Ohio State Reports

Unpublished

STATE EX REL. MOOREHEAD v. INDUS. COMM., Unpublished
Decision (12-20-2006) 2006-Ohio-6364 THE STATE EX REL.
MOOREHEAD, APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET
AL., APPELLEES. No. 2005-1121. Supreme Court of Ohio.
Submitted May 24, 2006. Decided December 20, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from the Court of Appeals for
Franklin County, No. 04AP-404, 2005-Ohio-2667.

Stocker Pitts Co., L.P.A., M. Scott Kidd, and Thomas R.
Pitts, for appellant.

Jim Petro, Attorney General, and William J. McDonald,
Assistant Attorney General, for appellee Industrial
Commission.

Philip J. Fulton Law Office, Philip J. Fulton, and William
A. Thorman III, urging reversal for amicus curiae Ohio
Academy of Trial Lawyers.

Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J.
Hickey, urging affirmance for amicus curiae Ohio Chamber of
Commerce.

Bricker & Eckler, L.L.P., and Thomas R. Sant, urging
affirmance for amici curiae Ohio Chapter of the National
Federation of Independent Business and Ohio Manufacturers’
Association.

Vorys, Sater, Seymour & Pease, L.L.P., Robert A. Minor, and
Robin Obetz, urging affirmance for amicus curiae Ohio
Self-Insurers’ Association.

MOYER, C.J.

{¶ 1} William Moorehead fell approximately 15 to 20
feet head first onto a concrete floor while working on a
raised platform at his job site. Upon impact he suffered
severe spinal cord and other injuries. Unrebutted evidence
established that the spinal cord injury rendered him a
quadriplegic.[fn1] William never regained consciousness and
died 90 minutes after the fall.

{¶ 2} His widow, appellant Sandra Moorehead, applied
for death benefits. Pursuant to R.C. 4123.57(B), she also
applied for scheduled loss compensation based on William’s
loss of use of both arms and legs.

{¶ 3} The Industrial Commission denied the
application for scheduled loss compensation, observing that
scheduled loss benefits may be awarded only to injured
workers who both experience a physical and sustained loss
of use and also consciously perceive and experience the
physical suffering and hardship caused by the loss of use
of a body part in the period between the injury and death.
The commission stated that “the widow-claimant’s
application for such benefits must fail, as the decedent
did not sustain the loss of his extremities, because he was
comatose, and completely unaware of the extent of injuries,
for the brief period between the accident and his death.”

{¶ 4} The Court of Appeals for Franklin County
denied appellant’s petition for a writ of mandamus ordering
the payment of scheduled loss benefits.

{¶ 5} The cause is now before this court on an
appeal as of right.

{¶ 6} The court of appeals deferred to the
commission’s interpretation that “loss of use” does not
occur when an injured worker “survives an industrial injury
in an unconscious state for only a brief period and never
actually experiences the disabling effects of the injury.”
We disagree.

{¶ 7} R.C. 4123.57 provides that compensation is
payable to an employee when the employee suffers the loss
of a body part that is listed on a schedule set forth in
the statute. R.C. 4123.57(B) provides:

{¶ 8} “In cases included in the following schedule
the compensation payable per week to the employee is the
statewide average weekly wage * * * and shall continue
during the periods provided in the following schedule:

{¶ 9} ” * * *

{¶ 10} “For the loss of an arm, two hundred
twenty-five weeks.

{¶ 11} ” * * *

{¶ 12} “For the loss of a leg, two hundred weeks.”

{¶ 13} This court has held that “loss” as used in
R.C. 4123.57(B) is equivalent to “loss of use,” State ex
rel. Gassmann v. Indus. Comm. (1975), 41 Ohio St.2d 64, 70
O.O.2d 157, 322 N.E.2d 660 (construing the predecessor
statute), and that compensation is payable for loss of a
limb through amputation and for permanent and total loss of
use due to paralysis, because such loss constitutes a loss
“`[f]or all practical purposes * * * to the same effect and
extent as if [the limb] had been amputated or otherwise
physically removed,'” State ex rel. Walker v. Indus. Comm.
(1979), 58 Ohio St.2d 402, 403-404, 12 O.O.3d 347, 390
N.E.2d 1190, quoting Gassmann at 67, 70 O.O.2d 157, 322
N.E.2d 660.

