State ex rel. Waste Mgt. of Ohio, Inc. v. Indus. Comm.

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Waste Mgt. of Ohio, Inc. v. Indus. Comm., Slip Opinion No. 

.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.




                          SLIP OPINION NO. 

  THE STATE EX REL . WASTE MANAGEMENT OF OHIO, INC., APPELLANT, v.
              INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as State ex rel. Waste Mgt. of Ohio, Inc. v. Indus. Comm., Slip
                             Opinion No. 

.]
Workers’ compensation—R.C. 4123.57(B)—Scheduled-loss benefits—Dependent
        of an injured worker who died within minutes of his industrial accident
        entitled to award of scheduled-loss benefits under R.C. 4123.57(B) for
        decedent’s loss of use of his bilateral arms and legs between time of injury
        and time of death—Judgment affirmed.
   (No. 2021-0961—Submitted August 2, 2022—Decided December 22, 2022.)
      APPEAL from the Court of Appeals for Franklin County, No. 19AP-453,
                                      

.
                                   __________________
                               SUPREME COURT OF OHIO




       Per Curiam.
       {¶ 1} Travis Gelhausen died shortly after getting into an accident while
driving a truck for appellant, Waste Management of Ohio, Inc. Appellee T.A.
applied for benefits under R.C. 4123.57(B) on behalf of her and Gelhausen’s minor
daughter, appellee S.G., for Gelhausen’s loss of the use of his arms and legs before
his death. A staff hearing officer (“SHO”) for appellee Industrial Commission of
Ohio denied the application, but the commission later exercised its continuing
jurisdiction and granted it.
       {¶ 2} Waste Management asked the Tenth District Court of Appeals for a
writ of mandamus ordering the commission to reverse its decision or to limit the
amount of the award. The Tenth District denied the writ, and Waste Management
appealed. It also moved for oral argument.        We affirm the Tenth District’s
judgment, and we deny the motion for oral argument.
                  I. FACTS AND PROCEDURAL HISTORY
       {¶ 3} Gelhausen lost control of his truck during a turn, and it flipped onto
the driver’s side, pinning him in the wreckage. Jolene Szapowal was driving behind
Gelhausen and stopped to help. In an affidavit, Szapowal said that when she
approached the wreckage, she could see Gelhausen from his ribs to his knees and
that he was still breathing. She said he continued breathing for approximately three
minutes while she rubbed his legs in an attempt to comfort him. Then she witnessed
his body seize and he stopped breathing. While she was with him, Szapowal did
not see Gelhausen move his arms or legs.
       {¶ 4} About an hour after the accident, rescuers extricated Gelhausen from
the wreckage. He was pronounced dead two minutes later. The medical examiner
determined that Gelhausen’s cause of death was “the end result of mechanical
asphyxia with * * * blunt force injuries of [the] head, neck, trunk, and extremities
with cutaneous, soft tissue, and skeletal injuries.” Waste Management, a self-
insuring employer, approved S.G.’s application for death benefits.




                                         2
                                      January Term, 2022




         {¶ 5} S.G. also requested compensation under R.C. 4123.57(B) for
Gelhausen’s loss of use of both arms and legs before he died.1 R.C. 4123.57(B)
sets forth a schedule providing for compensation payable at the statewide average
weekly wage for a specific number of weeks that depends on the body part lost.
Compensation is set at 225 weeks for the loss of an arm and at 200 weeks for the
loss of a leg. 

 “Loss” as used in R.C. 4123.57(B) is equivalent to “loss of use”;
compensation is payable for either amputation or “permanent and total loss of use
due to paralysis.” State ex rel. Moorehead v. Indus. Comm., 

,

, 

.
         {¶ 6} Waste Management obtained an opinion from Paul T. Hogya, M.D.,
who examined documentation related to this workers’ compensation claim,
including the medical examiner’s report and witness statements.                                Waste
Management’s lawyers asked Dr. Hogya, “Does the medical evidence demonstrate
whether Mr. Gelhausen actually survived the crash for a discernible period of
time?” His response first provided an operative definition for death: “The actual
death is cessation of breathing, heart beat [sic], and brain function.” He then
explained that “[t]he only evidence that Mr. Gelhausen survived the crash for a
discernible period of time [was] non-medical and from the lay witness, Ms.
Szapowal.” Dr. Hogya continued:


         The breathing activity referenced by Ms. Szapowal is what is known
         as agonal respirations. Agonal respirations are an inadequate pattern
         of breathing associated with extreme physiological distress. They
         are not adequate respiration[s] to sustain oxygenation. It can be
         thought of as more of an automatic response of the last remnants of
         the brainstem. Whatever the case, it can easily be confused for

1. S.G. additionally alleged that Gelhausen suffered a total loss of vision and a total loss of hearing
before he died, but her application for compensation for those alleged losses are no longer at issue.




