#### The State, ex rel. Efford, *v.*Industrial Commission of Ohio et al.

(No. 31230

Decided March 2, 1949.)

*112*Messrs. Davis, Davis <& Handelman,*for relator.

*Mr. Hugh S. Jenkins*and *Mr. Herbert 8. Duffy,*attorneys general, *Mr. R. Brooke Alloway*and *Mr. John J. Nolan,*for respondent Industrial Commission. ,

*Messrs. Jones, Day, Gockley S Reavis, Mr. Thomas M. Harman*and *Mr. Allen C. Holmes,*for respondent Jones & Laughlin Steel Corporation.

Turner, J.

Our first question here may be phrased thus: Where a statute creates a right in dependents <of a workman to compensation for death from silicosis *113*only*in the event of such death resulting within two years after the last injurious exposure (118 Ohio Laws, 422), may a statute enacted subsequent to the expiration of the two years from the last injurious exposure and death of the workman create a new right in the dependents for compensation for such original occupational disease-death? Specifically, may the amendment of Section 1465-68(a), General Code, effective October 12, 1945 (121 Ohio Laws, 661), relate back and create a liability against an employer where no liability existed after February 13, 1945 ?

The second question we have to consider may be phrased: Is an employer, who has elected to pay compensation direct, liable where no application for compensation is made to such employer within six months after death resulting from an occupational disease, as provided in Section 1465-726, General Code?

The last injurious exposure of relator’s decedent was on February 13, 1943, when he left the employment of the Jones & Laughlin Steel Corporation. At that time Section 1465-68a, General Code (118 Ohio Laws, 422), was in force and provided that compensation should be payable *only*in the event of death resulting within two years after the last injurious exposure, which fact would have carried the right to claim compensation for such death to February 13, 1945.

Effective October 12, 1945, the General Assembly amended Section 1465-68a, General Code, by substituting eight years instead of two'years. It is the contention of relator based upon paragraph four of the syllabus in the ease of *Industrial Commission*v. *Kamrath,*118 Ohio St., 1, 160 N. E., 470, that the right of action in the instant case did not accrue until decedent’s death. Paragraph four of the syllabus in the *Eamrath case*reads:

> *114“The cause of action of a dependent of a *killed*employee accrues at the time the employee dies from an injury received in the course of his employment.” (Italics ours.)

The *Kamrath case*was not an occupational disease case where the statute creating the liability provided in so many words that compensation should be payable only in the event that death resulted within two years after the last injurious exposure. (118 Ohio Laws, 422.)

Section 1465-72&, General Code, provides as follows:

> “In all cases of occupational disease, or death resulting from occupational disease, claims for compensation shall be forever barred, unless, within four months after the disability due to the disease began, or within six months after death occurred, application shall be made to the Industrial Commission of Ohio, or to the employer in the event such employer has elected to ¡Day compensation direct, except in such cases as are provided for in Section 1465-82, subdivision 4, General Code.”

Relator admits that such application was not formally made to respondent Jones & Laughlin Steel Corporation within the time limited but seeks to avoid this in two ways: First, by asserting that the claim against respondent Jones & Laughlin Steel Corporation was combined in the commission’s files with the claim against the Park Drop Forge Company to whom proper notice had been given; and, second, that the failure of the respondent Jones & Laughlin Steel Corporation to receive notice was due to the negligence of respondent commission.

In relator’s brief it is said:

> “Let us understand, first, that we have no dispute with the defendant Jones & Laughlin Steel Corporation’s contention that they were entitled under the *115rules of the commission to receive notice of the claim, together with copy of the proceedings in the claim prior to the hearing. The Industrial Commission admits these errors. But does that fact justify the use of its discretion to rectify what may be an injustice to the Jones & Laughlin Steel Corporation by slamming the door shut in the face of the claimant by the simple expediency of severing the context of the claim No. 4039-22 [Jones *&*Laughlin] from claim No. 47261 [Park Drop Forge Co.], and thus treat it as a separate and distinct claim?”

After the respondent commission found that it had no jurisdiction, relator attempted to supplement her record by taking depositions.

