State ex rel. Mast v. Industrial Commission

953 N.E.2d 380, 193 Ohio App. 3d 650
CourtOhio Court of Appeals
DecidedJune 14, 2011
DocketNo. 10AP-278
StatusPublished

This text of 953 N.E.2d 380 (State ex rel. Mast v. Industrial Commission) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Mast v. Industrial Commission, 953 N.E.2d 380, 193 Ohio App. 3d 650 (Ohio Ct. App. 2011).

Opinion

Klatt, Judge.

{¶ 1} Relator, Leona A. Mast, commenced this original action in mandamus seeking an order compelling respondent, Industrial Commission of Ohio, to vacate its order denying her request for an R.C. 4123.57(B) scheduled-loss award for the surgical amputation of her left great toe and to enter an order granting compensation.

{¶ 2} Relator sustained traumatic amputations of her left thumb, left index finger, and left long finger in an industrial accident. Her claim was allowed for the loss of these digits. Relator received a scheduled-loss award equivalent to the loss of her entire left hand because she lost two or more digits on the same hand. R.C. 4123.57(B).

{¶ 3} Subsequently, relator’s doctor completed a C-9 form requesting that the bureau authorize a left-great-toe-to-left-thumb transplant “to improve apposition of the digits and improve functionality of the hand.” The surgery was successfully performed. Following reattachment and recovery, relator had a viable left thumb with significantly improved left-hand function. However, because of the transplant, relator was now missing her left great toe.

[652]*652{¶ 4} The bureau issued an order allowing the claim for “amputation left big toe” and that order was not administratively appealed. Thereafter, relator moved for an R.C. 4123.57(B) scheduled-loss award for the loss of her left great toe. Both the district hearing officer and staff hearing officer denied relator a scheduled-loss award for her left great toe. Thereafter, relator filed this mandamus action.

{¶ 5} Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth District Court of Appeals, we referred this matter to a magistrate who issued a decision, including findings of fact and conclusions of law, which is appended. Although acknowledging that with respect to the left thumb and left great toe, there were two amputations, the magistrate noted that there was the loss of only one of these digits due to the surgical transplant. Finding this factual scenario analogous to that presented in State ex rel. Qiblawe v. Indus. Comm., 96 Ohio St.3d 347, 2002-Ohio-4759, 774 N.E.2d 1215, the magistrate found that the commission properly denied relator a scheduled-loss award for the left great toe. Therefore, the magistrate has recommended that we deny relator’s request for a writ of mandamus.

{¶ 6} Relator has filed objections to the magistrate’s decision. Relator argues that Qiblawe is distinguishable on its facts and that she is entitled to a scheduled-loss award for the loss of her left great toe under the statute. We agree.

{¶ 7} In Qiblawe, the claimant had her index finger surgically transplanted to the site of another finger that had been lost in an industrial accident. The transplant was successful. Following reattachment and recovery, the claimant was missing only one finger. Although Qiblawe involved two amputations, the court determined that she was only entitled to receive a scheduled-loss award for the loss of one digit because the other digit was successfully transplanted with good functionality. In reaching this result, the court relied upon the rationale set forth in State ex rel. Welker v. Indus. Comm. (2001), 91 Ohio St.3d 98, 742 N.E.2d 622.

{¶ 8} In Welker, the claimant’s left thumb was almost completely severed in an industrial accident. However, after two surgeries, his thumb was successfully reattached at the same site. The claimant also recovered most of the thumb’s functionality. The claimant sought a scheduled-loss award under R.C. 4123.57(B) based on “the amputation of the total left thumb.” The commission denied the award and that decision was upheld by this court. On further appeal to the Supreme Court of Ohio, that court saw the central question as “[s]hould claimant’s eligibility for his scheduled-loss award be determined as of the time he was injured or from the point of reattachment and recovery.” The court found in favor of the latter view. Id. at 100, 742 N.E.2d 622. Because the claimant’s thumb was successfully reattached, he was not entitled to a scheduled-loss award for the loss of the thumb. The Welker court also noted that reattachment [653]*653“eliminates the element of disfigurement which probably played a part in the creation of the scheduled-loss concept.” Id. at 104, 742 N.E.2d 622.

{¶ 9} The facts presented in the case at bar bring two factors into play that were not present in Qiblawe or Welker: (1) relator’s surgical amputation and reattachment involved two different extremities and (2) relator was not separately compensated for the loss of her thumb. We find that these factual differences require a different outcome than those reached by the courts in Qiblawe and Welker.

{¶ 10} The underlying legal principle in both Welker and Qiblawe is that a claimant’s eligibility for a scheduled-loss award is determined “from the point of reattachment and recovery.” Welker at 100, 742 N.E.2d 622. Here, after reattachment and recovery, relator was missing two fingers on her left hand and her left great toe. Both extremities suffered a disfigurement. Relator received a scheduled-loss award for the loss of the two fingers on her left hand in an amount equal to what she would have received for the loss of her left hand. R.C. 4123.57(B). Relator is entitled to this award despite the transplant of her left great toe on the site of her left thumb. However, after reattachment and recovery, she is now without her left great toe. Therefore, relator is also entitled to a scheduled-loss award for the loss of her left great toe pursuant to R.C. 4123.57(B). The commission abused its discretion when it denied relator that award.

{¶ 11} This result is completely consistent with both Welker and Qiblawe. After reattachment and recovery, the claimant in Welker was not entitled to a scheduled-loss award because his severed thumb was successfully reattached and functional. After reattachment and recovery, the claimant in Qiblawe was entitled to a scheduled-loss award for only one finger because the surgically amputated finger was successfully reattached and functional. Here, relator is entitled to a scheduled-loss award for both the loss of her two fingers on her left hand and the loss of her left great toe because she is missing these digits after reattachment and recovery. Therefore, the commission abused its discretion when it denied relator a scheduled-loss award for the loss of her left great toe. For this reason, we sustain relator’s objections.

{¶ 12} Following an independent review of this matter, we adopt the magistrate’s findings of fact but not his conclusions of law. For the reasons stated herein, we modify the magistrate’s decision, grant relator’s request for writ of mandamus, and order the commission to enter an order granting relator a scheduled-loss award for the loss of her left great toe.

Objections sustained and writ of mandamus granted.

Brown and French, JJ., concur.

[654]*654 APPENDIX A

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Related

State ex rel. Welker v. Industrial Commission
742 N.E.2d 622 (Ohio Supreme Court, 2001)
State ex rel. Qiblawe v. Industrial Commission
96 Ohio St. 3d 347 (Ohio Supreme Court, 2002)
State ex rel. Welker v. Indus. Comm.
2001 Ohio 292 (Ohio Supreme Court, 2001)
State ex rel. Qiblawe v. Indus. Comm.
2002 Ohio 4759 (Ohio Supreme Court, 2002)

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Bluebook (online)
953 N.E.2d 380, 193 Ohio App. 3d 650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-mast-v-industrial-commission-ohioctapp-2011.