[Cite as State ex rel. Coleman v. Indus. Comm., 136 Ohio St.3d 77, 2013-Ohio-2406.]




   THE STATE EX REL. COLEMAN, APPELLEE, v. INDUSTRIAL COMMISSION OF
                               OHIO, APPELLANT, ET AL.
       [Cite as State ex rel. Coleman v. Indus. Comm., 136 Ohio St.3d 77,
                                    2013-Ohio-2406.]
Workers’ compensation—Loss of use of body part—Permanent total disability
        under R.C. 4123.58(C)—Prior determination of loss of use under R.C.
        4123.57(B) not determinative.
    (No. 2011-0972—Submitted February 26, 2013—Decided June 11, 2013.)
      APPEAL from the Court of Appeals for Franklin County, No. 10AP-287,
                                    2011-Ohio-2006.
                                ____________________
        Per Curiam.
        {¶ 1} The Industrial Commission appeals the judgment of the Franklin
County Court of Appeals issuing a writ of mandamus ordering the commission to
grant Mike Coleman’s request for compensation for statutory permanent total
disability under former R.C. 4123.58(C) for the loss of use of his hand and arm.
The commission contends that there was evidence to support its decision that
Coleman’s injury did not rise to the level of a permanent and total loss of use for
purposes of former R.C. 4123.58(C). Thus, the commission maintains that it did
not abuse its discretion when it denied Coleman’s request for compensation for
statutory permanent total disability.
        {¶ 2} We agree. Consequently, we reverse the judgment of the court of
appeals and deny the writ of mandamus.
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Facts and Case History
       {¶ 3} In January 1994, Coleman was employed as a boilermaker
mechanic. He was injured when he fell backward off a ladder and struck the back
of his neck on a propane tank on the ground. His industrial claim was allowed for
fractured vertebrae, herniated discs, and various shoulder injuries.
       {¶ 4} In June 2008, Coleman filed a motion requesting compensation for
a “total loss of the functional use of the right arm.” In support of his motion, he
submitted medical reports from Dr. Robert Frank Jr. and Dr. W. Jerry McCloud.
       {¶ 5} According to Dr. Frank, Coleman was able to do housecleaning,
some cooking, and light yard work and drive a car. Dr. Frank reported that
Coleman was able to write with his right hand, though it was difficult at times
because his arm was prone to spasms. Dr. Frank also stated that Coleman “can
use his right arm at his side” but cannot do heavy pulling or lifting or move his
arm above his head. Dr. McCloud reported that Coleman had considerable loss of
motion of his shoulder but had limited function of his right arm.
       {¶ 6} Dr. Ralph Rohner examined Coleman on behalf of the Bureau of
Workers’ Compensation and opined that Coleman’s shoulder was useless for all
practical purposes. Dr. Rohner’s report stated:


       This man is a heavy laborer and requires full motion and strength
       of his right shoulder as well as the ability to move the position of
       his neck frequently to do those duties. At the present time, he has
       significant limitation of motion involving both his neck and his
       right shoulder.




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         {¶ 7} On August 1, 2008, the bureau concluded that Coleman had a
“100% loss of use of the right shoulder ankylosis” and awarded him 225 weeks of
compensation under R.C. 4123.57(B).1 Neither party administratively appealed.
         {¶ 8} A year later, Coleman filed a motion for compensation for
statutory permanent total disability under former R.C. 4123.58(C). He alleged
that based upon the commission’s August 1, 2008 award under R.C. 4123.57(B)
for loss of use of his shoulder, he was entitled to compensation for statutory
permanent total disability for the loss of use of his right hand and arm.
         {¶ 9} A staff hearing officer denied his application. The hearing officer
concluded that there must be an independent evaluation of the facts for an
application under former R.C. 4123.58(C), even if there has been a prior award
under R.C. 4123.57(B). Following a review of the medical evidence and the
testimony of Coleman, the hearing officer concluded that Coleman had a
substantial loss of use of his right arm but that his loss did not rise to the level of a
permanent and total loss for purposes of former R.C. 4123.58(C).                    The
commission denied Coleman’s request for reconsideration.
         {¶ 10} Coleman filed a complaint in mandamus in the court of appeals
seeking an order requiring the commission to award him compensation for
statutory permanent total disability under former R.C. 4123.58(C).
         {¶ 11} The court of appeals determined that the commission’s prior order
of August 1, 2008, awarding Coleman 225 weeks of scheduled-loss benefits under
R.C. 4123.57(B) for the loss of use due to right shoulder ankylosis implicitly
established that Coleman had lost the use of two body parts—his hand and his
arm—citing State ex rel. Thomas v. Indus. Comm., 97 Ohio St.3d 37, 2002-Ohio-
5306, 776 N.E.2d 62, and State ex rel. Internatl. Paper v. Trucinski, 106 Ohio
St.3d 203, 2005-Ohio-4557, 833 N.E.2d 728.

