[Cite as State ex rel. Estate of Sziraki v. Admr., Bur. of Workers’ Comp., 137 Ohio St.3d 201,
2013-Ohio-4007.]




  THE STATE EX REL. ESTATE OF SZIRAKI, APPELLANT, v. ADMR., BUREAU OF
                  WORKERS’ COMPENSATION ET AL., APPELLEES.
    [Cite as State ex rel. Estate of Sziraki v. Admr., Bur. of Workers’ Comp.,
                        137 Ohio St.3d 201, 2013-Ohio-4007.]
Workers’ Compensation—R.C. 4123.57(B)—Scheduled-loss benefits for loss of
        use of body parts—Requirement for filing of formal application—R.C.
        4123.52(A)—Two-year limit on retroactive payment—Appellate court’s
        denial of writ of mandamus affirmed.
   (No. 2011-0799—Submitted May 21, 2013—Decided September 18, 2013.)
      APPEAL from the Court of Appeals for Franklin County, No. 10AP-267,
                                     2011-Ohio-1486.
                                ____________________
        Per Curiam.
        {¶ 1} The estate of Dean E. Sziraki appeals from the judgment of the
Tenth District Court of Appeals denying its request for a writ of mandamus that
would require the Industrial Commission, appellee, to vacate its order for 104
weeks of scheduled-loss benefits under R.C. 4123.57(B) and to award benefits for
850 weeks for the loss of use of Dean’s arms and legs.
        {¶ 2} We agree with the court of appeals that the Industrial Commission
did not abuse its discretion when it limited payment of the benefits to the two
years preceding Dean’s death, or 104 weeks, the amount that Dean would have
been able to receive had he filed for the award on the date of his death. In
addition, the court of appeals correctly concluded that the Bureau of Workers’
Compensation, appellee, had no duty to award the benefits during Dean’s lifetime
in the absence of an application.
                             SUPREME COURT OF OHIO




       {¶ 3} Consequently, we affirm the judgment of the court of appeals
denying the writ.
                               Factual Background
       {¶ 4} Dean Sziraki was employed in his family’s paving business when
he was seriously injured in a one-car accident in the course of his employment on
May 14, 1991. He suffered catastrophic brain and spinal-cord injuries. He spent
the next 16 years as a quadriplegic and in a near-vegetative state in various
hospitals and long-term-care facilities. The bureau allowed his initial claim for
multiple trauma and spinal-cord injuries. The bureau paid for his medical and
nursing-home expenses, and in doing so, it required periodic medical updates on
his condition.
       {¶ 5} In 1998, Marilyn B. Sziraki, Dean’s mother and only next of kin,
applied on his behalf for permanent-total-disability benefits under R.C.
4123.58(C) based on the loss of use of his arms and legs. In April 2002, the
commission granted those benefits to begin March 20, 2002, the date of a recent
medical report.
       {¶ 6} On June 7, 2002, the bureau notified Marilyn that Dean was
eligible to begin receiving the benefits but that the bureau was withholding
payment until it received either a power of attorney or evidence of a court-ordered
guardian for Dean. On November 1, 2002, Marilyn was appointed guardian over
Dean’s person only.
       {¶ 7} On February 1, 2006, an attorney in the bureau’s law department
wrote to Marilyn and her attorney to try to resolve a problem that had arisen in
paying the permanent-total-disability benefits due to Dean’s incompetency and
the lack of a guardian over Dean’s estate to receive the payments. The bureau
attorney also stated that Dean “may also be entitled to other benefits that [were]
not addressed in [the] order.” The letter asked Marilyn to respond within 30 days;
if she did not, the bureau would refer the matter to the attorney general’s office to




