State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm. (Slip Opinion) , 2017 Ohio 7577 ( 2017 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus. Comm., Slip Opinion No. 2017-Ohio-
7577.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2017-OHIO-7577THE STATE EX REL. OHIO PRESBYTERIAN RETIREMENT SERVICES, 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. Ohio Presbyterian Retirement Servs., Inc. v. Indus.
Comm., Slip Opinion No. 2017-Ohio-7577.]
Workers’ compensation—Industrial Commission does not have authority to award
permanent-partial-disability compensation under R.C. 4123.57(A) to an
injured worker who is receiving permanent-total-disability compensation
pursuant to R.C. 4123.58 in the same claim—Court of appeals’ judgment
reversed and writ granted.
(No. 2015-1074—Submitted June 7, 2017—Decided September 14, 2017.)
APPEAL from the Court of Appeals for Franklin County, No. 14AP-624,
2015-Ohio-2122.
ON MOTION FOR RECONSIDERATION.
_______________________
SUPREME COURT OF OHIO
KENNEDY, J.
{¶ 1} In State ex rel. Ohio Presbyterian Retirement Servs., Inc. v. Indus.
Comm., 150 Ohio St.3d 102, 2016-Ohio-8024, 79 N.E.3d 522 (“Ohio Presbyterian
I”), we held that the Industrial Commission does not have authority to award an
injured employee permanent-partial-disability compensation under R.C.
4123.57(A) when the employee has previously been determined to be entitled to
permanent-total-disability compensation under R.C. 4123.58 for the same claim.
{¶ 2} This court has the authority to grant motions for reconsideration filed
under S.Ct.Prac.R. 18.02 in order to “correct decisions which, upon reflection, are
deemed to have been made in error.” State ex rel. Huebner v. W. Jefferson Village
Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 339 (1995). Appellee Sherry L.
Redwine moved this court to reconsider our holding in Ohio Presbyterian I, arguing
that the commission has authority to award concurrent permanent-total-disability
compensation under R.C. 4123.58 and permanent-partial-disability compensation
under R.C. 4123.57(A) for different conditions within the same claim.
{¶ 3} We granted Redwine’s motion, reopened the case for further
consideration, and sua sponte ordered oral argument with no additional briefing.
147 Ohio St.3d 1480, 2016-Ohio-8492, 66 N.E.3d 766. Having heard oral
argument and reconsidered the parties’ arguments, we conclude that our holding in
Ohio Presbyterian I was not made in error, and we adhere to it. When an injured
employee is receiving permanent-total-disability compensation pursuant to R.C.
4123.58, the commission is without statutory authority to grant in the same claim
permanent-partial-disability compensation under R.C. 4123.57(A). Therefore, we
reverse the judgment of the court of appeals and issue a writ of mandamus ordering
the commission to vacate its award to Redwine of permanent-partial-disability
compensation under R.C. 4123.57(A) and to issue an order denying the award.
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January Term, 2017
I. Case Background
{¶ 4} On August 13, 2003, Redwine was injured at work. She filed a
workers’ compensation claim that was allowed for the following conditions:
lumbosacral strain, radiculopathy right lower extremity, aggravation of pre-existing
degenerative disc disease, depression, and ruptured disc at L4-5 with free disc
fragment.
{¶ 5} Redwine applied for permanent-total-disability compensation. The
commission concluded that Redwine was unable to perform any sustained
remunerative employment due solely to the medical impairment caused by the
allowed psychological condition in her claim and awarded her benefits beginning
July 12, 2010, to continue until her death.
{¶ 6} In August 2013, Redwine applied for permanent-partial-disability
compensation. She conceded that she was not entitled to permanent-partial-
disability benefits for her psychological condition (for which she had been granted
permanent-total-disability compensation), but she maintained that she was entitled
to this award based on the physical conditions allowed in her claim.
{¶ 7} A district hearing officer denied her application based on a lack of
statutory authority for concurrent awards under R.C. 4123.57(A) and 4123.58. In
addition, the hearing officer noted that the physical and psychological conditions
were the result of the same workplace injury and under State ex rel. Murray v.
