[Cite as State ex rel. Arberia, L.L.C. v. Indus. Comm., 2014-Ohio-5351.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Arberia, LLC, : 

 

 Relator, : 

 

v. : No. 13AP-1024 

 

Industrial Commission of Ohio et al., : (REGULAR CALENDAR) 

 

 Respondents. : 

 

 

 D E C I S I O N 

Rendered on December 4, 2014 

 

Habash & Reasoner LLC, Dennis Behm, Stephen J. Habash

and David P. Everett, for relator. 

Michael DeWine, Attorney General, and Colleen C. Erdman, 

for respondent Industrial Commission of Ohio. 

Garson Johnson LLC, and Grace A. Szubski, for respondent 

Doloreza Taluri. 

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

TYACK, J. 

{¶ 1} Arberia, LLC filed this action in mandamus seeking a writ to compel the 

Industrial Commission of Ohio ("commission") to vacate its orders for loss of use with 

respect to Dhimitraq Taluri. For the following reasons, we deny Arberia LLC's request for 

a writ of mandamus. 

{¶ 2} In accord with Loc.R. 13(M) of the Tenth District Court of Appeals, the case 

was referred to a magistrate to conduct appropriate proceedings. The parties stipulated 

the pertinent evidence and filed briefs. The magistrate then issued a magistrate's 

decision, appended hereto, which contains detailed findings of fact and conclusions of 
2 

No. 13AP-1024 

law. The magistrate's decision recommends that we allow an award for loss of use but 

return the case to the commission for it to re-compute the number of weeks of scheduled 

loss compensation due to Taluri's widow. 

{¶ 3} Arberia, LLC has filed objections to the magistrate's decision. The 

commission has likewise filed objections, contesting the issue of re-computing the size of 

the award. Counsel for Doloreza Taluri, Dhimitraq Taluri's widow, has filed a 

memorandum in response to the objections filed by Arberia, LLC. Counsel for the 

commission has filed a similar document. Following oral argument before a panel of this 

court, the case is subject to a full, independent review. 

{¶ 4} Taluri died following a fall on October 28, 2011. He was 63 years old and 

fell about 30 feet while performing demolition work on a roof. He landed on his head. 

When approached, his pupils were found to be dilated. Blood and brain matter were 

coming from his nose. He was suffering from massive hemorrhages of his brain. He also 

was found to have multiple skull fractures. Taluri initially survived the fall but died four 

and one-half hours later at Grant Medical Center. Death benefits were granted by the 

Bureau of Workers' Compensation ("BWC"). 

{¶ 5} Counsel for his widow filed a motion asking for an award for loss of use of 

Taluri's arms, legs, eyes and ears pursuant to R.C. 4123.57(B). The motion was supported 

by the pertinent hospital records. Donald Cameron, M.D., reviewed the records and 

concluded that a loss of use of all body parts listed had in fact occurred. BWC therefore 

granted the motion in its entirety granting a total of 1,225 weeks of permanent partial 

compensation. 

{¶ 6} Arberia, LLC, appealed and a district hearing officer ("DHO") affirmed the 

BWC's order. 

{¶ 7} Arberia appealed again and a staff hearing officer ("SHO") again affirmed. 

The full commission declined review, leading to this mandamus action. 

{¶ 8} There really is no debate that Taluri lost the use of all the body parts listed 

for the relatively brief period of time he survived between his fall and his death. Death 

was not instantaneous, and for the time he survived, he had no control of body parts. 

{¶ 9} The objection on behalf of Arberia, LLC as to the fact of the loss of use is 

overruled. 
3 

No. 13AP-1024 

{¶ 10} The objection filed on behalf of the commission as to the size of the loss of 

use award has merit. Our magistrate interprets R.C. 4123.60 as blocking the award made 

by the BWC, DHO and SHO. We do not interpret R.C. 4123.57(B) and 4123.60 in the 

same way. 

{¶ 11} Taluri's widow filed a claim pursuant to R.C. 4123.57(B): 

When an award under this division has been made prior to 

the death of an employee all unpaid installments accrued or 

to accrue under the provisions of the award shall be payable 

to the surviving spouse, or if there is no surviving spouse, to 

the dependent children of the employee and if there are no 

such children, then to such dependents as the administrator 

determines. 

When an employee has sustained the loss of a member by 

severance, but no award has been made on account thereof 

prior to the employee's death, the administrator shall make 

an award in accordance with this division for the loss which 

shall be payable to the surviving spouse, or if there is no 

surviving spouse, to the dependent children of the employee 

and if there are no such children, then to such dependents as 

the administrator determines. 

The magistrate found that the inclusion of the word severance precludes an award of 

permanent partial compensation as this was the only place in the statute where the word 

severance was used and must be given its literal meaning; that only if Taluri's limbs were 

completely removed from his body would he have qualified for an award. We do not 

agree with this interpretation of "severance" within R.C. 4123.57(B). 

{¶ 12} The Supreme Court of Ohio has made clear that the type of injury Taluri 

suffered allows for the application of scheduled loss compensation under R.C. 4123.57(B). 

See State ex rel. Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364. 

William Moorehead suffered a fall causing a spinal cord injury which rendered him a 

quadriplegic. Mr. Moorehead never regained consciousness and died 90 minutes after 

the fall. As in this case, the widow applied for death benefits and for scheduled loss 

compensation pursuant to R.C. 4123.57(B). The Supreme Court found that Moorehead 

was entitled to scheduled loss benefits pursuant to the relevant statutes, R.C. 4123.60 and 

4123.57(B). 
4 

No. 13AP-1024 

{¶ 13} Taluri, like Moorehead, did not apply for scheduled loss compensation 

before his death. Neither Taluri nor Moorehead had their limbs severed but suffered 

physical injuries to the head and spine respectively resulting in a total loss of use. 

Moorehead's widow applied for compensation under the same exact language, "[w]hen an 

employee has sustained the loss of a member by severance, but no award has been made 

on account thereof prior to the employee's death" as Taluri's widow. R.C. 4123.57(B). 

{¶ 14} We must find that compensation is payable for loss of a limb if it is proven 

that, for all practical purposes, the total and permanent loss of a limb has the same effect 

and extent as if the limb had been amputated or otherwise physically removed. See 

Moorehead and State ex rel. Walker v. Indus. Comm., 58 Ohio St.2d 402, 403-04 (1979). 

Moorehead unequivocally shows that scheduled loss benefits may be awarded for limbs 

still attached when a decedent expires or else Moorehead would not have prevailed. 

{¶ 15} An absolute interpretation that requires a limb to be physically severed was 

previously rejected by the Supreme Court of Ohio in State ex rel. Alcoa Bldg. Prods. v. 

Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166. Alcoa clarified that a loss of use can 

be compensable if there is a loss "for all practical purposes." Id. We find that R.C. 

4123.57(B) is applicable to this case because it is so factually similar to Moorehead. 

{¶ 16} We next examine R.C. 4123.60 to determine the size of the scheduled loss 

awarded pursuant to R.C. 4123.57(B). R.C. 4123.60 states, in the pertinent part: 

If the decedent would have been lawfully entitled to have 

applied for an award at the time of his death the 

administrator may, * * * award and pay an amount, not 

exceeding the compensation which the decedent might have 

received, but for his death, for the period prior to the date of 

his death, to such of the dependents of the decedent, * * * as 

the administrator determines in accordance with the 

circumstances in each such case, but such payments may be 

made only in cases in which application for compensation 

was made * * * within one year after the death of such 

injured or disabled person. 

Arberia argues that R.C. 4123.60 limits the award of loss of use to one week, rather than 

the 1,225 weeks awarded by the commission, because the decedent only lived for four and 

one-half hours. 
5 

No. 13AP-1024 

{¶ 17} R.C. 4123.60 does not limit a scheduled loss award to only the time that an 

injured applicant lives because such awards are allowed to be paid in one lump sum and 

are not restricted to the number of weeks an injured worker lives. The decedent was 

lawfully entitled to apply for a scheduled loss award before his death and was lawfully 

entitled to apply for a lump-sum payment before his death. The Ohio legislature has 

given the power for awarding payments to be commuted to a lump-sum payment. "The 

administrator of workers' compensation, under special circumstances, and when the same 

is deemed advisable for the purpose of rendering the injured or disabled employee 

financial relief or for the purpose of furthering his rehabilitation, may commute payments 

of compensation or benefits to one or more lump-sum payments." R.C. 4123.64(A). 

{¶ 18} Ohio Adm.Code 4123-3-37 explicitly allows for lump-sum advancements of 

awards: 

(A) The administrator of the bureau of workers' 

compensation may commute an award of compensation to a 

lump sum payment when the administrator determines that 

the advancement is advisable for the purpose of providing 

the injured worker financial relief or for furthering the 

injured worker's rehabilitation. 

(1) The administrator may only grant a lump sum payment to 

an injured worker from an award of compensation made 

pursuant to section 4123.58 of the Revised Code or from 

division (B) of section 4123.57 of the Revised Code. 