                                                  3
                             SUPREME COURT OF OHIO




       ordinary respiration, leading to the mistaken impression that the
       “breathing” person must also have a pulse. This confusion is part of
       why the American Heart Association no longer recommends
       checking for breathing as part of layperson’s CPR. Ms. Szapowal
       estimated some three minutes of breathing.          From a clinical
       standpoint, these estimates must always be considered with “a grain
       of salt” due to the stressful emergency nature of the situation. For
       instance, that is why estimates of seizure activity are notoriously
       inaccurate.


       {¶ 7} S.G. obtained an opinion from Donato Borrillo, M.D., who also
examined the records related to this claim. Dr. Borrillo stated that Gelhausen “was
still alive at the time of his accident for a brief period of time, which was
witness[ed] by a bystander who responded to the accident scene. His brief period
of breathing [was] consistent with still being alive, as his autopsy did not reveal a
decapitation or crush injury of the head.”
       {¶ 8} After reviewing Dr. Borrillo’s opinion, Dr. Hogya renewed his own
opinion in an addendum to his initial report. Dr. Borrillo, after reviewing Dr.
Hogya’s initial report, did likewise, stating in his own addendum:


               Dr. Hogya is indeed correct in opining that agonal breathing
       carries a poor prognosis and is an indicator of impending death;
       however, Mr. Gelhausen was alive and breathing immediately after
       his violent accident. During this albeit brief period of being alive,
       which was of sufficient duration to be witnessed, Mr. Gelhausen
       suffered a permanent loss of use of both the upper and lower
       extremities as a result of his cervical injury.




                                          4
                                January Term, 2022




(Emphasis sic.)
       {¶ 9} The district hearing officer (“DHO”) denied the requests for
compensation, finding that “it ha[d] not been established that the decedent lived for
a discernable period of time after sustaining the injuries which resulted [in] his
death.” The DHO discounted the statements in Szapowal’s affidavit as unreliable
because Szapowal was not a medical professional.
       {¶ 10} S.G. appealed, and the matter was heard by an SHO. The SHO
agreed that Gelhausen had not survived for a discernible period after his injury,
finding that “Dr. Hogya indicates that breathing observed by the non-medical
witness is known as agonal respirations, and they are not adequate respirations to
sustain oxygenation.” The SHO also found that S.G. had failed to establish that
Gelhausen lost the use of his arms or legs before his death. S.G. again appealed,
but a panel of three SHOs refused the appeal on behalf of the commission.
       {¶ 11} S.G. moved for reconsideration. The commissioners concluded that
the SHO’s order contained a clear mistake of law and a clear mistake of fact. The
commission therefore exercised its continuing jurisdiction over the claim. On
reconsideration, the commission concluded that Gelhausen had survived the
accident for at least three minutes and that prior to his death, he suffered the
permanent loss of use of his arms and legs. The commission awarded S.G. 850
weeks of compensation for that loss.
       {¶ 12} Waste Management filed a mandamus action in the Tenth District,
seeking a writ ordering the commission to vacate its award and reinstate the SHO’s
order. Alternatively, Waste Management sought a writ ordering the commission to
limit the award to one week of compensation per limb, for a total of four weeks.
The Tenth District denied the writ, finding that the SHO had made a clear mistake




                                         5
                                 SUPREME COURT OF OHIO




of fact and that the commission did not abuse its discretion by invoking its
continuing jurisdiction. 

.2 Waste Management appealed.
                                       II. ANALYSIS
        {¶ 13} Waste Management argues that (1) the SHO’s order contains no
mistake of fact, so the commission’s exercise of continuing jurisdiction was
improper, (2) the commission’s order did not adequately explain the SHO’s mistake
of law, and (3) even assuming the commission’s award was proper, S.G. would
have been entitled to compensation for only one week (or alternatively, four
weeks), not 850 weeks.
                                     A. Legal Standards
        {¶ 14} In a direct appeal of a mandamus action originating in a court of
appeals, we review the judgment as if the action had been originally filed here.
State ex rel. Pressley v. Indus. Comm., 

, 

(1967). Waste Management is entitled to a writ of mandamus if it shows by clear
and convincing evidence that it has a clear legal right to the requested relief, that
the commission has a clear legal duty to provide it, and that there is no adequate
remedy in the ordinary course of the law. State ex rel. Zarbana Industries, Inc. v.
Indus. Comm., 

, 

, 

. “When
an order [of the commission] is adequately explained and based on some evidence,
there is no abuse of discretion and a reviewing court must not disturb the order.”
State ex rel. Aaron’s, Inc. v. Ohio Bur. of Workers’ Comp., 

,

, 

.
                                     B. Mistake of Fact
        {¶ 15} R.C. 4123.52(A) grants the commission continuing jurisdiction over
its cases and empowers it to “make such modification or change” to prior orders
“as, in its opinion, is justified.”         However, the commission may invoke its

2. The Tenth District concluded that the SHO did not make a clear mistake of law. Id. at ¶ 19. The
commission now concedes that the SHO did not make a mistake of law.




