Summary
In State ex rel. Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, 403, the court spoke in terms of a loss to the same effect and extent as if amputated or otherwise physically removed.
Summary of this case from Lamb v. Indus. Comm.Opinion
No. 78-1249
Decided June 20, 1979.
Workers' compensation — Partial disability compensation — "Loss" construed.
A total and permanent loss of use of both legs constitutes a "loss" within the meaning of R.C. 4123.57(C). ( State, ex rel. Gassmann, v. Indus. Comm., 41 Ohio St.2d 64, followed; State, ex rel. Bohan, v. Indus. Comm., 146 Ohio St. 618, overruled.)
APPEAL from the Court of Appeals for Franklin County.
On July 23, 1975, Randal J. Walker, appellee, was shot by an assailant while on duty as a city of Columbus police officer, resulting in his paralysis from the waist down. His legs have not been amputated or otherwise severed.
Subsequently, appellee filed a motion with the Bureau of Workers' Compensation to receive partial disability compensation pursuant to R.C. 4123.57(C). The bureau denied appellee's motion and was sustained by the Columbus Regional Board of Review. The Industrial Commission refused to hear the appeal.
Appellee then appealed to the Court of Common Pleas of Franklin County which dismissed the cause, sua sponte, for failure to state a claim upon which relief could be granted. Thereafter, appellee appealed to the Court of Appeals and also filed a complaint in mandamus. The Court of Appeals sustained the trial court's dismissal but issued the requested writ of mandamus ordering the commission to recognize appellee's claim for loss of his legs. In issuing the writ, the Court of Appeals held that the term "loss" as used in R.C. 4123.57(C) includes "loss of use" and not merely "loss by severance."
The cause is now before this court as a matter of right.
Mr. Daniel J. Igoe, for appellee.
Mr. William J. Brown, attorney general, and Mr. John F. Livorno, for appellants.
The sole issue before this court is whether "loss" as used in R.C. 4123.57(C) includes "loss of use" and not merely "loss by severance." "Loss" was first defined by the Supreme Court in State, ex rel. Bohan, v. Indus. Comm. (1946), 146 Ohio St. 618, a 4-to-3 decision involving a claimant who had lost the use of his hand and wrist and sought to receive benefits under the predecessor of R.C. 4123.57(C) for the loss of the entire hand. The second paragraph of the syllabus in Bohan reads:
"The word `loss' as used in Section 1465-80, General Code, and therein applied to certain members of the human body means loss by severance and not the loss of use of such members."
The appellate court below, however, held that Bohan had been tacitly overruled by the more recent case of State, ex rel. Gassmann, v. Indus. Comm. (1975), 41 Ohio St.2d 64. There we held:
"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."
The Court of Appeals concluded that, although Gassmann, supra, dealt with R.C. 4123.58, the same language should implicitly be applicable to R.C. 4123.57(C).
We agree. In so doing, we rely upon R.C. 4123.95 which dictates a liberal construction in favor of employees. So construed, we agree with Justice Paul W. Brown's statement, in Gassmann, supra, at page 67, wherein he states: "* * * For all practical purposes, relator has lost his legs to the same effect and extent as if they had been amputated or otherwise physically removed." Furthermore, such a holding conforms to the generally accepted definition of the word in the Workers' Compensation area. The permanent impairment of a member without severance generally entitles the injured employee to an award and is regarded as being the same as loss by severance. See Nolan v. Ernest Const. Co. (1942), 243 Ala. 460, 10 So.2d 547; Dombrozzi v. E. Gross Co. (1931), 112 Conn. 627, 153 A. 780; Stanley v. United Iron Works Co. (1945), 160 Kan. 243, 160 P.2d 708; Clark v. Kennebec Journal Co. (1921), 120 Me. 133, 113 A. 51; Morley's Case (1951), 328 Mass. 148, 102 N.E.2d 493; Kiczko v. Baylis Co. (1942), 20 N.J. Misc. 323, 27 A.2d 14; McClelland v. Baltimore Ohio Ry. Co. (1939), 137 Pa. Super. 158, 8 A.2d 498; Steele v. Darlington Fabrics Corp. (1951), 78 R.I. 272, 81 A.2d 424; and Virginia Oak Flooring Co. v. Chrisley (1954), 195 Va. 850, 80 S.E.2d 537.
We, therefore, affirm the judgment of the Court of Appeals in order to alleviate the "obviously unjust result, whereby a claimant's award is measured by the fortuity of the events contributing to his disability * * *." State, ex rel. Benton, v. C. So. O. Elec. Co. (1968), 14 Ohio St.2d 130, 133.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN and SWEENEY, JJ., concur.
HOLMES, J., not participating because he was a Judge of the Court of Appeals which heard the case.