                                         2
                                  January Term, 2013




file a suggestion of incompetency for Dean with the appropriate probate court.
There is no record that Marilyn contacted the bureau or that the bureau referred
the matter to the attorney general for further action.
        {¶ 8} Dean died on January 8, 2007. He had no surviving spouse and no
dependents. The probate court appointed Marilyn as administrator of his estate,
and the estate filed a claim for death benefits. The bureau allowed the claim for
medical and funeral expenses and for accrued permanent-total-disability
compensation from March 20, 2002, until the date of Dean’s death. But the estate
appealed because the death benefits did not include accrued compensation for
scheduled-loss benefits pursuant to R.C. 4123.57(B) for the loss of use of Dean’s
four extremities.
        {¶ 9} A district hearing officer directed the estate to file an application to
determine whether the estate was eligible for these benefits. The estate filed a
motion for the benefits. A district hearing officer awarded compensation under
R.C. 4123.57(B) for the total loss of use of Dean’s arms and legs for 850 weeks.1
But due to the two-year limit on retroactive payment under R.C. 4123.52(A), the
hearing officer limited the amount payable to a period of two years, or 104
weeks—from January 8, 2005, to January 8, 2007—the amount that Dean would
have been able to receive had he filed for compensation on the date of his death.
        {¶ 10} A staff hearing officer affirmed. The hearing officer ordered that
“the estate of the deceased-claimant is hereby awarded 104 weeks of
compensation, pursuant to [R.C.] 4123.57(B) and * * * 4123.60, representing the
accrued compensation which the decedent might have received, but for his death.”
(Underlining sic.) The order stated that Dean would have been entitled to an
award of 850 weeks of compensation had he filed during his lifetime, but because
Dean had not filed, the estate was entitled to, at most, the accrued compensation

1. R.C. 4123.57(B) provides for 225 weeks of compensation for the loss of each arm and 200
weeks for the loss of each leg, for a total award of 850 weeks.




                                            3
                               SUPREME COURT OF OHIO




that Dean might have received had he filed the application on the date of his
death, that is, two years of compensation. The remaining 746 weeks of requested
compensation were unaccrued when Dean died and therefore not payable to his
estate.
          {¶ 11} The commission denied further review.
          {¶ 12} The estate filed a complaint for a writ of mandamus asking the
Tenth District Court of Appeals to order the commission to vacate its order for
104 weeks of scheduled-loss benefits and to award the full 850 weeks.            In
addition, the estate asserted that the bureau had abused its discretion when it
failed to sua sponte award the scheduled-loss benefits during Dean’s lifetime due
to the absence of an application.
          {¶ 13} A magistrate concluded:


          (1) [The bureau] did not abuse its discretion when it did not sua
          sponte award Dean scheduled loss benefits during his lifetime; (2)
          neither the [bureau] nor the commission abused their discretion
          when an award of scheduled loss benefits was not paid to Dean’s
          estate as part of the death benefits award; (3) the commission did
          not abuse its discretion by imposing a formal application
          requirement; and (4) the commission properly limited the award to
          two years preceding Dean’s death and by only paying the
          compensation that would have accrued in that two year period.


          {¶ 14} The court of appeals adopted the magistrate’s findings of fact and
conclusions of law and denied the writ. 2011-Ohio-1486.
          {¶ 15} The estate’s appeal as of right is now before the court.