                                                6
                                January Term, 2022




continuing jurisdiction only if it finds (1) new and changed circumstances, (2)
fraud, (3) a clear mistake of fact, (4) a clear mistake of law, or (5) an error by an
inferior tribunal. State ex rel. Neitzelt v. Indus. Comm., 

, 2020-
Ohio-1453, 

.
       {¶ 16} Waste Management argues that the SHO’s order contains no mistake
of fact. We disagree.
       {¶ 17} As the Tenth District pointed out, “there is no dispute among the
medical experts that [Gelhausen] was breathing in some capacity for approximately
three minutes after the accident.” 

. The only dispute was
whether the breathing was “agonal.” See 

 “Agonal” means “of, relating to, or
associated with agony, esp. the death agony or period of dying.” Webster’s Third
New International Dictionary 43 (2002).
       {¶ 18} Under Ohio probate law, “[a]n individual is dead if the individual
has sustained either irreversible cessation of circulatory and respiratory functions
or irreversible cessation of all functions of the brain, including the brain stem, as
determined in accordance with accepted medical standards.” R.C. 2108.40; accord
R.C. 2105.35(A)(1). The SHO cited no evidence that Gelhausen had experienced
the irreversible cessation of all brain functions, and it was undisputed that his
respiratory functions had not ceased. The presence of breathing—even agonal
breathing—means Gelhausen survived the accident. Breathing, at least in this
context, is inconsistent with death.
       {¶ 19} In Moorehead, we explained that “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.” 

, 

,

. Furthermore, “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.” Id. at ¶ 16. The SHO acknowledged that




                                         7
                             SUPREME COURT OF OHIO




Gelhausen had experienced three minutes of agonal breathing, yet the SHO found
that Gelhausen did not survive the accident. That was a clear mistake of fact.
       {¶ 20} Waste Management characterizes the commission’s decision as a
mere “disagreement in evidentiary interpretation,” which it contends is not the same
as a mistake of fact and is an improper basis for invoking continuing jurisdiction.
See State ex rel. Royal v. Indus. Comm., 

, 

(2002). Waste Management asserts that the SHO relied on the opinion of Dr.
Hogya over the affidavit of Szapowal and that the commission invoked its
continuing jurisdiction because it disagreed with the SHO’s weighing of the
evidence. This argument implies that Dr. Hogya believed Gelhausen did not
survive the accident. However, Dr. Hogya did not state such an opinion. Although
he expressed skepticism about its reported three-minute duration, Dr. Hogya
accepted Szapowal’s report of Gelhausen’s breathing, characterizing it as “agonal
respirations.” And as discussed above, agonal or not, under the circumstances
present here, Gelhausen’s respirations indicated that death had not yet occurred.
       {¶ 21} Waste Management also points out that the SHO’s decision had a
second basis: that S.G. had not established that Gelhausen experienced paralysis
before his death. That point is irrelevant. The existence of a clear mistake of fact
allowed the commission to reopen the case, vacate the SHO’s order, and reconsider
all issues therein de novo. See State ex rel. Sheppard v. Indus. Comm., 

, 

, 

. Once the case was reopened, the
commission was free to reach a different conclusion than the SHO regarding any
issues of law or fact. See State ex rel. Haddox v. Indus. Comm., 

, 

, 

.
       {¶ 22} Finally, Waste Management points to three Tenth District cases that
it claims are inconsistent with the court of appeals’ decision in this case: State ex
rel. Sagraves v. Indus. Comm., 10th Dist. Franklin No. 10AP-1030, 2012-Ohio-
1010; State ex rel. Wallace v. Indus. Comm., 10th Dist. Franklin No. 11AP-897,




                                         8
                                January Term, 2022

; and State ex rel. Koepf v. Indus. Comm., 10th Dist. Franklin No.
18AP-753, 

. We are not bound by any of these decisions, but
regardless, they are distinguishable.
       {¶ 23} Both Sagraves and Wallace involved conflicting evidence about
whether the decedent had survived an accident, and the commission credited the
evidence that did not support survival. See Sagraves at ¶ 3-4, 8; 

, 6-
10.   Here, by contrast, Dr. Hogya and the SHO both accepted Gelhausen’s
postaccident breathing as fact—the dispute is not whether the breathing occurred,
but how to characterize it and what it means.
       {¶ 24} In Koepf, the decedent lived with the allowed condition—
mesothelioma—for some time before his death, id. at ¶ 13, 17-19; the dispute was
whether any loss of use of the extremities, eyes, or ears that decedent experienced
at the end of his life was caused by the mesothelioma or by the “process of dying.”

