
    Szekely, Appellee, v. Young, Admr., Appellant, et al. Lairson, Appellant, v. Young, Admr., et al., Appellees.
    (Nos. 37366 and 37491
    Decided February 20, 1963.)
    
      Messrs. Smart & Smart and Messrs. Everett é Blair, for appellee in case No. 37366.
    
      Messrs. Hoover, Beall & Eichel, for appellant in case No. 37491.
    
      
      Messrs. Turner, Wells, Gransow S Spayd and Messrs. Schwenlcer, Teaford, Brothers <& Bernard, for appellee Diamond Gardner Corporation, Gardner Division, in case No. 37491.
    
      Mr. Marli McElroy, attorney general, Mr. Alvin C. Vinopal and Mr. Thomas J. Zuber, for James L. Young, Administrator of the Bureau of Workmen’s Compensation.
   Taft, C. J.

The only question to be determined in each of these cases is whether there is any right of appeal to the Common Pleas Court with respect to an occupational disease claim under the Workmen’s Compensation Statutes.

The only right of appeal to a court with respect to a claim for workmen’s compensation is such as may be provided for by statute. Industrial Commission v. Monroe (1924), 111 Ohio St., 812, 146 N. E., 213.

The only statute providing for an appeal to the Common Pleas Court with respect to a claim for workmen’s compensation is Section 4123.519, Revised Code, which reads, so far as pertinent:

“The claimant or the employer may appeal a decision of the Industrial Commission in any injury case, other than a decision as to the extent of disability, to the Court of Common Pleas of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state.”

As pointed out in Johnson v. Industrial Commission (1955), 164 Ohio St., 297, 130 N. E. (2d), 807, Section 35 of Article II of the Ohio Constitution differentiates between injury and disease, and the word “injury,” as used in our Workmen’s Compensation Statutes, does not ordinarily include a disease.

Thus, when the General Assembly provided in Section 4123.519 for an appeal “in any injury case,” it certainly did not expressly provide for an appeal in an occupational disease case.

In 1955, when Section 4123.519 was first enacted (126 Ohio Laws, 1015, 1022), the General Assembly also enacted Sections 4123.512 to 4123.518, inclusive, which, with Section 4123.519, substantially revised the administrative procedures to be followed with respect to workmen’s compensation claims and provided for administrative appeals and court appeals with respect thereto. A reading of these sections clearly indicates that all except Section 4123.519 apply not only to injury claims but also to occupational disease claims. In Section 4123.512, the words “injury or occupational disease” are used three times in such a way as to indicate beyond any doubt that the claims dealt with therein are not only injury claims but also occupational disease claims. Also, that statute uses the words “any claim under Chapter 4123 of the Revised Code,” which would necessarily include an occupational disease claim. There are no words in the following Sections 4123.513 to 4123.518, inclusive, to even suggest the possibility that these sections are not also to apply with respect to occupational disease claims. However, in providing for a court appeal in Section 4123.519, the General Assembly provided for such an appeal “in an injury case” and used the word “injury” in two other places in providing in that statute for that court appeal. Nowhere in providing for a court appeal did the General Assembly use words which can be reasonably construed as even suggesting an intention to grant a right to a court appeal with respect to an occupational disease claim or in an occupational disease case.

Furthermore, when it enacted Sections 4123.512 to 4123.519, inclusive, in 1955, the General Assembly also enacted Section 4121.131, Revised Code, providing in part:

“The Industrial Commission * * * shall # * * render final determinations of disputed claims as provided in Sections 4123.516, 4123.517 and 4123.518 * * * except as provided in Section 4123.519 * * * ”

Thus, final determinations were to be made by the Industrial Commission of all disputed claims whether for “injury or occupational disease” except where there was an appeal in an “injury case.”

As we read these 1955 amendments to the Workmen’s Compensation Statutes, they express a legislative intention to provide for administrative review of all disputed claims whether for “injury or occupational disease” but for a court appeal only in an “injury case” and not in an occupational disease case. In effect, the General Assembly expressed the intention that there should be no appeal in an occupational disease ease just as clearly as if it had expressly so stated,

The arguments made in each of the instant cases in support of the contention that our statutes now confer the right to an appeal to the Common Pleas Court in an occupational disease case may be summarized as follows:

1. When the Workmen’s Compensation Statutes were amended in 1921 (109 Ohio Laws, 181) to provide for compensation for occupational diseases, this was done by enacting Sections 1465-68 (a) and (b), General Code. Section (a) of that statute (which, as later amended, became Section 4123.68, Revised Code) provided for compensation payments to employees who contracted certain scheduled occupational diseases and to dependants of employees whose deaths were caused by such diseases.