                                           4
                                   January Term, 2013




                                          Analysis
        {¶ 16} To be entitled to a writ of mandamus, the estate was required to
demonstrate that it had a right to the relief requested and that the respondents had
a clear legal duty to grant the relief. State ex rel. Gen. Motors Corp. v. Indus.
Comm., 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9; State ex rel.
Rouch v. Eagle Tool & Mach. Co., 26 Ohio St.3d 197, 198, 498 N.E.2d 464
(1986). “A mandamus action is thus appropriate where there is a legal basis to
compel a public entity to perform its duties under the law. * * * Likewise, a writ
of mandamus may lie if the public entity has abused its discretion in carrying out
its duties.” Gen. Motors at ¶ 9.
        {¶ 17} “Scheduled loss” benefits are paid to an injured worker for the loss
or loss of use of a body part according to a schedule in R.C. 4123.57(B). State ex
rel. Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364, 857
N.E.2d 1203; State ex rel. Miller v. Indus. Comm., 97 Ohio St.3d 418, 2002-
Ohio-6664, 780 N.E.2d 268, ¶ 7.2
        {¶ 18} The estate contends that it is entitled to 850 weeks of scheduled-
loss benefits, or at least the 816 weeks that Dean survived following his industrial
accident, for Dean’s loss of the use of his arms and legs. It is undisputed that no
application for such benefits was filed during Dean’s life, and the bureau made no
award prior to his death. In addition, the parties do not dispute that Dean was
medically qualified for the award.
        {¶ 19} In support of its request for a writ, the estate argues that the bureau
had a duty to sua sponte award scheduled-loss benefits during Dean’s life even in
the absence of an application requesting them. Had the bureau done so, up to 850
weeks of benefits would have accrued during Dean’s life and would have been
payable to the estate as a death benefit. The estate maintains that Dean’s claim

2. This paragraph reflects the modification made upon reconsideration. See ___ Ohio St.3d ___,
2013-Ohio-5285, ___ N.E.2d ___.




                                              5
                            SUPREME COURT OF OHIO




file was replete with evidence that Dean, a quadriplegic since his accident,
qualified for an award for the loss of use of all four extremities. Furthermore,
according to the estate, bureau policy authorized it to award benefits using
methods other than the application process.
       {¶ 20} In particular, the estate relied on the following policy published
on-line on the bureau’s website:


               A scheduled loss award does not have to be requested on a
       Motion (C-86). A [scheduled-loss] award can be requested on the
       First Report of Injury, or identified during the claim investigation.
       The [Claim Service Specialist] may also allow and pay a
       [scheduled-loss] award without application if medical evidence is
       provided that supports payment of the scheduled loss award.


www.ohiobwc.com/basics/infostation/InfostationContent.asp?Item=1.2.3.11. This
statement is no longer on the bureau’s website. The bureau concedes that the
policy existed as quoted.
       {¶ 21} The estate contends that when an injured worker cannot apply for
benefits because he is permanently incompetent and has never granted a power of
attorney, it becomes the duty of the bureau to determine and pay the scheduled-
loss benefits even in the absence of an application. Thus, under the circumstances
present in this case, where Dean was unable to personally file and had no one
acting on his behalf, the estate maintains that the bureau had a duty to award the
scheduled-loss benefits during Dean’s lifetime despite the absence of an
application.
       {¶ 22} Although the bureau argues that R.C. 4123.57(B) requires an
application, it concedes that the on-line policy cited by the estate allows it to
award benefits for scheduled loss in the absence of an application. Nevertheless,




                                        6
                                January Term, 2013




the bureau insists that the policy is discretionary and does not create a duty on the
bureau to act.
       {¶ 23} Furthermore, the bureau maintains that it would have been
unreasonable to award benefits when there was no one authorized to receive
payment of them. Here, the bureau was already withholding the permanent-total-
disability benefits previously awarded to Dean because there was no guardian
over Dean’s estate to accept payment of the award.
       {¶ 24} R.C. 4123.57, which provides for compensation for partial
disability, including scheduled-loss awards, repeatedly refers to an application:
“the employee may file an application with the bureau of workers’ compensation
for the determination of the percentage of the employee’s permanent partial
disability * * *”; “Whenever the application is filed, the bureau shall send a copy
of the application to the employee’s employer * * *”; if there is conflicting
evidence, “the administrator shall send the application, along with the claimant’s
file, to the district hearing officer” for a hearing. (Emphasis added.)
       {¶ 25} Although the statute uses the word “may” in reference to the act of
filing an application, which is generally construed to render the act optional or
permissive, it appears that R.C. 4123.57 clearly contemplates an application as the
act that begins the process. The application triggers notice to the employer and
initiates the bureau’s review of the claim.        Thus, the statute’s use of the
permissive term “may” does not eliminate the necessity of an application as the
vehicle for starting the process of determining eligibility for scheduled-loss
benefits.
       {¶ 26} The bureau’s on-line policy cited by the estate is likewise written
in permissive, not mandatory, terms (the bureau “may” allow a scheduled-loss
award without application). More significantly, we note that a bureau policy does
not have the same effect as law and does not operate to impose a duty upon the
bureau to act. Chambers v. St. Mary’s School, 82 Ohio St.3d 563, 567, 697