1. “Ankylosis” refers to total stiffness of a joint.




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        {¶ 12} The court concluded that the loss of use of Coleman’s arm could
not be relitigated and that the commission was bound by the doctrine of collateral
estoppel to issue the award, citing State ex rel. Kincaid v. Allen Refractories Co.,
114 Ohio St.3d 129, 2007-Ohio-3758, 870 N.E.2d 701. Accordingly, the court
granted the writ.
         {¶ 13} On June 9, 2011, the commission filed an appeal as of right.2
Analysis
        {¶ 14} The commission contends that to establish permanent and total
disability under former R.C. 4123.58(C), the claimant must present evidence that
the claimant has completely lost the use of each of two body parts, even if there
was a prior award under R.C. 4123.57(B), because “ ‘what is a total loss of use
under R.C. 4123.57(B) might not be under R.C. 4123.58(C),’ ” quoting State ex
rel. Kincaid, ¶ 18. We agree.
        {¶ 15} Statutory permanent total disability under R.C. 4123.58(C) arises
when a claimant is deemed permanently and totally disabled due to the loss of two
enumerated body parts. State ex rel. Miller v. Indus. Comm., 97 Ohio St.3d 418,
2002-Ohio-6664, 780 N.E.2d 268, ¶ 8. At the time of Coleman’s injury in 1994,
former R.C. 4123.58(C) provided:


                  The 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


2. Coleman died on December 15, 2011. When a claimant dies, an action pending at the time of
death is abated by the claimant’s death. Ohio Adm.Code 4123-5-21. But when benefits have been
allowed or if a claimant has prevailed in court following the claimant’s death, the claimant’s
dependents may be entitled to unpaid accrued benefits, if any. R.C. 4123.60. Because the court
of appeals granted the relief Coleman requested, there is no abatement of the action. State ex rel.
Gaddis v. Indus. Comm., 133 Ohio St. 553, 15 N.E.2d 146 (1938); Rogers v. Ford Motor Co., 5th
Dist. No. 2002CA00340, 2003-Ohio-977, 2003 WL 733891. We exercise jurisdiction over this
continuing controversy to determine whether Coleman was entitled to the benefits during his
lifetime.




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                                  January Term, 2013




        total and permanent disability, to be compensated according to this
        section. Compensation payable under this section for permanent
        total disability is in addition to benefits payable under division (B)
        of section 4123.57 of the Revised Code.3


1993 Am.Sub.H.B. No. 107, 145 Ohio Laws, Part II, 3168.
        {¶ 16} On the other hand, R.C. 4123.57(B) provides for scheduled-loss
compensation that is paid to an injured worker for the loss of a body part as listed
in the schedule. State ex rel. Moorehead v. Indus. Comm., 112 Ohio St.3d 27,
2006-Ohio-6364, 857 N.E.2d 1203; State ex rel. Miller v. Indus. Comm., ¶ 7. For
the loss or loss of use of an arm, the injured worker is entitled to 225 weeks of
compensation.
        {¶ 17} Although both R.C. 4123.57(B) and 4123.58(C) involve the loss of
or loss of use of one or more body parts, the purposes of the awards differ. State
ex rel. Kincaid, 114 Ohio St.3d 129, 2007-Ohio-3758, 870 N.E.2d 701, ¶ 9. Thus,
the commission must examine the particular provisions of each statute when
determining whether a claimant may be entitled to compensation. Id.
        {¶ 18} Nevertheless, the court of appeals determined that Coleman’s
award under R.C. 4123.57(B) for the “loss of use of the right shoulder ankylosis”
conclusively established the loss of the arm and hand for purposes of statutory
permanent total disability under R.C. 4123.58(C). 2011-Ohio-2006, ¶ 29. The
court relied on State ex rel. Thomas, 97 Ohio St.3d 37, 2002-Ohio-5306, 776
N.E.2d 62, in which this court “declared the hand and arm to be distinct body
parts for purposes of 4123.58(C). * * * Consequently, the loss of an entire single




3. In 2006, R.C. 4123.58(C) was amended to exclude the loss of a single limb as a basis for
statutory permanent total disability.




