[Cite as State ex rel. Arberia, L.L.C. v. Indus. Comm., 2014-Ohio-5351.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Arberia, LLC,                     :

                 Relator,                               :

v.                                                      :                     No. 13AP-1024

Industrial Commission of Ohio et al.,                   :                  (REGULAR CALENDAR)

                 Respondents.                           :



                                             D EC I S I O N

                                    Rendered on December 4, 2014


                 Habash & Reasoner LLC, Dennis Behm, Stephen J. Habash
                 and David P. Everett, for relator.

                 Michael DeWine, Attorney General, and Colleen C. Erdman,
                 for respondent Industrial Commission of Ohio.

                 Garson Johnson LLC, and Grace A. Szubski, for respondent
                 Doloreza Taluri.

                                   IN MANDAMUS
                    ON OBJECTIONS TO THE MAGISTRATE'S DECISION

TYACK, J.

        {¶ 1} Arberia, LLC filed this action in mandamus seeking a writ to compel the
Industrial Commission of Ohio ("commission") to vacate its orders for loss of use with
respect to Dhimitraq Taluri. For the following reasons, we deny Arberia LLC's request for
a writ of mandamus.
        {¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case
was referred to a magistrate to conduct appropriate proceedings. The parties stipulated
the pertinent evidence and filed briefs.                The magistrate then issued a magistrate's
decision, appended hereto, which contains detailed findings of fact and conclusions of
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No. 13AP-1024
law. The magistrate's decision recommends that we allow an award for loss of use but
return the case to the commission for it to re-compute the number of weeks of scheduled
loss compensation due to Taluri's widow.
       {¶ 3} Arberia, LLC has filed objections to the magistrate's decision.            The
commission has likewise filed objections, contesting the issue of re-computing the size of
the award.      Counsel for Doloreza Taluri, Dhimitraq Taluri's widow, has filed a
memorandum in response to the objections filed by Arberia, LLC.            Counsel for the
commission has filed a similar document. Following oral argument before a panel of this
court, the case is subject to a full, independent review.
       {¶ 4} Taluri died following a fall on October 28, 2011. He was 63 years old and
fell about 30 feet while performing demolition work on a roof. He landed on his head.
When approached, his pupils were found to be dilated. Blood and brain matter were
coming from his nose. He was suffering from massive hemorrhages of his brain. He also
was found to have multiple skull fractures. Taluri initially survived the fall but died four
and one-half hours later at Grant Medical Center. Death benefits were granted by the
Bureau of Workers' Compensation ("BWC").
       {¶ 5} Counsel for his widow filed a motion asking for an award for loss of use of
Taluri's arms, legs, eyes and ears pursuant to R.C. 4123.57(B). The motion was supported
by the pertinent hospital records. Donald Cameron, M.D., reviewed the records and
concluded that a loss of use of all body parts listed had in fact occurred. BWC therefore
granted the motion in its entirety granting a total of 1,225 weeks of permanent partial
compensation.
       {¶ 6} Arberia, LLC, appealed and a district hearing officer ("DHO") affirmed the
BWC's order.
       {¶ 7} Arberia appealed again and a staff hearing officer ("SHO") again affirmed.
The full commission declined review, leading to this mandamus action.
       {¶ 8} There really is no debate that Taluri lost the use of all the body parts listed
for the relatively brief period of time he survived between his fall and his death. Death
was not instantaneous, and for the time he survived, he had no control of body parts.
       {¶ 9} The objection on behalf of Arberia, LLC as to the fact of the loss of use is
overruled.
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No. 13AP-1024
      {¶ 10} The objection filed on behalf of the commission as to the size of the loss of
use award has merit. Our magistrate interprets R.C. 4123.60 as blocking the award made
by the BWC, DHO and SHO. We do not interpret R.C. 4123.57(B) and 4123.60 in the
same way.
      {¶ 11} Taluri's widow filed a claim pursuant to R.C. 4123.57(B):

              When an award under this division has been made prior to
              the death of an employee all unpaid installments accrued or
              to accrue under the provisions of the award shall be payable
              to the surviving spouse, or if there is no surviving spouse, to
              the dependent children of the employee and if there are no
              such children, then to such dependents as the administrator
              determines.

              When an employee has sustained the loss of a member by
              severance, but no award has been made on account thereof
              prior to the employee's death, the administrator shall make
              an award in accordance with this division for the loss which
              shall be payable to the surviving spouse, or if there is no
              surviving spouse, to the dependent children of the employee
              and if there are no such children, then to such dependents as
              the administrator determines.

The magistrate found that the inclusion of the word severance precludes an award of
permanent partial compensation as this was the only place in the statute where the word
severance was used and must be given its literal meaning; that only if Taluri's limbs were
completely removed from his body would he have qualified for an award. We do not
agree with this interpretation of "severance" within R.C. 4123.57(B).
      {¶ 12} The Supreme Court of Ohio has made clear that the type of injury Taluri
suffered allows for the application of scheduled loss compensation under R.C. 4123.57(B).
See State ex rel. Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364.
William Moorehead suffered a fall causing a spinal cord injury which rendered him a
quadriplegic. Mr. Moorehead never regained consciousness and died 90 minutes after
the fall. As in this case, the widow applied for death benefits and for scheduled loss
compensation pursuant to R.C. 4123.57(B). The Supreme Court found that Moorehead
was entitled to scheduled loss benefits pursuant to the relevant statutes, R.C. 4123.60 and
4123.57(B).
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No. 13AP-1024
       {¶ 13} Taluri, like Moorehead, did not apply for scheduled loss compensation
before his death. Neither Taluri nor Moorehead had their limbs severed but suffered
physical injuries to the head and spine respectively resulting in a total loss of use.
Moorehead's widow applied for compensation under the same exact language, "[w]hen an
employee has sustained the loss of a member by severance, but no award has been made
on account thereof prior to the employee's death" as Taluri's widow. R.C. 4123.57(B).
       {¶ 14} We must find that compensation is payable for loss of a limb if it is proven
that, for all practical purposes, the total and permanent loss of a limb has the same effect
and extent as if the limb had been amputated or otherwise physically removed. See
Moorehead and State ex rel. Walker v. Indus. Comm., 58 Ohio St.2d 402, 403-04 (1979).
Moorehead unequivocally shows that scheduled loss benefits may be awarded for limbs
still attached when a decedent expires or else Moorehead would not have prevailed.
       {¶ 15} An absolute interpretation that requires a limb to be physically severed was
previously rejected by the Supreme Court of Ohio in State ex rel. Alcoa Bldg. Prods. v.
Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166. Alcoa clarified that a loss of use can
be compensable if there is a loss "for all practical purposes." Id. We find that R.C.
4123.57(B) is applicable to this case because it is so factually similar to Moorehead.
       {¶ 16} We next examine R.C. 4123.60 to determine the size of the scheduled loss
awarded pursuant to R.C. 4123.57(B). R.C. 4123.60 states, in the pertinent part:
              If the decedent would have been lawfully entitled to have
              applied for an award at the time of his death the
              administrator may, * * * award and pay an amount, not
              exceeding the compensation which the decedent might have
              received, but for his death, for the period prior to the date of
              his death, to such of the dependents of the decedent, * * * as
              the administrator determines in accordance with the
              circumstances in each such case, but such payments may be
              made only in cases in which application for compensation
              was made * * * within one year after the death of such
              injured or disabled person.

Arberia argues that R.C. 4123.60 limits the award of loss of use to one week, rather than
the 1,225 weeks awarded by the commission, because the decedent only lived for four and
one-half hours.
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No. 13AP-1024
      {¶ 17} R.C. 4123.60 does not limit a scheduled loss award to only the time that an
injured applicant lives because such awards are allowed to be paid in one lump sum and
are not restricted to the number of weeks an injured worker lives. The decedent was
lawfully entitled to apply for a scheduled loss award before his death and was lawfully
entitled to apply for a lump-sum payment before his death. The Ohio legislature has
given the power for awarding payments to be commuted to a lump-sum payment. "The
administrator of workers' compensation, under special circumstances, and when the same
is deemed advisable for the purpose of rendering the injured or disabled employee
financial relief or for the purpose of furthering his rehabilitation, may commute payments
of compensation or benefits to one or more lump-sum payments." R.C. 4123.64(A).
      {¶ 18} Ohio Adm.Code 4123-3-37 explicitly allows for lump-sum advancements of
awards:
             (A) The administrator of the bureau of workers'
             compensation may commute an award of compensation to a
             lump sum payment when the administrator determines that
             the advancement is advisable for the purpose of providing
             the injured worker financial relief or for furthering the
             injured worker's rehabilitation.

             (1) The administrator may only grant a lump sum payment to
             an injured worker from an award of compensation made
             pursuant to section 4123.58 of the Revised Code or from
             division (B) of section 4123.57 of the Revised Code.