Without passing upon the question of the materiality of or the right to take and file these depositions, we do find from a search of the record, assuming such depositions to be a part thereof, that the aforesaid finding of respondent commission was justified. In this case there had been two separate claims filed, one against the Park Drop Forge Company and one against respondent Jones & Laughlin Steel Corporation. Relator contends that “the claim was one, although of employers there were two.” In our opinion this claimed situation does not aid relator’s case.

The record clearly discloses that no application was made to respondent, Jones & Laughlin Steel Corporation, pursuant to Section 1465-72&, General Code.

The provisions of Section 1465-72&, General Code, are clear, that application claiming compensation in cases of occupational diseases *shall be made to the employer*in the event that the employer has elected to pay compensation direct.

The record here discloses and we so hold that Efford’s dependents had no right of action against respondent Jones & Laughlin Steel Corporation, and *116that the respondent Industrial Commission did not abuse its discretion, and, therefore, the writ of mandamus should be and hereby is denied and relator’s petition dismissed.

*Petition dismissed.*

Weygandt, C. J., Matthias, Hart, Zimmerman and Stewart, JJ., concur. '

Taft, J.,

dissenting. I regret that I cannot agree with the conclusions of the court in this case.

The first question is whether this claim is barred by the portion of Section 1465-68(a), General Code, reading:

> “Claims of dependents for benefits on account of death from silicosis shall be forever barred unless application therefor shall have been made to the Industrial Commission within six months after death.”

Here it appears that the decedent had filed claims with the Industrial Commission prior to his death, naming Jones *&*Laughlin Steel Corporation and the Park Drop Forge Company. These two claims were being processed at the time of decedent’s death. Less than two months after decedent’s death relatrix, hereinafter referred to as relator, filed a claim with the commission, seeking the death benefits provided by law. This claim designated the Park Drop Forge Company as the employer in whose employment decedent had suffered his last injurious exposure. Thereafter slightly more than six months after decedent’s death, on request of the commission, a like application was filed in which relator stated that the last injurious exposure occurred during decedent’s employment by Jones *&*Laughlin. It further appears from the files of the Industrial Commission *117that less than six months after decedent’s death an inter-office communication in the commission’s Cleveland branch referred to the two claims which the decedent had filed, noted his death and stated that *‘ ‘*these two claims will therefore be completed as death claims.” There are other documents in the commission’s files to substantially the same effect.

Admittedly a death claim was filed with the Industrial Commission within six months of decedent’s-death. A silicosis claim is not like a claim for an injury. Unlike in a claim caused by injury, it may be difficult to determine which of several employers was responsible. This is recognized in the portion of Section 1465-68(ó), General Code, providing that compensation for disability or death from silicosis shall' not be payable unless “the employee has been subject to injurious exposure to silica dust * * * in his employment in Ohio preceding his disablement, for periods amounting in all to at least three years, some-portion of which shall have been after the effective-date of this act, ’ ’ and the portion of that section which-states that such compensation shall be paid “only in-the event of * * * disability # * * or death.”

Obviously there may be several employers involved’ in such a claim. Here, both claims filed by decedent before his death, as well as the death claim filed within two months after his death and designating Park Drop Forge Company as the employer in whose employment decedent suffered his last injurious exposure, would all require the commission to determine-whether decedent had suffered an injurious exposure while employed by Jones & Laughlin. This is because-he had been employed by Park Drop Forge Company for more than two, but less than three, years before his total disability commenced and his previous employment for nine years had been with Jones & Laughlin.

*118The statute does not say that a single employer must be designated as the responsible employer. In my ■opinion, when a silicosis claim has been filed with the commission, the duty of ascertaining the responsible •employers should rest upon the state. See *State, ex rel. Thompson,*v. *Industrial Commission,*121 Ohio St., 17, 166 N. E., 806; *Pyle*v. *Industrial Commission,*139 Ohio St., 644, 41 N. E. (2d), 857. The mere fact that Jones ■& Laughlin was not designated by the relator as the •one in whose employment decedent last suffered an injurious exposure should certainly not affect her rights. In my opinion, since her death claim was filed with the commission in time, an amendment so designating Jones & Laughlin should be allowed if such amendment of her claim is necessary. *Kaiser*v. *Industrial Commission,*136 Ohio St., 440, 26 N. E. (2d), 449. The fact that Jones & Laughlin is a self-insurer does not affect the remedy of relator. See *Reinholz*v. *Industrial Commission,*96 Ohio St., 457, 119 N. E., 129.