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extremity can equate to the loss of two body parts and statutory [permanent total
disability].” Id.
        {¶ 19} The court of appeals also relied on State ex rel. Internatl. Paper v.
Trucinski, 106 Ohio St.3d 203, 2005-Ohio-4557, 833 N.E.2d 728, in which we
affirmed an award for statutory permanent total disability for the total loss of
Trucinski’s leg and foot following a previous award under R.C. 4123.57(B) for
the total loss of his leg due to amputation. Based on the reasoning in Thomas, the
loss of his leg equated to loss of the leg and foot.
        {¶ 20} Finally, the court of appeals relied on State ex rel. Kincaid, 114
Ohio St.3d 129, 2007-Ohio-3758, 870 N.E.2d 701. In that case, Kincaid suffered
intermittent episodes of total vision loss as a result of his workplace injury, and
we addressed whether his scheduled-loss award for loss of vision under R.C.
4123.57(B) compelled an award for permanent total disability under R.C.
4123.58(C) for the same loss. Kincaid noted that implicit in both statutes was that
the loss of use must be permanent but that in R.C. 4123.58(C), the loss of use
must also be total. Id. at ¶ 16. Noting the differences in the statutes, Kincaid
independently evaluated the evidence in light of the particular requirements for
R.C. 4123.58(C) because what may constitute a loss of vision under R.C.
4123.57(B) may not equate to a loss under R.C. 4123.58(C). This is because the
same workers’ compensation term can have different meanings depending on the
context, and “what is a total loss of use under R.C. 4123.57(B) might not be under
R.C. 4123.58(C).” Id., ¶ 17-18. We concluded that Kincaid’s medical evidence,
not merely the prior award under R.C. 4123.57(B), supported an additional award
under R.C. 4123.58(C).
        {¶ 21} In Thomas, as well as Internatl. Paper and Kincaid, the
commission’s analysis included, as it must, an evaluation of the facts and medical
evidence presented. In each case, the medical evidence clearly demonstrated the




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loss of the two body parts under R.C. 4123.58(C), independently of any previous
award under R.C. 4123.57(B).
        {¶ 22} Here, the commission independently evaluated the facts.
Following a review of the reports of Drs. Frank, McCloud, and Rohner, and the
testimony of Coleman, the commission determined that Coleman had some use of
his right arm and hand.       Consequently, the evidence did not demonstrate a
permanent and total loss of use of both body parts for purposes of former R.C.
4123.58(C).
        {¶ 23} We hold that for purposes of former R.C. 4123.58(C), the evidence
must demonstrate the actual loss or loss of use of each of the two body parts at
issue, and the commission must conduct an independent evaluation of the facts
because “what is a total loss of use under R.C. 4123.57(B) might not be under
R.C. 4123.58(C).” State ex rel. Kincaid, 114 Ohio St.3d 129, 2007-Ohio-3758,
870 N.E.2d 701, ¶ 18.
        {¶ 24} Finally, in reaching its result, the court of appeals in this case
misapplied Kincaid when it held that collateral estoppel compelled the
commission to base an award for statutory permanent total disability on the
finding of a prior order. Although Kincaid had argued for the application of
collateral estoppel, this court did not apply that doctrine. Id. at ¶ 9.
Conclusion
        {¶ 25} We hold that the commission must conduct an independent
evaluation of the facts when considering an application for statutory permanent
total disability under R.C. 4123.58(C), even in the presence of a prior award
under R.C. 4123.57(B) for the same body part or parts.
        {¶ 26} Because there was evidence in the record to support the basis for
the commission’s decision, the commission did not abuse its discretion when it
denied the award. Therefore, a writ of mandamus is not warranted. State ex rel.
Avalon Precision Casting Co. v. Indus. Comm., 109 Ohio St.3d 237, 2006-Ohio-



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2287, 846 N.E.2d 1245, ¶ 9; State ex rel. Burley v. Coil Packing, Inc., 31 Ohio
St.3d 18, 508 N.E.2d 936 (1987); State ex rel. Gassmann v. Indus. Comm., 41
Ohio St.2d 64, 322 N.E.2d 660 (1975).
       {¶ 27} We reverse the judgment of the court of appeals and deny the writ
of mandamus.
                                                            Judgment reversed
                                                               and writ denied.
       O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
                            ____________________
       Agee, Clymer, Mitchell & Laret and Robert M. Robinson, for appellee.
       Michael DeWine, Attorney General, and Sandra E. Pinkerton, Assistant
Attorney General, for appellant.
                          ________________________




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