It is clear that Dhimitraq Taluri was entitled to apply for scheduled loss benefits under 

R.C. 4123.57(B) before his death. Ohio Adm.Code 4123-3-37 allows for such an award 

under R.C. 4123.57(B) to be granted in a lump-sum payment if the BWC determines that 

the advancement is advisable. 

{¶ 19} R.C. 4123.60 does not restrict this award. The decedent was lawfully 

entitled to apply for the award and such an award may be granted in a lump sum by the 

BWC. The 1,225 weeks of compensation paid in a lump sum do not exceed compensation 

which the decedent might have received. R.C. 4123.60 would only restrict such awards if 

there were no dependents of the decedent, "the administrator may * * * award and pay an 

amount * * * to such of the dependents of the decedent." See State ex rel. Estate of 

McKenney v. Indus. Comm., 110 Ohio St.3d 54, 2006-Ohio-3562. This is also true if the 
6 

No. 13AP-1024 

application for compensation was not made within one year after the death of the disabled 

person. R.C. 4123.60. 

{¶ 20} Scheduled loss awards are usually designed to be distributed on a weekly 

basis. The BWC may commute an award to a lump-sum payment. R.C. 4123.60 language 

that limits an award to "an amount, not exceeding the compensation which the decedent 

might have received, but for his death, for the period prior to the date of his death," only 

emphasizes the presumption that scheduled loss awards are normally distributed on a 

weekly basis. The special requirements and discretion of lump-sum payments, as well as 

limiting them to rewards granted under R.C. 4123.58 and 4123.57(B), clearly show that 

these are exceptions to the general practice of distributing payments on a weekly basis. 

{¶ 21} Further, the awarding of loss of use benefits under R.C. 4123.57(B) is not 

duplicative of any death benefits. State ex rel. PolyOne Corp. v. Indus. Comm., 10th Dist. 

No. 12AP-313, 2014-Ohio-1376, ¶ 9. "[T]he intent of R.C. 4123.59 is to compensate 

dependents for the “loss of support” resulting from the employee's death." Id.; citing 

Fulton, Ohio Workers' Compensation Section 11.3 at 531 (4th Ed.2011). 

{¶ 22} The Supreme Court of Ohio has reaffirmed that benefits for partial disability 

are akin to damages for work-related injuries rather than compensation for lost earning 

capacity. State ex rel. Gen. Motors Corp. v. Indus. Comm., 42 Ohio St.2d 278, 282 (1975). 

See also State ex rel. Miller v. Indus. Comm., 97 Ohio St.3d 418, 2002-Ohio-6664, ¶ 12 

("partial disability benefits have been compared to damages and are awarded irrespective 

of work capacity"); State ex rel. Dudley v. Indus. Comm., 135 Ohio St. 121, 125 (1939) 

(Loss of sight was arbitrarily fixed and had nothing to do with impairment of earning 

capacity); State ex rel. Kincaid v. Allen Refractories Co., 114 Ohio St.3d 129, 2007-Ohio3758, ¶ 9. 

{¶ 23} McKenney is distinguishable and does not alter partial disability awards 

being akin to damages rather than lost earning capacity. The widow of the deceased 

claimant was entitled to 850 weeks of scheduled loss compensation but the widow died 

before receiving the entire award after applying for a lump-sum payment. Her estate 

argued that it was entitled to a lump-sum payment of the remaining 844 weeks of the 

award yet to be paid when her husband died. The BWC denied the lump-sum payment 

and the Supreme Court agreed, finding that it was the dependent spouses' life, not the 
7 

No. 13AP-1024 

deceased claimant's life, which the court should use to measure the amount of benefits to 

which the estate was entitled. Id. A distinction between partial disability awards and 

damages is a line that the McKenney decision draws; the dependent spouse, had she lived, 

would have been entitled to the entire award and could be awarded a lump sum, but her 

estate does not. Hence, McKenney is an example of how partial disability awards are 

akin to but not identical to damages. 

{¶ 24} McKenney also conclusively shows that the number of weeks to measure a 

partial disability award is not measured by the claimant's life span but rather by that of 

their spouse, dependent children, or other dependents as the BWC determines. The 

Supreme Court affirmed the payments for the weeks the spouse survived her husband. 

The court did not limit the payment to the time that the injured claimant lived. "The plain 

language of R.C. 4123.57(B) makes it clear that the surviving spouse's entitlement to the 

loss of use benefits abates upon her death and no further benefits are payable." 

McKenney at 55. 

{¶ 25} In the case at bar, Taluri's spouse is alive and entitled to "all unpaid 

installments accrued or to accrue under the provision of the award." R.C. 4123.57(B). 

This award accrues based on the surviving spouse's life and not the life of the claimant. 

This award can also be commuted to a lump sum. See again R.C. 4123.64(A) and Ohio 

Adm.Code 4123-3-37. This is not limited by the language of R.C. 4123.60. "If the 

decedent would have been lawfully entitled to have applied for an award at the time of his 

death the administrator may * * * award and pay an amount, not exceeding the 

compensation which the decedent might have received, but for his death, for the period 

prior to the date of his death." (Emphasis added.) It is clear that Taluri might have 

received a lump-sum loss of use award for his catastrophic injury. 

{¶ 26} As stated earlier, partial disability compensation for loss of use does not 

indemnify claimants for their loss of earnings. It is irrelevant how many hours Taluri 

survived to collect an award because R.C. 4123.57(B) only requires that he would have 

been entitled to an award before he died. The medical evidence shows that Taluri was 

entitled to 1,225 weeks of scheduled loss award which the BWC could commute to a lumpsum payment. Taluri's dependent widow, being alive, is entitled to the full 1,225 weeks 
8 

No. 13AP-1024 

lump-sum payment of the loss of use award and nothing in R.C. 4123.60 limits this 

payment. 

{¶ 27} Arberia would have us rely on the concurrence in Moorehead in which only 

two justices argued that Moorehead's dependent widow was only entitled to one week of 

scheduled loss benefits under R.C. 4123.57(B). " I believe that Moorehead may be entitled 

to one week of scheduled loss benefits under R.C. 4123.57(B) to compensate for her 

husband's period of survival." Moorehead at ¶ 30. The concurrence relies on the 

Mckenney case which was decided a few months prior and is cited by the majority. "We 

did not agree that [Mrs.] McKenney was entitled to the entire award upon [Mr 

McKenney's] death. Scheduled loss benefits, like most other forms of workers' 

compensation, compensate for a loss of earning capacity." Moorehead at ¶ 29. 

{¶ 28} We disagree with the reasoning of the concurring justices for two reasons. 

First, it is directly contrary to the holding in Mckenney which granted scheduled loss 

benefits not for the number of weeks that the employee lived but for the number of week 

the employee's dependent spouse lived. Second, as we have stated, the Supreme Court 

has repeatedly affirmed that benefits for partial disability are akin to damages for workrelated injuries rather than compensation for lost earning capacity. 

{¶ 29} As is evident, five justices of the Supreme Court did not sign on to the 

concurrence and repeatedly stated in the majority that additional requirements should 

not be grafted on to R.C. 4123.57(B) because the statute has no text imposing them. "We 

therefore cannot condone the commission's addition of a requirement that a worker 

survive for some extended period of time, left unspecified by the commission or the 

General Assembly, when considering the worker's entitlement to a scheduled loss 

benefit." Moorehead at ¶ 15. Likewise, we cannot add the requirement that schedule loss 

benefits be limited to the number of weeks an employee survives, when such a question is 

left unspecified by the General Assembly, and especially when such awards can be 

commuted to lump-sum payment. 

{¶ 30} The majority in Moorehead also correctly cautioned the judiciary about 

imposing any additional requirements based on public-policy arguments. "Public-policy 

arguments relative to the requisites of scheduled loss benefits pursuant to R.C. 4123.57 

are better directed to the General Assembly, including arguments that a specified time of 
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No. 13AP-1024 

survival should be mandated after a paralyzing injury and that a worker be cognizant of 

his or her loss before loss-of-use benefits are payable." Moorehead at ¶ 19. It is clear that 

public-policy questions of the equability between two victims of the same industrial 

accident in which one survives for a few hours and the other that dies instantaneously 

should only be directed to the General Assembly. To impose such limitation would be to 

legislate from the bench. 

{¶ 31} We, therefore, sustain the objections filed by the commission and Taluri. 

{¶ 32} As a result of the above, we adopt the findings of fact contained in the 

magistrate's decision. We adopt the conclusions of law with respect to the issue of the fact 

of loss of use awards. We do not adopt the conclusions of law with respect to the 

conclusion that R.C. 4123.57(B) does not apply because the claimant did not suffer a loss 

by severance and with respect to the size of the award. As a result, we deny Arberia LLC's 

request for a writ of mandamus. 

Objections sustained; writ denied. 

DORRIAN, J., concurs. 

KLATT, J., concurs separately. 

KLATT, J., concurring separately. 

{¶ 33} I agree with the majority decision. I write separately to highlight certain 

aspects of the legal analysis. 

{¶ 34} All of the parties have filed objections to the magistrate's decision. The 

employer objects because it contends that Dr. Cameron's report is not some evidence 

upon which the commission could rely and because the commission's decision violates 

State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991). Neither objection has merit. 