It is clear that Dhimitraq Taluri was entitled to apply for scheduled loss benefits under
R.C. 4123.57(B) before his death. Ohio Adm.Code 4123-3-37 allows for such an award
under R.C. 4123.57(B) to be granted in a lump-sum payment if the BWC determines that
the advancement is advisable.
      {¶ 19} R.C. 4123.60 does not restrict this award.      The decedent was lawfully
entitled to apply for the award and such an award may be granted in a lump sum by the
BWC. The 1,225 weeks of compensation paid in a lump sum do not exceed compensation
which the decedent might have received. R.C. 4123.60 would only restrict such awards if
there were no dependents of the decedent, "the administrator may * * * award and pay an
amount * * * to such of the dependents of the decedent." See State ex rel. Estate of
McKenney v. Indus. Comm., 110 Ohio St.3d 54, 2006-Ohio-3562. This is also true if the
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No. 13AP-1024
application for compensation was not made within one year after the death of the disabled
person. R.C. 4123.60.
       {¶ 20} Scheduled loss awards are usually designed to be distributed on a weekly
basis. The BWC may commute an award to a lump-sum payment. R.C. 4123.60 language
that limits an award to "an amount, not exceeding the compensation which the decedent
might have received, but for his death, for the period prior to the date of his death," only
emphasizes the presumption that scheduled loss awards are normally distributed on a
weekly basis. The special requirements and discretion of lump-sum payments, as well as
limiting them to rewards granted under R.C. 4123.58 and 4123.57(B), clearly show that
these are exceptions to the general practice of distributing payments on a weekly basis.
       {¶ 21} Further, the awarding of loss of use benefits under R.C. 4123.57(B) is not
duplicative of any death benefits. State ex rel. PolyOne Corp. v. Indus. Comm., 10th Dist.
No. 12AP-313, 2014-Ohio-1376, ¶ 9. "[T]he intent of R.C. 4123.59 is to compensate
dependents for the “loss of support” resulting from the employee's death." Id.; citing
Fulton, Ohio Workers' Compensation Section 11.3 at 531 (4th Ed.2011).
       {¶ 22} The Supreme Court of Ohio has reaffirmed that benefits for partial disability
are akin to damages for work-related injuries rather than compensation for lost earning
capacity. State ex rel. Gen. Motors Corp. v. Indus. Comm., 42 Ohio St.2d 278, 282 (1975).
See also State ex rel. Miller v. Indus. Comm., 97 Ohio St.3d 418, 2002-Ohio-6664, ¶ 12
("partial disability benefits have been compared to damages and are awarded irrespective
of work capacity"); State ex rel. Dudley v. Indus. Comm., 135 Ohio St. 121, 125 (1939)
(Loss of sight was arbitrarily fixed and had nothing to do with impairment of earning
capacity); State ex rel. Kincaid v. Allen Refractories Co., 114 Ohio St.3d 129, 2007-Ohio-
3758, ¶ 9.
       {¶ 23} McKenney is distinguishable and does not alter partial disability awards
being akin to damages rather than lost earning capacity. The widow of the deceased
claimant was entitled to 850 weeks of scheduled loss compensation but the widow died
before receiving the entire award after applying for a lump-sum payment. Her estate
argued that it was entitled to a lump-sum payment of the remaining 844 weeks of the
award yet to be paid when her husband died. The BWC denied the lump-sum payment
and the Supreme Court agreed, finding that it was the dependent spouses' life, not the
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No. 13AP-1024
deceased claimant's life, which the court should use to measure the amount of benefits to
which the estate was entitled. Id. A distinction between partial disability awards and
damages is a line that the McKenney decision draws; the dependent spouse, had she lived,
would have been entitled to the entire award and could be awarded a lump sum, but her
estate does not. Hence, McKenney is an example of how partial disability awards are
akin to but not identical to damages.
       {¶ 24} McKenney also conclusively shows that the number of weeks to measure a
partial disability award is not measured by the claimant's life span but rather by that of
their spouse, dependent children, or other dependents as the BWC determines. The
Supreme Court affirmed the payments for the weeks the spouse survived her husband.
The court did not limit the payment to the time that the injured claimant lived. "The plain
language of R.C. 4123.57(B) makes it clear that the surviving spouse's entitlement to the
loss of use benefits abates upon her death and no further benefits are payable."
McKenney at 55.
       {¶ 25} In the case at bar, Taluri's spouse is alive and entitled to "all unpaid
installments accrued or to accrue under the provision of the award." R.C. 4123.57(B).
This award accrues based on the surviving spouse's life and not the life of the claimant.
This award can also be commuted to a lump sum. See again R.C. 4123.64(A) and Ohio
Adm.Code 4123-3-37. This is not limited by the language of R.C. 4123.60. "If the
decedent would have been lawfully entitled to have applied for an award at the time of his
death the administrator may * * * award and pay an amount, not exceeding the
compensation which the decedent might have received, but for his death, for the period
prior to the date of his death." (Emphasis added.) It is clear that Taluri might have
received a lump-sum loss of use award for his catastrophic injury.
       {¶ 26} As stated earlier, partial disability compensation for loss of use does not
indemnify claimants for their loss of earnings. It is irrelevant how many hours Taluri
survived to collect an award because R.C. 4123.57(B) only requires that he would have
been entitled to an award before he died. The medical evidence shows that Taluri was
entitled to 1,225 weeks of scheduled loss award which the BWC could commute to a lump-
sum payment. Taluri's dependent widow, being alive, is entitled to the full 1,225 weeks
                                                                                        8
No. 13AP-1024
lump-sum payment of the loss of use award and nothing in R.C. 4123.60 limits this
payment.
       {¶ 27} Arberia would have us rely on the concurrence in Moorehead in which only
two justices argued that Moorehead's dependent widow was only entitled to one week of
scheduled loss benefits under R.C. 4123.57(B). " I believe that Moorehead may be entitled
to one week of scheduled loss benefits under R.C. 4123.57(B) to compensate for her
husband's period of survival."    Moorehead at ¶ 30.      The concurrence relies on the
Mckenney case which was decided a few months prior and is cited by the majority. "We
did not agree that [Mrs.] McKenney was entitled to the entire award upon [Mr
McKenney's] death. Scheduled loss benefits, like most other forms of workers'
compensation, compensate for a loss of earning capacity." Moorehead at ¶ 29.
       {¶ 28} We disagree with the reasoning of the concurring justices for two reasons.
First, it is directly contrary to the holding in Mckenney which granted scheduled loss
benefits not for the number of weeks that the employee lived but for the number of week
the employee's dependent spouse lived. Second, as we have stated, the Supreme Court
has repeatedly affirmed that benefits for partial disability are akin to damages for work-
related injuries rather than compensation for lost earning capacity.
       {¶ 29} As is evident, five justices of the Supreme Court did not sign on to the
concurrence and repeatedly stated in the majority that additional requirements should
not be grafted on to R.C. 4123.57(B) because the statute has no text imposing them. "We
therefore cannot condone the commission's addition of a requirement that a worker
survive for some extended period of time, left unspecified by the commission or the
General Assembly, when considering the worker's entitlement to a scheduled loss
benefit." Moorehead at ¶ 15. Likewise, we cannot add the requirement that schedule loss
benefits be limited to the number of weeks an employee survives, when such a question is
left unspecified by the General Assembly, and especially when such awards can be
commuted to lump-sum payment.
       {¶ 30} The majority in Moorehead also correctly cautioned the judiciary about
imposing any additional requirements based on public-policy arguments. "Public-policy
arguments relative to the requisites of scheduled loss benefits pursuant to R.C. 4123.57
are better directed to the General Assembly, including arguments that a specified time of
                                                                                           9
No. 13AP-1024
survival should be mandated after a paralyzing injury and that a worker be cognizant of
his or her loss before loss-of-use benefits are payable." Moorehead at ¶ 19. It is clear that
public-policy questions of the equability between two victims of the same industrial
accident in which one survives for a few hours and the other that dies instantaneously
should only be directed to the General Assembly. To impose such limitation would be to
legislate from the bench.
       {¶ 31} We, therefore, sustain the objections filed by the commission and Taluri.
       {¶ 32} As a result of the above, we adopt the findings of fact contained in the
magistrate's decision. We adopt the conclusions of law with respect to the issue of the fact
of loss of use awards. We do not adopt the conclusions of law with respect to the
conclusion that R.C. 4123.57(B) does not apply because the claimant did not suffer a loss
by severance and with respect to the size of the award. As a result, we deny Arberia LLC's
request for a writ of mandamus.
                                                         Objections sustained; writ denied.

                                   DORRIAN, J., concurs.
                                 KLATT, J., concurs separately.
KLATT, J., concurring separately.