. However, the issue in this case is not whether Gelhausen
was paralyzed or what caused any paralysis he may have had—the issue is whether
the commission abused its discretion by determining that the SHO’s conclusion that
Gelhausen could be both breathing and deceased was a clear mistake of fact. Koepf
does not speak to that question.
                             C. Adequate Explanation
       {¶ 25} In an order invoking its continuing jurisdiction based on mistake of
fact, the commission cannot simply state that a mistake occurred; it must state what
the mistake was. State ex rel. Gobich v. Indus. Comm., 

, 2004-
Ohio-5990, 

, ¶ 15. This ensures that the party opposing the exercise
of continuing jurisdiction can prepare its defense and that reviewing courts can
determine whether the commission invoked its continuing jurisdiction properly. 

       {¶ 26} Waste Management argues that the commission “never identified,
much less explained” the SHO’s clear mistake of fact.          We disagree.     The
commission began its analysis by stating:



                                         9
                            SUPREME COURT OF OHIO




       [T]he Dependent has met the burden of proving the Staff Hearing
       Officer[’s] order, issued 10/13/2018, contains a clear mistake of fact
       in the order from which reconsideration is sought, and a clear
       mistake of law of such character that remedial action would clearly
       follow. Specifically, the Staff Hearing Officer failed to properly
       apply the rule of State ex rel. Moorehead v. Indus. Comm., 

, 

, 

, to the facts in this
       claim.


The commission picked up this thread again a few paragraphs later:


       The Commission also relies upon State ex rel. Moorehead v. Indus.
       Comm., supra, which held R.C. 4123.57(B) does not require any
       specific duration of survival after an employee suffers a loss of use,
       nor does it require the employee to be cognizant of the loss. The
       Commission finds R.C. 4123.57(B) is applicable here because the
       Decedent did in fact survive the injury, for at least three minutes. In
       support of its findings the Commission relies upon Ms. Szapowal’s
       affidavit stating that following the injury, she saw the Decedent
       continue to breathe for approximately three minutes before he
       expired in her presence.


These paragraphs adequately identified and explained the mistake of fact as “the
SHO’s finding that the decedent did not survive the injury when he had, in fact,
survived the accident for approximately three minutes,” 

.




                                         10
                                January Term, 2022




                               D. Amount of Award
       {¶ 27} Waste Management argues that the commission abused its discretion
by awarding S.G. the maximum amount for Gelhausen’s injuries under R.C.
4123.57(B)—850 weeks of compensation—rather than one week of compensation
or, alternatively, four weeks of compensation (one week for each limb). Waste
Management argues that even if Gelhausen survived the accident, he did not live
with the injuries for longer than a week.
       {¶ 28} R.C. 4123.57(B) sets forth a schedule for weekly payments of
compensation to an injured worker for loss resulting from a work injury. R.C.
4123.60 states:


       If the decedent would have been lawfully entitled to have applied
       for an award at the time of his death the administrator may, after
       satisfactory proof to warrant an award and payment, 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.


(Emphasis added.) S.G. applied for benefits within one year of Gelhausen’s death.
Under R.C. 4123.60, she was entitled to seek an award of the benefits that
Gelhausen would have been entitled to apply for before his death, and she was
entitled to receive an amount not exceeding the compensation that Gelhausen could



                                            11
                             SUPREME COURT OF OHIO




have received before his death. The award to which S.G. is entitled is therefore
determined by the award to which Gelhausen would have been entitled prior to his
death.
         {¶ 29} But for his death, Gelhausen could have sought compensation under
R.C. 4123.57(B), and he could have sought to have the award commuted to a lump
sum.     R.C. 4123.57(B) states: “Compensation paid in weekly installments
according to the schedule described in this division may only be commuted to one
or more lump sum payments pursuant to the procedure set forth in section 4123.64
of the Revised Code.” And R.C. 4123.64(A) states:


                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 the injured or disabled
         employee’s rehabilitation, may commute payments of compensation
         or benefits to one or more lump-sum payments.


R.C. 4123.64(B) requires the administrator of the Bureau of Workers’
Compensation to adopt rules governing the awarding of lump-sum payments.
Adopted under that authority, Ohio Adm.Code 4123-3-37(A)(1) essentially restates
the text of R.C. 4123.64(A), providing that “[t]he bureau may grant a lump sum
advancement to a claimant” from an R.C. 4123.57(B) award.
         {¶ 30} Therefore, the award Gelhausen “might have received, but for his
death,” R.C. 4123.60, included a lump-sum advance of the full 850 weeks of
compensation to which he would have been entitled under R.C. 4123.57(B).
Because R.C. 4123.60 allows S.G. to receive an award up to that amount, we




                                        12
                                     January Term, 2022




conclude that the commission did not abuse its discretion by awarding S.G. the full
amount.3
                                     E. Oral Argument
        {¶ 31} Finally, Waste Management moves for oral argument. In a direct
appeal, granting a request for oral argument is subject to this court’s discretion.
S.Ct.Prac.R. 17.02(A). In exercising that discretion, we consider whether the case
involves (1) a matter of great public importance, (2) complex issues of law or fact,
(3) a substantial constitutional issue, or (4) a conflict among courts of appeals. See
State ex rel. BF Goodrich Co., Specialty Chems. Div. v. Indus. Comm., 