The opinion of the majority of this court and the second paragraph of the syllabus treat relator’s failure to file her claim with Jones & Laughlin within six months of decedent’s death as a bar thereof by reason of Section 1465-72&, General Code.

Under the provisions of that section such a claim is barred “unless * * * within six months after death occurred, application shall be made to the Industrial Commission of Ohio, *or*to the employer in the event such employer has elected to pay compensation direct.” (Emphasis added.)

Admittedly an application was made to the Industrial Commission within less than six months. The word “or” indicates that it could have been made to Jones & Laughlin since that employer was a self-insurer.

The language of Section 1465-72&, General Code, *119does not require that the application must be made to the employer instead of the Industrial Commission where the employer is a self-insurer.

The second question involved is whether Section 1465-68a, General Code, as in force at the time of decedent’s death should apply. Until October 12, 1945, this section provided for payments “only in the event of * * * disability or death resulting within two years after the last injurious exposure.” Effective October 12, 1945,* the statute was amended to change “two years” to “eight years.”

Decedent’s last injurious exposure was on February 13, 1943. In July 1945 his disability commenced. He died on January 2, 1946.

The second and fourth paragraphs of the syllabus in *Industrial Commission*v. *Kamrath,*118 Ohio St., 1, 160 N. E., 470, read:

> “2. The provisions of the General Code relating to compensation of injured employees or the dependents of killed employees in force at the time the cause of action accrues are the measure of the right of such employees and dependents to participate in the state insurance fund.”

> “4. The cause of action of a dependent of a killed employee accrues at the time the employee dies from an injury received in the course of his employment.”

In 58 American Jurisprudence, 627, Section 73, it is said:

“With respect to time, the right to compensation for an injury, under the workmen’s compensation acts is governed, in the absence of any provision to the contrary, by the law in force at the time of the occurrence of such injury. This rule is applicable to the rights of relatives or dependents of a deceased employee, in so far as they are predicated upon the survival of the rights of the employee. But where the statute con*120fers upon the dependents a new and independent right to compensation on account of his death, it is generally held that the right to such compensation is governed •by the law in force at the time of death rather than at the time of injury, when the two events are separated in time.” *State, ex rel. Slaughter,*v. *Industrial Commission,*132 Ohio St., 537, 9 N. E. (2d), 505, is cited in support of the last statement.

It is argued, however, that, to follow the foregoing statement in the *Kamrath case*in this case, would contravene the inhibitions in the Constitution against enactment of retroactive laws.

Apart from the provisions of the Workmen’s Compensation Act relating to self-insurance, there would ■appear to be no substantial objection under that constitutional provision which could not be raised with regard to the so-called “moral claims” acts of the Legislature. Such acts have been sustained as against the contention that they contravene these constitutional provisions. *Spitzig*v. *State, ex rel. Hile,*119 Ohio St., 117, 162 N. E., 394.

As pointed out in *Thornton*v. *Duffy,*254 U. S., 361, 367, 65 L. Ed., 447, 41 S. Ct., 7, in discussing the decision of this court then under review *(Thornton*v. *Duffy,*99 Ohio St., 120, 126 and 127, 124 N. E., 54): ‘ ‘ To the contention the Supreme Court replied that the alternative to contribution to the state fund of dealing with the employees directly was a privilege that need not have been granted and that, therefore, to effect the purpose of the Constitution and law, could be withdrawn * *

I believe, therefore, that the law as in effect at the ■date of decedent’s death should be applied and, since relator’s death claim was filed with the commission within six months of decedent’s death, the writ prayed for should be allowed.

*

 Filed in office of Secretary of State, July 13, 1945 (121 Ohio Laws, 661).