                                          7
                             SUPREME COURT OF OHIO




N.E.2d 198 (1998) (agency rules and policies are subordinate to statutes; they
merely facilitate the policy set forth in the statutes to be administered by the
agency). Thus, this policy, when considered in light of R.C. 4123.57, did not
create a duty on the part of the bureau to act in the absence of an application
seeking scheduled-loss benefits.
         {¶ 27} Consequently, we agree with the court of appeals that the estate
failed to demonstrate that the bureau had a clear legal duty to award scheduled-
loss benefits to Dean during his lifetime in the absence of an application.
         {¶ 28} The estate further argues that based on the extent of Dean’s
injuries, the benefits should have accrued from the date of injury, because that is
when Dean sustained the requisite physical loss. See Moorehead, 112 Ohio St.3d
27, 2006-Ohio-6364, 857 N.E.2d 1203. Thus, at least 816 weeks and as much as
850 weeks of scheduled-loss benefits would have accrued, unpaid, at the time of
Dean’s death and were payable as a death benefit.
         {¶ 29} In the absence of an application and award made during Dean’s
lifetime, no benefits accrued, and there were none unpaid at the time of Dean’s
death. Estate of McKenney, 110 Ohio St.3d 54, 2006-Ohio-3562, 850 N.E.2d
694, at ¶ 7.     An injured worker’s estate is eligible to receive only the
compensation that had accrued but was not yet paid to the injured worker before
his death. Id.; R.C. 4123.60. Thus, we agree with the court of appeals that the
commission did not abuse its discretion when it determined that the estate could
recover as a death benefit only the compensation that had accrued at Dean’s
death.
         {¶ 30} Next, the estate argues that the commission abused its discretion
when it required the estate to file an application before the commission could
consider whether to award scheduled-loss benefits. According to the estate, the
commission lacked authority to impose this requirement because R.C. 4123.57
does not require an application.




                                         8
                                 January Term, 2013




        {¶ 31} Furthermore, the estate maintains that the commission ordered the
filing so that it could impose the limitation period in R.C. 4123.52, permitting the
commission to limit payment of the award to 104 weeks, or the two years
preceding Dean’s death. R.C. 4123.52(A) provides, “The commission shall not
make any modification, change, finding, or award which shall award
compensation for a back period in excess of two years prior to the date of filing
application therefor.” See also State ex rel. Drone v. Indus. Comm., 93 Ohio
St.3d 151, 155, 753 N.E.2d 185 (2001) (“the statute of limitations in R.C. 4123.52
requires an application to trigger it * * *”).
        {¶ 32} We have already determined that R.C. 4123.57 contemplates filing
an application for an award of scheduled-loss benefits and that the bureau had no
duty to award the benefits in the absence of an application. Thus, we cannot say
that the commission abused its discretion when it ordered the estate to file an
application to initiate the process of determining the estate’s eligibility for a
scheduled-loss award under R.C. 4123.57(B).
        {¶ 33} Once an application was filed, the estate was entitled only to an
award “not exceeding the compensation which the decedent might have received,
but for his death, for the period prior to the date of his death.” R.C. 4123.60.
Because R.C. 4123.52 precludes the commission from awarding compensation for
a back period in excess of two years before the application was filed, the
commission did not abuse its discretion when it ordered that the “award to the
estate of the deceased-claimant is to begin with a start date of 01/08/2005 (two
years prior to the date of the deceased-claimant’s death, assuming that the Injured
Worker had filed the application on the date of his death) through 01/08/2007,
only.” (Underlining sic.)
        {¶ 34} Finally, the estate contends that the commission should have
ordered that the award be paid concurrently, not consecutively. This court has
held that it is within the commission’s discretion to determine whether payments