, 

, 

.
        {¶ 32} Waste Management argues that this case involves a matter of great
public importance: the question whether the dependents of an employee who does
not survive an industrial accident for a discernible period are entitled to benefits
under R.C. 4123.57(B). But as explained above, Gelhausen did survive the accident
for a discernible period. Waste Management also argues that this court has never
had the opportunity to clarify the number of weeks of compensation that an
employee such as Gelhausen would have been entitled to. However, the briefs
adequately address this question, and the applicable statutes answer it. Finally,



3. Waste Management asserts the inapplicability of the portion of R.C. 4123.57(B) that 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, 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.

(Emphasis added.) Waste Management points out that Gelhausen’s arms and legs were not severed.
That is irrelevant, however, because as Waste Management admits, R.C. 4123.60 also applies to this
situation—the loss of use due to paralysis. See Moorehead, 

, 

,

 (acknowledging the application of both R.C. 4123.57(B) and
4123.60 to a similar claim).




                                                13
                              SUPREME COURT OF OHIO




Waste Management asserts that the Tenth District’s judgment in this case conflicts
with its judgments in Sagraves, 10th Dist. Franklin No. 10AP-1030, 2012-Ohio-
1010; Wallace, 10th Dist. Franklin No. 11AP-897, 

; and Koepf,
10th Dist. Franklin No. 18AP-753, 

. However, as explained above,
that is not the case. We deny the motion for oral argument.
                                III. CONCLUSION
          {¶ 33} For the foregoing reasons, we affirm the Tenth District Court of
Appeals’ judgment denying the writ, and we deny the motion for oral argument.
                                                                Judgment affirmed.
          O’CONNOR, C.J., and FISCHER, DONNELLY, STEWART, and BRUNNER, JJ.,
concur.
          KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
                                _________________
          KENNEDY, J., dissenting.
          {¶ 34} I dissent from the majority’s denial of appellant Waste Management
of Ohio, Inc.’s request for oral argument and the denial of Waste Management’s
request for a writ of mandamus. A request for oral argument is subject to this
court’s discretion, S.Ct.Prac.R. 17.02(A), and in exercising that discretion, we
consider “whether the case involves a matter of great public importance, complex
issues of law or fact, a substantial constitutional issue, or a conflict among courts
of appeals,” State ex rel. Davis v. Pub. Emps. Retirement Bd., 

,

, 

. Because issues involving the workers’
compensation system have a significant impact on the state and Ohioans, and
because the question whether both a scheduled-loss benefit and a death benefit can
be simultaneously paid to an injured worker’s dependent when the worker’s death
occurs shortly after the injury is a complex question of statutory law, this court
should grant oral argument.




                                         14
                                January Term, 2022




       {¶ 35} Moreover, contrary to the majority’s decision, the plain and
unambiguous language of the statutory scheme at issue here allows scheduled-loss
benefits to be paid to an injured worker’s dependents in only two circumstances:
(1) when an award had been made prior to the injured worker’s death and (2) when
the injured worker suffered the loss of a member by severance. R.C. 4123.57(B).
Neither circumstance exists here. Therefore, I would reverse the judgment of the
Tenth District Court of Appeals, grant Waste Management’s request for a writ of
mandamus, and order appellee the Industrial Commission of Ohio to reinstate the
order of the staff hearing officer (“SHO”). Because the majority does otherwise, I
dissent.
 Because simultaneous recovery is a matter of great public importance, this
                        court should grant oral argument
       {¶ 36} The question before this court centers on the interplay between
various workers’ compensation statutes and the exceptions in those statutes. In
State ex rel. Moorehead v. Indus. Comm., 

, 

, 

, this court left open the very question that is presently before this
court: whether an injured worker’s dependent can receive both a scheduled-loss
benefit and a death benefit when the time between the worker’s injury and resulting
death is short. Granting oral argument in this case would allow for a thorough
discussion of the complex statutory scheme and for consideration of the issue in
full. But because the majority proceeds to judgment without the benefit of oral
argument, I address the question presently before the court: Is an injured worker’s
dependent entitled to receive the total weekly installment under the scheduled-loss-
benefit provision in R.C. 4123.57(B) when the worker died shortly after sustaining
his or her injury? Contrary to the majority’s decision and based on the facts
presented in this case, the answer is no.
       {¶ 37} Because the law does not afford appellee S.G. the relief that she
seeks, it is unnecessary to examine whether there was a mistake of fact or an



                                            15
                             SUPREME COURT OF OHIO




adequate explanation by the commission about its continuing jurisdiction under the
mistake-of-fact provision. See State ex rel. Neitzelt v. Indus. Comm., 