       {¶ 33} I agree with the majority decision. I write separately to highlight certain
aspects of the legal analysis.
       {¶ 34} All of the parties have filed objections to the magistrate's decision. The
employer objects because it contends that Dr. Cameron's report is not some evidence
upon which the commission could rely and because the commission's decision violates
State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991). Neither objection has merit.
       {¶ 35} First, the employer contends that Dr. Cameron's opinion is not some
evidence upon which the commission could rely because it is internally contradictory.
The employer notes that in one part of his report, Dr. Cameron indicates that during the
short time the decedent survived the accident, the decedent was "in and out of
consciousness." In another part of his report, Dr. Cameron opines "the decedent would
not have regained consciousness, and therefore, there would have been no voluntary
capacity to use arms or legs." The employer contends that the commission could not rely
on Dr. Cameron's report given this alleged contradiction. I disagree. There is nothing
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No. 13AP-1024
contradictory in stating that the decedent was "in and out of consciousness" and at the
same time stating that the decedent would not have regained consciousness after he lost
consciousness for the last time.                   Moreover, the decedent's consciousness or
unconsciousness has no bearing on Dr. Cameron's ultimate opinion that, given the
decedent's massive head and spinal injuries, the decedent lost, for all practical purposes,
the use of his arms, legs, eyes, and ears. Therefore, I agree with the majority decision to
overrule this objection of the employer.
          {¶ 36} In its second objection, the employer contends that the commission's order
violates Noll. The commission concedes this error. However, the commission contends
that the error is harmless under these circumstances. I agree.
          {¶ 37} Although the commission failed to explicitly state the evidence upon which
it relied, that evidence is obvious from the record and the record contains no conflicting
evidence. As noted above, Dr. Cameron opined that the decedent's head injuries were so
massive that the decedent lost for all practical purposes the use of his arms, legs, eyes, and
ears. The hospital records support this conclusion. The record contains no contrary
evidence. A remand to the commission to require it to specifically identify the only
medical evidence in the record would be a vain act because the result would be the same.
State ex rel. Little v. Indus. Comm., 10th Dist. No. 11AP-1110, 2013-Ohio-282, ¶ 7 (quoting
State ex rel. Menough v. Indus. Comm., 10th Dist. No. 01AP-1031, 2002-Ohio-3253
(harmless error when result would be the same). For this reason, I agree with the
majority that we should overrule this objection of the employer.
          {¶ 38} The commission has also objected to the magistrate's decision.          The
commission argues that: (1) the magistrate incorrectly concluded that R.C. 4123.57(B)
could not serve as the basis for the widow's receipt of scheduled loss benefits; and (2) the
magistrate erred by concluding that the commission abused its discretion in calculating
the amount of benefit it awarded.1 I agree with the majority that both objections should
be sustained.
          {¶ 39} The magistrate concluded that the portion of R.C. 4123.57(B) at issue here
(involving a post-death award) was inapplicable because the decedent did not lose the use



1   The decedent's widow has filed essentially the same objections.
                                                                                         11
No. 13AP-1024
of his arms, legs, eyes, and ears by "severance." As indicated in the majority decision, the
Supreme Court of Ohio has interpreted R.C. 4123.57(B) to permit scheduled loss awards
for both loss by amputation and loss of use for all practical purposes. State ex rel. Alcoa
Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166; State ex rel.
Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364, ¶ 13. Although Alcoa
involved an R.C. 4123.57(B) pre-death award, Moorehead relied on the same principle in
the context of a post-death award.
       {¶ 40} The facts in Moorehead are very similar to those presented here. The
decedent in Moorehead fell approximately 15 to 20 feet head first onto a concrete floor
and suffered severe spinal and head injuries. The decedent never regained consciousness
and died 90 minutes after the fall. The decedent's widow applied for death benefits and
for R.C. 4123.57(B) scheduled loss compensation based upon the decedent's loss of use of
both arms and legs. The issue addressed by the court was whether the widow was entitled
to a post-death scheduled loss award for loss of use when the decedent never regained
consciousness following the fatal fall.     The court found that consciousness was not
required for scheduled loss benefits. If a post-death scheduled loss award were limited to
a loss by severance, there would have been no reason for the court to address whether
consciousness was required.
       {¶ 41} Moreover, I can conceive of no reason why the court's Alcoa analysis would
not apply to both pre-death and post-death awards. Although the magistrate notes that
the word "severance" only appears in the context of a post-death award, other parts of
R.C. 4123.57(B) refer to "amputation" and the Alcoa court found that the loss referred to
in R.C. 4123.57(B) included a loss of use for all practical purposes.
       {¶ 42} For all of these reasons, I agree with the majority decision to sustain the
commission's first objection.
       {¶ 43} In its second objection, the commission argues that the magistrate
erroneously concluded that the commission abused its discretion in awarding the
decedent's widow 1,225 weeks of scheduled loss compensation. The majority agrees and I
concur.
       {¶ 44} R.C. 4123.60 provides in relevant part:
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No. 13AP-1024
              If the decedent would have been lawfully entitled to have
              applied for an award at the time of his death the administrator
              may * * * award and pay an amount, not exceeding the
              compensation which the decedent might have received, but
              for his death, for the period prior to the date of his death, to
              such of the dependents of the decedent * * * as the
              administrator determines in accordance with the circum-
              stances in each such case, but such payments may be made
              only in cases in which application for compensation was made
              in the manner required by this chapter, during the lifetime of
              such injured or disabled person, or within one year after the
              death of such injured or disabled person.

       {¶ 45} Here, it is undisputed that the widow applied for the scheduled loss benefit
within one year of the decedent's death. The decedent would have been lawfully entitled
to have applied for a scheduled loss award at the time of his death. Therefore, the
administrator was authorized under R.C. 4123.60 to award and pay to the decedent's
widow an amount "not exceeding the compensation which the decedent might have
received, but for his death, for the period prior to his death." (Emphasis added.) In other
words, the administrator is permitted to pay the widow compensation that does not
exceed the award the decedent might have applied for and received but for his death, for
the period of time prior to the decedent's death.
       {¶ 46} The administrator could have awarded the decedent 1,225 weeks of
scheduled loss compensation for the decedent's loss of use for all practical purposes of his
arms, legs, sight, and hearing as set forth in the schedule contained in R.C. 4123.57. It is
also within the commission's discretion to determine whether such payments are made
consecutively or concurrently (i.e., in a lump sum). State ex rel. Estate of Sziraki v.
Admr., Bur. of Workers' Comp., 137 Ohio St.3d 201, 2013-Ohio-4007, ¶ 34, citing State ex
rel. Estate of McKenney v. Indus. Comm., 110 Ohio St.3d 154, 2006-Ohio-3562, ¶ 20.
Although it appears that the commission's general policy is to pay benefits consecutively
rather than concurrently, Id., R.C. 4123.64(A) authorizes the administrator to award
benefits "under special circumstances, and when the same is deemed advisable for the
purpose of rendering the injured or disabled employee financial relief or for the purpose
of furthering his rehabilitation." Ohio Adm.Code 4123-3-37 grants the administrator the
same authority. Because the administrator could have theoretically awarded the decedent
1,225 weeks of compensation payable in a lump sum prior to his death, the commission
                                                                                                     13
No. 13AP-1024
did not abuse its discretion or act contrary to law when it affirmed the administrator's
award of 1,225 weeks of compensation to the decedent's widow.                          Although the
administrator was not required to grant such an award under R.C. 4123.60, the
administrator was authorized to do so and the commission did not abuse its discretion in
affirming the award. The commission is best positioned to determine what scheduled loss
award is justified within the bounds of R.C. 4123.57(B) and 4123.60. Moreover, courts
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 (1979).
       {¶ 47} A scheduled loss award under these circumstances is also consistent with
the notion that such an award to an injured worker for the loss by amputation or loss of
use for all practical purposes of a body part is in the nature of a damage award and is
awarded irrespective of work capacity. State ex rel. Miller v. Indus. Comm., 97 Ohio St.3d
418, 2002-Ohio-6664, ¶ 12.2
       {¶ 48} The employer emphasizes that awarding the widow a scheduled loss benefit
under these circumstances is a windfall because the widow has already received a death
benefit pursuant to R.C. 4123.60. This windfall is highlighted if the dependent of an
employee who dies immediately from an industrial accident can receive only a death
benefit while the dependent of an employee who lives only a matter of minutes following
an industrial accident may receive a death benefit plus a significant scheduled loss award.
Nevertheless, as noted by the court in Moorehead, "[p]ublic policy arguments relative to
the requisites of scheduled loss benefits pursuant to R.C. 4123.57 are better directed the
General Assembly." Id. at ¶ 19.
       {¶ 49} For the foregoing reasons, I concur in the majority decision and sustain the
objections of the commission and the widow to the magistrate's decision and deny the
relator's request for a writ of mandamus.



