State ex rel. Riter v. Industrial Commission

742 N.E.2d 615, 91 Ohio St. 3d 89
CourtOhio Supreme Court
DecidedMarch 7, 2001
DocketNo. 99-841
StatusPublished
Cited by20 cases

This text of 742 N.E.2d 615 (State ex rel. Riter v. Industrial Commission) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Riter v. Industrial Commission, 742 N.E.2d 615, 91 Ohio St. 3d 89 (Ohio 2001).

Opinion

Per Curiam.

In 1991, appellant-claimant, Velma J. Riter, f.k.a. Mayle, broke her thumb while working for appellee Timken Company. Five surgeries later, it became clear that claimant’s interphalangeal (“IP”) joint was ankylosed and could not bend. Appellee Industrial Commission of Ohio found an eleven percent permanent partial disability as a result.

In 1993, claimant sought a scheduled award for loss of use of her thumb under R.C. 4123.57(B). A district hearing officer’s award for only one-half, not total, loss prompted appeals that eventually led to a hearing before a commission deputy. He prepared an order awarding claimant compensation for full loss of [90]*90use. However, when the order was presented to the commission for approval, two of the three commissioners refused to approve it.

Somehow, on March 3, 1997, the unapproved order was mailed to the parties. When the commission learned of this, it vacated the order and set the matter for commission hearing. The commission, splitting two to one, eventually awarded claimant compensation for one-half loss of use only.

The Court of Appeals for Franklin County, on claimant’s petition for a writ of mandamus, upheld the commission’s order, and denied the writ. This cause is now before this court upon an appeal as of right.

Claimant challenges the commission’s jurisdiction to vacate the March 3, 1997 order and the merits of the order that followed. Finding these challenges to be unpersuasive, we affirm the judgment of the court of appeals.

Claimant initially argues that the commission lacked jurisdiction to vacate the March 3, 1997 order awarding her compensation for total loss of use. This contention lacks merit.

Former R.C. 4121.03(A) (now 4121.03[E]) requires that a deputy-issued order must be approved by a commission majority. The March 3, 1997 order was not so approved, and its issuance was, therefore, a mistake of law sufficient to invoke the commission’s continuing jurisdiction under R.C. 4123.52. State ex rel. B & C Machine Co. v. Indus. Comm. (1992), 65 Ohio St.3d 538, 605 N.E.2d 372.

Contrary'to claimant’s assertion, the commission’s actions did not contravene any time constraints governing reconsideration. The commission acted sua sponte and not in response to any formal request by Timken for reconsideration.

Claimant also argues that under State ex rel. Nicholls v. Indus. Comm. (1998), 81 Ohio St.3d 454, 692 N.E.2d 188, the commission’s explanation that the order “was issued in error” was not sufficient to justify continuing jurisdiction absent identification of the perceived error. This is incorrect. In this case, the error was apparent from the order’s face — it was unnecessary to additionally articulate it in the vacation order that followed.

Accordingly, the commission did not abuse its discretion in exercising its continuing jurisdiction.

We turn next to the issue of compensation pursuant to R.C. 4123.57(B). A permanent and total loss of use of an enumerated body part warrants a scheduled loss award under R.C. 4123.57(B). Compensation for loss of thumb, for example, warrants sixty weeks of compensation. Loss of a finger ranges from thirty-five weeks for the index to fifteen weeks for the little finger.

The statute also specifies, to some degree, how loss is measured, based on the anatomy of the affected member. For example, proceeding from the base of the finger outward, there is a metacarpophalangeal joint followed by a proximal [91]*91phalanx. It continues with the proximal interphalangeal (“PIP”) joint, the middle phalanx, the distal interphalangeal (“DIP”) joint, and finally the third, or distal, phalanx (“DP”). Stedman’s Medical Dictionary (26 Ed. 1995) 1030; University of Washington Radiology Webserver (http://www.rad.washington.edu/RadAnat/HandPALabelled. html).

Consistent with this structure, R.C. 4123.57(B) provides:

“The loss of the third, or distal, phalange of any finger is considered equal to the loss of one-third of the finger.

“The loss of the middle, or second, phalange of any finger is considered equal to the loss of two-thirds of the finger.

“The loss of more than the middle and distal phalanges of any finger is considered equal to the loss of the whole finger.”

The thumb has one fewer joint and bone. There is no middle phalanx, and the joint connecting the proximal and distal phalanges is simply called the interphalangeal (“IP”) joint. Id. As to the thumb, the statute directs:

“The loss of a second, or distal phalange of the thumb is considered equal to the loss of one half of such thumb; the loss of more than one half of such thumb is considered equal to the loss of the whole thumb.”

There is no dispute that claimant’s IP joint has no range of motion due to ankylosis. We must determine whether this entitles claimant to compensation for the loss of the whole thumb. We find that it does not.

First, claimant argues that since (1) loss of the distal phalanx is statutorily equated to one-half loss of the thumb and (2) more than one-half loss is construed as a full loss, the loss of the IP joint is an addition that pushes claimant over the threshold. She couples this assertion with a reminder that under R.C. 4123.95, the workers’ compensation statutes are to be liberally construed in a claimant’s favor.

Second, claimant points to Commission Memo F.4, which awards compensation for a full finger loss when the PIP joint, or mid knuckle, is ankylosed, and asserts that consistency demands the same award when the thumb’s mid knuckle, or IP joint, is fused. Memorandum No. F.4 (Jan. 1, 1989), in Industrial Commission Hearing Officer Manual, reprinted in Fulton, Anderson’s 2000 Ohio Workers’ Compensation Handbook (6 Ed. 2000) 435. Claimant observes that, with language similar to that concerning the thumb, R.C. 4123.57 directs that loss of more than the distal and middle phalanges of the finger is considered a total finger loss. Thus, if ankylosis of the PIP joint is considered a loss of more than the distal and middle phlanges, and thus a full loss — as Memo F.4 says it is — then ankylosis of the IP joint must be considered the same for the thumb.

[92]*92Appellees counter that had the General Assembly intended such an effect, it could have so provided. While true, this ignores the use in R.C. 4123.57(B) of the same “more than” language for thumbs and fingers, and, in the latter instance, the commission has interpreted that language as encompassing the PIP joint.

Appellees’ stronger argument lies in the significantly distinct functions of the thumb and fingers. Viewing the hand as a whole, there are two categories of movement of which it is capable: prehensile and nonprehensile. John Napier, Hands (1993 Rev. Ed.). Prehensile movements “are those in which an object, fixed or free, is held by a gripping or pinching action between the digits and the palm.” Id. at 74. Nonprehensile movements, on the other hand, include “pushing, lifting, tapping and punching movements of the fingers, such as typewriting or working the stops of a musical instrument.” Id.

The thumb is the key to grasping and gripping. Id. at 91.

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Bluebook (online)
742 N.E.2d 615, 91 Ohio St. 3d 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-riter-v-industrial-commission-ohio-2001.