Faulkner v. Mayfield3/25/1988
e, express or implied, oral or written. Under the scheme of workers' compensation law, an injured workman is not entitled to compensation when, at the time of the injury, the relation of employer and employee did not exist, or if the workman was not under an appointment or contract of hire. Coviello v. Indus. Comm. (1935), 129 Ohio St. 589, 3 O.O. 9, 196 N.E. 661, paragraphs one and three of the syllabus; Indus. Comm. v. Bateman (1933), 126 Ohio St. 279, 185 N.E. 50, paragraph one of the syllabus; Acklin Stamping Co. v. Kutz (1918), 98 Ohio St. 61, 120 N.E. 229, 14 A.L.R. 812.
Accordingly, the dispositive issue herein is whether there is a genuine issue of fact as to the presence of an express or implied contract of hire between appellant and appellee city of Ironton. Convicts and prisoners, by judicial decision, by statute, or sometimes by both, have usually been denied compensation for injuries sustained in connection with work done within the prison, even when some kind of reward attended their exertions, with the reason usually given being that such a convict cannot and does not make a true contract of hire with the authorities by whom he is confined in that the inducements which might be held out to him, in the form of extra food or even money, are in no sense consideration for an enforceable contract of hire. 1C Larson, The Law of Workmen's Compensation (1986), Section 47.31(a), at 8-299. This state has followed the general rule denying workers' compensation participation to penitentiary inmates by case law, Tyner and Schwartz, supra.
The same result may follow even if there appears to be some element of voluntary choice on the part of the prisoner, if the appearance of free choice is belied by the presence of a residual right of compulsion. Larson, supra, Section 47.31(c), at 8-303; Scott v. City of Hobbs (1961), 69 N.M. 330, 366 P. 2d 854. In the case at bar, appellant was not an incarcerated prisoner in that he had already served his period of incarceration, appellant could not be imprisoned for failure to pay the fine if he was unable to pay it, see, e.g., R.C. 2947.14, and the release signed by appellant prior to his injury was void pursuant to R.C. 4123.80. See, e.g., Vavrek v. Republic Steel Corp. (1979), 65 Ohio App.2d 17, 19 O.O. 3d 11, 413 N.E.2d 1233. Therefore, in that appellant was not an inmate, the cases cited by appellees are distinguishable and there is no statutory provision explicitly precluding him from participation in the fund. For the foregoing reasons, there remains a genuine issue of fact as to whether appellant voluntarily entered into an express or implied contract of hire.
Furthermore, in modern times, even the general rule denying compensation to inmates has come under attack in that " owever little value one may assign to the rights of a prisoner during his confinement, one should never forget that, in most instances, he will not always be a prisoner, and the permanent partial or total disability which he acquires in prison will create the same social problem after he returns to civil life as it would if the injury occurred while he was free." Larson, supra, Section 47.31(e), at 8-307 to 8-308; see, also, Morales v. Worker's Comp. Appeals Bd. (1986), 186 Cal. App. 3d 283, 230 Cal. Rptr. 575.
However, the majority opinion herein expands the discussion to include an analysis of constitutional equal protection, asserting that a classification based on wealth is "constitutionally suspect," an assertion that would require a strict scrutiny analysis. Initially, I would refrain from such constitutional discussion in that the failure to raise at the trial court level the issue of constitutionality of a statute or its application, which issue is
Page 1 2 3 4 5 6 7 8 9 Ohio DUI Attorneys
DUI Lawyers
|