Summary
In Benton, the claimant, who had previously received PTD compensation for the amputation of both his hands, sought partial disability compensation for the loss of each individual hand with no subsequent change in his condition.
Summary of this case from State, ex Rel. Doughty, v. Indus. CommOpinion
Nos. 41262 and 41263
Decided May 8, 1968.
Workmen's compensation — Permanent total award for loss of hands — Section 4123.58, Revised Code — Further award for partial disability for same injury precluded — Section 4123.57, Revised Code — Mandamus not available as substitute for appeal — Section 4123.519, Revised Code.
1. Mandamus cannot be used as a substitute for an appeal pursuant to Section 4123.519, Revised Code, where an appeal thereunder is available to test a determination of the Industrial Commission.
2. 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.
3. 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.
APPEALS from the Court of Appeals for Franklin County.
The appellant, Fred R. Benton, in the course of and arising out of his employment, sustained severe burns to both of his hands, requiring bilateral amputation. On October 24, 1963, the Bureau of Workmen's Compensation, having paid appellant temporary total disability benefits from the date of the injury, ordered payment of permanent and total disability benefits. Appellant now seeks permanent partial disability benefits in addition to the permanent and total disability benefits already awarded. The Industrial Commission has denied his claim.
Appellant, uncertain as to the proper procedure to test the order of the commission, brought an appeal to the Common Pleas Court, and thereafter to the Court of Appeals, and also instituted an original mandamus action in the Court of Appeals. Being unsuccessful in both efforts, he has consolidated the appeals which were heard in this court as one.
Mr. John S. Mitchell, for appellant.
Mr. William B. Saxbe, attorney general, Mr. Walter J. Howdyshell and Mr. James A. McLaughlin, for appellee Industrial Commission of Ohio.
Messrs. Porter, Stanley, Treffinger Platt and Mr. James J. Hughes, Jr., for appellee, Columbus Southern Ohio Electric Company.
Section 4123.519, Revised Code, provides in part:
"The claimant or the employer may appeal a decision of the Industrial Commission in any injury case, other than a decision as to the extent of disability, to the Court of Common Pleas of the county in which the injury was inflicted. . . ."
Mandamus cannot be used as a substitute for an appeal. State, ex rel. Pressley, v. Indus. Comm., 11 Ohio St.2d 141; State, ex rel. Sibarco Corp., v. Berea, 7 Ohio St.2d 85; and Section 2731.05, Revised Code. Therefore, it is not the proper remedy in the instant case. State, ex rel. Latino, v. Indus. Comm., 13 Ohio St.2d 103.
There being available to the relator a plain and adequate remedy in the ordinary course of the law, the Court of Appeals correctly denied the writ of mandamus.
We allow, however, the motion to certify the record in the companion case, Benton v. Columbus Southern Ohio Electric Co. (No. 41263) and proceed to consider it on the merits.
The question presented by this appeal is whether a claimant may 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. We hold that the latter statute provides the maximum disability benefits allowable for any one injury. To be sure, an award thereunder does not affect prior payments for temporary total benefits for the same injury pursuant to Section 4123.56, Revised Code, nor does a finding of total disability, either permanent or temporary, suspend an award made under Section 4123.57 (B) or (C) for a prior injury wholly unrelated in time, character and effect. State, ex rel. Latino, v. Indus. Comm., supra, and State ex rel. Dudley, v. Indus. Comm., 135 Ohio St. 121.
Section 4123.58, Revised Code, provides in part:
"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." (Emphasis supplied.)
Section 4123.57 (C), Revised Code, does not provide for the simultaneous loss of hands but fixes compensation "for the loss of a hand." Appellant cannot receive concurrent compensation for twice the amount of compensation permitted under Section 4123.57 (C), Revised Code, in addition to the benefits provided by Section 4123.58, Revised Code.
Appellant relies on our recent decision in State, ex rel. Latino, v. Indus. Comm., supra, where we held:
"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."
In Latino, the claimant sustained a 20% partial disability due to a fall. Thereafter, he was awarded permanent total disability benefits due to silicosis. His subsequent permanent total disability due to silicosis could not deprive him of his right to compensation for his initial injury. We said that Section 4123.58, Revised Code, was not ". . . an absolute limit to accumulated awards." (Emphasis supplied.)
Appellant never was partially injured under the statute. He became temporarily totally disabled, and after his bilateral amputation he became permanently and totally disabled. He, therefore, never came within the purview of Section 4123.57, Revised Code.
This obviously unjust result, whereby a claimant's award is measured by the fortuity of the events contributing to his disability, is compelled by the unperceptiveness of the controlling legislation.
Accordingly, the judgments of the Court of Appeals are affirmed.
Judgments affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and BROWN, JJ., concur.