                                           9
                             SUPREME COURT OF OHIO




are made consecutively or concurrently. Estate of McKenney, 110 Ohio St.3d 54,
2006-Ohio-3562, 850 N.E.2d 694, at ¶ 20.             And we have approved the
commission’s policy of paying benefits consecutively rather than concurrently.
Swallow v. Indus. Comm., 36 Ohio St.3d 55, 57, 521 N.E.2d 778 (1988).
Consequently, the commission did not abuse its discretion when it ordered that
the benefits be paid to the estate consecutively rather than concurrently.
                                    Conclusion
       {¶ 35} The estate failed to demonstrate that it had a clear legal right to the
relief requested. The commission’s decision to award scheduled-loss benefits but
limit payment of the award to 104 weeks is supported by evidence in this record.
Consequently, the commission did not abuse its discretion, and the court of
appeals properly denied mandamus relief.
       {¶ 36} We affirm the judgment of the court of appeals.
                                                                 Judgment affirmed.
       O’DONNELL, LANZINGER, KENNEDY, and FRENCH, JJ., concur.
       O’CONNOR, C.J., and PFEIFER and O’NEILL, JJ., dissent.
                             ____________________
       O’CONNOR, C.J., dissenting.
       {¶ 37} This appeal involves a case in which the Bureau of Workers’
Compensation knew that claimant Dean Sziraki was fully disabled, that he was
entitled to additional benefits that he was not receiving, and that he would not
receive those benefits until there was a guardian over his estate.
       {¶ 38} And the bureau knew that no one was seeking that guardianship
despite repeated discussions with Dean’s mother, Marilyn Sziraki, about the
necessity of doing so. In fact, the bureau threatened to refer the case to the
attorney general if Dean’s family did not seek the proper guardianship. The
bureau failed to act on that threat, however.




                                         10
                                    January Term, 2013




        {¶ 39} A year later, Dean died without receiving any of the additional
benefits to which he was entitled.
        {¶ 40} Given the context of this case, I would hold that the bureau had a
clear legal duty to act. Specifically, it had a duty to refer Dean’s case to the
attorney general to pursue the proper guardianship or to award benefits to the
estate, even in the absence of an application. At this point, the former course is
no longer necessary or appropriate, because the estate is available as a proper
payee. I would further hold that the appellate court’s decision affirming the
bureau’s failure to award benefits during Dean’s lifetime was arbitrary,
unreasonable, and unconscionable. I therefore dissent.
                                          ANALYSIS
        {¶ 41} There is no dispute that the bureau knew that Dean was medically
eligible for an award pursuant to R.C. 4123.57(B) for the scheduled loss of use of
both arms and both legs. From the date of Dean’s accident until he died, the
bureau was involved in, and paid for, his medical care and nursing-home
expenses. As part of this process, the bureau required periodic medical updates of
Dean’s condition, through which it was informed of Dean’s near-total
helplessness.
        {¶ 42} The records updating his condition are replete with references to
Dean’s quadriplegia, inability to communicate, and many other severe medical
problems.3 One record describes him as “essentially in a vegetative state.” Thus,
the bureau knew that Dean was medically eligible under R.C. 4123.57(B) for an
award for the scheduled loss of use of both arms and both legs.
        {¶ 43} The bureau also knew that because of the severity of Dean’s
debilitated condition, he was unable to seek benefits on his own behalf or solicit

3. In her findings of fact, a magistrate in the Tenth District Court of Appeals noted that Dean’s
claim was allowed for an array of conditions, including intracerebral hemorrhage, pneumonia,
respiratory failure, “coma and stupor,” multiple fractures including “cervical fracture with cord
injury,” brain injury, and other injuries and conditions. 2011-Ohio-1486, ¶ 14.