, 

, 

.
        {¶ 38} Moreover, before answering the question that is before the court,
some background on how the workers’ compensation program works is helpful.
                          Temporary-disability benefits
        {¶ 39} When a worker is involved in an industrial accident and suffers an
injury that results in the injured worker being unable to return to work, Ohio’s
workers’ compensation system provides financial assistance to replace wages that
the worker loses on account of the workplace injury. See R.C. 4123.54(A). Upon
approval of a workers’ compensation claim, an injured worker who is unable to
work because of his or her work-related injury is entitled to receive temporary-
disability benefits in the amount of “sixty-six and two-thirds per cent of the
employee’s average wage so long as such disability is total.” R.C. 4123.56(A).
        {¶ 40} Any one of four occurrences may cause the payment of temporary-
total-disability benefits to end: (1) the injured worker returns to work, (2) the
treating physician issues a statement that the injured worker is capable of returning
to work in his or her former position of employment, (3) the employer provides
work within the injured worker’s physical capabilities, or (4) the injured worker
has reached his or her maximum medical improvement. 

        {¶ 41} As set forth below, an injured worker may be entitled to partial-
disability benefits under R.C. 4123.57. But once an injured worker has received
200 weeks of temporary-total-disability benefits, the Bureau of Workers’
Compensation has the authority to schedule the injured worker for an evaluation to
determine whether the worker’s temporary disability has become a permanent
disability.   

   And if an injured worker has reached maximum medical
improvement and can return to work but suffers wage loss because he or she cannot
return to his or her former position of employment or cannot find work consistent




                                         16
                                 January Term, 2022




with his or her disability, the statute provides for additional compensation. See
R.C. 4123.56(B)(1) and (2).
                             Partial-disability benefits
         {¶ 42} Partial-disability benefits are paid pursuant to R.C. 4123.57. With
some exceptions that are irrelevant here, an injured worker may file a claim for
partial-disability benefits “not earlier than” 26 weeks after the termination of
temporary-total-disability benefits provided for under R.C. 4123.56 or 26 weeks
after the date of injury. R.C. 4123.57.
         {¶ 43} When an injured worker files a claim for partial-disability benefits,
the bureau is required to determine the percentage, if any, of the injured worker’s
partial disability under R.C. 4123.57. That statute also establishes the minimum
and maximum amounts allowed for an injured worker who is determined to be
partially disabled. R.C. 4123.57(A). If an award of partial-disability benefits is
made, then the injured worker is entitled to receive compensation from “the date of
the last payment of compensation, or, in cases where no previous compensation has
been paid, from the date of the injury.” 

         {¶ 44} There is no allegation that compensation for partial disability under
R.C. 4123.57(A) is at issue here; this case is about the propriety of an award of
scheduled-loss benefits under R.C. 4123.57(B).
         {¶ 45} R.C. 4123.57(B) provides for payment of scheduled-loss benefits in
weekly installments to compensate the injured worker for the loss of certain body
parts.   The General Assembly included two provisions in R.C. 4123.57(B)
protecting the right of the injured worker’s dependents to receive benefits in the
event of the injured worker’s death.
         {¶ 46} The first provision states that “[w]hen 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 injured
workers’ dependents. (Emphasis added.) 

 The second provision provides that



                                          17
                             SUPREME COURT OF OHIO




if an injured worker “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” and that amount
is payable to the injured worker’s dependents. (Emphasis added.) 

       {¶ 47} In this case, S.G. is not entitled to scheduled-loss benefits under
either of these provisions. R.C. 4123.57(B) generally limits the right of an injured
worker’s dependent to receive scheduled-loss benefits to those cases in which an
award was made “prior to the death” of the injured worker. Here, no scheduled-
loss benefits were awarded prior to the death of the injured worker, Travis
Gelhausen, because he died mere minutes after the injury occurred. Therefore, no
installments “accrued or [were] to accrue” under the statute. 

 And because
Gelhausen did not suffer a scheduled loss by severance, the second provision
protecting the right of the dependent to receive an injured worker’s scheduled-loss
benefits that were not previously awarded is inapplicable. Because nothing in R.C.
4123.57(B) provides for payment of scheduled-loss benefits to S.G., I turn to R.C.
4123.60. But S.G’s claim fairs no better under that statute.
                                  Death benefits
       {¶ 48} After establishing whether a dependent is eligible to receive benefits
in the event of an injured worker’s death, R.C. 4123.60 places limitations on the
right of the dependent to receive those benefits. That statute provides in part:


               In all cases where an award had been made on account of
       temporary, or permanent partial, or total 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, after
       satisfactory proof has been made warranting such action, award or
       pay any unpaid balance of such award to such of the dependents of
       the decedent * * *.




                                         18
                                January Term, 2022




(Emphasis added.) R.C. 4123.60.
       {¶ 49} A plain reading of the foregoing provision in its entirety shows that
it places two limitations on the payment of temporary-, permanent-partial-, or total-
disability compensation to an injured worker’s dependent. The first limitation is
that the award must have been made “prior” to the death of the injured worker. 

