Bryant v. Dayton Casket Co.

433 N.E.2d 142, 69 Ohio St. 2d 367, 23 Ohio Op. 3d 341, 1982 Ohio LEXIS 588

• Court: Ohio Supreme Court
• Decided: February 24, 1982
• Docket: No. 81-798
• Status: Published

Opinions

Holmes, J.

In interpreting R. C. 4123.90, or any enactment of the General Assembly which is reasonably free of ambiguity, this court must apply the common and generally accepted meaning to the wording of the statute.

As stated in Provident Bank v. Wood (1973), 36 Ohio St. 2d 101, at 105-106:

“There is no lack of general rules to guide the court in its effort to ascertain the meaning of the statutes before it. The principles of statutory construction are given exhaustive treatment in 50 Ohio Jurisprudence 2d, 129 to 310, Sections 160 to 327. It is a cardinal rule that a court must first look to the language of the statute itself to determine the legislative intent. See, e.g., Katz v. Department of Liquor Control (1957), 166 Ohio St. 229. If that inquiry reveals that the statute conveys a meaning which is clear, unequivocal and definite, at that point the interpretative effort is at an end, and the statute must be applied accordingly. Sears v. Weimer (1944), 143 Ohio St. 312.

“ ‘Where the language itself clearly expresses the legislative intent, the courts need look no further.’ Katz, supra, at 231.”

Here there is no question that the actual proceedings within the Industrial Commission had not been instituted or processed prior to appellant’s discharge. It is the position of the appellee that the trial court and the Court of Appeals correctly interpreted this statute, and that as a prerequisite to bringing an action against the employer under such section, the employee must have instituted some proceeding to recover upon his industrial claim.

The basic argument of the appellant is to the effect that he had informed someone in the company (either an officer of the company, as claimed by the appellant, or a fellow employee, as argued by the appellee), prior to the discharge and, therefore, such expression of intent to pursue an industrial claim is sufficient to satisfy the purposes of R. C. 4123.90 insofar as he “pursued” a claim.

The common meaning and ordinary usage of the word “pursue” is to be found in Webster’s New Twentieth Century Dictionary (2 Ed.), as follows:

“To proceed along or follow, as a specified course, action, plan, etc. * * * to follow a matter in a legal manner; to be a prosecutor.”

Black’s Law Dictionary (5 Ed.), defines the word “pursue” as, “To follow * * * a matter judicially, as a complaining party.”

Interpreting the same section of law, Judge McCormac, of the Court of Appeals for Franklin County, in Genheimer v. Clark Grave Vault Co. (August 14, 1980), case No. 79AP-940, unreported, stated:

“In order for plaintiff to prevail, he must prove that he was discharged because he had filed a claim or instituted, pursued, or testified in any proceeding under the Workers’ Compensation Act for an injury in his employment. Plaintiff did not file a claim until February 8, 1979, which was after the time of his discharge. Did he institute or pursue any proceeding under the Workers’ Compensation Act prior to his discharge?

“A proceeding is defined, as pertinent, as follows: ‘The course of procedure in a judicial action or in a suit in litigation.’ Webster’s Third New International Dictionary, Unabridged, 1966. Under the workers’ compensation law, there are two ways in which there can be proceedings which may be instituted or pursued. The first is by filing a claim and the second is, in the case of a self-insured employer, the election of the employer to pay compensation or benefits directly with knowledge of a compensable injury. R. C. 4123.84. R. C. 4123.90 is unambiguous in providing that a claim must either have been filed or proceedings must have been instituted or pursued in order for there to be liability. The institution of proceedings for payment of benefits without a claim being filed appear to be placed in the statute to cover benefits paid by a self-insured employer when made without the filing of a claim, a recognition of the existence of a claim already in being.”

We conclude, as did the Court of Appeals for Montgomery County, that Judge McCormac was correct in his interpretation of this statute, as related to an employee’s complaint against his former employer, that it applies only if the employee had been discharged after taking some action which would constitute the actual pursuit of his claim, not just an expression of his intent to do so.¹

In viewing the Ohio statute in contrast to other states which have enacted legislation generally protecting employees from being discharged for seeking workers’ compensation benefits for injuries, it should be pointed out that these other states have used language in their statutes which is considerably broader than R. C. 4123.90, and allows actions to be brought by the employee when he has been discharged after informing the employer of his intention to exercise some statutory right for recovery for his industrial injury. See West’s California Labor Code, Section 132a; N. J. Stat. Ann. Section 34:11-56.39.²

It is our determination that the General Assembly’s use of the specific and exclusive words as “pursued * * * any proceedings under the workers’ compensation act” implies the exclusion of the interpretation as advanced by this appellant. The doctrine of expressio unius est exclusio alterius is applicable here, and would limit our application of the statute to that which the General Assembly obviously intended.

Based on all the foregoing, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

W. Brown, Sweeney, Locher and Krupansky, JJ., concur. Celebrezze, C. J., and C. Brown, J., dissent.

1 Appellant-employee relies upon the out-of-state case of Texas Steel Co. v. Douglas (Tex. Civ. App. 1976), 533 S.W. 2d 111, where the court, in reviewing a Texas statute comparable to R. C. 4123.90, noted that an employee had been fired after the self-insuring company’s insurance carrier had paid the employee certain workers’ compensation benefits as provided for by Texas law. The court held that such payment was a legal step or measure for obtaining benefits under the Act. The court pointed out that it was possible to draw full compensation, including benefits for permanent and total disability, without ever filing a claim and, thus, the intentional furnishing of benefits by the employer pursuant to the Act constituted a proceeding making the statute applicable.

2 For instance, Section 132a of West’s California Labor Code creates a cause of action for an employee who has filed an application or made known his intention to file an application. Also, N. J. Stat. Ann. Section 34:11-56.39 makes it unlawful for an employer to discharge an employee who has “instituted or is about to cause to be instituted” a proceeding against his employer.