Section (b) (which as later amended became Section 4123.69, Revised Code) extended to those employees and dependents all the rights, benefits and immunities provided for injured employees by the other sections of the Workmen’s Compensation Statutes excepting Section 1465-90, General Code (which as later amended became Section 4123.51, Revised Code), which permitted a court appeal in certain “injury” cases.

2. If this exception as to Section 1465-90, General Code (later Section 4123.51, Revised Code), had not been made, Section 1465-68&, General Code (now Section 4123.69, Revised Code), would have conferred the same right of appeal with respect to an occupational disease claim as conferred by Section 1465-90, General Code (later Section 4123.51, Revised Code), with respect to an injury claim. Industrial Commission v. Monroe, supra (111 Ohio St., 812), is cited as supporting this argument.

3. When Section 4123.51, Revised Code, was repealed in 1955, its provisions for court appeals in injury cases were replaced by the provisions of Section 4123.519 for court appeals in injury cases; and, by reason of the provisions of Section 1.23(A), Revised Code (“where reference is made to any section * * * of the Revised Code, such reference shall extend to and include any amendment of or supplement to the section * * * so referred to or any section or sections hereinafter enacted in lieu thereof”), the words of Section 4123.69, Revised Code, which read, “except Section 4123.51,” should in effect read, “except Section 4123,519,”

4. By amending Section 4123.69 in 1959 to eliminate the exception as to Section 4123.51, the General Assembly thereby expressed an intention to confer the same right of appeal with respect to an occupational disease claim as conferred by Section 4123.519 with respect to an injury claim. In support of this argument, a statement is cited from 2 Sutherland on Statutes and Statutory Construction (2 Ed.), 672, Section 351, to the effect that, if a statute is amended by striking out the exception of a particular thing from the operation of the general words of the statute, “the intent is clear to put the excepted thing within the operation of the general words. ’ ’

5. Section 4123.95, Revised Code, provides:

“Sections 4123.01 to 4123.94, inclusive, of the Revised Code shall be liberally construed in favor of employees and the dependents of the deceased employees.”

In our opinion, the only legislative purpose in amending Section 4123.69 in 1959 so as to eliminate reference to Section 4123.51 was to clear up the statute by removing an unnecessary reference to a statute which had been repealed four years before. The excepting reference of Section 4123.69 to Section 4123.51 had become unnecessary, as hereinbefore indicated, not only because of the repeal of Section 4123.51 in 1955 but also because of the clear expression by the General Assembly, in the 1955 enactment of Sections 4123.512 to 4123.519, inclusive, Revised Code, and Section 4121.131, Revised Code, of an intent to provide for an appeal in injury cases but not in occupational disease cases.

This opinion is fortified by the fact that, at the same time, the General Assembly removed several other obviously unnecessary exceptions with respect to other statutes (Sections 4123.06, 4123.18, 4123.86, 4123.87 and 4123.88, Revised Code) which had been added to the provisions of Section 1465-68&, General Code, when it had been recodified as Section 4123.69, Revised Code.

Furthermore, the 1959 act, which eliminated the Section 4123.51 exception in Section 4123.69, amended Section 4123.519 which is claimed to have somehow conferred a right of appeal in an occupational disease case. However, although the General Assembly in that act specifically referred to occupational diseases or occupational disease claimants in 13 other sections (Sections 4123.05, 4123.28, 4123.343, 4123.54, 4123.55, 4123.57, 4123.60, 4123.61, 4123.66, 4123.68, 4123.69, 4123.74 and 4123.85, Revised Code) and thus indicated that it knew how to provide rights with respect to occupational disease claims, it made no provision in Section 4123.519 for an appeal with respect to an occupational disease claim. See Legislative Amendments to Ohio Workmen’s Compensation in 1959 by Oliver Schroeder (1959), 20 Ohio State Law Journal, 601, 609.

Admittedly, there had never been, prior to November 1959, any statutory provision for an appeal with respect to an occupational disease claim. Therefore, if the General Assembly had intended in 1959 to provide for such an appeal, it is inconceivable that it would not have clearly expressed its purpose to do so.

It would have been very easy for the General Assembly to provide for such an appeal, if it intended to do so, by either eliminating the word “injury” before the word “case” in Section 4123.519 or by adding the words “or occupational disease” after the word “injury,” as it had frequently done both in the 1955 act, which contained Sections 4123.512 to 4123.519, inclusive, and Section 4121.131, Revised Code, and in other parts of the 1959 act, which eliminated the exception with regard to the repealed Section 4123.51.

A direction to liberally construe a statute in favor of certain parties will not authorize a court to read into the statute something which cannot reasonably be implied from the language of the statute.

Our conclusion is that there is no right of appeal to the Common Pleas Court with respect to an occupational disease claim under the Workmen’s Compensation Statutes.