                                               11
                            SUPREME COURT OF OHIO




help for that purpose. And the bureau knew that he had no guardian or other
representative acting for him. In fact, as early as 1997, the bureau’s notes raised
questions about the need for a power of attorney for finances (even though Dean
was probably not competent to confer such a power). The bureau’s notes even
indicate that one of its representatives planned to contact Marilyn and the nursing
home where Dean was being cared for regarding the need for a power of attorney.
       {¶ 44} Eight years later, in January 2005, the bureau’s notes again refer to
the bureau’s inability to pay permanent-total-disability compensation because no
one had a power of attorney authorizing receipt of the payments on Dean’s behalf.
Those notes reflect that a representative contacted Marilyn again, but the
representative reported that “the mother does not want the money. She was to
have the brother be [sic, obtain] the [power of attorney] but to date no one will do
so.”
       {¶ 45} It was not until more than a year later, in February 2006, that the
bureau finally wrote to Marilyn in an attempt to resolve the bureau’s continuing
inability to pay the benefits that were already awarded because there was no
guardian over Dean’s estate to receive payment. In that letter, the bureau stated
that if Marilyn failed to respond, the bureau intended to refer the matter to the
attorney general’s office to file a suggestion of incompetency with the probate
court to get a guardian of the estate appointed. The record does not disclose any
response from Marilyn. But despite its ultimatum, the bureau took no further
action to pursue a guardianship for Dean, even though the bureau clearly knew
that he was entitled to additional benefits that he was not receiving, that he would
never receive them unless someone acted, and that all attempts to get his family to
act had failed.
       {¶ 46} The majority does not dispute these facts, but nevertheless affirms
the judgment of the court of appeals, emphasizing that R.C. 4123.57(B)
contemplates an application even though it does not mandate one. In so doing,




                                        12
                                   January Term, 2013




the majority ignores the language of R.C. 4123.57, which states that “the
employee may file an application with the bureau of workers’ compensation
* * *.” (Emphasis added.) That language makes clear that filing an application is
permissive, not mandatory.
        {¶ 47} The majority also ignores the General Assembly’s mandate, and
our own precedent, that we must liberally construe R.C. Chapter 4123 in favor of
employees. R.C. 4123.95; State ex rel. Walker v. Indus. Comm., 58 Ohio St.2d
402, 403, 390 N.E.2d 1190 (1979).
        {¶ 48} Moreover, while contending that R.C. 4123.57 “requires” an
application, the bureau has conceded that it has the discretion to award scheduled-
loss compensation even if no application is filed. Indeed, it acknowledges that it
advertised that very discretion to the public through postings on its own website,
informing claimants that no application or motion is necessary and that a
scheduled-loss award can be identified during claim investigation. Bureau of
Workers’     Compensation,        Infostation,     www.ohiobwc.com/basics/infostation/
InfostationContent.asp?Item=1.2.3.11 (“temporarily disabled” when access was
attempted on Aug. 21, 2013).
        {¶ 49} Given the bureau’s authority to act in the absence of an
application, its full knowledge that Dean was too disabled to seek benefits on his
own,4 and its assertion that it would refer the case to the attorney general’s office
for a suggestion of incompetency if Marilyn did not act, I would hold that the
bureau had a clear legal duty to act by either exercising its discretion to confer
benefits in the absence of an application or to pursue the referral to the attorney


4. In 2002, when Dean was awarded compensation for statutory permanent total disability based
on the loss of use of both arms and both legs under R.C. 4123.58(C), the bureau had both ample
medical evidence demonstrating the loss of use of Dean’s arms and legs and the opportunity to
examine that evidence for purposes of a loss-of-use award under R.C. 4123.57(B). It did not. In
its 2006 letter, the bureau even acknowledged that Dean may be entitled to other benefits not
addressed in the 2002 order.




