State ex rel. Thomas v. Indus. Comm.

[This decision has been published in Ohio Official Reports at 

97 Ohio St.3d 37

.]




THE STATE EX REL. THOMAS, APPELLEE, v. INDUSTRIAL COMMISSION OF OHIO,
                                       APPELLANT.
        [Cite as State ex rel. Thomas v. Indus. Comm., 

2002-Ohio-5306

.]
Workers’ compensation—Application for permanent total disability compensation
        denied by Industrial Commission—Court of appeals’ grant of writ of
        mandamus ordering an award of statutory permanent total disability
        compensation under R.C. 4123.58(C) affirmed—Claimant’s right arm loss
        entailed separate entities of hand and arm entitling him to permanent total
        disability compensation.
     (No. 2001-0237—Submitted July 24, 2002—Decided October 16, 2002.)
      APPEAL from the Court of Appeals for Franklin County, No. 00AP-289.
                                  __________________
        Per Curiam.
        {¶1} Appellee-claimant Vaughn P. Thomas’s workers’ compensation claim
has been allowed for assorted arm, hand, and psychological conditions. In 1997,
he received an award under R.C. 4123.57(B) for total loss of use of his right arm.
        {¶2} In 1999, claimant moved for permanent total disability compensation
(“PTD”). Appellant Industrial Commission of Ohio, however, found claimant
capable of sustained remunerative employment. It also denied claimant’s request
to be declared statutorily permanently and totally disabled under R.C. 4123.58(C),
writing:
        {¶3} “Under O.R.C. 4123.58(C) statutory permanent and total disability is
awarded when there is found to be a loss of use of both hands, or both arms, or both
feet or both legs, or both eyes, or any two thereof. In the instant case the claimant
has received an award for a total loss of use of the right arm. Claimant’s argument
is that because he has been awarded a total loss of use of the right arm, that
                              SUPREME COURT OF OHIO




necessarily means that he has a total loss of use of the right hand and right arm
which would then constitute the loss of two limbs and qualify him for statutory and
permanent total disability * * *. This argument is found not to be well taken
because this statue [sic] requires that the loss be of both hands or arms or any
combination thereof. Merely because the claimant loses the use of a hand and arm
that loss is considered to be one entity and not the loss of two separate body parts
as the statue [sic] requires. Because the claimant has only lost the use of one arm,
and not both arms, he cannot be awarded statutory permanent disability. To hold
otherwise, that is to hold [that] the loss of one upper extremity whether it be the left
or right arm constitutes the loss of two body parts, would be a misconstruction of
the statue [sic] as the statute requires the loss of separate hands or separate arms
and not the loss of one side or the other.             Consequently, based on the
aforementioned reasoning[,] the claimant’s request for statutory permanent and
total disability is hereby denied.” (Emphasis added.)
        {¶4} Claimant prevailed at the court of appeals, and a writ of mandamus
issued that ordered an award of statutory PTD. The court of appeals held that the
claimant’s right arm loss entailed separate entities of hand and arm, thereby
entitling him to PTD.
        {¶5} This cause is now before this court upon an appeal as of right.
        {¶6} Upon review, we agree with the reasoning provided by the court of
appeals. For the reasons given in that opinion, we hereby affirm its judgment.
                                                                   Judgment affirmed.
        DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.
        MOYER, C.J., COOK and LUNDBERG STRATTON, JJ., dissent in accordance
with the order of the Industrial Commission.
                                __________________
        Philip J. Fulton & Associates and Jonathan H. Goodman, for appellee.




                                           2
                               January Term, 2002




       Betty D. Montgomery, Attorney General, and Thomas L. Reitz, Assistant
Attorney General, for appellant.
       Butler, Cincione, DiCuccio & Barnhart and David B. Barnhart, urging
affirmance for amicus curiae, Ohio Academy of Trial Lawyers.
                              __________________




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