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

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

Posted: November, 1998

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

Issue: Can a fire fighter with an R.C. 4123.68(W) respiratory condition receive wage loss compensation?

Background: 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 wage loss compensation pursuant to R.C. 4123.56(B). The Commission denied wage loss, citing R.C. 4123.68(W). Justus filed a mandamus challenge, which the Court of Appeals denied.

Decision: Supreme Court affirms.

The sole issue is whether the Industrial Commission abused its discretion in denying wage loss. Former R.C. 4123.68(W) provided compensation to fire fighters and police officers for cardiovascular, pulmonary, or respiratory diseases only in the event of temporary total disability, permanent total disability, or death.

The 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. The Supreme Court disagrees. 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 ineligible for wage-loss. R.C. 4123.68(W) deliberately excludes a class of people from wage loss.

The Supreme Court rejects this argument citing its decisions in State, ex rel. Buckeye International v. Indus. Comm. (1982), 70 Ohio St.2d 200 and State, ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56. Those cases found that R.C. 4123.58(Y), a statute which also limited the compensation payable to certain claimants, did not violate equal protection.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.