2 I recognize that in McKenney, the court stated that "the loss of earning capacity that scheduled loss
compensation was intended to ameliorate ceases upon the death of the injured worker–just as it does with
all other forms of disability compensation." Id. at ¶ 16. However, McKenney makes not mention of Miller
nor does it address other Supreme Court authority finding scheduled loss awards akin to damages
including State ex rel. Gen. Motors Corp. v. Indus. Comm., 42 Ohio St.2d 278, 282 (1975). Moreover, as
noted by the commission, the court in Sziraki removed its citation to McKenney for the proposition that
scheduled loss benefits were intended to ameliorate loss of earning capacity on the commission's motion
for reconsideration. Sziraki, 2013-Ohio-5285. Therefore, it appears that we must follow Miller.
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No. 13AP-1024

                                      APPENDIX
                         IN THE COURT OF APPEALS OF OHIO
                             TENTH APPELLATE DISTRICT


State of Ohio ex rel. Arberia, LLC,           :
              Relator,                        :
v.                                            :                     No. 13AP-1024
Industrial Commission of Ohio and             :                (REGULAR CALENDAR)
Dhimitraq Taluri, Decedent,
                                              :
              Respondents.
                                              :


                         MAGISTRATE'S DECISION
                                Rendered on May 27, 2014


              Habash & Reasoner LLC, Dennis Behm, Stephen Habash
              and David P. Everett, for relator.

              Michael DeWine, Attorney General, and Colleen C. Erdman,
              for respondent Industrial Commission of Ohio.

              Garson Johnson LLC, and Grace A. Szubski, for respondent
              Doloreza Taluri.


                                      IN MANDAMUS

       {¶ 50} Relator, Arberia, LLC, has filed this original action requesting that this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which granted scheduled loss benefits to respondent
Doloreza Taluri ("claimant") the widow of Dhimitraq Taluri ("decedent"), for a total of
1,225 weeks for decedent's loss of use of his lower and upper extremities as well as 100
percent loss of use of bilateral eyes and bilateral ears, and ordering the commission to find
that no more than 1 week loss of use compensation should be awarded, and further
                                                                                  15
No. 13AP-1024
ordering the commission to cite the evidence it relied on to reach the finding that
decedent is entitled to those loss of use awards.
Findings of Fact:
       {¶ 51} 1. On October 28, 2011, decedent sustained fatal injuries when he fell
through a roof while working on the demolition of a building.
       {¶ 52} 2. Decedent's injuries were extensive and included the following:
              This is a 63-year-old male who fell about 30 feet today while
              working on a roof. He was unresponsive * * *. Pupils were
              blown. Brain matter and blood were coming from his nose.
              He had obvious facial trauma.

       {¶ 53} CT scans showed the following:
              CT head - massive right frontotemporal epidural hematoma
              with transfalcine and transtentorial herniation; there is
              associated intraparenchymal, intraventricular, subdural and
              subarachnoid blood; severely comminuted skull base and
              calvarial fractures[.]

              CT face - grossly comminuted craniofacial fractures[.]

              CT inner ear - extensive skullbase fractures as above with
              extension into the carotid canals bilaterally; probable
              minimal pneumolabyrinth on the left[.]

              CTA H/N - massive epidural hematoma with active
              extravasation that is most likely from the right middle
              meningeal artery; otherwise, the major intracranial and
              extracranial vessels are grossly intact with no evidence of
              occlusion nor dissection[.]

              CT C/S - multiple transverse process fractures are noted on
              the right from C6-T2 and on the left from T2-T4; C6-T1
              spinous process fractures are present[.]

              CT TLS - superior endplate fractures of the T2 and T3
              vertebral bodies with bilateral pedicle fractures at the T2
              level; T1 spinous process fracture and transverse process
              fractures from T1-T3[.]

              CT CAP - fractures of the right 1st and 2nd ribs, C7 and T1
              spinous processes and the right transverse processes, left T3
              transverse process and fractures of T2 and T3 vertebral
              bodies[.]
                                                                                        16
No. 13AP-1024


      {¶ 54} Attending physician John J. Como, M.D., spent more than 75 minutes
providing critical care to the decedent and ultimately explained to his family: "[T]his was
a nonsurvivable injury."
      {¶ 55} 3. Death benefits were granted by the commission.
      {¶ 56} 4. On June 4, 2012, claimant filed a motion seeking loss of use
compensation pursuant to R.C. 4123.57(B) for decedent's loss of use of his right and left
arms, right and left legs, both eyes, and his hearing in both ears. Claimant submitted the
hospital records in support of her motion.
      {¶ 57} 5. Donald Cameron, M.D., was asked to review the medical evidence and
provide an opinion concerning what permanent loss of use decedent would have had if he
survived the injuries. In his June 26, 2012 report, Dr. Cameron opined:
             In my medical opinion, the allowed injury would have
             resulted in a total permanent loss of the use of the arms to
             such a degree that the affected body parts would have been
             useless for all practical purposes. This applied to both arms.
             The extent of brain injury was such that the injured worker
             would have had no control of the arms. Similarly, the extent
             of cerebral injury was such that one expected no recovery of
             any useful neurological function and therefore, the injured
             worker would have had permanent loss of use of the legs to
             the degree that the affected body parts would have been
             useless. In both of these instances, the industrial accident led
             to his result by way of the catastrophic cerebral injury via
             multiple comminuted skull fractures and intracranial
             hemorrhages which were caused by the fall from the 30'
             height onto the head.

             The residual functional capacity of the arms and the legs had
             the decedent survived this incident would have been zero.
             The decedent would not have regained consciousness and
             therefore, there would have been no voluntary capacity to
             use the arms or legs. These findings are based on the
             presence of an unrecoverable cerebral injury including
             transtentorial and transfalcine herniation, massive epidural
             hematoma and extensive intracranial hemorrhage involving
             the cerebral hemispheres, the ventricles and the external
             spaces within the skull.

             In my medical opinion, the allowed injury of the brain would
             have resulted in a total and permanent loss of vision. The use
                                                                                 17
No. 13AP-1024
             of the eyes would have been useless in the face of a cerebrum
             that was non-functional and unable to obtained [sic] any
             recovery of consciousness and therefore, actual visual
             processes. The industrial accident led to this result through
             the extensive destruction of cortical tissue, the presence of
             herniation and extensive bleeding which eliminated the
             ability of the injured worker to regain consciousness and
             hence, any use of vision. In addition to this finding, the right
             eye was described as having described [sic] a large displacing
             hematoma which would have further diminished any ability
             for useful visual function.

             Had the decedent survived the accident, no residual vision
             would have been expected from this industrial accident. The
             findings establishing this limitation are based on the fact
             that the injured worker sustained a catastrophic, non-
             survivable accident with extensive disruption of all cerebral
             functions.

             Finally, in my medical opinion, the allowed injury would
             have resulted in total permanent loss of hearing to such a
             degree that the hearing organs would have been useless for
             all practical purposes. The hearing organs would have been
             useless given the extensive damage to cortical tissue
             eliminating cerebral processing of signals coming from the
             auditory apparatus. In addition, in this instance, there is
             evidence of severe damage to the supporting structures of
             the auditory apparatus further enhancing total and
             permanent loss of hearing abilities. This is loss [sic] is based
             on the finding of extensive cerebral damage and catastrophic
             brain injury.

             Had the decedent survived this incident, he would have been
             left vegetative, incapable of any hearing or acknowledging
             hearing signals. The present findings are based on the
             finding of a catastrophic cerebral injury with diffuse
             parenchymal damage as well as the severe and catastrophic
             damage to the basilar skull bones, the normal seat of the
             auditory apparatus.

      {¶ 58} 6. The Ohio Bureau of Workers' Compensation ("BWC") issued an order
dated January 24, 2013 granting claimant's motion for loss of use as follows:
             The injured worker has sustained a 100 percent loss due to
             loss of use bilateral eyes. It is ordered that the injured worker
             be awarded permanent partial compensation for 250 weeks
                                                                                     18
No. 13AP-1024
             at the rate of 783.00 from 10/28/2011 to 8/1/2016. The total
             award is $195,750.00.

             In accordance with the power of attorney dated 3/22/12,
             payment will be made to Seaman Garson, LLC.

             The injured worker has sustained a 100 percent loss of
             hearing in the bilateral ears. It is ordered that the injured
             worker be awarded permanent partial compensation for 125
             weeks at the rate of $783.00 from 8/16/2012 to 1/3/2019.
             The total award is $97,875.00.

             In accordance with the power of attorney dated 3/22/12,
             payment will be made to Seaman Garson, LLC.

             The injured worker has sustained a loss of use of the lower
             extremities. It is ordered that the injured worker be awarded
             permanent partial compensation for 400 weeks at the rate of
             $783.00 from 1/4/2019 to 9/3/2026. The total award is
             $313,200.00.

             In accordance with the power of attorney dated 3/22/12,
             payment will be made to Seaman Garson, LLC.