Indus. Comm., 63 Ohio St.3d 473, 588 N.E.2d 855 (1992), a claimant is precluded
from receiving simultaneous benefits for permanent partial disability and
permanent total disability for the same injury.
{¶ 8} On reconsideration, a staff hearing officer concluded that a claimant
is not barred from concurrent compensation for permanent partial disability if it is
based on conditions that were not the basis for the prior finding of permanent total
disability in the same claim. The hearing officer relied in part on the commission’s
analysis of the same issue in claim No. 02-354357 involving a different injured
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SUPREME COURT OF OHIO
employee. In that case, the commission determined that the analysis of concurrent
awards focuses on an injured employee’s allowed medical conditions, not the injury
or claim, citing State ex rel. Missik v. Youngstown, 65 Ohio St.3d 189, 602 N.E.2d
633 (1992), and State ex rel. Hoskins v. Indus. Comm., 87 Ohio St.3d 560, 722
N.E.2d 66 (2000).
{¶ 9} Redwine’s employer, Ohio Presbyterian Retirement Services, Inc.
(“OPRS”), filed a complaint for a writ of mandamus, alleging that there was no
statutory authority for the commission’s order and therefore it was not supported
by some evidence. A magistrate determined that the writ should be denied. The
magistrate relied on State ex rel. Mosley v. Indus. Comm., 10th Dist. Franklin No.
13AP-127, 2014-Ohio-1710, and concluded that because the psychological
condition formed the basis for the permanent-total-disability award, Redwine’s
physical conditions could be the basis of permanent-partial-disability
compensation. The court of appeals adopted the magistrate’s decision and denied
the writ.
{¶ 10} OPRS filed a direct appeal in this court. We reversed the judgment
of the court of appeals and granted the request for a writ of mandamus in Ohio
Presbyterian I. Having granted reconsideration of that decision, we now turn to
the propositions of law presented in OPRS’s direct appeal: (1) “R.C. 4123.95’s
requirement of liberal construction in favor of employees does not allow a court to
read into a statute something that cannot reasonably be implied from the language
of the statute” and (2) “A claimant who is receiving permanent and total disability
compensation under R.C. 4123.58 is ineligible to receive permanent partial
disability compensation under R.C. 4123.57(A) in the same claim.”
{¶ 11} In response, Redwine, asserts that “[t]he Industrial Commission
does not abuse its discretion when finding that an injured worker is entitled to
receive compensation for her percentage of permanent partial impairment
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January Term, 2017
under R.C. 4123.57(A) for conditions that were not the basis for a prior award
of permanent and total disability.”
II. Analysis
A. Standard of Review
{¶ 12} It is well settled that the commission is responsible for making
factual findings. State ex rel. Cordell v. Pallet Cos., Inc., 149 Ohio St.3d 483, 2016-
Ohio-8446, 75 N.E.3d 1230, ¶ 19. Such findings will be disturbed only if the
commission abuses its discretion, which occurs only if there is not “some” evidence
to support the finding. Id. However, in this case we are not concerned with factual
findings, but rather with the commission’s interpretation of the workers’
compensation statutes.
{¶ 13} If the commission misinterprets a statute, this court may issue a writ
of mandamus to compel the commission to correct its erroneous interpretation. See
State ex rel. Gassmann v. Indus. Comm., 41 Ohio St.2d 64, 65, 322 N.E.2d 660(1975) (“A mandatory writ may issue against the Industrial Commission if the
commission has incorrectly interpreted Ohio law”), citing State ex rel. Breidigan v.
Indus. Comm., 43 N.E.2d 114 (2d Dist.1942) (mandamus may issue against the
commission in situations other than those involving an abuse of discretion, such as
when the commission failed to follow the law or incorrectly interpreted the law).
B. Statutes at Issue
{¶ 14} There are two types of workers’ compensation benefits at issue in
this case: (1) permanent-partial-disability compensation under R.C. 4123.57 and
(2) permanent-total-disability compensation under R.C. 4123.58.