                                              13
                              SUPREME COURT OF OHIO




general’s office so that a proper guardian could be appointed to act on Dean’s
behalf.
          {¶ 50} In urging affirmance, the bureau emphasizes that it is the
claimant’s responsibility to diligently pursue compensation. See State ex rel.
Welsh v. Indus. Comm., 86 Ohio St.3d 178, 180, 712 N.E.2d 749 (1999). Though
that is generally a true statement of law, it is of little guidance in this case.
          {¶ 51} There is absolutely no suggestion in Welsh or the briefs filed in
support of the parties’ positions in that case that the bureau was aware that Welsh
was entitled to additional benefits but not receiving them because he was
medically incapable of pursuing his claim and had no guardian to act on his
behalf. And there is no suggestion in Welsh that the bureau had asserted that it
would act if he or his guardian failed to do so.
          {¶ 52} Other cases cited by the bureau are also inapposite. In those cases,
we reaffirmed our rule not to allow exceptions to R.C. 4123.52, the two-year
statute of limitations applied to Dean’s estate. See, e.g., State ex rel. Baker v.
Indus. Comm., 97 Ohio St.3d 267, 2002-Ohio-6341, 779 N.E.2d 214, ¶ 7-8
(rejecting argument that the statute of limitations should not apply when claimant
spent six years establishing entitlement to temporary-total-disability benefits
before successfully applying for permanent-total-disability benefits); State ex rel.
Justice v. Dairy Mart, Inc., 94 Ohio St.3d 34, 759 N.E.2d 1252 (2002) (rejecting
arguments that the statute of limitations should not apply when the claimant’s
injuries were very severe). But like Welsh, neither Baker nor Justice nor any
other case decided by us has been predicated on facts and circumstances like
those presented in this appeal. We do no service to the people or the law by
reflexively applying broad rules of utilitarian law that work well in most cases but
fail to address nuances and contexts we have not previously considered.
          {¶ 53} In this appeal, we are presented with the fact that the bureau knew
that it had awarded some benefits to a worker whose work-related quadriplegia




                                           14
                                January Term, 2013




and inability to communicate rendered him incapable of pursuing his own
interests. The bureau further knew that the worker was entitled to more benefits if
given the proper guardian. We also know that the bureau knew that neither the
worker nor anyone acting on his behalf had filed an application for the benefits,
but that it had the discretion to award those benefits even without the application.
And we know that the bureau informed the worker’s mother, in writing, that it
would refer the case to the attorney general if she did not act, but failed to follow
through. Despite the bureau’s ability, knowledge, and opportunity to make a
scheduled-loss award during Dean’s lifetime, the majority holds that the bureau
had no duty to act to confer an award prior to Dean’s death. I cannot agree.
        {¶ 54} As an arm of the state, the bureau had a duty to act to pursue a
referral of Dean’s case to the attorney general to secure the proper guardianship,
given that it knew Marilyn was not doing so and had not done so despite ample
time and opportunity. Comment, The Attorney General as Consumer Advocate:
City of York v. Pennsylvania Public Utility Commission, 121 U.Pa.L.Rev. 1170,
1175 (1973) (“The doctrine of parens patriae confirms the power of the state to
protect persons under a disability or incapable of managing their own affairs”).
        {¶ 55} Rather than reinforcing the bureau’s dereliction of its duty by
affirming this judgment, I would reverse the judgment of the court of appeals,
grant a writ of mandamus, and order the commission to award the full 850 weeks
of scheduled-loss benefits, not just the 104 weeks that were awarded because of
the statute of limitations. I would do this not to benefit the relatives of Dean
Sziraki but to ensure that the welfare of future participants in the workers’
compensation system will not be jeopardized by the system’s inaction in the face
of a clear duty.
        PFEIFER and O’NEILL, JJ., concur in the foregoing opinion.
                             ____________________
        Law Offices of Kurt M. Young, L.L.C., and Kurt M. Young, for appellant.



                                         15
                            SUPREME COURT OF OHIO




       Michael DeWine, Attorney General, and Patsy A. Thomas, Assistant
Attorney General, for appellees.
                         _________________________




                                     16
