State ex rel. Timmerman Truss, Inc. v. Industrial Commission

809 N.E.2d 15, 102 Ohio St. 3d 244
CourtOhio Supreme Court
DecidedJune 9, 2004
DocketNo. 2003-1777
StatusPublished
Cited by23 cases

This text of 809 N.E.2d 15 (State ex rel. Timmerman Truss, Inc. 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. Timmerman Truss, Inc. v. Industrial Commission, 809 N.E.2d 15, 102 Ohio St. 3d 244 (Ohio 2004).

Opinion

Per Curiam.

{¶ 1} On September 23, 1998, appellant-claimant, Chad Wagner, severely injured his right hand while using a table saw at work. In addition to causing numerous deep lacerations, several fractures, and nerve damage, claimant’s injury eventually required amputation of the right thumb tip and entire second finger.

{¶ 2} Office notes of claimant’s attending physician, Dr. H. Brent Bamberger, show steady recovery and in early March 1999, claimant was released to light-duty work. A previously undisclosed fracture temporarily interrupted progress, and it was during this time that claimant’s badly damaged second finger was surgically resected. By October 1999, however, he was again doing “quite well” and was to return to unspecified work in early November. After November 1999, no further doctor appointments were scheduled.

{¶ 3} In spring 2000, claimant fractured his right ring finger in a fight. A rod was inserted and recovery resumed. Dr. Bamberger noted in June that claimant was “to continue on a light duty job at work.”

{¶ 4} In late 2001, claimant moved the Industrial Commission of Ohio for a “permanent/partial award due to amputation and fusion.” Four primary pieces of evidence were before the district hearing officer. The first was a March 11, 2002 medical file review from Dr. W. Gibson, who after evaluating and accepting the findings of previous examiners, wrote:

{¶ 5} “[Claimant] has undergone multiple surgeries (mostly in an attempt to save the middle finger). He, however, had the middle finger amputated, and has Kerchner wires and ankylosis of other joints of the fingers, which, in effect, renders this hand as useless for functional purposes.

{¶ 6} “He has lost thumb/index finger opposition (pinch-point) and the combination of neurosensory loss, plus neuromotor loss and ankylosis, allows for the conclusion that Mr. Wagner has lost the use of his right hand. His dexterity and functional capacity are near zero and the record clearly shows a loss of use has taken place regarding the right hand.

{¶ 7} “Based on medical documentation in the file there is sufficient evidence to support a loss of use of the right hand as being causally related to the 9-23-98 injury of record. * * *

[246]*246{¶ 8} “ADDENDUM: Mr. Wagner now has a total loss of use of the entire right hand as a direct result of his 9-23-98 injury of record. This Addendum is for the purposes of clarity.”

{¶ 9} Dr. Bamberger concurred in that opinion on April 22, 2002, stating:

{¶ 10} “This was a significant injury and it is my opinion [that] Chad would qualify for a loss of use of the right hand. He is right-hand dominant and his employment at the time of injury involved physical labor. Based on his injury, his employment history, and the fact that this is his dominant hand, I would concur with the loss of use opinion issued by the BWC.”

{¶ 11} Days later, Dr. Ron M. Koppenhoefer examined claimant. Among other things, he noted:

{¶ 12} “Currently he is taking no medications for problems involving his right dominant hand. He indicates he has some symptoms. In cold weather, which he defines as 35 degrees to 40 degrees, he states his hand turns cold and can become slightly bluish in nature. He does wear a glove which helps his problem. He indicates he is able to work in construction and do labor activities. He states he does have problems in regards to decreased strength involving his right hand, and gripping with his hand spread also causes him some difficulty. He states he has soreness after a hard day’s work. This usually occurs when he hammers with his right arm. He does not wear a protective glove. He denies having any numbness or tingling except when his hand is cold.”

{¶ 13} He concluded:

{¶ 14} “Based on my examination, there is no evidence to indicate that Mr. Wagner has a complete total and permanent loss of function involving his right hand. He does have some limitations in regards to the use of his right hand brought about by the injury which he sustained on September 23, 1998. These limitations are related to the amputation of his right third finger and the slight decreased sensation as well as decreased motion which has been documented in this report. When inspecting his hand, his hand was noted to be well callused, which corresponds with his clinical history of being able to use his hand when doing construction labor activities. He indicates he takes no medication for discomfort involving his right hand and has only minimal discomfort in cold weather, which is corrected by the use of a glove.”

{¶ 15} A final significant source of evidence was a packet of unsworn — some undated — statements from claimant’s fellow workers. All attested to claimant’s total resumption of his prior duties with his injured hand. One co-worker wrote the following representative statement:

{¶ 16} “I was working there when he first injured his right hand, and continued to work with him when he returned to work. In the time since his return to [247]*247work, he has become a very productive worker. As far as how he does with his right hand while at work, he does exactly the same work that everyone else does, and uses both hands just like he did before the injury. He doesn’t have any trouble with using a hammer or grasping boards or for that matter anything you would normally do with your hands.”

{¶ 17} Several of these co-workers also socialized with claimant outside of work. Claimant was allegedly able to play golf, volleyball, and basketball, and to swim and to water-ski with no discernible problems or complaints.

{¶ 18} The district hearing officer found that claimant had not sustained a total loss of use of the right hand, based on Dr. Koppenhoefer’s report and a November 4, 1999 Bamberger report that released claimant to return to his “usual duties” without restriction. A staff hearing officer vacated that order and granted an award for the total loss of the right hand based on Dr. Gibson’s report and Dr. Bamberger’s April 22, 2002 letter. Further appeal was refused.

{¶ 19} The employer, appellee Timmerman Truss, Inc., filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging a commission abuse of discretion in granting a total-loss-of-use award. The court of appeals, speaking through its magistrate, held that the evidence relied upon by the commission did not support such an award under the standards set forth in State ex rel. Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, 12 O.O.3d 347, 390 N.E.2d 1190. The court questioned, however, whether claimant could recover under an alternate provision in R.C. 4123.57(B), and returned the cause for further consideration and an amended order.

{¶ 20} This cause is now before this court upon an appeal as of right.

{¶ 21} Scheduled loss awards under R.C. 4123.57(B) (formerly R.C. 4123.57[C]) were originally confined to amputees. See State ex rel. Bohan v. Indus. Comm. (1946), 146 Ohio St. 618, 33 O.O. 92, 67 N.E.2d 536, paragraph two of the syllabus, citing former G.C. 1465-80. Now, however, these awards include total loss of use without severance where the loss is “to the same effect and extent as if [the body part] had been amputated or otherwise physically removed.” Walker,

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Bluebook (online)
809 N.E.2d 15, 102 Ohio St. 3d 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-timmerman-truss-inc-v-industrial-commission-ohio-2004.