This conclusion is fortified by a consideration of the history of the 1959 legislation which is claimed to have provided a right of appeal with respect to occupational disease claims. This legislation was enacted as a part of Substitute House Bill 470. That bill, as recommended by the House Committee on Industry and Labor, specifically allowed an appeal to the Court of Common Pleas in the county “where the injury or occupational disease was sustained or contracted.” Substitute House Bill 470, p. 26 (1959). However, the provisions of the bill relative to a court appeal were amended by tbe House to omit any reference to occupational disease. House Journal, pp. 1750-1753 (July 15, 1959). Tbe bill was then sent to the Senate and referred to the Senate Committee on Commerce and Labor, which changed the court appeal provisions so as to correspond with the bill as recommended by the House Committee on Industry and Labor and thus expressly authorize a court appeal in an occupational disease case. Senate Journal, pp. 1254-1258 (July 22, 1959). However, as in the House, the provisions of the bill relating to a court appeal were again amended so as to omit any reference to any occupational disease claim. Senate Journal, pp. 1287-1293 (July 23, 1959). The bill, as thus amended, was then passed by the Senate (Senate Journal, p. 1298 [July 23, 1959]) and approved by the House. House Journal, p. 1346 (July 24, 1959).

It follows that, in case No. 37366, the judgment of the Court of Appeals must be reversed and that of the Common Pleas Court affirmed, and that, in case No. 37491, the judgment of the Court of Appeals must be affirmed.

Judgment reversed in case No. 37366.

Judgment affirmed in case No. 37491.

Zimmerman, Matthias, O’Neill, Gripeith and Gibson, JJ., concur.

Herbert, J.,

dissenting. It is with real regret that my first opinion as a member of this court must be a dissent.

I agree with my colleagues that, “The only question to be determined in each of these cases is whether there is any right of appeal to the Common Pleas Court with respect to an occupational disease claim under the workmen’s compensation statutes.” My answer is “Yes.”

Further in the majority opinion it is stated:

“The only statute providing for an appeal to the Common Pleas Court with respect to a claim for workmen’s compensation is Section 4123.519, Revised Code, which reads, so far as pertinent:
“ ‘The claimant or employer may appeal a decision of the Industrial Commission in any injury case, other than a decision as to the extent of disability, to the Court of Common Pleas of the county in which the injury was inflicted or in which the contract of employment was made if the injury occurred outside the state.’ ”

The majority opinion limits the right of appeal to the Court of Common Pleas to “any injury case,” completely ignoring the plain provisions of Section 4123.69, Revised Code (effective November 2, 1959), which specifically provide that occupational disease claims be accorded precisely the same ‘ ‘ rights, benefits, and immunities ’ ’ as are provided in any ‘ ‘ injury case. ’ ’

Whether an employee’s disability arises as a result of a traumatic injury or the contraction of an occupational disease, the General Assembly recognized that the ultimate result is the same; the employee is deprived of his ability to earn a living and provide for his family because of a disability arising from his employment. In the event of his death, the hardships of his family in either event are the same.

It is difficult for a body of men and women as numerous as the General Assembly of Ohio to express precisely its purpose and intention when legislating upon a subject as intricate and complex as that of compensation for injured employees or those who contract occupational diseases due to their employment. But, here, the General Assembly adopted a procedure logical in its nature; and language that left no doubt or ambiguity.

To achieve its object the General Assembly in Section 4123.68, Revised Code, classified as compensable 24 specified occupational diseases. In the same section it set out the requirements of proof necessary to support an occupational disease or death claim.

The Genera] Assembly, in the same act, amended Section 4123.69, Revised Code, conferring certain rights and benefits upon employees who contract an occupational disease mentioned in Section 4123.68, Revised Code, and the dependents of those employees who die as a result of such disease. The pertinent language of amended Section 4123.69, Revised Code, is:

“Every employee mentioned in Section 4123.68 of the Revised Code and the dependents * * * of such employee shall be entitled to all the rights, benefits, and immunities * * * and regulations provided for injured employees * * (Emphasis added.)

Most certainly an appeal to the Court of Common Pleas is a “right” or “benefit.” Thus it is apparent that the General Assembly by the enactment of Section 4123.69, Revised Code, as amended, specifically granted to occupational disease claimants identically the same “rights” and “benefits” as are granted in injury cases.

With consistent logic and equal emphasis, the General Assembly in the same section used the following mandatory lanugage:

“The Industrial Commission shall have all of the powers, authority, and duties with respect to the collection, administration and disbursement of the State Occupational Disease Fund as are provided for in Sections 4123.01 to 4123.94, inclusive, of the Revised Code [workmen’s compensation statutes], providing for the collection, administration, and disbursement of the State Insurance Fund for the compensation of injured employees.” (Emphasis added.)