             The injured worker has sustained a loss of use of the upper
             extremities. It is ordered that the injured worker be awarded
             permanent partial compensation for 450 weeks at the rate of
             $783.00 from 9/4/2026 to 4/19/2035. The total award is
             $352,350.00

             ***

             This decision is based on the physician's review of Dr.
             Cameron dated 6/26/12.

      {¶ 59} 7. Relator's appeal was heard before a district hearing officer ("DHO") on
April 16, 2013. The DHO affirmed the BWC order in its entirety.
      {¶ 60} 8. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on June 11, 2013. The SHO affirmed the prior DHO order, stating:
             The Hearing Officer finds that, as a result of the 10/28/2011
             industrial injury that resulted in his death, the Injured
             Worker sustained a total loss of use of both legs and both
             arms as well as a total loss of vision in both eyes and a total
             loss of hearing in both ears. The Injured Worker was entitled
             to payment of scheduled loss awards for all of these
                                                                                          19
No. 13AP-1024
                impairments. This finding is based on the holding of the
                Ohio Supreme Court in State ex rel. Moorehead v. Industrial
                Commission 112 Ohio St.3d 27 (2006). In this case the Court
                held that a decedent does not have to survive an injury for
                any specified time or be cognizant of a loss of use in order to
                qualify for a scheduled loss award.

                The Employer argued, based on the holding of the Tenth
                District Court of Appeals in State ex rel. Wallace v. Industrial
                Commission No. 11AP-897 (2013) that the award was not
                payable as the decedent sustained injuries that were not
                survivable. The Hearing Officer finds that Wallace is
                distinguishable from the instant case. In Wallace the Court
                upheld denial of the scheduled loss award because the
                Injured Worker died at the time of the injury. In the instant
                case the records of MetroHealth Medical Center establish
                that the Injured Worker lived for several hours following the
                industrial injury.

                Payment of the scheduled loss award is to begin as of
                10/28/2011. Payment is to be made to the Widow-Claimant.
                The Hearing Officer finds that the case of State ex rel.
                McKenney v. Industrial Commission is inapplicable to the
                instant case as the Widow-Claimant is living. All proof on file
                was reviewed and considered.

       {¶ 61} 9. Relator's further appeal was refused by order of the commission mailed
July 6, 2013.
       {¶ 62} 10. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 63} There are two issues presented here.         First, relator contends that the
commission's order fails to cite the evidence upon which the commission relied to grant
claimant's motion for decedent's loss of use of his upper and lower extremities, both eyes
and ears. Claimant counters stating that the medical evidence is uncontroverted and the
commission's citation to the hospital records, as well as the BWC's citation to the report of
Dr. Cameron, is sufficient. The commission acknowledges its order does not cite the
evidence as required.
       {¶ 64} The second issue concerns the amount of compensation payable to claimant
under R.C. 4123.57(B) and 4123.60. Relator argues that claimant is not entitled to 1,225
weeks of compensation, but, instead, is entitled to receive no more than one week of
                                                                                           20
No. 13AP-1024
scheduled loss benefits. Both claimant and the commission contend that claimant is
entitled to receive all 1,225 weeks of compensation as calculated by the BWC.
       {¶ 65} For the reasons that follow, the magistrate finds as follows:            (1) the
commission's order does not violate the requirements of State ex rel. Noll v. Indus.
Comm., 57 Ohio St.3d 203 (1991); and (2) application of R.C. 4123.57(B) and 4123.60
requires that a writ of mandamus be granted ordering the commission to find that
claimant is not entitled to 1,225 weeks of scheduled loss compensation, but, rather, to
some lesser amount to be determined by the commission.
       {¶ 66} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 67} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
                           STANDARD FOR LOSS OF USE
       {¶ 68} In order to qualify for a loss of use award, relator was required to present
medical evidence demonstrating that, for all intents and purposes, he had lost the use of
his left upper extremity. State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d
341, 2004-Ohio-3166.
                                                                                          21
No. 13AP-1024
       {¶ 69} In Alcoa, at ¶ 10, the court set forth the historical development of scheduled
awards for loss of use under R.C. 4123.57(B) as follows:
              Scheduled awards pursuant to R.C. 4123.57(B) compensate
              for the "loss" of a body member and were originally confined
              to amputations, with the obvious exceptions of hearing and
              sight. In the 1970s, two cases—State ex rel. Gassmann v.
              Indus. Comm. (1975), 41 Ohio St.2d 64, 70 O.O.2d 157, 322
              N.E.2d 660, and State ex rel. Walker v. Indus. Comm.
              (1979), 58 Ohio St.2d 402, 12 O.O.3d 347, 390 N.E.2d 1190—
              construed "loss," as similarly used in R.C. 4123.58, to include
              loss of use without severance. Gassmann and Walker both
              involved paraplegics. In sustaining each of their scheduled
              loss awards, we reasoned that "[f]or all practical purposes,
              relator has lost his legs to the same effect and extent as if
              they had been amputated or otherwise physically removed."
              Gassmann, 41 Ohio St.2d at 67, 70 O.O.2d 157, 322 N.E.2d
              660; Walker, 58 Ohio St.2d at 403-404, 12 O.O.3d 347, 390
              N.E.2d 1190.

       {¶ 70} In Alcoa, the claimant, Robert R. Cox, sustained a left arm amputation just
below his elbow. Due to continuing hypersensitivity at the amputation site, Cox was
prevented from ever wearing a prosthesis. Consequently, Cox filed a motion seeking a
scheduled loss of use award for the loss of use of his left arm.
       {¶ 71} Through videotape evidence, Alcoa established that Cox could use his
remaining left arm to push open a car door and to tuck paper under his arm. In spite of
this evidence, the commission granted Cox an award for the loss of use of his left arm.
       {¶ 72} Alcoa filed a mandamus action which this court denied. Alcoa appealed as
of right to the Supreme Court of Ohio.
       {¶ 73} Affirming this court's judgment and upholding the commission's award, the
Supreme Court explained, at ¶ 10-15:
              Alcoa urges the most literal interpretation of this rationale
              and argues that because claimant's arm possesses some
              residual utility, the standard has not been met. The court of
              appeals, on the other hand, focused on the opening four
              words, "for all practical purposes." Using this interpretation,
              the court of appeals found that some evidence supported the
              commission's award and upheld it. For the reasons to follow,
              we affirm that judgment.
                                                                                22
No. 13AP-1024
           Alcoa's interpretation is unworkable because it is impossible
           to satisfy. Walker and Gassmann are unequivocal in their
           desire to extend scheduled loss benefits beyond amputation,
           yet under Alcoa's interpretation, neither of those claimants
           would have prevailed. As the court of appeals observed, the
           ability to use lifeless legs as a lap upon which to rest a book is
           a function unavailable to one who has had both legs
           removed, and under an absolute equivalency standard would
           preclude an award. And this will always be the case in a
           nonseverance situation. If nothing else, the presence of an
           otherwise useless limb still acts as a counterweight—and
           hence an aid to balance—that an amputee lacks. Alcoa's
           interpretation would foreclose benefits to the claimant who
           can raise a mangled arm sufficiently to gesture or point. It
           would preclude an award to someone with the hand strength
           to hold a pack of cards or a can of soda, and it would bar—as
           here—scheduled loss compensation to one with a limb
           segment of sufficient length to push a car door or tuck a
           newspaper. Surely, this could not have been the intent of the
           General Assembly in promulgating R.C. 4123.57(B) or of
           Gassmann and Walker.

           Pennsylvania defines "loss of use" much as the court of
           appeals did in the present case, and the observations of its
           judiciary assist us here. In that state, a scheduled loss award
           requires the claimant to demonstrate either that the specific
           bodily member was amputated or that the claimant suffered
           the permanent loss of use of the injured bodily member for
           all practical intents and purposes. Discussing that standard,
           one court has written:

           "Generally, the 'all practical intents and purpose' test
           requires a more crippling injury than the 'industrial use' test
           in order to bring the case under section 306(c), supra.
           However, it is not necessary that the injured member of the
           claimant be of absolutely no use in order for him to have lost
           the use of it for all practical intents and purposes." Curran v.
           Walter E. Knipe & Sons, Inc. (1958), 185 Pa.Super. 540, 547,
           138 A.2d 251.

           This approach is preferable to Alcoa's absolute equivalency
           standard. Having so concluded, we further find that some
           evidence indeed supports the commission's decision. Again,
           Dr. Perkins stated:

           "It is my belief that given the claimant's residual hyper-
           sensitivity, pain, and tenderness about his left distal forearm,
                                                                                       23
No. 13AP-1024
              that he is unable to use his left upper limb at all and he
              should be awarded for the loss of use of the entire left upper
              limb given his symptoms. He has been given in the past loss
              of use of the hand, but really he is unable to use a prosthesis
              since he has had the amputation, so virtually he is without
              the use of his left upper limb * * *."