1. R.C. 4123.57—Permanent-Partial-Disability Compensation
{¶ 15} R.C. 4123.57 authorizes the commission to pay permanent-partial-
disability compensation to an employee who has suffered a “permanent partial
disability resulting from an injury or occupational disease.” This compensation “is
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SUPREME COURT OF OHIO
intended to compensate injured [employees] who can still work.” State ex rel.
Kaska v. Indus. Comm., 63 Ohio St.3d 743, 746, 591 N.E.2d 235 (1992).
{¶ 16} There are two types of permanent-partial-disability compensation:
compensation for a scheduled loss pursuant to R.C. 4123.57(B), which is not the
type of compensation at issue here, and compensation based on the percentage of
permanent disability pursuant to R.C. 4123.57(A), which is the type of
compensation at issue here. For compensation under R.C. 4123.57(A), a district
hearing officer determines the percentage of the employee’s permanent disability
based on the evidence submitted at a hearing and the amount of compensation is
calculated based on the employee’s weekly wages.
2. R.C. 4123.58—Permanent-Total-Disability Compensation
{¶ 17} Permanent-total-disability compensation is also calculated based on
the employee’s weekly wages. R.C. 4123.58(A). The purpose of permanent-total-
disability benefits is “to compensate an injured worker for impairment of earning
capacity,” Ohio Adm.Code 4121-3-34(B)(1), and the benefits are paid until the
employee’s death, R.C. 4123.58(A).
{¶ 18} Like permanent-partial-disability compensation, permanent-total-
disability compensation is also broken down into two categories: compensation for
a loss of two body parts, R.C. 4123.58(C)(1), which is not the type of compensation
at issue here, and compensation for a workplace injury that prevents the worker
from “engaging in sustained remunerative employment,” R.C. 4123.58(C)(2),
which is the type of compensation at issue here.
C. Law
{¶ 19} In construing a statute, a court’s main objective is to determine and
give effect to the legislative intent. State ex rel. Solomon v. Police & Firemen’s
Disability & Pension Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486(1995). The intent of the General Assembly must be determined primarily from the
language of the statute itself. Stewart v. Trumbull Cty. Bd. of Elections, 34 Ohio
6January Term, 2017
St.2d 129, 130, 296 N.E.2d 676 (1973). When a statute is unambiguous, we apply
it as written. Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-
Ohio-954, 846 N.E.2d 478, ¶ 52, citing State ex rel. Savarese v. Buckeye Local
School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996).
{¶ 20} Along with these rules of statutory construction, we are mindful of
the General Assembly’s mandate that the workers’ compensation laws be liberally
construed in favor of employees. R.C. 4123.95.
A liberal construction has been defined as giving “generously all
that the statute authorizes,” and “adopting the most comprehensive
meaning of the statutory terms in order to accomplish the aims of
the Act and to advance its purpose, with all reasonable doubts
resolved in favor of the applicability of the statute to the particular
case. Interpretation and construction should not result in a decision
so technical or narrow as to defeat the compensatory objective of the
Act.”
Bailey v. Republic Engineered Steels, Inc., 91 Ohio St.3d 38, 40, 741 N.E.2d 121(2001), quoting Fulton, Ohio Workers’ Compensation Law, Section 1.7, 9 (2d
Ed.1998). That mandate does not, however, give a reviewing court authority to
rewrite the statute, Armstrong v. John R. Jurgensen Co., 136 Ohio St.3d 58, 2013-
Ohio-2237, 990 N.E.2d 568, ¶ 13, citing Kilgore v. Chrysler Corp., 92 Ohio St.3d
184, 189, 749 N.E.2d 267 (2001) (Moyer, C.J., dissenting).
{¶ 21} With these principles in mind, we turn to OPRS’s propositions of
law. We agree with its first proposition of law that R.C. 4123.95 requires the court
to liberally construe the workers’ compensation laws in favor of employees but that
the mandate does not grant us the authority to read words out of or into a statute.
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SUPREME COURT OF OHIO
{¶ 22} OPRS’s remaining proposition of law is the crux of the controversy,
and after construing the statutes in favor of Redwine, we must decide whether the
commission has authority to grant in the same claim concurrent awards of
permanent-partial-disability compensation under R.C. 4123.57(A) and permanent-
total-disability compensation under R.C. 4123.58. We hold that it does not.