{¶ 35} First, the employer contends that Dr. Cameron's opinion is not some 

evidence upon which the commission could rely because it is internally contradictory. 

The employer notes that in one part of his report, Dr. Cameron indicates that during the 

short time the decedent survived the accident, the decedent was "in and out of 

consciousness." In another part of his report, Dr. Cameron opines "the decedent would 

not have regained consciousness, and therefore, there would have been no voluntary 

capacity to use arms or legs." The employer contends that the commission could not rely 

on Dr. Cameron's report given this alleged contradiction. I disagree. There is nothing 
10 

No. 13AP-1024 

contradictory in stating that the decedent was "in and out of consciousness" and at the 

same time stating that the decedent would not have regained consciousness after he lost 

consciousness for the last time. Moreover, the decedent's consciousness or 

unconsciousness has no bearing on Dr. Cameron's ultimate opinion that, given the 

decedent's massive head and spinal injuries, the decedent lost, for all practical purposes, 

the use of his arms, legs, eyes, and ears. Therefore, I agree with the majority decision to 

overrule this objection of the employer. 

{¶ 36} In its second objection, the employer contends that the commission's order 

violates Noll. The commission concedes this error. However, the commission contends 

that the error is harmless under these circumstances. I agree. 

{¶ 37} Although the commission failed to explicitly state the evidence upon which 

it relied, that evidence is obvious from the record and the record contains no conflicting 

evidence. As noted above, Dr. Cameron opined that the decedent's head injuries were so 

massive that the decedent lost for all practical purposes the use of his arms, legs, eyes, and 

ears. The hospital records support this conclusion. The record contains no contrary 

evidence. A remand to the commission to require it to specifically identify the only 

medical evidence in the record would be a vain act because the result would be the same. 

State ex rel. Little v. Indus. Comm., 10th Dist. No. 11AP-1110, 2013-Ohio-282, ¶ 7 (quoting 

State ex rel. Menough v. Indus. Comm., 10th Dist. No. 01AP-1031, 2002-Ohio-3253 

(harmless error when result would be the same). For this reason, I agree with the 

majority that we should overrule this objection of the employer. 

{¶ 38} The commission has also objected to the magistrate's decision. The 

commission argues that: (1) the magistrate incorrectly concluded that R.C. 4123.57(B) 

could not serve as the basis for the widow's receipt of scheduled loss benefits; and (2) the 

magistrate erred by concluding that the commission abused its discretion in calculating 

the amount of benefit it awarded.1 I agree with the majority that both objections should 

be sustained. 

{¶ 39} The magistrate concluded that the portion of R.C. 4123.57(B) at issue here 

(involving a post-death award) was inapplicable because the decedent did not lose the use 

 

1 The decedent's widow has filed essentially the same objections. 
11 

No. 13AP-1024 

of his arms, legs, eyes, and ears by "severance." As indicated in the majority decision, the 

Supreme Court of Ohio has interpreted R.C. 4123.57(B) to permit scheduled loss awards 

for both loss by amputation and loss of use for all practical purposes. State ex rel. Alcoa 

Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166; State ex rel. 

Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364, ¶ 13. Although Alcoa

involved an R.C. 4123.57(B) pre-death award, Moorehead relied on the same principle in 

the context of a post-death award. 

{¶ 40} The facts in Moorehead are very similar to those presented here. The 

decedent in Moorehead fell approximately 15 to 20 feet head first onto a concrete floor 

and suffered severe spinal and head injuries. The decedent never regained consciousness 

and died 90 minutes after the fall. The decedent's widow applied for death benefits and 

for R.C. 4123.57(B) scheduled loss compensation based upon the decedent's loss of use of 

both arms and legs. The issue addressed by the court was whether the widow was entitled 

to a post-death scheduled loss award for loss of use when the decedent never regained 

consciousness following the fatal fall. The court found that consciousness was not 

required for scheduled loss benefits. If a post-death scheduled loss award were limited to 

a loss by severance, there would have been no reason for the court to address whether 

consciousness was required. 

{¶ 41} Moreover, I can conceive of no reason why the court's Alcoa analysis would 

not apply to both pre-death and post-death awards. Although the magistrate notes that 

the word "severance" only appears in the context of a post-death award, other parts of 

R.C. 4123.57(B) refer to "amputation" and the Alcoa court found that the loss referred to 

in R.C. 4123.57(B) included a loss of use for all practical purposes. 

{¶ 42} For all of these reasons, I agree with the majority decision to sustain the 

commission's first objection. 

{¶ 43} In its second objection, the commission argues that the magistrate 

erroneously concluded that the commission abused its discretion in awarding the 

decedent's widow 1,225 weeks of scheduled loss compensation. The majority agrees and I 

concur. 

{¶ 44} R.C. 4123.60 provides in relevant part: 
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No. 13AP-1024 

If the decedent would have been lawfully entitled to have 

applied for an award at the time of his death the administrator 

may * * * award and pay an amount, not exceeding the 

compensation which the decedent might have received, but 

for his death, for the period prior to the date of his death, to 

such of the dependents of the decedent * * * as the 

administrator determines in accordance with the circumstances in each such case, but such payments may be made 

only in cases in which application for compensation was made 

in the manner required by this chapter, during the lifetime of 

such injured or disabled person, or within one year after the 

death of such injured or disabled person. 

{¶ 45} Here, it is undisputed that the widow applied for the scheduled loss benefit 

within one year of the decedent's death. The decedent would have been lawfully entitled 

to have applied for a scheduled loss award at the time of his death. Therefore, the 

administrator was authorized under R.C. 4123.60 to award and pay to the decedent's 

widow an amount "not exceeding the compensation which the decedent might have 

received, but for his death, for the period prior to his death." (Emphasis added.) In other 

words, the administrator is permitted to pay the widow compensation that does not 

exceed the award the decedent might have applied for and received but for his death, for 

the period of time prior to the decedent's death. 

{¶ 46} The administrator could have awarded the decedent 1,225 weeks of 

scheduled loss compensation for the decedent's loss of use for all practical purposes of his 

arms, legs, sight, and hearing as set forth in the schedule contained in R.C. 4123.57. It is 

also within the commission's discretion to determine whether such payments are made 

consecutively or concurrently (i.e., in a lump sum). State ex rel. Estate of Sziraki v. 

Admr., Bur. of Workers' Comp., 137 Ohio St.3d 201, 2013-Ohio-4007, ¶ 34, citing State ex 

rel. Estate of McKenney v. Indus. Comm., 110 Ohio St.3d 154, 2006-Ohio-3562, ¶ 20. 

Although it appears that the commission's general policy is to pay benefits consecutively 

rather than concurrently, Id., R.C. 4123.64(A) authorizes the administrator to award 

benefits "under special circumstances, and when the same is deemed advisable for the 

purpose of rendering the injured or disabled employee financial relief or for the purpose 

of furthering his rehabilitation." Ohio Adm.Code 4123-3-37 grants the administrator the 

same authority. Because the administrator could have theoretically awarded the decedent 

1,225 weeks of compensation payable in a lump sum prior to his death, the commission 
13 

No. 13AP-1024 

did not abuse its discretion or act contrary to law when it affirmed the administrator's 

award of 1,225 weeks of compensation to the decedent's widow. Although the 

administrator was not required to grant such an award under R.C. 4123.60, the 

administrator was authorized to do so and the commission did not abuse its discretion in 

affirming the award. The commission is best positioned to determine what scheduled loss 

award is justified within the bounds of R.C. 4123.57(B) and 4123.60. Moreover, courts 

must liberally construe R.C. Chapter 4123 in favor of employees. R.C. 4123.95; State ex 

rel. Walker v. Indus. Comm., 58 Ohio St.2d 402, 403 (1979). 

{¶ 47} A scheduled loss award under these circumstances is also consistent with 

the notion that such an award to an injured worker for the loss by amputation or loss of 

use for all practical purposes of a body part is in the nature of a damage award and is 

awarded irrespective of work capacity. State ex rel. Miller v. Indus. Comm., 97 Ohio St.3d 

418, 2002-Ohio-6664, ¶ 12.2

{¶ 48} The employer emphasizes that awarding the widow a scheduled loss benefit 

under these circumstances is a windfall because the widow has already received a death 

benefit pursuant to R.C. 4123.60. This windfall is highlighted if the dependent of an 

employee who dies immediately from an industrial accident can receive only a death 

benefit while the dependent of an employee who lives only a matter of minutes following 

an industrial accident may receive a death benefit plus a significant scheduled loss award. 

Nevertheless, as noted by the court in Moorehead, "[p]ublic policy arguments relative to 

the requisites of scheduled loss benefits pursuant to R.C. 4123.57 are better directed the 

General Assembly." Id. at ¶ 19. 

{¶ 49} For the foregoing reasons, I concur in the majority decision and sustain the 

objections of the commission and the widow to the magistrate's decision and deny the 

relator's request for a writ of mandamus. 