Again the General Assembly emphasized its purpose to accord to occupational disease claims the same rights and benefits as are accorded in “injury cases.”

It may well be observed that in numerous instances the Industrial Commission disburses funds for the payment of claims upon the finding and order of the Court of Common Pleas upon appeal. Prior to 1959, those employees who had contracted an occupational disease in their employment, as well as the dependents of those who had died from such occupational disease, had been denied their right of appeal to the Court of Common Pleas and denied the right to participate in the fund as ordered by the court. This injustice to the stricken employee as well as to his dependents upon his death, the General Assembly has endeavored to correct in plain, clear and unambiguous language.

In the majority opinion it is said:

“Thus, when the General Assembly provided in Section 4123.519 for an appeal ‘in any injury case,’ it certainly did not expressly provide for an appeal in an occupational disease ease. ’ ’

I am at a loss to determine how the General Assembly could have been more specific in expressing its intent and purpose. In simple and concise language it has declared that occupational disease claimants shall have the same “rights” and “benefits” as those granted to “injured employees.”

Section 4123.519, Revised Code, sets out the procedure for appeal to the Court of Common Pleas. This statute is referred to in Section 4123.69, Revised Code, together with other sections of the Code, which provide the same rights and remedies to both injured employees and those contracting an occupational disease.

In 1953, Section 4123.69, Revised Code, in part provided:

“* * * Section 4123.51 [appeals section] of the Revised Code, shall not apply to any case involving occupational disease.” (Emphasis added.)

There can be no doubt about the meaning of this language and its intent. However, in 1959, the General Assembly amended Section 4123.69, Revised Code, and struck out the above-quoted language. By this deletion, it is obvious that the General Assembly intended to permit appeals to the Court of Common Pleas by occupational disease claimants.

To fail to recognize the effect of such deletion is to do violence to a well recognized rule that when an amendment is made by a legislative body there is a purpose in such amendment. This court said in the first paragraph of the syllabus in County Board of Education v. Boehm, 102 Ohio St., 292:

“When an existing statute is repealed and a new and different statute upon the same subject is enacted, it is presumed that the Legislature intended to change the effect and operation of the law to the extent of the change in the language thereof.” (Emphasis added.)

Truly, the deletion of the pre-existing exception had some purpose. In State v. Barts, 132 N. J. Law, 74, 80, the court said:

‘ ‘ The rule of construction is that when a later statute omits words, particularly of limitation, included previously in the law, such omission is meaningful and was done with the full knowledge and approval of its effect * *

'Industrial Commission v. Monroe, 111 Ohio St., 812, involved a claim for compensation for the death of an employee who had contracted an occupational disease and died as a result thereof. Section 1465-68b, General Code, had the same exception as to the appeal of occupational disease cases as Section 4123.69, Revised Code, had in 1953. The court, in the Monroe case, denied the appeal, basing its decision solely upon the exception then in the statute, to wit, “save and except Section 1465-90, General Code [now Section 4123.519, Revised Code], which shall not apply to any case involving occupational disease.”

In the per curiam opinion, at page 814, this court said:

“It would seem that any injury which the spirit and letter of the compensation act regarded as entitled to compensation should be placed upon the same footing as other injuries with respect to the right to have a denial of compensation reviewed upon appeal, but the Legislature has seen fit to provide otherwise, and we cannot deny its right so to do.” (Emphasis added.)

Not only has the General Assembly now stricken from the statute the exception upon which the Monroe case was decided but has by affirmative action declared that occupational disease claims shall be accorded precisely the same rights and benefits as “other injuries.” See also Arnold v. United States, 147 U. S., 494.

The people of Ohio adopted the workmen’s compensation amendment to the Constitution of our state (Section 35, Article II). The people spoke as follows:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed * # (Emphasis added.)

The people made no distinction in respect to compensation between those suffering from injuries, or their dependents, and those suffering from occupational disease, or their dependents.

The Workmen’s Compensation Act must be construed liberally in favor of the employees and the dependents of the deceased employees. (Section 4123.95, Revised Code, and Bowling v. Industrial Commission, 145 Ohio St., 23.) Thus, assuming that a doubt exists as to the right of appeal in occupational disease cases, such doubt necessarily must be resolved in favor of the employee or his dependents.

The General Assembly having declared its intention both by positive affirmative action as well as by negative action that occupational disease claimants shall have the same right of appeal as any other claimant under the workmen’s compensation statutes, the conclusion is inescapable that the judgment of the Court of Appeals in the Ssekely case should be affirmed and the judgment of the Court of Appeals in the Lairson case should be reversed.  