The second limitation is that only those temporary-, permanent-partial-, or total-
disability benefits that were unpaid to the injured worker and had “accrued and
[were] due” to the worker at the time of his or her death are payable to the injured
worker’s dependent. 

 The “accrued” language in R.C. 4123.60 is not new. The
General Assembly used that same verbiage as a word of limitation regarding a
dependent’s entitlement to partial-disability compensation under R.C. 4123.57(A)
and (B).
       {¶ 50} But the foregoing language in R.C. 4123.60 does not apply here,
because, again, Gelhausen died before an award of temporary-, permanent-partial-
, or total-disability benefits had been made. Therefore, nothing had accrued at the
time of his death that would be payable to S.G.
       {¶ 51} The statute then provides that an injured worker’s dependent may
apply for benefits “during the lifetime of such injured or disabled person, or within
one year after the death of such injured or disabled person” if “the decedent would
have been lawfully entitled to have applied for an award at the time of his death.”
(Emphasis added.) 

 As set forth above, Gelhausen would not have been lawfully
entitled to apply for a scheduled-loss benefit at the time of his death. Under R.C.
4123.57, partial-disability benefits are only available 26 weeks after the termination
of temporary-disability benefits or the date of injury. Neither time period had
passed prior to his death, so Gelhausen was not lawfully entitled to scheduled-loss
benefits under R.C. 4123.57(B).




                                         19
                             SUPREME COURT OF OHIO




        {¶ 52} The majority creates its desired outcome by reading only parts of the
statutory scheme and ignoring the plain language of R.C. 4123.57(B). But our role
as members of the judiciary is to “examine the statutory scheme as a whole as well
as the specific code sections immediately at issue.” Holben v. Interstate Motor
Freight Sys., 

, 

 (1987). And “[i]t is a cardinal
rule of statutory construction that a statute’s meaning is determined by the language
that is used. If the language is clear and unambiguous, we apply the statute as
written and refrain from adding or deleting words.” In re N.M.P., 

, 

, 

, ¶ 21.
           The majority fails to read the statutory scheme as a whole
        {¶ 53} The majority holds that “[t]he award to which S.G. is entitled is * * *
determined by the award to which Gelhausen would have been entitled prior to his
death. But for his death, Gelhausen could have sought compensation under R.C.
4123.57(B).” Majority opinion, ¶ 29. The problem with the majority’s reasoning
is that the statutory scheme does not say that, and invoking the words of causation
does not change the plain meaning of R.C. 4123.57 and 4123.60.
        {¶ 54} “Because the General Assembly is the final arbiter of public policy,
judicial policy preferences may not be used to override valid legislative
enactments.” State ex rel. Tritt v. State Emp. Relations Bd., 

,

, 

. And the legislature has decided that a
scheduled-loss benefit is payable to the dependent of an injured worker who has
died only if one of the following circumstances is present: (1) an award had been
made prior to the injured worker’s death or (2) the injured worker suffered loss of
a member by severance. R.C. 4123.57(B). This ensures that death benefits for loss
of use have a strong evidentiary basis.        In such situations, and unlike the
circumstances of this case, the loss of use cannot be disputed. Neither circumstance
is present in this case.




                                         20
                               January Term, 2022




       {¶ 55} As set forth above, R.C. 4123.57(B) provides that when the injured
worker suffers a scheduled loss by “severance,” then even if there was no
scheduled-loss benefit awarded prior to death, the administrator is to “make an
award” to the injured worker’s dependent for the scheduled loss. This language is
important because it demonstrates that the General Assembly intended that
scheduled-loss benefits accrue at the time of severance. See State ex rel. Estate of
McKenney v. Indus. Comm., 

, 

, 

,
¶ 14. And if the General Assembly had intended to permit dependents to receive
death benefits for all scheduled losses, regardless of whether an award had been
made before the injured worker’s death, there would have been no need for it to
specify that when loss of use by severance has occurred, scheduled-loss benefits
are payable after death even when no such award had been made prior to death.
“We must give effect to every term in a statute and avoid a construction that would
render any provision meaningless, inoperative, or superfluous.” Rhodes v. New
Philadelphia, 

, 

, 

, ¶ 23.
Gelhausen did not suffer a scheduled loss by severance, so that provision of R.C.
4123.57(B) is plainly not applicable here.
       {¶ 56} And the only other scheduled-loss-benefit provision does not
provide for death benefits in these circumstances either. R.C. 4123.57(B) requires
that an award for scheduled-loss benefits have been made “prior to the [injured
worker’s] death” and that the dependent receive only that amount which has
“accrued or [was] to accrue.” As this court has previously stated, R.C. Chapter
4123 does not define the term “accrued.” McKenny at ¶ 8. Therefore, the term is
given its “usual, normal, or customary meaning.” 

 quoting State ex rel. Bowman
v. Columbiana Cty. Bd. of Commrs., 

, 400, 

. And
the term “accrued” means “to come into existence as an enforceable claim: vest as
a right.” 

 quoting Webster’s Third New International Dictionary 13 (1986).