 

 

2 I recognize that in McKenney, the court stated that "the loss of earning capacity that scheduled loss 

compensation was intended to ameliorate ceases upon the death of the injured worker–just as it does with 

all other forms of disability compensation." Id. at ¶ 16. However, McKenney makes not mention of Miller

nor does it address other Supreme Court authority finding scheduled loss awards akin to damages 

including State ex rel. Gen. Motors Corp. v. Indus. Comm., 42 Ohio St.2d 278, 282 (1975). Moreover, as 

noted by the commission, the court in Sziraki removed its citation to McKenney for the proposition that 

scheduled loss benefits were intended to ameliorate loss of earning capacity on the commission's motion 

for reconsideration. Sziraki, 2013-Ohio-5285. Therefore, it appears that we must follow Miller. 
14 

No. 13AP-1024 

A P P E N D I X 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio ex rel. Arberia, LLC, : 

 Relator, : 

v. : No. 13AP-1024 

Industrial Commission of Ohio and : (REGULAR CALENDAR) 

Dhimitraq Taluri, Decedent, 

 : 

 Respondents. 

 : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on May 27, 2014 

 

Habash & Reasoner LLC, Dennis Behm, Stephen Habash

and David P. Everett, for relator. 

Michael DeWine, Attorney General, and Colleen C. Erdman, 

for respondent Industrial Commission of Ohio. 

Garson Johnson LLC, and Grace A. Szubski, for respondent 

Doloreza Taluri. 

 

IN MANDAMUS 

{¶ 50} Relator, Arberia, LLC, has filed this original action requesting that this court 

issue a writ of mandamus ordering respondent Industrial Commission of Ohio 

("commission") to vacate its order which granted scheduled loss benefits to respondent 

Doloreza Taluri ("claimant") the widow of Dhimitraq Taluri ("decedent"), for a total of 

1,225 weeks for decedent's loss of use of his lower and upper extremities as well as 100 

percent loss of use of bilateral eyes and bilateral ears, and ordering the commission to find 

that no more than 1 week loss of use compensation should be awarded, and further 
15 

No. 13AP-1024 

ordering the commission to cite the evidence it relied on to reach the finding that 

decedent is entitled to those loss of use awards. 

Findings of Fact: 

{¶ 51} 1. On October 28, 2011, decedent sustained fatal injuries when he fell 

through a roof while working on the demolition of a building. 

{¶ 52} 2. Decedent's injuries were extensive and included the following: 

This is a 63-year-old male who fell about 30 feet today while 

working on a roof. He was unresponsive * * *. Pupils were 

blown. Brain matter and blood were coming from his nose. 

He had obvious facial trauma. 

{¶ 53} CT scans showed the following: 

CT head - massive right frontotemporal epidural hematoma 

with transfalcine and transtentorial herniation; there is 

associated intraparenchymal, intraventricular, subdural and 

subarachnoid blood; severely comminuted skull base and 

calvarial fractures[.] 

CT face - grossly comminuted craniofacial fractures[.] 

CT inner ear - extensive skullbase fractures as above with 

extension into the carotid canals bilaterally; probable 

minimal pneumolabyrinth on the left[.] 

CTA H/N - massive epidural hematoma with active 

extravasation that is most likely from the right middle 

meningeal artery; otherwise, the major intracranial and 

extracranial vessels are grossly intact with no evidence of 

occlusion nor dissection[.] 

CT C/S - multiple transverse process fractures are noted on 

the right from C6-T2 and on the left from T2-T4; C6-T1 

spinous process fractures are present[.] 

CT TLS - superior endplate fractures of the T2 and T3 

vertebral bodies with bilateral pedicle fractures at the T2 

level; T1 spinous process fracture and transverse process 

fractures from T1-T3[.] 

CT CAP - fractures of the right 1st and 2nd ribs, C7 and T1 

spinous processes and the right transverse processes, left T3 

transverse process and fractures of T2 and T3 vertebral 

bodies[.] 
16 

No. 13AP-1024 

{¶ 54} Attending physician John J. Como, M.D., spent more than 75 minutes 

providing critical care to the decedent and ultimately explained to his family: "[T]his was 

a nonsurvivable injury." 

{¶ 55} 3. Death benefits were granted by the commission. 

{¶ 56} 4. On June 4, 2012, claimant filed a motion seeking loss of use 

compensation pursuant to R.C. 4123.57(B) for decedent's loss of use of his right and left 

arms, right and left legs, both eyes, and his hearing in both ears. Claimant submitted the 

hospital records in support of her motion. 

{¶ 57} 5. Donald Cameron, M.D., was asked to review the medical evidence and 

provide an opinion concerning what permanent loss of use decedent would have had if he 

survived the injuries. In his June 26, 2012 report, Dr. Cameron opined: 

In my medical opinion, the allowed injury would have 

resulted in a total permanent loss of the use of the arms to 

such a degree that the affected body parts would have been 

useless for all practical purposes. This applied to both arms. 

The extent of brain injury was such that the injured worker 

would have had no control of the arms. Similarly, the extent 

of cerebral injury was such that one expected no recovery of 

any useful neurological function and therefore, the injured 

worker would have had permanent loss of use of the legs to 

the degree that the affected body parts would have been 

useless. In both of these instances, the industrial accident led 

to his result by way of the catastrophic cerebral injury via 

multiple comminuted skull fractures and intracranial 

hemorrhages which were caused by the fall from the 30' 

height onto the head. 

The residual functional capacity of the arms and the legs had 

the decedent survived this incident would have been zero. 

The decedent would not have regained consciousness and 

therefore, there would have been no voluntary capacity to 

use the arms or legs. These findings are based on the 

presence of an unrecoverable cerebral injury including 

transtentorial and transfalcine herniation, massive epidural 

hematoma and extensive intracranial hemorrhage involving 

the cerebral hemispheres, the ventricles and the external 

spaces within the skull. 

In my medical opinion, the allowed injury of the brain would 

have resulted in a total and permanent loss of vision. The use 
17 

No. 13AP-1024 

of the eyes would have been useless in the face of a cerebrum 

that was non-functional and unable to obtained [sic] any 

recovery of consciousness and therefore, actual visual 

processes. The industrial accident led to this result through 

the extensive destruction of cortical tissue, the presence of 

herniation and extensive bleeding which eliminated the 

ability of the injured worker to regain consciousness and 

hence, any use of vision. In addition to this finding, the right 

eye was described as having described [sic] a large displacing 

hematoma which would have further diminished any ability 

for useful visual function. 

Had the decedent survived the accident, no residual vision 

would have been expected from this industrial accident. The 

findings establishing this limitation are based on the fact 

that the injured worker sustained a catastrophic, nonsurvivable accident with extensive disruption of all cerebral 

functions. 

Finally, in my medical opinion, the allowed injury would 

have resulted in total permanent loss of hearing to such a 

degree that the hearing organs would have been useless for 

all practical purposes. The hearing organs would have been 

useless given the extensive damage to cortical tissue 

eliminating cerebral processing of signals coming from the 

auditory apparatus. In addition, in this instance, there is 

evidence of severe damage to the supporting structures of 

the auditory apparatus further enhancing total and 

permanent loss of hearing abilities. This is loss [sic] is based 

on the finding of extensive cerebral damage and catastrophic 

brain injury. 

Had the decedent survived this incident, he would have been 

left vegetative, incapable of any hearing or acknowledging 

hearing signals. The present findings are based on the 

finding of a catastrophic cerebral injury with diffuse 

parenchymal damage as well as the severe and catastrophic 

damage to the basilar skull bones, the normal seat of the 

auditory apparatus. 

{¶ 58} 6. The Ohio Bureau of Workers' Compensation ("BWC") issued an order 

dated January 24, 2013 granting claimant's motion for loss of use as follows: 

The injured worker has sustained a 100 percent loss due to 

loss of use bilateral eyes. It is ordered that the injured worker 

be awarded permanent partial compensation for 250 weeks 
18 

No. 13AP-1024 

at the rate of 783.00 from 10/28/2011 to 8/1/2016. The total 

award is $195,750.00. 

In accordance with the power of attorney dated 3/22/12, 

payment will be made to Seaman Garson, LLC. 

The injured worker has sustained a 100 percent loss of 

hearing in the bilateral ears. It is ordered that the injured 

worker be awarded permanent partial compensation for 125 

weeks at the rate of $783.00 from 8/16/2012 to 1/3/2019. 

The total award is $97,875.00. 

In accordance with the power of attorney dated 3/22/12, 

payment will be made to Seaman Garson, LLC. 

The injured worker has sustained a loss of use of the lower 

extremities. It is ordered that the injured worker be awarded 

permanent partial compensation for 400 weeks at the rate of 

$783.00 from 1/4/2019 to 9/3/2026. The total award is 

$313,200.00. 

In accordance with the power of attorney dated 3/22/12, 

payment will be made to Seaman Garson, LLC. 

The injured worker has sustained a loss of use of the upper 

extremities. It is ordered that the injured worker be awarded 

permanent partial compensation for 450 weeks at the rate of 

$783.00 from 9/4/2026 to 4/19/2035. The total award is 

$352,350.00 

* * * 

This decision is based on the physician's review of Dr. 

