State ex rel. Moorehead v. Industrial Commission

{¶ 1} William Moorehead fell approximately 15 to 20 feet head first onto a concrete floor while working on a raised platform at his job site. Upon impact he suffered severe spinal cord and other injuries. Unrebutted evidence established that the spinal cord injury rendered him a quadriplegic.1 William never regained consciousness and died 90 minutes after the fall.

{¶ 2} His widow, appellant Sandra Moorehead, applied for death benefits. Pursuant to R.C. 4123.57(B), she also applied for scheduled loss compensation based on William’s loss of use of both arms and legs.

{¶ 3} The Industrial Commission denied the application for scheduled loss compensation, observing that scheduled loss benefits may be awarded only to *28injured workers who both experience a physical and sustained loss of use and also consciously perceive and experience the physical suffering and hardship caused by the loss of use of a body part in the period between the injury and death. The commission stated that “the widow-claimant’s application for such benefits must fail, as the decedent did not sustain the loss of his extremities, because he was comatose, and completely unaware of the extent of injuries, for the brief period between the accident and his death.”

{¶ 4} The Court of Appeals for Franklin County denied appellant’s petition for a writ of mandamus ordering the payment of scheduled loss benefits.

{¶ 5} The cause is now before this court on an appeal as of right.

{¶ 6} The court of appeals deferred to the commission’s interpretation that “loss of use” does not occur when an injured worker “survives an industrial injury in an unconscious state for only a brief period and never actually experiences the disabling effects of the injury.” We disagree.

{¶ 7} R.C. 4123.57 provides that compensation is payable to an employee when the employee suffers the loss of a body part that is listed on a schedule set forth in the statute. R.C. 4123.57(B) provides:

{¶ 8} “In cases included in the following schedule the compensation payable per week to the employee is the statewide average weekly wage * * * and shall continue during the periods provided in the following schedule:

{¶ 9} “* * *

{¶ 10} “For the loss of an arm, two hundred twenty-five weeks.

{¶ 11} “* * *

{¶ 12} “For the loss of a leg, two hundred weeks.”

{¶ 13} This court has held that “loss” as used in R.C. 4123.57(B) is equivalent to “loss of use,” State ex rel. Gassmann v. Indus. Comm. (1975), 41 Ohio St.2d 64, 70 O.O.2d 157, 322 N.E.2d 660 (construing the predecessor statute), and that compensation is payable for loss of a limb through amputation and for permanent and total loss of use due to paralysis, because such loss constitutes a loss “ ‘[f]or all practical purposes * * * to the same effect and extent as if [the limb] had been amputated or otherwise physically removed,’ ” State ex rel. Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, 403-404, 12 O.O.3d 347, 390 N.E.2d 1190, quoting Gassmann at 67, 70 O.O.2d 157, 322 N.E.2d 660.

{¶ 14} 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.

*29{¶ 15} 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.

{¶ 16} 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:

{¶ 17} “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.

{¶ 18} 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, the statute directs that scheduled loss compensation shall be paid.

{¶ 19} 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 *30that a worker be cognizant of his or her loss before loss-of-use benefits are payable.

{¶20} 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.

{¶ 21} 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 statutes2 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.

{¶ 22} The writ is therefore allowed and the cause remanded for determination by the commission of the amount of scheduled loss benefits due the appellant.

Judgment reversed and writ allowed.