                                        21
                             SUPREME COURT OF OHIO




       {¶ 57} Because the plain language of the statute requires that an award for
scheduled-loss benefits be made prior to the death of an injured worker, the award
would not have accrued until that time. As set forth above, Gelhausen died mere
minutes after his industrial accident.         Unlike the other provision of R.C.
4123.57(B), which allows the commission to make an award for scheduled-loss
benefits after the worker’s death for loss of a member by severance, this provision
places a limitation on a dependent’s receipt of scheduled-loss benefits to those
instances in which the injured worker had received an award for scheduled-loss
prior to his or her death. The majority ignores this language and finds that “but for
his death, Gelhausen could have sought compensation under R.C. 4123.57(B),”
majority opinion at ¶ 29, but that language is not in the statute.
       {¶ 58} Moreover, the majority finds no abuse of discretion in the
commission’s award to S.G. of a “lump-sum advance of the full 850 weeks of
compensation,” id. at ¶ 30, even though all of that could not have accrued in the
few minutes of life that Gelhausen had between the time of his accident and his
death. The majority prattles on about the ability of the commission to commute a
weekly installment to a lump-sum payment, but it is simply that, prattling on. The
lump-sum-payment provision of R.C. 4123.64 does not override the legislature’s
plain and unambiguous language in R.C. 4123.57(B) requiring that the scheduled-
loss award be made prior to the injured worker’s death and that the only amount of
the scheduled-loss benefit that is payable to a dependent would be the amount
“accrued or to accrue.”
       {¶ 59} Moreover, the-lump-sum-payment provision in R.C. 4123.64 does
not override the plain and unambiguous language of R.C. 4123.60. It is only when
an award of temporary-, permanent-partial-, or total-disability benefits has been
made prior to the death of an injured worker and there “remains an unpaid balance”
that the injured worker’s dependent is entitled to receive the unpaid benefits, which




                                          22
                                  January Term, 2022




“represent[s] payments accrued and due to the decedent at the time of his death.”
R.C. 4123.60.
           {¶ 60} Therefore, even if S.G. were entitled to scheduled-loss benefits,
which she is not, she is certainly not entitled to the full 850 weeks of
compensation—she would be entitled only to the remaining unpaid balance that
had accrued and was due to Gelhausen at the time of his death. As the McKenney
court said, “[i]f the entire amount accrued immediately * * * then there would be
no need for this language.” 

, 

, 

,
at ¶ 11.
           {¶ 61} As set forth above, Gelhausen died mere minutes after his industrial
accident. Unlike the provision in R.C. 4123.57(B) that allows dependents to claim
a scheduled loss after the injured worker’s death when severance of a member
occurs, the other provision in that statute makes no such allowance. It requires an
award of scheduled-loss benefits to have been made prior to the injured worker’s
death.
           {¶ 62} Gelhausen’s death is tragic. But based on the plain and unambiguous
language of the applicable statutes, S.G. is limited to an award of death benefits
that the Ohio workers’ compensation program provides. She is not entitled to an
additional award of scheduled-loss benefits.
                                      Conclusion
           {¶ 63} The plain language of R.C. 4123.57(B) does not allow the payment
of scheduled-loss benefits to an injured worker’s dependent unless (1) an award for
such benefits was made prior to the death of the injured worker or (2) the injured
worker suffered the severance of a member. Because Gelhausen would not have
been “lawfully entitled” to apply for such benefits at the time of his death, R.C.
4123.60, his dependent is not entitled to the scheduled-loss benefits. Therefore, I
would reverse the judgment of the Tenth District Court of Appeals and grant the
writ of mandamus sought by Waste Management, reversing the order of the



                                           23
                                SUPREME COURT OF OHIO




Industrial Commission and ordering the reinstatement of the order of the SHO.
Because the majority does otherwise, I dissent.
           DEWINE, J., concurs in the foregoing opinion.
                                  _________________
           Dinsmore & Shohl, L.L.P., and Brian P. Perry, for appellant.
           Dave Yost, Attorney General, and Natalie J. Tackett, Assistant Attorney
General, for appellee Industrial Commission of Ohio.
           Plevin & Gallucci Co., L.P.A., Frank L. Gallucci III, Bradley Elzeer II, and
Fred S. Papalardo Jr.; and Flowers & Grube, Louis E. Grube, Paul W. Flowers, and
Melissa A. Ghrist, for appellees S.G. and T.A.
           The Law Offices of Charles W. Kranstuber, L.P.A., and Carley R.
Kranstuber, urging affirmance on behalf of amicus curiae, Ohio Association for
Justice.
                                  _________________




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