                            EVIDENCE OF LOSS OF USE

       {¶ 74} Relator argues that the commission's citation to the records of the
MetroHealth Medical Center do constitute some evidence that decedent lived for several
hours after the fall, but do not constitute some evidence that decedent suffered a loss of
use of his upper and lower extremities, as well as his sight and hearing. In the event the
court finds the BWC's citation to the medical report of Dr. Cameron is sufficient at the
SHO level, relator claims that report does not constitute some evidence.
       {¶ 75} Relator's criticism of the report of Dr. Cameron is that it is based on an
improper legal standard. Specifically, in his report, Dr. Cameron stated that, "[h]ad the
decedent survived this incident, "the allowed injury would have resulted in a total
permanent loss of the use of the arms to such a degree that the affected body parts would
have been useless for all practical purposes," "the injured worker would have had
permanent loss of use of the legs to the degree that the affected body parts would have
been useless," "the allowed injury of the brain would have resulted in a total and
permanent loss of vision," and "the allowed injury would have resulted in total permanent
loss of hearing to such a degree that the hearing organs would have been useless for all
practical purposes."
       {¶ 76} Relator argues that loss of use is not dependent on whether the decedent
would have survived the injury, but is whether claimant established, by medical evidence,
a loss of use regardless of the period of time decedent survived. Relator asserts that Dr.
Cameron essentially stated the decedent would have eventually suffered a complete loss of
use only if he survived.
       {¶ 77} The magistrate finds that relator has mischaracterized Dr. Cameron's
report. In light of all the medical evidence in the record, decedent's injury can be
described as catastrophic. Based on the neck fractures, the evidence is undisputed that
had decedent been conscious, he could not have used his arms and legs. Further, there
                                                                                          24
No. 13AP-1024
was significant trauma to decedent's ears, eyes, and brain which, as Dr. Cameron stated,
would have resulted in a total and permanent loss of his hearing abilities and that he
would have no residual vision.
           {¶ 78} Although Dr. Cameron repeatedly indicated that decedent's loss would exist
and be permanent if he survived the injury, the fact is that decedent did survive the injury
for at least four and one-half hours. There was no requirement that decedent survive any
longer than that. As such, the magistrate finds that the medical evidence in the record
does support the commission's determination that decedent sustained a total loss of use
of both arms and legs, as well as his vision and hearing.          Further, the magistrate
specifically notes that the BWC order was never vacated. It was affirmed at every level.
While the hearings before the DHO and SHO were de novo, neither party presented any
additional evidence. Further, there is no contradictory medical evidence in the record and
returning this matter to the commission would not change the commission's finding that
decedent did suffer the losses of use found by the commission. As such, the magistrate
finds that the BWC's citation to Dr. Cameron's report constitutes some evidence upon
which the commission relied. That report, in conjunction with the hospital records,
supports the commission's order and the magistrate finds there is no Noll violation here.
                           AMOUNT OF COMPENSATION PAYABLE
           {¶ 79} However, having found that the commission's order does support the loss of
use awards made, the magistrate agrees with relator's assertion that the commission
abused its discretion when it ordered that 1,225 weeks of compensation be paid to
claimant.
           {¶ 80} The two statutes relevant here are R.C. 4123.57(B)3 and 4123.604. When
reading those statutes, it is apparent the legislature has set up some distinctions including
whether or not an award has been made prior to the death of an injured worker (decedent
herein).
           {¶ 81} Both R.C. 4123.57(B) and 4123.60 address the situation where an award has
been made prior to the death of the injured worker.           R.C. 4123.57(B) provides, in
pertinent part:


3
    Entitled Partial Disability Compensation.
4   Entitled Persons eligible for benefits; limitations.
                                                                                       25
No. 13AP-1024
              When an award under this division has been made prior to
              the death of an employee all unpaid installments accrued or
              to accrue under the provisions of the award shall be payable
              to the surviving spouse.

(Emphasis added.)

       {¶ 82} R.C. 4123.60 provides, in pertinent part:

              In all cases where an award had been made on account of * *
              * permanent partial * * * disability in which there remains an
              unpaid balance, representing payments accrued and due to
              the decedent at the time of his death, the administrator may
              * * * award or pay any unpaid balance of such award to such
              of the dependents of the decedent * * * as the administrator
              determines in accordance with the circumstances in each
              such case.

(Emphasis added.)

       {¶ 83} As above indicated, under both R.C. 4123.57(B) and 4123.60, when an
award of partial disability has been made and the injured worker dies thereafter, unpaid
amounts either shall be paid or may be paid prior to the death of an injured worker to the
surviving spouse. However, neither of these statutory provisions apply here because no
award had been made prior to decedent's death.
       {¶ 84} In the present case, decedent died before an award was made. Both R.C.
4123.57(B) and 4123.60 also address the situation where no award has been made before
the injured worker dies. R.C. 4123.57(B) provides as follows:
              When an employee has sustained the loss of a member by
              severance, but no award has been made on account thereof
              prior to the employee's death, the administrator shall make
              an award in accordance with this division for the loss which
              shall be payable to the surviving spouse.

(Emphasis added.)

       {¶ 85} R.C. 4123.60 provides the following provision to be applied where no award
has been made prior to the decedent's death:
              If the decedent would have been lawfully entitled to have
              applied for an award at the time of his death the
              administrator may * * * award and pay an amount, not
              exceeding the compensation which the decedent might have
                                                                                        26
No. 13AP-1024
              received, but for his death, for the period prior to the date of
              his death, to such of the dependents of the decedent * * * as
              the administrator determines in accordance with the
              circumstances in each such case, but such payments may be
              made only in cases in which application for compensation
              was made * * * or within one year after the death of such
              injured or disabled person.

(Emphasis added.)

       {¶ 86} Despite the arguments made by both the commission and claimant, the
magistrate specifically finds that the above portion of R.C. 4123.57(B) upon which they
rely does not apply here. That section of R.C. 4123.57(B) provides:
              When an employee has sustained the loss of a member by
              severance, but no award has been made on account thereof
              prior to the employee's death, the administrator shall make
              an award in accordance with this division for the loss which
              shall be payable to the surviving spouse.

(Emphasis added.)

       {¶ 87} Although both the commission and claimant assert the entire award is
payable under this provision, the magistrate disagrees. This provision is specifically
limited to when an employee has sustained a loss of use of a member by severance but
where no award has been made prior to the employee's death. Although in general, R.C.
4123.57(B) has been interpreted to apply not only to severance but where an employee has
suffered the loss of use of a specific member, the legislature has chosen to leave the word
"severance" in this portion of the statute. This is the only place in R.C. 4123.57(B) where
the word "severance" is used.
       {¶ 88} The paramount goal of statutory construction is to ascertain and give effect
to the legislature's intent in enacting the statute. Yonkings v. Wilkinson, 86 Ohio St.3d
225 (1999). In so doing, the court must first look to the plain language of the statute and
the purpose to be accomplished. State ex rel. Pennington v. Gundler, 75 Ohio St.3d 171,
173 (1996). Words used in a statute must be accorded their usual, normal and customary
meaning. Id., citing R.C. 1.42. If the words in a statute are " 'free from ambiguity and
doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there
is no occasion to resort to other means of interpretation.' " State v. Hairston, 101 Ohio
                                                                                         27
No. 13AP-1024
St.3d 308, 2004-Ohio-969, ¶ 12, quoting Slingluff v. Weaver, 66 Ohio St. 621 (1902),
paragraph two of the syllabus.        " 'An unambiguous statute is to be applied, not
interpreted.' " Meeks v. Papadopulos, 62 Ohio St.2d 187, 190 (1980), quoting Sears v.
Weimer, 143 Ohio St. 312 (1944), paragraph five of the syllabus.
       {¶ 89} In the present case, it is undisputed that decedent did not suffer the loss of
any member by severance; as such, the magistrate concludes that this portion of R.C.
4123.57(B) does not apply here. To the extent clamant relies on the mandatory language
of this statute, claimant's argument fails.
       {¶ 90} There is one more provision to consider: R.C. 4123.60. The magistrate
specifically finds that the following provision of R.C. 4123.60 does apply here:
              If the decedent would have been lawfully entitled to have
              applied for an award at the time of his death the
              administrator may * * * award and pay an amount, not
              exceeding the compensation which the decedent might have
              received, but for his death, for the period prior to the date of
              his death, to such of the dependents of the decedent * * * as
              the administrator determines in accordance with the
              circumstances in each such case, but such payments may be
              made only in cases in which application for compensation
              was made * * * or within one year after the death of such
              injured or disabled person.

