2002 OHIO 6319 - State ex rel. Maynard v. Indus. Comm.

[This decision has been published in Ohio Official Reports at

97 Ohio St.3d 263

.]




      THE STATE EX REL. MAYNARD v. INDUSTRIAL COMMISSION OF OHIO.
        [Cite as State ex rel. Maynard v. Indus. Comm.,

2002-Ohio-6319

.]
Workers’ compensation—Mandamus sought to compel Industrial Commission to
        increase relator’s death benefit to the statutory maximum of 100 percent
        of the statewide average weekly wage under R.C. 4123.59—Writ denied—
        Zupp v. Youngstown Fire Dept. and State ex rel. Pickrel v. Indus. Comm.,
        followed.
  (No. 2001-1386—Submitted October 15, 2002—Decided December 4, 2002.)
                                      IN MANDAMUS.
                                  __________________
        Per Curiam.
        {¶1} Decedent Donald E. Maynard’s 1996 workers’ compensation claim
was allowed for “malignant neoplasm and mesothelioma.” In 1997, he filed for
permanent total disability compensation (“PTD”) but died from his industrial
condition before the application was adjudicated.
        {¶2} Relator Marjorie Maynard, widow-claimant herein, successfully
moved respondent Industrial Commission of Ohio for accrued PTD pursuant to
R.C. 4123.60. She followed with an application for death benefits under R.C.
4123.59.
        {¶3} That application was also granted, and the Bureau of Workers’
Compensation fixed the rate of weekly benefits at $458.32—66 2/3rds percent of
decedent’s average weekly wage.             Widow-claimant sought to have the rate
increased to the statutory maximum of 100 percent of the statewide average weekly
wage, which for the applicable date was $521. That motion was denied.
        {¶4} This cause is now before this court as an original action in mandamus.
                               SUPREME COURT OF OHIO




          {¶5} Widow-claimant asserts that R.C. 4123.59(B) requires that her weekly
benefit be increased to the statutory maximum. We disagree.
          {¶6} Pursuant to our decisions in Zupp v. Youngstown Fire Dept. (1988),

37 Ohio St.3d 202

525 N.E.2d 9

, and State ex rel. Pickrel v. Indus. Comm. (1989),

43 Ohio St.3d 128

539 N.E.2d 623

, a writ of mandamus is hereby denied.
                                                                       Writ denied.
          MOYER, C.J., DOUGLAS, PFEIFER, COOK and LUNDBERG STRATTON, JJ.,
concur.
          RESNICK, J., dissents.
          F.E. SWEENEY, J., dissents and would grant the writ.
                                   __________________
          ALICE ROBIE RESNICK, J., dissenting.
          {¶7} I would grant the writ of mandamus.
                                   __________________
          Mark Aalyson, for relator.
          Betty D. Montgomery, Attorney General, and Dennis L. Hufstader,
Assistant Attorney General, for respondent.
                                   __________________




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