St.3d 364.

SITUATION: Justus, a fire fighter, had an allowed industrial claim for chronic obstructive pulmonary disease with chronic bronchitis. The allowance order indicated that Justus' condition is permanent and that he will never be able to return to his former position of employment.

Justus moved for change-of-occupation benefits pursuant to R.C. 4123.57(B). SHO denied, citing R.C. 4123.68(W). Justus filed a mandamus. Court of Appeals denied mandamus.

STATUS: Supreme Court affirms.

Supreme Court says the sole issue is whether the Industrial Commission abused its discretion in denying wage loss.

Former R.C. 4123.68(W) provided that compensation for fire fighters and police officers for cardiovascular, pulmonary, or respiratory diseases were payable only in the event of TT, PT, or death.

Supreme Court says the statute is not ambiguous. It clearly identifies the types of compensation payable and does not include wage loss.

Justus argued that R.C. 4123.57, which authorizes change-of-occupation benefits to fire fighters with pulmonary disease, opens the door to all forms of compensation. Supreme Court disagrees. Supreme Court says R.C. 4123.57(E) cannot totally negate the express limitation of 4123.68(W).

Justus also argued that R.C. 4123.68(W), violates equal protection because R.C. 4123.56(B), the wage loss statute, does not contain language specifying classes of claimants who are ineligible for wage-loss. R.C. 4123.68(W) deliberately excludes a class of people from wage loss. Supreme Court rejects this argument citing its decisions in State, ex rel. Buckeye International v. Ind. Comm. (1982), 70 Ohio St.2d 200 and State, ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56.

In those cases the court held that equal protection was not violated by R.C. 4123.58(Y), a statute which also limited the compensation payable to certain claimants.

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