Filed Date： 2/24/1976
Status： Precedential
Modified Date： 7/6/2016
PENSION BENEFITS — DECEASED FIREFIGHTER'S CHILDREN The surviving minor children of a deceased firefighter who died as a result of injury or illness sustained not as a result of his employment are eligible to receive pension benefits only in the event the deceased firefighter was either drawing a pension or was eligible to retire and draw a pension at the time of his death and then only in the event of the death or marriage of the surviving spouse of the deceased firefighter. Pension benefits, when payable to surviving minor children, are to be computed in the manner provided by 11 Ohio St. 368a [11-368a] (1975). The Attorney General has considered your request for an opinion on the question of whether the surviving minor children of a divorced or widowed firefighter, with less than 20 years service who dies as a result of injury or illness sustained not as a result of his employment are entitled to receive pension benefits under either 11 Ohio St. 365 [11-365] or 11 Ohio St. 368 [11-368] (1975). Title 11 Ohio St. 365 [11-365] (1975) provides in part: ". . . Provided further, that whenever any person, who has served in any capacity in a regularly constituted fire department of a city or town of the State, who has served less than twenty (20) years shall become so physically or mentally disabled as to prevent the effective performance of his or her duties or shall suffer death from causes not arising in the line of duty, his or her surviving spouse shall be entitled to a pension. . . ." It is plainly apparent that Section 11 Ohio St. 365 [11-365] provides pensions in instances where a firefighter dies from causes not arising in the line of duty for the surviving spouse only. Title 11 Ohio St. 368 [11-368] (1975) provides in part: "Whenever any member of the fire department of any such city or town shall lose his or her life by reason of any injury or illness sustained by him or her while in, or in consequence of the performance of his or her duty, leaving a surviving spouse, or child or children under the age of eighteen (18) years, then, upon satisfactory proof of such facts made to it, such Board shall order and direct that a monthly pension be paid in accordance with the provisions of Section 1 of this act; . . ." It is equally apparent that Section 368 provides for pensions for the surviving spouse and for minor children in instances where the fireman's death occurs by reason of an injury or illness sustained expressly while in or in consequence of the firefighter's duty. Section 368 therefore has no applicability in a situation such as you relate wherein death occurs as a result of an injury or illness sustained not as a result of his employment. Title 11 Ohio St. 368a [11-368a] (1975), however, provides: "In the event of the death for any cause of a fireman who at the time of of his or her death was drawing a pension, or who at the time of his or her death (whether death occurred while on duty but not in or consequence of the performance of duty or while on vacation or off-duty) was eligible, upon written request to retire and draw a pension, the surviving spouse of such person shall be paid an amount not to exceed one hundred percent (100%) of said pension. In the event of the death or marriage of the surviving spouse, his or her pension shall cease, and should there then be but one living child the same shall receive an amount equal to one hundred percent (100%) of said pension, but if there then be more than one living child, one hundred percent (100%) of said pension shall be divided equally between the children. The pension of each child shall continue until same shall have married or attained the age of eighteen (18) years. Provided, that in the event the Board finds that such child who has not married or who at the time it reaches the age of eighteen (18) years is either physically or mentally disabled, the pension thereof shall continue so long as such disability remains; provided, further, that upon the death of the fireman and surviving spouse, said physically or mentally disabled child shall be entitled to have paid to his or her legally appointed guardian an amount not to exceed one hundred percent (100%) of said pension. The money so paid to the guardian shall be used solely for the benefit of the disabled child and it shall be reported annually to the Pension Board. The payment so provided shall be calculated after payments have been made to all eligible children as provided in this section. . . ." (Emphasis added) The effect of Section 368a is to authorize a pension for surviving children, whether death occurred while in or in consequence of the employment or otherwise if the fireman was either drawing a pension at the time of his death or was eligible to retire and draw a pension. It is, therefore, the opinion of the Attorney General that your question be answered as follows: The surviving minor children of a deceased firefighter who died as a result of injury or illness sustained not as a result of his employment are eligible to receive pension benefits only in the event the deceased firefighter was either drawing a pension or was eligible to retire and draw a pension at the time of his death and then only in the event of the death or marriage of the surviving spouse of the deceased firefighter. Pension benefits, when payable to surviving minor children, are to be computed in the manner provided by 11 Ohio St. 368a [11-368a] (1975). (William Don Kiser)