Cameron dated 6/26/12. 

{¶ 59} 7. Relator's appeal was heard before a district hearing officer ("DHO") on 

April 16, 2013. The DHO affirmed the BWC order in its entirety. 

{¶ 60} 8. Relator appealed and the matter was heard before a staff hearing officer 

("SHO") on June 11, 2013. The SHO affirmed the prior DHO order, stating: 

The Hearing Officer finds that, as a result of the 10/28/2011 

industrial injury that resulted in his death, the Injured 

Worker sustained a total loss of use of both legs and both 

arms as well as a total loss of vision in both eyes and a total 

loss of hearing in both ears. The Injured Worker was entitled 

to payment of scheduled loss awards for all of these 
19 

No. 13AP-1024 

impairments. This finding is based on the holding of the 

Ohio Supreme Court in State ex rel. Moorehead v. Industrial 

Commission 112 Ohio St.3d 27 (2006). In this case the Court 

held that a decedent does not have to survive an injury for 

any specified time or be cognizant of a loss of use in order to 

qualify for a scheduled loss award. 

The Employer argued, based on the holding of the Tenth 

District Court of Appeals in State ex rel. Wallace v. Industrial 

Commission No. 11AP-897 (2013) that the award was not 

payable as the decedent sustained injuries that were not 

survivable. The Hearing Officer finds that Wallace is 

distinguishable from the instant case. In Wallace the Court 

upheld denial of the scheduled loss award because the 

Injured Worker died at the time of the injury. In the instant 

case the records of MetroHealth Medical Center establish 

that the Injured Worker lived for several hours following the 

industrial injury. 

Payment of the scheduled loss award is to begin as of 

10/28/2011. Payment is to be made to the Widow-Claimant. 

The Hearing Officer finds that the case of State ex rel. 

McKenney v. Industrial Commission is inapplicable to the 

instant case as the Widow-Claimant is living. All proof on file 

was reviewed and considered. 

{¶ 61} 9. Relator's further appeal was refused by order of the commission mailed 

July 6, 2013. 

{¶ 62} 10. Thereafter, relator filed the instant mandamus action in this court. 

Conclusions of Law: 

{¶ 63} There are two issues presented here. First, relator contends that the 

commission's order fails to cite the evidence upon which the commission relied to grant 

claimant's motion for decedent's loss of use of his upper and lower extremities, both eyes 

and ears. Claimant counters stating that the medical evidence is uncontroverted and the 

commission's citation to the hospital records, as well as the BWC's citation to the report of 

Dr. Cameron, is sufficient. The commission acknowledges its order does not cite the 

evidence as required. 

{¶ 64} The second issue concerns the amount of compensation payable to claimant 

under R.C. 4123.57(B) and 4123.60. Relator argues that claimant is not entitled to 1,225 

weeks of compensation, but, instead, is entitled to receive no more than one week of 
20 

No. 13AP-1024 

scheduled loss benefits. Both claimant and the commission contend that claimant is 

entitled to receive all 1,225 weeks of compensation as calculated by the BWC. 

{¶ 65} For the reasons that follow, the magistrate finds as follows: (1) the 

commission's order does not violate the requirements of State ex rel. Noll v. Indus. 

Comm., 57 Ohio St.3d 203 (1991); and (2) application of R.C. 4123.57(B) and 4123.60 

requires that a writ of mandamus be granted ordering the commission to find that 

claimant is not entitled to 1,225 weeks of scheduled loss compensation, but, rather, to 

some lesser amount to be determined by the commission. 

{¶ 66} The Supreme Court of Ohio has set forth three requirements which must be 

met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to 

the relief prayed for; (2) that respondent is under a clear legal duty to perform the act 

requested; and (3) that relator has no plain and adequate remedy in the ordinary course 

of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983). 

{¶ 67} In order for this court to issue a writ of mandamus as a remedy from a 

determination of the commission, relator must show a clear legal right to the relief sought 

and that the commission has a clear legal duty to provide such relief. State ex rel. 

Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of 

mandamus exists where the relator shows that the commission abused its discretion by 

entering an order which is not supported by any evidence in the record. State ex rel. 

Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record 

contains some evidence to support the commission's findings, there has been no abuse of 

discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry 

Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be 

given evidence are clearly within the discretion of the commission as fact finder. State ex 

rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981). 

STANDARD FOR LOSS OF USE

{¶ 68} In order to qualify for a loss of use award, relator was required to present 

medical evidence demonstrating that, for all intents and purposes, he had lost the use of 

his left upper extremity. State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d 

341, 2004-Ohio-3166. 
21 

No. 13AP-1024 

{¶ 69} In Alcoa, at ¶ 10, the court set forth the historical development of scheduled 

awards for loss of use under R.C. 4123.57(B) as follows: 

Scheduled awards pursuant to R.C. 4123.57(B) compensate 

for the "loss" of a body member and were originally confined 

to amputations, with the obvious exceptions of hearing and 

sight. In the 1970s, two cases—State ex rel. Gassmann v. 

Indus. Comm. (1975), 41 Ohio St.2d 64, 70 O.O.2d 157, 322 

N.E.2d 660, and State ex rel. Walker v. Indus. Comm.

(1979), 58 Ohio St.2d 402, 12 O.O.3d 347, 390 N.E.2d 1190—

construed "loss," as similarly used in R.C. 4123.58, to include 

loss of use without severance. Gassmann and Walker both 

involved paraplegics. In sustaining each of their scheduled 

loss awards, we reasoned that "[f]or all practical purposes, 

relator has lost his legs to the same effect and extent as if 

they had been amputated or otherwise physically removed." 

Gassmann, 41 Ohio St.2d at 67, 70 O.O.2d 157, 322 N.E.2d 

660; Walker, 58 Ohio St.2d at 403-404, 12 O.O.3d 347, 390 

N.E.2d 1190. 

{¶ 70} In Alcoa, the claimant, Robert R. Cox, sustained a left arm amputation just 

below his elbow. Due to continuing hypersensitivity at the amputation site, Cox was 

prevented from ever wearing a prosthesis. Consequently, Cox filed a motion seeking a 

scheduled loss of use award for the loss of use of his left arm. 

{¶ 71} Through videotape evidence, Alcoa established that Cox could use his 

remaining left arm to push open a car door and to tuck paper under his arm. In spite of 

this evidence, the commission granted Cox an award for the loss of use of his left arm. 

{¶ 72} Alcoa filed a mandamus action which this court denied. Alcoa appealed as 

of right to the Supreme Court of Ohio. 

{¶ 73} Affirming this court's judgment and upholding the commission's award, the 

Supreme Court explained, at ¶ 10-15: 

Alcoa urges the most literal interpretation of this rationale 

and argues that because claimant's arm possesses some 

residual utility, the standard has not been met. The court of 

appeals, on the other hand, focused on the opening four 

words, "for all practical purposes." Using this interpretation, 

the court of appeals found that some evidence supported the 

commission's award and upheld it. For the reasons to follow, 

we affirm that judgment. 
22 

No. 13AP-1024 

Alcoa's interpretation is unworkable because it is impossible 

to satisfy. Walker and Gassmann are unequivocal in their 

desire to extend scheduled loss benefits beyond amputation, 

yet under Alcoa's interpretation, neither of those claimants 

would have prevailed. As the court of appeals observed, the 

ability to use lifeless legs as a lap upon which to rest a book is 

a function unavailable to one who has had both legs 

removed, and under an absolute equivalency standard would 

preclude an award. And this will always be the case in a 

nonseverance situation. If nothing else, the presence of an 

otherwise useless limb still acts as a counterweight—and 

hence an aid to balance—that an amputee lacks. Alcoa's 

interpretation would foreclose benefits to the claimant who 

can raise a mangled arm sufficiently to gesture or point. It 

would preclude an award to someone with the hand strength 

to hold a pack of cards or a can of soda, and it would bar—as 

here—scheduled loss compensation to one with a limb 

segment of sufficient length to push a car door or tuck a 

newspaper. Surely, this could not have been the intent of the 

General Assembly in promulgating R.C. 4123.57(B) or of 

Gassmann and Walker. 

Pennsylvania defines "loss of use" much as the court of 

appeals did in the present case, and the observations of its 

judiciary assist us here. In that state, a scheduled loss award 

requires the claimant to demonstrate either that the specific 

bodily member was amputated or that the claimant suffered 

the permanent loss of use of the injured bodily member for 

all practical intents and purposes. Discussing that standard, 

one court has written: 

"Generally, the 'all practical intents and purpose' test 

requires a more crippling injury than the 'industrial use' test 

in order to bring the case under section 306(c), supra. 

However, it is not necessary that the injured member of the 

claimant be of absolutely no use in order for him to have lost 

the use of it for all practical intents and purposes." Curran v. 

