State ex rel. Martin v. Industrial Commission

• Decision Date: 05 July 1978
• Docket Number: No. 77-1307,77-1307
• Citation: 55 Ohio St.2d 18,9 O.O.3d 10,377 N.E.2d 1000
• Parties: , 9 O.O.3d 10 The STATE ex rel. MARTIN, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee, et al.
• Court: Ohio Supreme Court

Page 18

55 Ohio St.2d 18

377 N.E.2d 1000, 9 O.O.3d 10

The STATE ex rel. MARTIN, Appellant, v. INDUSTRIAL COMMISSION of Ohio, Appellee, et al.

No. 77-1307.

Supreme Court of Ohio.

July 5, 1978.

John Martin, relator herein, suffered an industrial injury on March 31, 1970, for which he filed a Workmen's Compensation claim. Relator was awarded temporary total disability benefits, and the last continuous period of such disability for which benefits were paid was from February 6, 1972, to August 2, 1974. As a result of this injury, relator subsequently developed gangrene of the left foot, and underwent surgical amputation of the left leg above the knee on November 7, 1973. The Bureau of Workmen's Compensation, pursuant to R.C. 4123.57(C), granted relator an amputation award on February 27, 1974, for $56 per week for a period of 200 weeks in a total amount of $11,200 payable from November 7, 1973, to September 6, 1977. This award was paid concurrently with the temporary total disability payments from November 7, 1973, to August 2, 1974.

In March of 1974, relator requested the Industrial Commission (the commission) to find him permanently and totally disabled. On January 7, 1975, the commission found that relator had been permanently and totally disabled since August 3, 1974, and awarded him permanent total disability compensation beginning from that date. However, the commission also terminated payment of the amputation award as of August 2, 1974, and recaptured all payments made under that award to relator after August 2, 1974. Relator then filed a motion with the commission contending that the balance of the amputation award due after August 2, 1974, should be paid to him as originally awarded. This motion was denied.

Relator brought an action in mandamus in the Court of Appeals for Franklin County to compel the commission to pay the balance of the amputation award concurrently with his permanent total disability payments. The writ was denied.

The cause is now before this court on an appeal as of right.

E. S. Gallon & Associates and John A. Cervay, Dayton, for appellant.

William J. Brown, Atty. Gen., and John F. Livorno, Columbus, for appellee.

PER CURIAM.

The issue to be resolved in this cause is whether a claimant is entitled to previously awarded partial disability benefits under R.C. 4123.57(C), in addition to subsequently awarded permanent total disability benefits under R.C. 4123.58 for the same injury.

If this claimant had been injured on or after November 16, 1973, there is no question that he would be entitled to receive compensation under both R.C. 4123.57(C) and 4123.58. (See the amendment to R.C. 4123.58 in 135 Ohio Laws 1706 providing that compensation payable under R.C. 4123.58 for permanent total disability shall be in addition to benefits payable under R.C. 4123.57.)

However, at the time of relator's injury, the applicable law as set forth by this court in paragraphs two and three of the syllabus in State ex rel. Benton v. C. & So. O. Elec. Co. (1968), 14 Ohio St.2d 130, 237 N.E.2d 134, provided that:

"A claimant cannot receive partial disability compensation under division (C) of Section 4123.57, Revised Code, in addition to compensation for permanent total disability under Section 4123.58, Revised Code, for the same injury.

"Where an employee suffers an injury resulting in the bilateral amputation of both hands, he is entitled to permanent total disability benefits under Section 4123.58, Revised Code, and such award precludes a further award for partial disability benefits under Section 4123.57, Revised Code, for the same injury."

The question arises whether the holding in Benton determines the outcome in the instant cause. In Benton, the claimant sustained severe burns to both of his hands requiring bilateral amputation. Having been awarded permanent total disability benefits under R.C. 4123.58, claimant then attempted to receive further compensation under R.C. 4123.57(C) providing permanent partial disability benefits for the loss of a hand.

In denying compensation to the claimant the Benton court cited R.C. 4123.58 which provided at that time:

"The loss of both hands, or both arms, or both feet or both legs, or both eyes, or any two thereof, constitutes total and permanent disability, to be compensated according to this section." The court placed great stress on the phrase "to be compensated according to this section," and held that R.C. 4123.58 provided the maximum disability benefits allowable for the simultaneous loss of one's hands as a result of an injury. Benton, at page 132, 237 N.E.2d 134.

In comparison, the court noted that R.C. 4123.57(C) did not provide for the simultaneous loss of hands, but rather fixed compensation for the loss of one hand only. Thus, the court concluded, at page 133, 237 N.E.2d at page 136, that claimant could not receive " * * *...