What a Difference an Or Makes

Periodically an interesting analysis in workers' compensation leads to discussion of death benefits. A recent decision from Ohio's appellate court provides an interesting explanation of statutory interpretation. Some will likely find the court's analysis somewhat difficult to follow, and it is unlikely that readers would unanimously agree with the interpretation of the court or the constraint of the statute.
Prior discussions of death benefits in this blog have included Marriage, the Law and Workers' Compensation (November 2014), Ideological Shift (June 2015), and Reminded about Death Benefits (February 2019). The topic of death benefits is not popular, and fortunately most categories of workplace death are demonstrated downward trends; overdose is the exception to that generality, see Drugs and Overdose (January 2022).
In December 2021, The Court of Appeals of Ohio decided State ex rel. Christopher R. McDonald v. Industrial Relations Commission of Ohio, No. 20AP-386. The opinion includes some excellent quotes worthy of consideration in the broad context of litigation. First, that statutes should be given their plain meaning. The primary effort should be to determine the meaning from the statute if it is "unambiguous and definite." The Court warns:
"[o]nly when a definitive meaning proves elusive should rules for construing ambiguous language be employed. Otherwise, allegations of ambiguity become self-fulfilling." (Citation omitted).
The point is that ambiguity is the critical first determination. When the statute is clear, it should be applied as written.
In this instance, an employee passed away in a construction accident. The employee had dependent children, but was not married to their mother. However, the two were engaged, held property together, and cohabitated.
The court interpreted the statutory provision, which creates a presumption of dependency in various circumstances. In this setting, the workers' children were deemed to be presumptively dependent and were granted benefits. Their mother, the fiancé of the injured worker was denied benefits, although not each level in the adjudication process reached that conclusion. And, ultimately, the appellate court concluded that denial had been inappropriate, but that it could not grant benefits either. Thus, the case was remanded (sent back to the Commission) for consideration of the issue again.
The Court found ambiguity in the legislature's selection of "and" in one instance and "or" in another. As regards R.C. 4123.59(D), the Court noted that "dependency" requires
"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." (Emphasis added).
Thus, it concluded, there are two requirements: (1) member of the family, and (2) a particular relationship as listed. By comparison, the Court noted that the final paragraph of that statute renders a different outcome:
"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).
Thus, the Court concluded that dependency might be established either by demonstration of "member of family," or by the characterization of "surviving spouse, lineal descendant, ancestor, or brother or sister."
Thus, by implication, it is possible in Ohio to be a "member of the family" despite not being a spouse, descendant, ancestor, brother, or sister. The Court did not attempt to further define or constrain the term "family," but remanded the case to the Commission with instructions that it determine "whether under the particular facts of this case Carpenter has established that she is a member of the family."
The Court noted precedent, Blair v. Keller, 16 Ohio Misc. 157, 241 N.E.2d 767 (June 10, 1968), in which unadopted stepchildren had been deemed ""members of the family," in a dispute regarding the same statute. Despite the absence of legal relationship, the court there had concluded those stepchildren "were 'members of the family' of the deceased employee." In so concluding, the court found persuasive that "[t]hey lived in the same house with the deceased and their mother, ate at the table of the deceased and enjoyed the privileges of the deceased and his wife."
As the Court has impliedly concluded that the "or" means that "family" may have some broader meaning. The Florida Courts have routinely referred to the dictionary for the ordinary meaning of words. The analysis in State v. Burris, 875 So. 2d 408, 411 (Fla. 2004) is interesting in its interpretation of the word "carry" through such analysis.
Such an inquiry might have led the Ohio Court to Merriam Webster or some similar publication. That dictionary defines "family" in multiple ways, three of which might apply in such a dispute:
"the basic unit in society traditionally consisting of two parents rearing their children"
"spouse and children"
"a group of persons of common ancestry"
While one might validly conclude that these three do not necessarily each define an identical group of people, one might nevertheless conclude that any of the three is an appropriate definition. Of course, had the Ohio Legislature chosen to, it could have defined the word "family" in the statute. Some might argue that "but for" an errant "or," that is what the legislature did, or intended, with the reference to "surviving spouse, lineal descendant, ancestor, or brother or sister."
When drafting legislation, it is imperative for language to be carefully chosen, and punctuation to be considered as well. See I Never Knew Oxford had a Comma (March 2017).
Now it is for the Commission in Ohio to determine what that word means in that state, in that context. If the broadest definition "the basic unit" is elected, then logically the fiancé will be deemed entitled to benefits. However, if either of the others are elected, then the fiancé's recent appellate victory may be less than fruitful. And, it is possible that any decision will lead back to the appellate court. 
Beyond the scope of this decision is the challenge of whether the outcome is or is not "right." It must be remembered that the concept of workers' compensation is a substitute for tort liability and is confined by its statutory construction. In the event that the fiancé is not entitled to workers' compensation, it is possible she is then allowed to sue in tort. It is possible that she might be denied any recovery whatever. The system is not always seen as adequate or fair in a particular case, despite the many efforts for it to be an adequate remedy and alternative in a macro sense.
By Judge David Langham
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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