Walter E. Knipe & Sons, Inc. (1958), 185 Pa.Super. 540, 547, 

138 A.2d 251. 

This approach is preferable to Alcoa's absolute equivalency 

standard. Having so concluded, we further find that some 

evidence indeed supports the commission's decision. Again, 

Dr. Perkins stated: 

"It is my belief that given the claimant's residual hypersensitivity, pain, and tenderness about his left distal forearm, 
23 

No. 13AP-1024 

that he is unable to use his left upper limb at all and he 

should be awarded for the loss of use of the entire left upper 

limb given his symptoms. He has been given in the past loss 

of use of the hand, but really he is unable to use a prosthesis 

since he has had the amputation, so virtually he is without 

the use of his left upper limb * * *."

EVIDENCE OF LOSS OF USE

{¶ 74} Relator argues that the commission's citation to the records of the 

MetroHealth Medical Center do constitute some evidence that decedent lived for several 

hours after the fall, but do not constitute some evidence that decedent suffered a loss of 

use of his upper and lower extremities, as well as his sight and hearing. In the event the 

court finds the BWC's citation to the medical report of Dr. Cameron is sufficient at the 

SHO level, relator claims that report does not constitute some evidence. 

{¶ 75} Relator's criticism of the report of Dr. Cameron is that it is based on an 

improper legal standard. Specifically, in his report, Dr. Cameron stated that, "[h]ad the 

decedent survived this incident, "the allowed injury would have resulted in a total 

permanent loss of the use of the arms to such a degree that the affected body parts would 

have been useless for all practical purposes," "the injured worker would have had 

permanent loss of use of the legs to the degree that the affected body parts would have 

been useless," "the allowed injury of the brain would have resulted in a total and 

permanent loss of vision," and "the allowed injury would have resulted in total permanent 

loss of hearing to such a degree that the hearing organs would have been useless for all 

practical purposes." 

{¶ 76} Relator argues that loss of use is not dependent on whether the decedent 

would have survived the injury, but is whether claimant established, by medical evidence, 

a loss of use regardless of the period of time decedent survived. Relator asserts that Dr. 

Cameron essentially stated the decedent would have eventually suffered a complete loss of 

use only if he survived. 

{¶ 77} The magistrate finds that relator has mischaracterized Dr. Cameron's 

report. In light of all the medical evidence in the record, decedent's injury can be 

described as catastrophic. Based on the neck fractures, the evidence is undisputed that 

had decedent been conscious, he could not have used his arms and legs. Further, there 
24 

No. 13AP-1024 

was significant trauma to decedent's ears, eyes, and brain which, as Dr. Cameron stated, 

would have resulted in a total and permanent loss of his hearing abilities and that he 

would have no residual vision. 

{¶ 78} Although Dr. Cameron repeatedly indicated that decedent's loss would exist 

and be permanent if he survived the injury, the fact is that decedent did survive the injury 

for at least four and one-half hours. There was no requirement that decedent survive any 

longer than that. As such, the magistrate finds that the medical evidence in the record 

does support the commission's determination that decedent sustained a total loss of use 

of both arms and legs, as well as his vision and hearing. Further, the magistrate 

specifically notes that the BWC order was never vacated. It was affirmed at every level. 

While the hearings before the DHO and SHO were de novo, neither party presented any 

additional evidence. Further, there is no contradictory medical evidence in the record and 

returning this matter to the commission would not change the commission's finding that 

decedent did suffer the losses of use found by the commission. As such, the magistrate 

finds that the BWC's citation to Dr. Cameron's report constitutes some evidence upon 

which the commission relied. That report, in conjunction with the hospital records, 

supports the commission's order and the magistrate finds there is no Noll violation here. 

AMOUNT OF COMPENSATION PAYABLE

{¶ 79} However, having found that the commission's order does support the loss of 

use awards made, the magistrate agrees with relator's assertion that the commission 

abused its discretion when it ordered that 1,225 weeks of compensation be paid to 

claimant. 

{¶ 80} The two statutes relevant here are R.C. 4123.57(B)3 and 4123.604. When 

reading those statutes, it is apparent the legislature has set up some distinctions including 

whether or not an award has been made prior to the death of an injured worker (decedent 

herein). 

{¶ 81} Both R.C. 4123.57(B) and 4123.60 address the situation where an award has 

been made prior to the death of the injured worker. R.C. 4123.57(B) provides, in 

pertinent part: 

 

3 Entitled Partial Disability Compensation. 

4 Entitled Persons eligible for benefits; limitations. 
25 

No. 13AP-1024 

When an award under this division has been made prior to 

the death of an employee all unpaid installments accrued or 

to accrue under the provisions of the award shall be payable 

to the surviving spouse. 

(Emphasis added.) 

{¶ 82} R.C. 4123.60 provides, in pertinent part: 

In all cases where an award had been made on account of * * 

* permanent partial * * * disability in which there remains an 

unpaid balance, representing payments accrued and due to 

the decedent at the time of his death, the administrator may

* * * award or pay any unpaid balance of such award to such 

of the dependents of the decedent * * * as the administrator 

determines in accordance with the circumstances in each 

such case. 

(Emphasis added.) 

{¶ 83} As above indicated, under both R.C. 4123.57(B) and 4123.60, when an 

award of partial disability has been made and the injured worker dies thereafter, unpaid 

amounts either shall be paid or may be paid prior to the death of an injured worker to the 

surviving spouse. However, neither of these statutory provisions apply here because no 

award had been made prior to decedent's death. 

{¶ 84} In the present case, decedent died before an award was made. Both R.C. 

4123.57(B) and 4123.60 also address the situation where no award has been made before 

the injured worker dies. R.C. 4123.57(B) provides as follows: 

When an employee has sustained the loss of a member by 

severance, but no award has been made on account thereof 

prior to the employee's death, the administrator shall make

an award in accordance with this division for the loss which 

shall be payable to the surviving spouse.

 

(Emphasis added.) 

{¶ 85} R.C. 4123.60 provides the following provision to be applied where no award 

has been made prior to the decedent's death: 

If the decedent would have been lawfully entitled to have 

applied for an award at the time of his death the 

administrator may * * * award and pay an amount, not 

exceeding the compensation which the decedent might have 
26 

No. 13AP-1024 

received, but for his death, for the period prior to the date of 

his death, to such of the dependents of the decedent * * * as 

the administrator determines in accordance with the 

circumstances in each such case, but such payments may be 

made only in cases in which application for compensation 

was made * * * or within one year after the death of such 

injured or disabled person. 

(Emphasis added.) 

{¶ 86} Despite the arguments made by both the commission and claimant, the 

magistrate specifically finds that the above portion of R.C. 4123.57(B) upon which they 

rely does not apply here. That section of R.C. 4123.57(B) provides: 

When an employee has sustained the loss of a member by 

severance, but no award has been made on account thereof 

prior to the employee's death, the administrator shall make

an award in accordance with this division for the loss which 

shall be payable to the surviving spouse. 

(Emphasis added.) 

{¶ 87} Although both the commission and claimant assert the entire award is 

payable under this provision, the magistrate disagrees. This provision is specifically 

limited to when an employee has sustained a loss of use of a member by severance but 

where no award has been made prior to the employee's death. Although in general, R.C. 

4123.57(B) has been interpreted to apply not only to severance but where an employee has 

suffered the loss of use of a specific member, the legislature has chosen to leave the word 

"severance" in this portion of the statute. This is the only place in R.C. 4123.57(B) where 

the word "severance" is used. 

{¶ 88} The paramount goal of statutory construction is to ascertain and give effect 

to the legislature's intent in enacting the statute. Yonkings v. Wilkinson, 86 Ohio St.3d 

225 (1999). In so doing, the court must first look to the plain language of the statute and 

the purpose to be accomplished. State ex rel. Pennington v. Gundler, 75 Ohio St.3d 171, 

173 (1996). Words used in a statute must be accorded their usual, normal and customary 

meaning. Id., citing R.C. 1.42. If the words in a statute are " 'free from ambiguity and 

doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there 

is no occasion to resort to other means of interpretation.' " State v. Hairston, 101 Ohio 
27 

No. 13AP-1024 

St.3d 308, 2004-Ohio-969, ¶ 12, quoting Slingluff v. Weaver, 66 Ohio St. 621 (1902), 

paragraph two of the syllabus. " 'An unambiguous statute is to be applied, not 

interpreted.' " Meeks v. Papadopulos, 62 Ohio St.2d 187, 190 (1980), quoting Sears v. 

Weimer, 143 Ohio St. 312 (1944), paragraph five of the syllabus. 

{¶ 89} In the present case, it is undisputed that decedent did not suffer the loss of 

any member by severance; as such, the magistrate concludes that this portion of R.C. 

4123.57(B) does not apply here. To the extent clamant relies on the mandatory language 

of this statute, claimant's argument fails. 

{¶ 90} There is one more provision to consider: R.C. 4123.60. The magistrate 

specifically finds that the following provision of R.C. 4123.60 does apply here: 

If the decedent would have been lawfully entitled to have 

applied for an award at the time of his death the 

administrator may * * * award and pay an amount, not 

exceeding the compensation which the decedent might have 

received, but for his death, for the period prior to the date of 

his death, to such of the dependents of the decedent * * * as 

the administrator determines in accordance with the 

circumstances in each such case, but such payments may be 

made only in cases in which application for compensation 

was made * * * or within one year after the death of such 

injured or disabled person. 