       {¶ 91} In the present case, because decedent initially survived the accident, he
would have been lawfully entitled to have applied for the loss of use awards for which his
surviving spouse (claimant herein) did apply. Further, it is undisputed that claimant filed
the application for loss of use within one year after the death of decedent. Pursuant to
R.C. 4123.60, the administrator of the BWC had distinction to award and pay an amount,
not exceeding the compensation which decedent might have received, but for his death,
for the period prior to the date of his death, to his surviving spouse. It should also be
noted that this statute permits, but does not require, the administrator of the BWC to
award and pay to the surviving spouse (claimant herein) some amount of compensation
which decedent might have received, but for his death for the period prior to his death, to
dependents such as claimant.
                                   RELEVANT CASES
                                                                                         28
No. 13AP-1024
        {¶ 92} In State ex rel. Estate of McKenney v. Indus. Comm., 110 Ohio St.3d 54,
2006-Ohio-3562, Patrick McKenney sustained a work-related injury and his workers'
compensation claim was allowed for quadriplegia and he was awarded 850 weeks of
scheduled loss benefits under R.C. 4123.57(B) for the loss of use of all four limbs. After
receiving six weeks of loss of use payments, McKenney died of an injury-related heart
attack. McKenney's surviving spouse moved the commission for a lump sum payment of
the remaining 844 weeks of scheduled loss compensation. However, the following day,
the surviving spouse died and her estate was substituted as a party for the purposes of
pursuing her motion.
        {¶ 93} The estate relied on the following portion of R.C. 4123.57(B):
               When an award under this division has been made prior to
               the death of an employee all unpaid installments accrued or
               to accrue under the provisions of the award shall be payable
               to the surviving spouse.

(Emphasis added.)

        {¶ 94} Based on the above provision, the estate argued it was entitled to receive
that which the surviving spouse would have been entitled to receive but for her death.
        {¶ 95} The estate argued that the entire amount of the scheduled loss award
accrued and was payable to the surviving spouse at the time of McKenney's death. The
court disagreed specifically noting that the statute presumed a living dependent which no
longer existed. The court stated:
               The estate's reliance on the mandatory "shall" is misplaced,
               because the mandate presumes a living dependent, which is
               not the case here. Moreover, the statute specifically refers to
               installments "accrued or to accrue." (Emphasis added). If
               the entire amount accrued immediately, as the estate claims,
               there would be no need for this language. The estate's
               interpretation of the statute is, therefore, rendered untenable
               by the statute's very language.

Id. at ¶ 11.

        {¶ 96} The court reasoned further:

               [T]he loss of earning capacity that scheduled loss
               compensation was intended to ameliorate ceases upon the
                                                                             29
No. 13AP-1024
           death of the injured worker—just as it does with all other
           forms of disability compensation.

           ***

           R.C. 4123.57(B) anticipates the payment of scheduled loss
           compensation in weekly installments. Commutation to a
           lump sum can occur, but only if the injured worker first
           applies for lump-sum payment, meets certain specified
           criteria designated in R.C. 4123.64, and receives approval
           from the bureau. The specificity of those criteria—and the
           fact that satisfaction still does not guarantee approval by the
           bureau—demonstrates that the method of payment is of
           substantive concern to the General Assembly and should not
           be summarily dismissed as irrelevant to our inquiry * * *.

           We, too, have acknowledged the substantive, as opposed to
           simply ministerial, nature of the payment method in a
           scheduled loss situation. In Swallow v. Indus. Comm.
           (1988), 36 Ohio St.3d 55, 57, 521 N.E.2d 778, we approved
           the commission's "rationale that claimants are generally
           placed in a better position by receiving payments
           consecutively rather than concurrently." We held that it was
           within the discretion of the commission to determine that
           appellant would be put in a better position by receiving 850
           weeks of payments consecutively rather than two 200-week
           periods of payments for the loss of his legs and two 250-week
           periods of payments for the loss of his arms, all concurrently.

           The estate claims that to deny full recovery offends equal
           protection because state-fund and self-insured employees
           will be treated differently. The estate, however, never
           develops this argument, using it instead as a forum for
           objecting to the commission's decision to deny lump-sum
           payment in favor of installment payments—an action
           expressly within the commission's discretion, and irrelevant
           to the employee's status as a self-insured or state-fund
           employee.

           In the end, the estate has not offered a compelling reason
           why we should deviate from prior decisions limiting the
           dependent's estate to those amounts actually due, but
           unpaid, to the dependent before his or her death. In this
           case, the commission, after careful consideration, specifically
           denied a request for lump-sum payment because no further
           award was payable whether by installment or lump sum.
                                                                                       30
No. 13AP-1024
Id. at 16, 19-20.

       {¶ 97} The estate of McKenney's surviving spouse was found not to be entitled to
the lump sum award for several reasons: (1) because the surviving spouse had died, there
was no living dependent to whom the award was payable; (2) scheduled loss
compensation is intended to ameliorate the loss of earning capacity of the injured worker;
(3) most forms of disability compensation cease upon the death of the injured worker; (4)
McKenney's surviving spouse was not guaranteed to have her application for lump sum
payment approved by the commission; and (5) the commission has discretion to pay
scheduled loss benefits on a weekly basis.
       {¶ 98} A few months later, the Supreme Court of Ohio decided the case of State ex
rel. Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364, which involved a
factual scenario which is virtually identical to the scenario presented here. William
Moorehead fell approximately 20 feet head first onto a concrete floor and suffered severe
spinal cord and other injuries. Unrebutted medical evidence established the spinal cord
injury rendered him a quadriplegic. Although Moorehead never regained consciousness,
he died 90 minutes later.
       {¶ 99} Moorehead's surviving spouse applied for death benefits under R.C.
4123.60 as well as scheduled loss compensation pursuant to R.C. 4123.57(B).           The
commission denied the application for scheduled loss compensation on grounds that
those benefits may only be awarded to injured workers who both experience a physical
and sustained loss of use as well as consciously perceive and experience the same.
Because Moorehead was comatose and completely unaware of the extent of his injuries,
the commission denied the award.
       {¶ 100} While this court agreed with the commission on appeal, the Supreme Court
of Ohio reversed stating:
              The commission concluded that the decedent's loss of use
              "was contingent upon his survival." It further concluded that
              the "decedent did not survive." But Moorehead did survive
              the fall, albeit for only a short period, as it is undisputed that
              he did not die upon impact. R.C. 4123.57(B) does not specify
              a required length of time of survival after a loss-of-use injury
              before benefits pursuant to R.C. 4123.57(B) are payable.
                                                                             31
No. 13AP-1024
           We have long recognized that neither administrative
           agencies nor this court "may legislate to add a requirement
           to a statute enacted by the General Assembly." Wheeling
           Steel Corp. v. Porterfield (1970), 24 Ohio St.2d 24, 27-28, 53
           O.O.2d 13, 263 N.E.2d 249. Rather, in interpreting statutes
           "it is the duty of this court to give effect to the words used,
           not to delete words used or to insert words not used."
           Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm.
           (1969), 20 Ohio St.2d 125, 127, 49 O.O.2d 445, 254 N.E.2d 8.
           We therefore cannot condone the commission's addition of a
           requirement that a worker survive for some extended period
           of time, left unspecified by the commission or the General
           Assembly, when considering the worker's entitlement to a
           scheduled loss benefit.

           Similarly, there is no language in R.C. 4123.57(B) requiring
           that an injured worker be consciously aware of his paralysis
           in order to qualify for scheduled loss benefits. In an
           analogous case the Supreme Court of New Hampshire
           considered a scheduled loss application filed on behalf of a
           worker whose injury left him in an irreversible vegetative
           state. Corson v. Brown Prods., Inc. (1979), 119 N.H. 20, 397
           A.2d 640. The application was denied administratively solely
           because Corson's vegetative state made him unaware of his
           loss. The New Hampshire Supreme Court vacated that
           decision and awarded scheduled loss compensation, writing:

           "What is of paramount importance in this case is that words
           such as 'awareness' or 'consciousness' cannot be added under
           the guise of legislative history to a statute which clearly
           states that '[t]he scheduled awards under this section accrue
           to the injured employee simply by virtue of the loss or loss of
           the use of a member of the body.' * * * When the language
           used in a statute is clear and unambiguous, its meaning is
           not subject to modification by construction." Id., 119 N.H. at
           23, 397 A.2d 640.

           The same rule of statutory construction applies here. When
           "the meaning of the statute is unambiguous and definite, it
           must be applied as written and no further interpretation is
           necessary." State ex rel. Savarese v. Buckeye Local School
           Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d
           463. R.C. 4123.57(B) does not say that compensation is
           dependent upon a claimant's conscious awareness of his or
           her loss, whether resulting from amputation or paralysis.
           Rather, where the requisite physical loss has been sustained,
                                                                                      32
No. 13AP-1024
                  the statute directs that scheduled loss compensation shall be
                  paid.

