Mercer v. Uniroyal

Robert Mercer (plaintiff), as an employee of Uniroyal, Inc., applied for and received workmen's compensation in the form of weekly benefits and a payment of medical bills for injuries arising out of his employment. He is estopped from maintaining an additional action for damages for the same injuries on any other theory. Indus. Comm. v. Brosky (1934), 128 Ohio St. 372;Conrad v. Youghiogheny Ohio Coal Co. (1923), 107 Ohio St. 387; Lopez v. King Bridge Co. (1923), 108 Ohio St. 1.

Even had plaintiff failed to apply for and receive workmen's compensation benefits, it is undisputed that he was entitled to such benefits for injuries received while in the course of his employment. This factual situation is significantly different from that in the cases cited in the majority opinion:Panagos v. North Detroit General Hospital (1971), 35 Mich. App. 554, 192 N.W.2d 542, 50 A. L. R. 3d 501; Tipple v. The HighStreet Hotel Co. (1941), 70 Ohio App. 397; Coston v.Carnegie-Illinois Steel Corp. (1952), 69 Ohio Law Abs. 375. In these cases, the employee applied for and was denied workmen's compensation for the reason that the injuries were not received in the course of his employment. These cases, in fact, do not support the dual-capacity doctrine.

The logical thrust of the dual-capacity doctrine is that an employee may recover workmen's compensation benefits as an employee and may recover additional compensation in some other capacity; at least, the dual-capacity theory offers him a choice. 2A Larson, Workmen's Compensation Law, Section 72.80;Duprey v. Shane (1952), 241 P.2d 78, aff'd 249 P.2d 8;Costanza v. Mackler (1962), 34 Misc.2d 188,227 N.Y.S.2d 750.

The dual-capacity doctrine is contra to the law of Ohio. The second sentence of Section 35, Article II of the Ohio Constitution reads as follows:

"Such compensation shall be in lieu of all other rights to compensation, or damages, for such death, injuries, or occupational disease, and any employer who pays the premium or compensation provided by law, passed in accordance herewith, shall not be liable to respond in damages at common law or by statute for such death, injuries or occupational disease."

R. C. 4123.74 states:

"Employers who comply with section 4123.35 of the Revised Code shall not be liable to respond in damages at common law or by statute for any injury, or occupational disease, or bodily condition, received or contracted by any employee in the course of or arising out of his employment, or for any death resulting from such injury, occupational disease, or bodily condition occurring during the period covered by such premium so paid into the state insurance fund, or during the interval of time in which such employer is permitted to pay such compensation directly to his injured employees or the dependents of his killed employees, whether or not such injury, occupational disease, bodily condition, or death is compensable under sections 4123.01 to 4123.94, inclusive, of the Revised Code."

R. C. 4123.74 has been applied liberally in granting immunity to complying employers. As stated in the first paragraph of the syllabus of Bevis v. Armco Steel Corp. (1949), 86 Ohio App. 525,appeal dis. 153 Ohio St. 366, cert. den. 340 U.S. 810, reh.den. 340 U.S. 885:

"Under Section 35, Article II of the Constitution of Ohio, and Section 1465-70, General Code, the open liability of employers is abolished, and in every case where the injury, disease, or bodily condition occurred in or arose out of the employment, no matter how incurred, except self-inflicted, the Workmen's Compensation Act is the exclusive remedy, and such condition is either compensable under that law or not at all, and no action of any kind may be brought against a complying employer therefor." (Emphasis added.)

G. C. 1465-70, in the above quote is now codified as R. C.4123.74. Compare Greenwalt v. The Goodyear Tire Rubber Co. (1955), 164 Ohio St. 1, 7, wherein the Supreme Court of Ohio cited and explained the decision in Bevis, supra, and reaffirmed the immunity of a complying employer. It said, in the syllabus:

"1. An employer who complies with the Workmen's Compensation Act shall not be liable to respond in damages at common law or by statute for any injury, disease or death of an employee occurring during the period of such compliance."

See, also, State, ex rel. Allied Chemical Corp. v.Earhart (1974), 37 Ohio St.2d 153, 155-156; State, ex rel.Engle, v. Indus. Comm. (1944), 142 Ohio St. 425; Sebek v. The Cleveland Graphite Bronze Co. (1947), 148 Ohio St. 693;Roof v. Velsicol Chemical Corp. (N. D. Ohio, 1974),380 F. Supp. 1373.

"Under the common-law system by far the greater proportion of industrial accidents remained uncompensated, and the burden fell upon the workman, who was least able to support it."⁴ After many years of agitation because of this inequitable and inhumane situation, statutory relief was granted by way of workmen's compensation laws, the first state statute being enacted in New York in 1910. Ohio followed in 1911, and by 1921 all but a few of the American states had enacted such legislation. At the present time, they are in effect in all of the states. "The theory underlying the workmen's compensation acts never has been stated better than in the old campaign slogan, `the cost of the product should bear the blood of the workman'. * * * Workmen's compensation is thus a form of strict liability. The employer is charged with the injuries arising out of his business, without regard to any question of his negligence, or that of the injured employee."⁵

The majority laments the growth of conglomerates as a factor in erasing causes of action. I counter by saying that no causes of action have been erased; the injuries of all employees arising out of the course of employment are compensated under workmen's compensation acts, and the conglomerate employer is granted only the same immunity from common-law actions of any kind as any other complying employer receives.

The majority opinion refers to a statement made by Larson to the effect that the question is whether there should be the obliteration of valuable and long-standing causes of action where the statutory language destroying that cause of action is unclear, and any doubt should be resolved in favor of preserving rather than abolishing the right. See, 2A Larson, supra. This quotation more appropriately supports the long-standing and valuable statutory protection afforded to complying employers under workmen's compensation laws against a cause of action, rather recently recognized, based on the product liability doctrine. Lonzrick v. Republic Steel Corp. (1966), 6 Ohio St.2d 227. Any doubt, then, should be resolved in favor of preserving rather than abolishing the statutory right of immunity.

As to the dual-capacity doctrine, this case is one of first impression, to our knowledge, in the state of Ohio. I respectfully submit that the immunity established under the Constitution of Ohio and implemented by the statutes pertaining to workmen's compensation, and as interpreted by the courts of Ohio, have created such an established doctrine of law that any change so fundamental as eliminating the immunity of the employer who complies with the statutory requirements should be brought about only by legislative action and probably only by a constitutional amendment.

I would find that the trial court did not err in sustaining Uniroyal's alternative motion for summary judgment.

⁴ Prosser, Law of Torts (4th ed., 1971), Section 80.

⁵ Id. Also, see 1 Schneider, Workmen's Compensation (2d ed. 1932), page 6.

The theory of workmen's compensation in Ohio was expressed inState, ex rel. Munding, v. Indus. Comm. (1915), 92 Ohio St. 434,450, wherein the court said:

"And the theory upon which the compensation law is based (which is now generally accepted) is that each time an employe is killed or injured there is an economic loss which must be made up or compensated in some way, that most accidents are attributable to the inherent risk of employment — that is, no one is directly at fault — that the burden of this economic loss should be borne by the industry rather than by society as a whole, that a fund should be provided by the industry from which a fixed sum should be set apart as every accident occurs to compensate the person injured, or his dependents, for his or their loss."