 

{¶ 91} In the present case, because decedent initially survived the accident, he 

would have been lawfully entitled to have applied for the loss of use awards for which his 

surviving spouse (claimant herein) did apply. Further, it is undisputed that claimant filed 

the application for loss of use within one year after the death of decedent. Pursuant to 

R.C. 4123.60, the administrator of the BWC had distinction to award and pay an amount, 

not exceeding the compensation which decedent might have received, but for his death, 

for the period prior to the date of his death, to his surviving spouse. It should also be 

noted that this statute permits, but does not require, the administrator of the BWC to 

award and pay to the surviving spouse (claimant herein) some amount of compensation 

which decedent might have received, but for his death for the period prior to his death, to 

dependents such as claimant. 

RELEVANT CASES
28 

No. 13AP-1024 

{¶ 92} In State ex rel. Estate of McKenney v. Indus. Comm., 110 Ohio St.3d 54, 

2006-Ohio-3562, Patrick McKenney sustained a work-related injury and his workers' 

compensation claim was allowed for quadriplegia and he was awarded 850 weeks of 

scheduled loss benefits under R.C. 4123.57(B) for the loss of use of all four limbs. After 

receiving six weeks of loss of use payments, McKenney died of an injury-related heart 

attack. McKenney's surviving spouse moved the commission for a lump sum payment of 

the remaining 844 weeks of scheduled loss compensation. However, the following day, 

the surviving spouse died and her estate was substituted as a party for the purposes of 

pursuing her motion. 

{¶ 93} The estate relied on the following portion of R.C. 4123.57(B): 

When an award under this division has been made prior to 

the death of an employee all unpaid installments accrued or 

to accrue under the provisions of the award shall be payable 

to the surviving spouse. 

(Emphasis added.) 

{¶ 94} Based on the above provision, the estate argued it was entitled to receive 

that which the surviving spouse would have been entitled to receive but for her death. 

{¶ 95} The estate argued that the entire amount of the scheduled loss award 

accrued and was payable to the surviving spouse at the time of McKenney's death. The 

court disagreed specifically noting that the statute presumed a living dependent which no 

longer existed. The court stated: 

The estate's reliance on the mandatory "shall" is misplaced, 

because the mandate presumes a living dependent, which is 

not the case here. Moreover, the statute specifically refers to 

installments "accrued or to accrue." (Emphasis added). If 

the entire amount accrued immediately, as the estate claims, 

there would be no need for this language. The estate's 

interpretation of the statute is, therefore, rendered untenable 

by the statute's very language. 

Id. at ¶ 11. 

{¶ 96} The court reasoned further: 

[T]he loss of earning capacity that scheduled loss 

compensation was intended to ameliorate ceases upon the 
29 

No. 13AP-1024 

death of the injured worker—just as it does with all other 

forms of disability compensation. 

* * * 

R.C. 4123.57(B) anticipates the payment of scheduled loss 

compensation in weekly installments. Commutation to a 

lump sum can occur, but only if the injured worker first 

applies for lump-sum payment, meets certain specified 

criteria designated in R.C. 4123.64, and receives approval 

from the bureau. The specificity of those criteria—and the 

fact that satisfaction still does not guarantee approval by the 

bureau—demonstrates that the method of payment is of 

substantive concern to the General Assembly and should not 

be summarily dismissed as irrelevant to our inquiry * * *. 

We, too, have acknowledged the substantive, as opposed to 

simply ministerial, nature of the payment method in a 

scheduled loss situation. In Swallow v. Indus. Comm.

(1988), 36 Ohio St.3d 55, 57, 521 N.E.2d 778, we approved 

the commission's "rationale that claimants are generally 

placed in a better position by receiving payments 

consecutively rather than concurrently." We held that it was 

within the discretion of the commission to determine that 

appellant would be put in a better position by receiving 850 

weeks of payments consecutively rather than two 200-week 

periods of payments for the loss of his legs and two 250-week 

periods of payments for the loss of his arms, all concurrently. 

The estate claims that to deny full recovery offends equal 

protection because state-fund and self-insured employees 

will be treated differently. The estate, however, never 

develops this argument, using it instead as a forum for 

objecting to the commission's decision to deny lump-sum 

payment in favor of installment payments—an action 

expressly within the commission's discretion, and irrelevant 

to the employee's status as a self-insured or state-fund 

employee. 

In the end, the estate has not offered a compelling reason 

why we should deviate from prior decisions limiting the 

dependent's estate to those amounts actually due, but 

unpaid, to the dependent before his or her death. In this 

case, the commission, after careful consideration, specifically 

denied a request for lump-sum payment because no further 

award was payable whether by installment or lump sum. 
30 

No. 13AP-1024 

Id. at 16, 19-20. 

{¶ 97} The estate of McKenney's surviving spouse was found not to be entitled to 

the lump sum award for several reasons: (1) because the surviving spouse had died, there 

was no living dependent to whom the award was payable; (2) scheduled loss 

compensation is intended to ameliorate the loss of earning capacity of the injured worker; 

(3) most forms of disability compensation cease upon the death of the injured worker; (4) 

McKenney's surviving spouse was not guaranteed to have her application for lump sum 

payment approved by the commission; and (5) the commission has discretion to pay 

scheduled loss benefits on a weekly basis. 

{¶ 98} A few months later, the Supreme Court of Ohio decided the case of State ex 

rel. Moorehead v. Indus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364, which involved a 

factual scenario which is virtually identical to the scenario presented here. William 

Moorehead fell approximately 20 feet head first onto a concrete floor and suffered severe 

spinal cord and other injuries. Unrebutted medical evidence established the spinal cord 

injury rendered him a quadriplegic. Although Moorehead never regained consciousness, 

he died 90 minutes later. 

{¶ 99} Moorehead's surviving spouse applied for death benefits under R.C. 

4123.60 as well as scheduled loss compensation pursuant to R.C. 4123.57(B). The 

commission denied the application for scheduled loss compensation on grounds that 

those benefits may only be awarded to injured workers who both experience a physical 

and sustained loss of use as well as consciously perceive and experience the same. 

Because Moorehead was comatose and completely unaware of the extent of his injuries, 

the commission denied the award. 

{¶ 100} While this court agreed with the commission on appeal, the Supreme Court 

of Ohio reversed stating: 

The commission concluded that the decedent's loss of use 

"was contingent upon his survival." It further concluded that 

the "decedent did not survive." But Moorehead did survive 

the fall, albeit for only a short period, as it is undisputed that 

he did not die upon impact. R.C. 4123.57(B) does not specify 

a required length of time of survival after a loss-of-use injury 

before benefits pursuant to R.C. 4123.57(B) are payable. 
31 

No. 13AP-1024 

We have long recognized that neither administrative 

agencies nor this court "may legislate to add a requirement 

to a statute enacted by the General Assembly." Wheeling 

Steel Corp. v. Porterfield (1970), 24 Ohio St.2d 24, 27-28, 53 

O.O.2d 13, 263 N.E.2d 249. Rather, in interpreting statutes 

"it is the duty of this court to give effect to the words used, 

not to delete words used or to insert words not used." 

Columbus-Suburban Coach Lines, Inc. v. Pub. Util. Comm.

(1969), 20 Ohio St.2d 125, 127, 49 O.O.2d 445, 254 N.E.2d 8. 

We therefore cannot condone the commission's addition of a 

requirement that a worker survive for some extended period 

of time, left unspecified by the commission or the General 

Assembly, when considering the worker's entitlement to a 

scheduled loss benefit. 

Similarly, there is no language in R.C. 4123.57(B) requiring 

that an injured worker be consciously aware of his paralysis 

in order to qualify for scheduled loss benefits. In an 

analogous case the Supreme Court of New Hampshire 

considered a scheduled loss application filed on behalf of a 

worker whose injury left him in an irreversible vegetative 

state. Corson v. Brown Prods., Inc. (1979), 119 N.H. 20, 397 

A.2d 640. The application was denied administratively solely 

because Corson's vegetative state made him unaware of his 

loss. The New Hampshire Supreme Court vacated that 

decision and awarded scheduled loss compensation, writing: 

"What is of paramount importance in this case is that words 

such as 'awareness' or 'consciousness' cannot be added under 

the guise of legislative history to a statute which clearly 

states that '[t]he scheduled awards under this section accrue 

to the injured employee simply by virtue of the loss or loss of 

the use of a member of the body.' * * * When the language 

used in a statute is clear and unambiguous, its meaning is 

not subject to modification by construction." Id., 119 N.H. at 

23, 397 A.2d 640. 

The same rule of statutory construction applies here. When 

"the meaning of the statute is unambiguous and definite, it 

must be applied as written and no further interpretation is 

necessary." State ex rel. Savarese v. Buckeye Local School 

Dist. Bd. of Edn. (1996), 74 Ohio St.3d 543, 545, 660 N.E.2d 

463. R.C. 4123.57(B) does not say that compensation is 

dependent upon a claimant's conscious awareness of his or 

her loss, whether resulting from amputation or paralysis. 

