State ex rel. Latino v. Industrial Commission

• Decision Date: 13 March 1968
• Docket Number: No. 40982,40982
• Citation: 13 Ohio St.2d 103,234 N.E.2d 912
• Parties: , 42 O.O.2d 324 The STATE ex rel. LATINO, Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees.
• Court: Ohio Supreme Court

Page 103

13 Ohio St.2d 103

234 N.E.2d 912, 42 O.O.2d 324

The STATE ex rel. LATINO, Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees.

No. 40982.

Supreme Court of Ohio.

March 13, 1968.

Syllabus by the Court

An injured workman who obtained an award for permanent partial disability under division (B) of Section 4123.57, Revised Code, prior to its amendment, effective October 1, 1963, was immediately entitled to the regular payment of such award, even though subsequent to that injury he had been awarded and was receiving compensation for permanent total disability due to silicosis.

The appellant, Joseph Latino, was working for appellee Republic Steel Corporation, a self-insurer under the Workmen's Compensation Act, when he fell 26 feet from a scaffold and sustained serious injuries on January 16, 1961. As a result of this fall the appellant was paid benefits for temporary and total disability, as well, as an additional amount for the employer's violation of a specific safety requirement.

On January 28, 1963, a claim was filed with the Industrial Commission on behalf of the appellant in which it was alleged that he had contracted silicosis while in the employ of the company. In the meantime, on January 15, 1963, the Company had stopped paying temporary total disability benefits to the appellant and began paying him permanent total disability benefits for silicosis.

The appellant then filed an application with the Industrial Commission pursuant to division (B) of Section 4123.57, Revised Code, for the determination of permanent partial disability resulting from the fall. The commission found that the appellant had a twenty per cent permanent partial disability, but it held that no payment could be made while the appellant continued to receive payment for the permanent and total disability caused by silicosis. The commission affirmed its order on motion to reconsider.

The appellant then filed a petition for a writ of mandamus in the Court of Appeals for Franklin County, in which he alleges that the commission's denial of payment for the twenty per cent permanent partial disability award was contrary to law. Republic Steel and the Industrial Commission both filed answers, to which the appellant demurred. The court overruled the demurrers, and since the appellant elected not to plead further, dismissed the petition with prejudice.

The appellant now appeals to this court, and the appeal is as a matter of right since the original action was brought in the Court of Appeals.

Sindell, Sindell, Bourne, Markus, Stern & Spero, Cleveland, and Ted R. Greiner, Worthington, for appellant.

William B. Saxbe, Atty. Gen., Walter J. Howdyshell, New Lexington, and Robert J. Dodd, Jr., Columbis, for the Industrial Commission.

Jones, Day, Cockley & Reavis and Crede Calhoun, Cleveland, for Republic Steel Corp.

PAUL W. BROWN, Justice:

It seems clear that an appeal from the determination of the Industrial Commission in this case was available under Section 4123.519, Revised Code, and that under such circumstances mandamus does not lie. The existence and adequacy of this remedy at law was not raised in the Court of Appeals, so in the interest of judicial economy we have chosen to decide the appeal on its merits.

The only question in this cause is whether an injured workman who is receiving compensation for permanent and total disability at the maximum statutory rate on an occupational disease claim may, at the same time, receive compensation for permanent and partial disability on an injury claim under Section 4123.57(B), Revised Code, as it read before the amendment of October 1, 1963. We hold that under these circumstances a workman may receive payment for both claims concurrently.

The relevant parts of Section 4123.57, Revised Code (128 Ohio Laws 743, 757) read, in part, as follows at the time of the appellant's injury:

'Partial disability compensation shall be paid as follows, provided, that an employee may elect as between divisions (A) and (B) of this section as to the manner of receiving the compensation herein set forth:

'* * *

'(B) In all cases of permanent partial disability, except such as are subject to the provisions of division (C) of this section the Industrial Commission shall determine the percentage of disability of the employee, after taking into consideration the extent of the physical disability, the impairment of earning capacity and the vocational handicap of the employee, and the employee shall receive sixty-six and two-thirds per cent of his average weekly wage, not to exceed a maximum of forty-nine dollars per week for the number of weeks which equals such percentage of two hundred weeks, but no award shall be made which is less than the percentage of the physical disability.

'* * *

'When an award under this division of this section has been made prior to the death of an employee, all unpaid installments accrued or to accrue under the provisions of the award are payable to the widow, or if there is no widow surviving, to the dependent children of such employee, and if there are no such children surviving, then to such other dependents as the commission may determine.'

Language providing that no award shall be made based on a percentage of disability which, when taken with all other percentages of permanent disability, exceeds one hundred per cent was added to division (B) of Section 4123.57, Revised Code, by the amendment of October 1 1963 (130 Ohio Laws 926, 1466), and does not affect the disposition of this case because the injury here occurred before this amendment was enacted. State ex rel. Frank v. Keller, 3 Ohio App.2d 428, 210 N.E.2d 724.

The appellees argue that the basic purpose of the Workmen's Compensation Act is to provide compensation for the impairment of earning capacity of injured workers, and that a worker who is being compensated for a permanent and total disability is, in effect, being compensated for a total impairment of earning capacity, so that no further compensation under the Act is authorized. This argument is based on the truism that one's earning capacity cannot be more than totally impaired.

The weakness in this argument is that not all of the sections of our Workmen's Compensation Act are aimed exclusively at compensating for impairment of earning capacity. One notable exception is division (C) of Section 4123.57, Revised Code. State ex rel. Dudley v. Industrial Commission of Ohio, 135 Ohio St. 121, 19 N.E.2d 895. We now find that another exception is division (B) of Section 4123.57, Revised Code, which is involved in this case.

A brief...