Court of Appeals Extends Loss of Use Awards to Beneficiary of Deceased Worker

As a result of a recent court case, the amount of benefits now available to the beneficiaries of a deceased worker could increase significantly. When identifying the benefits available to the beneficiaries of a deceased worker, the Tenth District Court of Appeals has made it easier to also recover scheduled loss compensation for total loss of use of arms, legs, eyes, and ears under O.R.C. 4123.57(B) in a lump sum. State ex rel. Arberia v. Indus. Comm. (Ohio App. 10 Dist. 2014-Ohio-8351). In the Arberia case, the claimant fell while performing demolition work on a roof and landed on his head. Medical records indicated that he survived the fall but died four and one-half hours later at Grant Medical Center. After his death, his widow received death benefits but then filed a motion asking for an award for loss of use of the claimant’s arms, legs, eyes and ears pursuant to the scheduled loss compensation statute. Medical evidence was submitted which supported a finding that while the claimant survived the fall, his severe head trauma eliminated any “control of body parts” for the claimant. Both the Bureau and Commission granted the motion and awarded 1,225 weeks of permanent partial compensation to the surviving widow.

Thereafter, the employer filed a mandamus action. The employer challenged the award for several reasons. First, the employer argued that there was no evidence of an actual loss of use of any of the claimant’s limbs, eyes or ears. The Court summarily dismissed this objection concluding that brain trauma that leads to death can be presumed to have created a total loss of control of all limbs while the injured worker is still living.

The employer also challenged the claimant’s eligibility for any award for loss of use because there was no amputation. Citing language in Section 4123.57(B), the employer argued that because there was no “severance” of any limb, eye or ear, there was no basis to award the maximum amount to the widow as a surviving benefit. The Court, however, refused to apply this limited interpretation of “severance” and instead liberally construed that word to include loss of use. The Court found that it was sufficient for the claimant to show that for all practicable purposes, there had been a total and permanent loss of a limb because of injuries to the brain.

Finally, the employer objected to the award of the entire 1,225 weeks of benefits. The employer argued that under O.R.C. 4123.60(B) the benefits should have been limited to the weeks that could have been awarded but for his death, and for the period between his injury and the date of his death. In this case, the employer argued that only one week of benefits should have been awarded because he only survived for four hours. The Court, however, referred to Section 4123.64(A) of the Revised Code which allows the administrator, under special circumstances, to commute payments of compensation or benefits to one or more lump sum payments. Because there was an opportunity for the claimant to apply for a lump sum payment before his death the Court, again, liberally construed the language in the statute to allow for recovery of all 1,225 weeks of benefits. So long as he could have lawfully applied for those benefits had he been conscious and alive for the four hours after his fall, his spouse and estate were entitled to these benefits under the statute.

While claims involving severe head trauma and death thankfully do not occur very often, this case expended the benefits available to the beneficiary of a deceased worker and his or her estate. Also, by relying on Arberia, some beneficiaries in death claims could seek loss of use benefits if there have been any extended periods of unconsciousness of the deceased prior to death. It will be interesting to see if the employer appeals this decision to the Supreme Court.

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