Rather, where the requisite physical loss has been sustained, 
32 

No. 13AP-1024 

the statute directs that scheduled loss compensation shall be 

paid. 

This court should not graft duration-of-survival or 

cognizance requirements to R.C. 4123.57(B), because the 

statute has no text imposing them. Public-policy arguments 

relative to the requisites of scheduled loss benefits pursuant 

to R.C. 4123.57 are better directed to the General Assembly, 

including arguments that a specified time of survival should 

be mandated after a paralyzing injury and that a worker be 

cognizant of his or her loss before loss-of-use benefits are 

payable. 

Id. at ¶ 14-19. 

{¶ 101} After finding that Moorehead was entitled to the scheduled loss award, the 

court could have ordered the commission to pay the 900 weeks of compensation payable 

where the medical evidence demonstrated a loss of use of both upper and lower 

extremities, but declined to do so. Instead, the Supreme Court returned the matter to the 

commission so that the commission could determine the amount of benefits due and 

payable to the surviving spouse. Specifically, the court stated: 

The appellant proffered medical evidence establishing that 

William Moorehead sustained the physical loss of use of his 

limbs as a result of his fall. Consciousness of that loss during 

an extended period of survival is not required by R.C. 

4123.57(B), and the commission therefore incorrectly 

applied the statute when it denied the appellant's application 

on that basis. 

We deem it appropriate that the commission determine in 

the first instance the amount of benefits due the appellant. 

That determination should be made in light of all relevant 

statutes and precedent, including our recent decision in 

State ex rel. Estate of McKenney v. Indus. Comm., 110 Ohio 

St.3d 54, 2006-Ohio-3562, 850 N.E.2d 694. 

Id. at ¶ 20-21. (Footnote omitted.) 

{¶ 102} With regard to the amount of compensation due, Justice Lundberg 

Stratton postulated as follows in her concurring opinion: 

I concur in the holding that R.C. 4123.57(B) does not support 

the commission's reasons for denying Sandra Moorehead's 

application for scheduled loss benefits, and I agree with the 
33 

No. 13AP-1024 

decision to remand this cause for a determination of the 

amount of benefits due Moorehead in light of State ex rel. 

Estate of McKenney v. Indus. Comm., 110 Ohio St.3d 54, 

2006-Ohio-3562, 850 N.E.2d 694. However, because the 

courts below did not have the benefit of McKenney, I write 

separately to explain why I believe that it and the relevant 

statutory authority limit Moorehead's award to one week of 

scheduled loss benefits. 

* * * 

R.C. 4123.57(B) authorizes an award of scheduled loss 

benefits to the surviving spouse when an employee has 

sustained a loss but the employee dies before the award is 

made. R.C. 4123.60 authorizes a surviving spouse to apply 

for and receive, in addition to death benefits, an award for 

compensation that the decedent would have been lawfully 

entitled to apply for at the time of his death. The amount of 

the award, however, may not exceed the compensation that 

the decedent might have received for the period prior to the 

date of death. Thus, R.C. 4123.60 appears to limit the 

surviving spouse's recovery of benefits other than 

compensation for death to an amount not exceeding what 

the decedent might have received for the period prior to his 

death. 

* * * 

We did not agree that McKenney was entitled to the entire 

award upon Patrick's death. Scheduled loss benefits, like 

most other forms of workers' compensation, compensate for 

a loss of earning capacity. "It therefore follows that the loss 

of earning capacity that scheduled loss compensation was 

intended to ameliorate ceases upon the death of the injured 

worker—just as it does with all other forms of disability 

compensation." Id. ¶ 16. R.C. 4123.57(B) anticipates the 

payment of scheduled loss compensation in weekly 

installments, which may be commuted to a lump sum under 

certain circumstances and only if the injured worker applies. 

R.C. 4123.64. 

Consequently, I believe that Moorehead may be entitled to 

one week of scheduled loss benefits under R.C. 4123.57(B) to 

compensate for her husband's period of survival. The issue of 

consciousness is immaterial. But the presumed loss of 

earning capacity ceased upon William Moorehead's death. At 

that point, Sandra Moorehead became entitled to apply for 
34 

No. 13AP-1024 

death benefits under R.C. 4123.59. I do not believe that the 

General Assembly intended for duplicate awards under these 

circumstances. 

Finally, I believe that an award of scheduled loss benefits 

under these circumstances has potential long-term financial 

ramifications. A successful scheduled loss application, 

depending on the extent of injury, can generate huge sums of 

money costing the State Fund and self-insured employers 

millions of dollars. In this case, Moorehead seeks the full 

award of 850 weeks. If scheduled loss benefits are awarded 

no matter how short the employee's survival, this will likely 

encourage the dependent of any employee who dies in close 

proximity to an industrial injury to file for scheduled loss 

compensation. Such an award would have unintended 

results that would be financially devastating for the State 

Fund or a self-insured employer. I do not believe that the 

General Assembly intended R.C. 4123.57(B) to provide what 

would be the equivalent of an award of damages for personal 

injury. 

Id. at ¶ 23, 26, 29-31. (Footnote omitted.) 

 APPLICATION OF STATUTES AND CASE LAW

{¶ 103} Both the commission and claimant seemingly imply that Moorehead 

stands for the proposition that claimant, as a surviving spouse, is entitled to receive all 

1,225 weeks of scheduled loss compensation. However, the Supreme Court in Moorehead 

did not order the commission to pay all 900 weeks of compensation. The court could 

have done so, but it is apparent from the court's ruling that the court did not believe the 

statutes and case law supported that result. Instead, the court directed the commission's 

attention to all relevant statutes and the McKenney decision and allowed the commission 

to make that determination in the first instance. Whatever the commission determined, 

no mandamus action followed and, as such, there is no case law which answers the 

question directly. As such, the magistrate finds the commission abused its discretion 

when it awarded 1,225 weeks of compensation. 

EFFECT OF RECENT SUPREME COURT DECISION

{¶ 104} Between the date this mandamus action was filed and the date of oral 

argument, the Supreme Court of Ohio issued its decision in State ex rel. Smith v. Indus. 

Comm., 138 Ohio St.3d 312, 2014-Ohio-513. In that case, George Smith suffered anoxic 
35 

No. 13AP-1024 

brain damage during surgery to repair an inguinal hernia caused by a 1995 work-related 

injury. Smith never returned to work. In 1998, he was awarded permanent total 

disability compensation and, in 2004, the commission granted his motion for scheduled 

loss of use awards for the loss of use of his arms and legs. 

{¶ 105} In 2009, relator filed a motion seeking the scheduled loss of use award for 

both ears and eyes. The commission denied the motion and ultimately, the commission's 

decision was upheld. As the Supreme Court noted, the medical evidence showed that 

Smith's eyes and ears were not damaged. Instead, because of the anoxic brain damage, 

the signals the eyes and ears received could not be processed by his brain. Because there 

were no tests which could be performed to determine whether or not Smith had any loss 

of sight or hearing and because the medical evidence showed Smith suffered from a loss of 

brain stem functioning and not damage to either his eyes or ears, the court found that the 

commission did not abuse its discretion. 

{¶ 106} At oral argument, relator asked the magistrate to consider the implication 

of the Smith case to the facts involving decedent. For the reasons that follow, the 

magistrate finds the court's rationale from Smith does not apply here. 

{¶ 107} As noted, there was no medical evidence that Smith had sustained any 

damage to either his eyes or ears. Instead, the medical evidence indicated that Smith's 

brain could not process the visual and auditory impulses being received by his eyes and 

ears. By comparison, the medical evidence here indicates that decedent sustained 

"extensive destruction of cortical tissue" and, in his right eye, he suffered a "large 

displacing hematoma that would have further diminished any ability for useful visual 

function." (Report of Dr. Cameron.) The medical evidence also showed decedent had 

"severe damage to the supporting structures of the auditory apparatus." (Report of Dr. 

Cameron.) Unlike the evidence in Smith, there is medical evidence here indicating 

significant damage not only to decedent's brain, but to both his eyes and ears. Even 

though decedent's lack of consciousness made it impossible to determine the exact extent 

of his visual and auditory losses, there is medical evidence that those organs were 

significantly damaged. As such, the magistrate disagrees with relator's opinion that Smith 

requires a different result here. 
36 

No. 13AP-1024 

CONCLUSION

{¶ 108} Upon review of the statutes and case law, the magistrate concludes the 

commission did abuse its discretion in awarding claimant 1,225 weeks of scheduled loss 

compensation as that is contrary to the provisions of R.C. 4123.60 and relevant case law. 

As such, the magistrate concludes this court should issue a writ of mandamus ordering 

the commission to vacate its award of 1,225 weeks of scheduled loss compensation and 

determine the amount of compensation which is due to claimant. 

 /S/ MAGISTRATE 

 STEPHANIE BISCA BROOKS 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign 

as error on appeal the court's adoption of any factual finding 

or legal conclusion, whether or not specifically designated as 

a finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically 

objects to that factual finding or legal conclusion as required 

by Civ.R. 53(D)(3)(b).