State ex rel. Gassmann v. Industrial Commission, 74-339

• Decision Date: 05 February 1975
• Docket Number: No. 74-339,74-339
• Citation: 322 N.E.2d 660,70 O.O.2d 157,41 Ohio St.2d 64
• Parties: , 70 O.O.2d 157 The STATE et rel. GASSMANN, Appellant, v. INDUSTRIAL COMMISSION of Ohio et al., Appellees.
• Court: Ohio Supreme Court

Page 64

41 Ohio St.2d 64

322 N.E.2d 660, 70 O.O.2d 157

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

No. 74-339.

Supreme Court of Ohio.

Feb. 5, 1975.

Syllabus by the Court

Total and permanent paralysis of the body from the waist down constitutes a 'loss' within the meaning of R.C. 4123.58, for which permanent total disability compensation must be awarded.

On September 16, 1959, relator, Richard C. Gassmann, fell 35 feet from a platform from which he was painting, landing on his head and shoulders, and severing his spinal cord. As a result, he was totally and permanently paralyzed from the waist down. On April 2, 1963, the Industrial Commission awarded relator permanent total disability compensation, as provided by R.C. 4123.58.

Following a period of hospitalization, relator completed his education and learned to use a wheelchair. By 1970, he had married, purchased a home, adopted a child, and been employed as the Assistant Director of Personnel at Mount Carmel Hospital in Columbus.

On November 3, 1970, the Industrial Commission terminated relator's permanent total disability status, declaring that he was 'now a wage earner, working full time, and not entitled to continue on a permanent total disability basis under the Ohio law * * *.' Subsequently, relator instituted a mandamus action in the Court of Appeals for Franklin County, contending that his injury constituted a 'loss' within the meaning of R.C. 4123.58. On February 13, 1974, the Court of Appeals, relying upon this court's decision in State, ex rel. Bohan, v. Indus, Comm. (1946), 146 Ohio St. 618, 67 N.E.2d 536, dismissed the petition for a writ.

The cause is before this court as a matter of right upon appeal from the judgment of the Court of Appeals.

Crane & Heltzel, Robert R. Crane and Thomas E. Berridge, Columbus, for appellant.

William J. Brown, Atty. Gen., Michael J. Hickey, Columbus, and James R. Piercy, Asst. Atty. Gen., for appellees.

PAUL W. BROWN, Justice.

Relator was injured in the course of his employment, and, as a result, has been totally and permanently paralyzed from the waist down. This court must determine whether such injury constitutes a 'loss' within the meaning of R.C. 4123.58, for which permanent total disability compensation must be awarded.

At all times pertinent to this action, R.C. 4123.58, without substantial change, provided:

'In cases of permanent total disability, the employee shall receive an award to continue until his death * * *.

'The loss of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof, constitutes total and permanent disability, to be compensated according to this section.'

If the loss of one's legs, within the meaning of R.C. 4123.58, includes only loss by severance, then the commission's termination of relator's compensation for permanent total disability was proper. If, on the other hand, such a loss includes both loss by severance and loss of use, relator is entitled to compensation for permanent total disability. A mandatory writ may issue against the Industrial Commission if the commission has incorrectly interpreted Ohio law. State, ex rel. Breidigan, v. Indus. Comm. (1942), Ohio App. 43 N.E.2d 114, 36 Ohio Law Abst. 160.

In denying relator compensation for permanent total disability, the Court of Appeals relied upon State, ex rel. Bohan, v. Indus. Comm. (1946), 146 Ohio St. 618, 67 N.E.2d 536. In that case, an employee sustained the total and permanent loss of use of his right hand, and sought partial disability compensation under G.C. 1465-80 (now R.C. 4123.57). In denying compensation for the 'loss of a hand,' this court declared that a 'loss,' within the meaning of G.C. 1465-80, meant 'loss by severance and not the loss of use of such members.'

However, our holding in Bohan is not dispositive of the present case. G.C. 1465-80 provided compensation for partial disability, not permanent total disability. Further, the court in Bohan placed considerable emphasis on the language and legislative history of G.C. 1465-80, a language and history not applicable when analyzing R.C. 4123.58. ^* To allow the holding in Bohan to determine our interpretation of R.C. 4123.58 would seem particularly inappropriate.

Relator has also cited State, ex rel. Holdridge, v. Indus. Comm. (1967), 11 Ohio St.2d 175, 228 N.E.2d 621. That case held a 1959 amendment to R.C. 4123.58 (128 Ohio Laws 743, 762) to be remedial, not substantive, and failed to directly rule on the meaning of 'loss' as contained in that section. However, the facts in Holdridge seem to indicate the loss of sight in both eyes, as opposed to the loss of both eyes themselves, was sufficient to justify a finding of permanent and total disability.

In the interpretation of Ohio's Workmen's Compensation statutes, R.C. 4123.95 dictates a liberal construction in favor of employees. Relator's rehabilitation and improved financial status are of no relevance in determining the degree of his injury, or the compensation to...