{¶ 14} 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.

{¶ 15} 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.

{¶ 16} 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:

{¶ 17} “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. at 119 N.H. 23, 397 A.2d 640.

{¶ 18} 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, the statute directs that
scheduled loss compensation shall be paid.

{¶ 19} 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.

{¶ 20} 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.

{¶ 21} 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[fn2] 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.

{¶ 22} The writ is therefore allowed and the cause
remanded for determination by the commission of the amount
of scheduled loss benefits due the appellant.

Judgment reversed and writ allowed.

[fn1] A hospital radiologist who reviewed the worker’s
x-rays observed “disassociation of the normal articulation
between the skull and 1st cervical segment with significant
gaping indicative of severe cord injury.” Several medical
doctors opined that these injuries are consistent with a
diagnosis of quadriplegia.

[fn2] {¶ a} Appellant, a surviving spouse, cited R.C.
4123.60 in her application for an award of scheduled loss
benefits. It provides:

b. “If the decedent would have been lawfully entitled to
have applied for an award at the time of his death the
administrator may, after satisfactory proof to warrant an
award and payment, 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 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.”

c. R.C. 4123.57(B) itself is also relevant to a claim by a
surviving spouse. It provides:

d. “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 * * *.

e. “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 to
dependents].”

RESNICK, PFEIFER, O’CONNOR and LANZINGER, JJ., concur.

LUNDBERG STRATTON and O’DONNELL, JJ., concur separately.

LUNDBERG STRATTON, J., concurring.

{¶ 23} 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 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.

{¶ 24} Sandra Moorehead was awarded death benefits
under R.C. 4123.59, which authorizes payment of benefits to
dependents of any employee who dies as a result of a
workplace injury or occupational disease. These benefits
are intended to compensate for the loss of wages and are
calculated at a percentage of the average weekly wage. The
award is paid from the employee’s date of death until the
death or remarriage of the dependent spouse. R.C.
4123.59(B)(1).

{¶ 25} Scheduled loss benefits under R.C. 4123.57(B)
are intended to compensate for an injured worker’s presumed
loss of earning capacity. McKenney, 110 Ohio St.3d 54,
2006-Ohio-3562, 850 N.E.2d 694, ¶ 16. A scheduled
loss award conclusively presumes that the loss of a member
has an effect on one’s earning capacity. Id. at ¶
15. However, this presumption is rebutted when the worker
dies, for there is no longer an earning capacity to be
impaired.

{¶ 26} 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.

{¶ 27} The difficulty in this case is the
application of these statutes, i.e., whether R.C.
4123.57(B) contemplates a scheduled loss award when the
injured worker survived his injuries only briefly, or
whether the General Assembly intended death benefits to
compensate the surviving dependents under these
circumstances.

{¶ 28} We addressed payment of scheduled loss
benefits to a surviving spouse in McKenney. Patrick
McKenney, a quadriplegic, had been awarded 850 weeks of
scheduled loss benefits under R.C. 4123.57(B), payable in
weekly installments. He died after six weeks of payment. His
surviving spouse and sole dependent, Nancy, moved for a
lump sum payment of the remaining 844 weeks of
compensation. Nancy McKenney died one day later. Her estate
pursued her motion, claiming that the entire amount of the
scheduled loss award accrued to Nancy at Patrick’s death.

{¶ 29} We did not agree that McKenney was entitled
to the entire award upon Patrick’s death. Scheduled loss
benefits, like most other forms of worker’s 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.

{¶ 30} 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.[fn3] 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 death benefits under R.C.
4123.59. I do not believe that the General Assembly
intended for duplicate awards under these circumstances.

{¶ 31} 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.

[fn3] Because R.C. 4123.57(B) authorizes payment on a weekly
basis, the claimant would be paid one week of compensation
for a period of 90 minutes’ loss of earning capacity.

O’DONNELL, J., concurs in the foregoing opinion.