Summary
In Samkas the claimant contended that he lost four fingers on one hand and therefore suffered the loss of the hand, entitling him to benefits both for loss of the fingers and for loss of the hand.
Summary of this case from State, ex Rel. Cook v. ZimpherOpinion
No. 81-1687
Decided June 30, 1982.
Workers' compensation — Permanent partial disability award — Loss of hand — R.C. 4123.57(C), construed — Loss of fingers in addition thereto not compensable.
APPEAL from the Court of Appeals for Franklin County.
On August 16, 1973, appellant, James R. Samkas, while in the course of his employment with Midland-Ross Corporation, sustained an accidental injury in which the second, third, fourth and fifth fingers of his left hand were effectively amputated. Midland-Ross, a self-insured employer under the Workers' Compensation Act, entered into an agreement with Samkas compensating him for the loss of his left hand.
The agreement, which was approved by the Bureau of Workers' Compensation, provides in relevant part:
"Loss of left hand involving the second, third, fourth and fifth fingers at the level of the distal metacarpals equals total loss of left hand by amputation per Section 4123.57, Paragraph `C'."
In accordance with this agreement, Midland-Ross was obligated to pay appellant permanent partial disability benefits for 175 weeks, beginning April 16, 1973, at the rate of $72.10 weekly, totaling $12,617.50. No evidence exists indicating that the employer has, in any way, failed to comply with this agreement.
Nonetheless, on August 13, 1976, appellant filed a motion requesting compensation for the loss of his hand, pursuant to R.C. 4123.57(C). In January 1977, the deputy administrator found the motion to be moot on the basis of the hereinbefore mentioned executed agreement. On appeal, the Cleveland Regional Board of Review affirmed; however, appellant was afforded the opportunity to amend his motion to request compensation for the loss of his fingers, in addition to the compensation paid for the loss of his hand.
Thereafter, the district hearing officer denied the amended motion on the basis that claimant "* * * has already [been] awarded * * * total loss of [the] left hand pursuant to [R.C.] 4123.57." This decision was affirmed by the regional board of review and the Industrial Commission refused further appeal. Appellant then instituted the instant action in mandamus in the Court of Appeals, contending: "Where an injured workman has lost four fingers on one hand by severance and thereafter suffers loss of the hand he is entitled to the statutory benefits both for the loss of the fingers and for the loss of the hand under Section 4123.57(C) of the Revised Code." The Court of Appeals denied the writ.
The cause is now before this court on an appeal as of right.
Messrs. Mancino, Mancino Mancino and Mr. Paul Mancino, Jr., for appellant.
Mr. William J. Brown, attorney general, and Mr. Richard J. Forman, for appellee Industrial Commission.
Seeley, Savidge Aussem Co., L.P.A., and Mr. Thomas M. Carolin, for appellee Midland-Ross Corporation.
R.C. 4123.57(C), after setting forth a schedule for compensation applicable to the loss of a thumb, fingers, or various portions thereof, provides, in pertinent part:
"If the claimant has suffered the loss of two or more fingers by amputation * * * and the nature of his employment * * * is such that the handicap or disability resulting from such loss of fingers, or loss of use of fingers, exceeds the normal handicap or disability resulting from such loss * * * the commission may take that fact into consideration and increase the award of compensation accordingly, but the award made in such case shall not exceed the amount of compensation for loss of a hand." (Emphasis added.)
Appellant contends the benefits set forth in R.C. 4123.57 (C) are consecutive in nature and, as such, where an individual loses fingers he is entitled to compensation therefor, and if a hand is subsequently lost, additional compensation becomes due. Essentially, appellant's argument requests a ruling on a hypothetical fact situation not presently before this court.
The facts in this cause are not in dispute. After the accident, appellant, the employer and the bureau agreed that the amputation of the fingers justified an award for the total loss of a hand. The statute is clear; under these circumstances additional compensation may be made but under no circumstances is the award to "* * * exceed the amount of compensation for loss of a hand." Appellant has been compensated for the loss of his hand. Accordingly, this cause is governed by our decision in State, ex rel. Vaughn, v. Indus. Comm. (1982), 69 Ohio St.2d 115, wherein we stated, at page 117:
"`[T]he maximum amount of [workmen's] compensation to which claimant is entitled is a substantive right and is governed by the statutory law in effect on the date of injury.' State, ex rel. Frank, v. Keller (1965), 3 Ohio App.2d 428, 430. See, also, Young, Workmen's Compensation Law in Ohio (2 Ed.), 124, Section 7.1.
"Therefore, regardless of the manner in which appellant wishes to characterize the order of the board of review, that order cannot exceed the statutory maximum for which appellant has been paid."
This court has repeatedly held that "the determination of disputed factual situations is within the final jurisdiction of the Industrial Commission, and subject to correction by action in mandamus only upon a showing of abuse of discretion." State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15, 16. See, also, State, ex rel. Reed, v. Indus. Comm. (1965), 2 Ohio St.2d 200; State, ex rel. Allied Wheel Products, v. Indus. Comm. (1956), 166 Ohio St. 47. The commission's decision here is not an abuse of discretion.
For the foregoing reasons, the judgment of the Court of Appeals denying the writ is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.