                  This court should not graft duration-of-survival or
                  cognizance requirements to R.C. 4123.57(B), because the
                  statute has no text imposing them. Public-policy arguments
                  relative to the requisites of scheduled loss benefits pursuant
                  to R.C. 4123.57 are better directed to the General Assembly,
                  including arguments that a specified time of survival should
                  be mandated after a paralyzing injury and that a worker be
                  cognizant of his or her loss before loss-of-use benefits are
                  payable.

Id. at ¶ 14-19.

       {¶ 101} After finding that Moorehead was entitled to the scheduled loss award, the
court could have ordered the commission to pay the 900 weeks of compensation payable
where the medical evidence demonstrated a loss of use of both upper and lower
extremities, but declined to do so. Instead, the Supreme Court returned the matter to the
commission so that the commission could determine the amount of benefits due and
payable to the surviving spouse. Specifically, the court stated:
                  The appellant proffered medical evidence establishing that
                  William Moorehead sustained the physical loss of use of his
                  limbs as a result of his fall. Consciousness of that loss during
                  an extended period of survival is not required by R.C.
                  4123.57(B), and the commission therefore incorrectly
                  applied the statute when it denied the appellant's application
                  on that basis.

                  We deem it appropriate that the commission determine in
                  the first instance the amount of benefits due the appellant.
                  That determination should be made in light of all relevant
                  statutes and precedent, including our recent decision in
                  State ex rel. Estate of McKenney v. Indus. Comm., 110 Ohio
                  St.3d 54, 2006-Ohio-3562, 850 N.E.2d 694.

Id. at ¶ 20-21. (Footnote omitted.)

       {¶ 102} With regard to the amount of compensation due, Justice Lundberg
Stratton postulated as follows in her concurring opinion:
                  I concur in the holding that R.C. 4123.57(B) does not support
                  the commission's reasons for denying Sandra Moorehead's
                  application for scheduled loss benefits, and I agree with the
                                                                             33
No. 13AP-1024
           decision to remand this cause for a determination of the
           amount of benefits due Moorehead in light of State ex rel.
           Estate of McKenney v. Indus. Comm., 110 Ohio St.3d 54,
           2006-Ohio-3562, 850 N.E.2d 694. However, because the
           courts below did not have the benefit of McKenney, I write
           separately to explain why I believe that it and the relevant
           statutory authority limit Moorehead's award to one week of
           scheduled loss benefits.

           ***

           R.C. 4123.57(B) authorizes an award of scheduled loss
           benefits to the surviving spouse when an employee has
           sustained a loss but the employee dies before the award is
           made. R.C. 4123.60 authorizes a surviving spouse to apply
           for and receive, in addition to death benefits, an award for
           compensation that the decedent would have been lawfully
           entitled to apply for at the time of his death. The amount of
           the award, however, may not exceed the compensation that
           the decedent might have received for the period prior to the
           date of death. Thus, R.C. 4123.60 appears to limit the
           surviving spouse's recovery of benefits other than
           compensation for death to an amount not exceeding what
           the decedent might have received for the period prior to his
           death.

           ***

           We did not agree that McKenney was entitled to the entire
           award upon Patrick's death. Scheduled loss benefits, like
           most other forms of workers' compensation, compensate for
           a loss of earning capacity. "It therefore follows that the loss
           of earning capacity that scheduled loss compensation was
           intended to ameliorate ceases upon the death of the injured
           worker—just as it does with all other forms of disability
           compensation." Id. ¶ 16. R.C. 4123.57(B) anticipates the
           payment of scheduled loss compensation in weekly
           installments, which may be commuted to a lump sum under
           certain circumstances and only if the injured worker applies.
           R.C. 4123.64.

           Consequently, I believe that Moorehead may be entitled to
           one week of scheduled loss benefits under R.C. 4123.57(B) to
           compensate for her husband's period of survival. The issue of
           consciousness is immaterial. But the presumed loss of
           earning capacity ceased upon William Moorehead's death. At
           that point, Sandra Moorehead became entitled to apply for
                                                                                        34
No. 13AP-1024
              death benefits under R.C. 4123.59. I do not believe that the
              General Assembly intended for duplicate awards under these
              circumstances.

              Finally, I believe that an award of scheduled loss benefits
              under these circumstances has potential long-term financial
              ramifications. A successful scheduled loss application,
              depending on the extent of injury, can generate huge sums of
              money costing the State Fund and self-insured employers
              millions of dollars. In this case, Moorehead seeks the full
              award of 850 weeks. If scheduled loss benefits are awarded
              no matter how short the employee's survival, this will likely
              encourage the dependent of any employee who dies in close
              proximity to an industrial injury to file for scheduled loss
              compensation. Such an award would have unintended
              results that would be financially devastating for the State
              Fund or a self-insured employer. I do not believe that the
              General Assembly intended R.C. 4123.57(B) to provide what
              would be the equivalent of an award of damages for personal
              injury.

Id. at ¶ 23, 26, 29-31. (Footnote omitted.)

                APPLICATION OF STATUTES AND CASE LAW

       {¶ 103} Both the commission and claimant seemingly imply that Moorehead
stands for the proposition that claimant, as a surviving spouse, is entitled to receive all
1,225 weeks of scheduled loss compensation. However, the Supreme Court in Moorehead
did not order the commission to pay all 900 weeks of compensation. The court could
have done so, but it is apparent from the court's ruling that the court did not believe the
statutes and case law supported that result. Instead, the court directed the commission's
attention to all relevant statutes and the McKenney decision and allowed the commission
to make that determination in the first instance. Whatever the commission determined,
no mandamus action followed and, as such, there is no case law which answers the
question directly. As such, the magistrate finds the commission abused its discretion
when it awarded 1,225 weeks of compensation.
              EFFECT OF RECENT SUPREME COURT DECISION
       {¶ 104} Between the date this mandamus action was filed and the date of oral
argument, the Supreme Court of Ohio issued its decision in State ex rel. Smith v. Indus.
Comm., 138 Ohio St.3d 312, 2014-Ohio-513. In that case, George Smith suffered anoxic
                                                                                          35
No. 13AP-1024
brain damage during surgery to repair an inguinal hernia caused by a 1995 work-related
injury.     Smith never returned to work.      In 1998, he was awarded permanent total
disability compensation and, in 2004, the commission granted his motion for scheduled
loss of use awards for the loss of use of his arms and legs.
          {¶ 105} In 2009, relator filed a motion seeking the scheduled loss of use award for
both ears and eyes. The commission denied the motion and ultimately, the commission's
decision was upheld. As the Supreme Court noted, the medical evidence showed that
Smith's eyes and ears were not damaged. Instead, because of the anoxic brain damage,
the signals the eyes and ears received could not be processed by his brain. Because there
were no tests which could be performed to determine whether or not Smith had any loss
of sight or hearing and because the medical evidence showed Smith suffered from a loss of
brain stem functioning and not damage to either his eyes or ears, the court found that the
commission did not abuse its discretion.
          {¶ 106} At oral argument, relator asked the magistrate to consider the implication
of the Smith case to the facts involving decedent. For the reasons that follow, the
magistrate finds the court's rationale from Smith does not apply here.
          {¶ 107} As noted, there was no medical evidence that Smith had sustained any
damage to either his eyes or ears. Instead, the medical evidence indicated that Smith's
brain could not process the visual and auditory impulses being received by his eyes and
ears.     By comparison, the medical evidence here indicates that decedent sustained
"extensive destruction of cortical tissue" and, in his right eye, he suffered a "large
displacing hematoma that would have further diminished any ability for useful visual
function." (Report of Dr. Cameron.) The medical evidence also showed decedent had
"severe damage to the supporting structures of the auditory apparatus." (Report of Dr.
Cameron.)       Unlike the evidence in Smith, there is medical evidence here indicating
significant damage not only to decedent's brain, but to both his eyes and ears. Even
though decedent's lack of consciousness made it impossible to determine the exact extent
of his visual and auditory losses, there is medical evidence that those organs were
significantly damaged. As such, the magistrate disagrees with relator's opinion that Smith
requires a different result here.
                                                                                      36
No. 13AP-1024
                                    CONCLUSION
      {¶ 108} Upon review of the statutes and case law, the magistrate concludes the
commission did abuse its discretion in awarding claimant 1,225 weeks of scheduled loss
compensation as that is contrary to the provisions of R.C. 4123.60 and relevant case law.
As such, the magistrate concludes this court should issue a writ of mandamus ordering
the commission to vacate its award of 1,225 weeks of scheduled loss compensation and
determine the amount of compensation which is due to claimant.




                                               /S/ MAGISTRATE
                                               STEPHANIE BISCA BROOKS




                            NOTICE TO THE PARTIES

             Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
             as error on appeal the court's adoption of any factual finding
             or legal conclusion, whether or not specifically designated as
             a finding of fact or conclusion of law under Civ.R.
             53(D)(3)(a)(ii), unless the party timely and specifically
             objects to that factual finding or legal conclusion as required
             by Civ.R. 53(D)(3)(b).
