Summary
In State ex rel. Gould v. Industrial Commission (1988), 40 Ohio St.3d 323, an award had been made under the special provision for an increase in an award for loss, or loss of use, of more than two fingers.
Summary of this case from State ex Rel. Coleman v. Industrial Commiss. of OhioOpinion
No. 88-75
Submitted October 25, 1988 —
Reporter's Note: This cause was decided on December 30, 1988, but was released to the public on January 20, 1989, subsequent to the retirement of Justice Locher, who participated in the decision.
Workers' compensation — Application for permanent total disability compensation — Loss of use of hands — R.C. 4123.58(C), construed — Remand to commission to determine effect of loss of numerous fingers.
APPEAL from the Court of Appeals for Franklin County, No. 86AP-910.
Claimant-appellee, Gilbert Shumate, sustained traumatic amputation in whole or in part of the majority of the fingers of both hands on September 13, 1968, while in the course of and arising out of his employment with appellant, Gould, Inc., a self-insured employer. His workers' compensation claim was allowed for "[a]mputation of the left index finger, left 2nd finger, left 3rd finger and amputation of 2/3rds of the right index finger, total amputation of the 3rd and 4th right fingers." He returned to work in May 1969, and continued working until February 12, 1970, when an industrial back injury caused him to miss approximately seven months of work. Following his return, appellee suffered a second back injury which again forced him from the work place.
On May 17, 1974, appellee moved for permanent total disability compensation. That motion was granted by the Industrial Commission on February 27, 1975, and the award was divided equally among the hand and two back claims.
In October 1976, appellee filed a motion for additional compensation, pursuant to R.C. 4123.57(C) [now (B)], for "total loss" of both hands. This motion was granted by the Bureau of Workers' Compensation ("bureau") on January 19, 1977, to the following extent:
"* * * [C]laimant's disability in this claim exceeds the normal handicap resulting from the injury on which the claim is based and that, therefore, the employer herein be ordered to award claimant an additional 135 weeks of permanent partial compensation in accordance with the provisions of Section 4123.57 Paragraph C. * * *"
On April 11, 1983, appellee returned to work with appellant as a "Trimmer II" and has apparently been continually employed ever since. Appellant suspended payment of permanent total compensation as of April 10, 1983.
On January 26, 1984, appellee again filed for permanent total disability compensation. On June 3, 1986, the commission granted the motion, finding appellee permanently and totally disabled under R.C. 4123.58(C). In so holding, the commission specifically found that appellee had suffered a "total loss of use of both hands, pursuant to the Bureau's order, dated 11/19/77 [ sic]." It also found "that the increased award for two or more fingers resulting in a vocational handicap exceeding the normal handicap, constitutes a loss of use of both hands for purposes of statutory permanent total disability." Appellant was then ordered to recommence payment of permanent total disability compensation as of the date of last payment.
Appellant sought a writ of mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in awarding permanent total disability compensation. The writ was denied.
The cause is now before this court as a matter of right.
Gibson Robbins-Penniman and Gus Robbins-Penniman, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Merl H. Wayman, for appellees Industrial Commission et al.
Chester T. Freeman Co., L.P.A., and William R. Polhamus, for appellee Shumate.
A claimant may return to work and continue to receive permanent total disability compensation only if he or she has been found permanently and totally disabled under R.C. 4123.58(C). State, ex rel. Szatkowski, v. Indus. Comm. (1988), 39 Ohio St.3d 320, 322, 530 N.E.2d 880, 882. That section provides that "[t]he loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof, constitutes total and permanent disability * * *." "Loss of use" for purposes of R.C. 4123.58(C) means that a claimant has lost the use of the affected parts to the same extent as if amputated. State, ex rel. Gassmann, v. Indus. Comm. (1975), 41 Ohio St.2d 64, 70 O.O. 2d 157, 322 N.E.2d 660. See Szatkowski, supra.
Appellant alleges that the commission abused its discretion in finding claimant-appellee's loss of fingers constitutes a loss of use of both hands for purposes of statutory permanent total disability. Thus, our review is limited to determining whether the commission's stated basis for its decision is supported by "some evidence" in the record. State, ex rel. Burley, v. Coil Packing, Inc. (1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936. We find that the commission abused its discretion by relying solely upon the 1977 bureau order for an increased award. The commission should have determined instead whether appellee's loss of fingers constituted, for all practical purposes, loss of use of both hands to the same effect and extent as if they had been amputated.
Though appellee returned to work following the hand injuries and continued to work after recovering from his first, and then his second, back injury, appellee's return to work may be considered but is not dispositive of the issue as to whether appellee may be found permanently and totally disabled under R.C. 4123.58(C). Szatkowski, supra, at 322, 530 N.E.2d at 882.
The sole evidence relied upon by the commission in finding a total loss of use is a January 19, 1977 bureau order. That order contains no language reflecting a total loss of use of hands. Instead, it merely indicates that "* * * claimant's disability in this claim exceeds the normal handicap resulting from the injury on which the claim is based * * *." From this statement, the commission inferred that a total loss of use was present. Such an inference, however, is improper. The fact that an amputation of two or more fingers on each hand resulted in a vocational handicap which exceeded the norm does not indicate per se a loss of use of both hands to the same extent as if they had been amputated.
We agree with the dissenting opinion of appellate court Judge Bowman, who stated that "[u]nder R.C. 4123.57 (C), a finding of scheduled loss disability may be used as evidence of permanent total disability under R.C. 4123.58(C); however, an increased award for vocational impact for loss of fingers under R.C. 4123.57(C) does not require a finding that claimant has sustained the loss of use of both his hands under R.C. 4123.58(C)." (Emphasis added.)
Accordingly, the judgment of the court of appeals denying the writ of mandamus is hereby reversed, and a limited writ shall issue, directing the Industrial Commission to determine whether appellee's loss of fingers is the equivalent of actual or functional loss of use of appellee's hands. See Szatkowski, supra, at 321, 530 N.E.2d at 881-882; State, ex rel. Walker, v. Indus. Comm. (1979), 58 Ohio St.2d 402, 12 O.O. 3d 347, 390 N.E.2d 1190; State, ex rel. Gassmann, v. Indus. Comm. (1975), 41 Ohio St.2d 64, 70 O.O. 2d 157, 322 N.E.2d 660.
Judgment reversed and limited writ allowed.
MOYER, C.J., LOCHER, HOLMES, WRIGHT and H. BROWN, JJ., concur.
SWEENEY and DOUGLAS, JJ., dissent.
I respectfully dissent. I would affirm the judgment of the court of appeals in accordance with the well-reasoned opinion authored by McCormac, J., and rendered on November 17, 1987.
In addition, I think the majority opinion will set a bad precedent because it appears that this claimant, although suffering multiple injuries resulting in substantial disability, desired to return to work and did so, thereby jeopardizing the payments he was receiving for permanent total disability. When it again became impossible for him to continue employment, because of two separate back injuries and loss of his left index finger, left second finger, left third finger and the amputation of two thirds of the right index finger, total amputation of the third and fourth right fingers when his hands were caught under a rubber cutting blade, he again sought permanent total disability which had been previously awarded to him.
We now, in reversing the judgment of the court of appeals and the decision of the Industrial Commission, deny permanent disability benefits to claimant on the basis that he has not lost the total use of both hands. It would seem to me that this will send the message to claimants that they ought not try to return to work under any circumstances after they have once been allowed permanent total disability. Because I think this is bad law, bad public policy and an incorrect decision, I respectfully dissent.
SWEENEY, J., concurs in the foregoing dissenting opinion.