{¶ 23} The language of R.C. 4123.57(A) and 4123.58 is plain and
unambiguous. Therefore, we apply the language of the statutes as written.
{¶ 24} R.C. 4123.57(A) and 4123.58 are devoid of any language
authorizing the commission to award permanent-partial-disability compensation
under R.C. 4123.57(A) in the same claim for which an injured worker is receiving
permanent-total-disability compensation under R.C. 4123.58. The only references
to concurrent payments are found in R.C. 4123.57(C) and 4123.58(E).
{¶ 25} Although not at issue here, R.C. 4123.57(C) is nevertheless
illustrative of the fact that the General Assembly knows how to authorize the
commission to grant concurrent payments. R.C. 4123.57(C) specifically authorizes
the commission to award permanent-partial-disability compensation under
divisions (A) and (B) of R.C. 4123.57 in addition to any compensation paid to an
injured employee pursuant to R.C. 4123.56 (temporary-disability compensation).
And R.C. 4123.58(E) specifically authorizes the commission to award scheduled
loss benefits pursuant to R.C. 4123.57(B) in the same claim for which the injured
worker is receiving permanent-total-disability compensation under R.C. 4123.58.
{¶ 26} The commission argues that because the statutes do not specifically
prohibit concurrent payments under R.C. 4123.58 and 4123.57(A) in the same
claim, a liberal construction of the statutes in favor of the injured worker gives the
commission the authority to award concurrent payments. However, this argument
runs afoul of our case law that holds that an injured employee has a right to recover
workers’ compensation benefits only as specifically allowed by statute. Indus.
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January Term, 2017
Comm. v. Kamrath, 118 Ohio St. 1, 160 N.E. 470 (1928), paragraph one of the
syllabus.
{¶ 27} Here, the General Assembly expressly authorized permanent-total-
disability compensation to be paid concurrently with other benefits only in the
limited circumstances outlined in R.C. 4123.58(E). Had the legislature intended to
allow an injured worker receiving permanent-total-disability compensation under
R.C. 4123.58 to also receive in the same claim concurrent permanent-partial-
disability compensation pursuant to R.C. 4123.57(A), it could easily have included
that language in the statutes.
{¶ 28} The commission argues that the silence of the statutes on the issue
of concurrent payments under R.C. 4123.57(A) and 4123.58 creates an ambiguity
that must be decided in the worker’s favor. But under the statutory-construction
maxim expressio unius est exclusio alterius (the express inclusion of one thing
implies the exclusion of the other), the express reference to division (B) of R.C.
4123.57 in R.C. 4123.58(E) but not to division (A) of R.C. 4123.57 indicates that
the omission of division (A) was intentional.
In determining rights arising by force and out of Workmen’s
Compensation Law it is well to remember that the duties of the
Industrial Commission and its obligation to injured employees * * *
are only such duties and obligations as are imposed by statute; that
the rights of injured employees * * * to recover from or participate
in the state insurance fund are neither constitutional rights, inherent
rights, nor common law rights, but are wholly statutory; * * * that if
the right to participate in the fund be not found in the Workmen’s
Compensation Law itself, the right does not exist. * * *
***
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SUPREME COURT OF OHIO
[And t]he power of a court upon appeal is not different
from the power of the administrators of the fund * * *. The
statutory law in force upon the date the cause of action accrues is
the measure of the right, and is not subject to enlargement or
diminishment by the Industrial Commission or the courts at any
time * * *.
Kamrath, 118 Ohio St. at 3-4, 160 N.E. 470.
III. Conclusion
{¶ 29} When an injured employee has previously been determined to be
entitled to permanent-total-disability compensation pursuant to R.C. 4123.58, the
commission does not have statutory authority to grant in the same claim a
permanent-partial-disability award pursuant to R.C. 4123.57(A). Therefore, we
reverse the judgment of the court of appeals and issue a writ of mandamus ordering
the commission to vacate its award of permanent-partial-disability compensation to
Redwine under R.C. 4123.57(A) and to issue an order denying the award.
Judgment reversed
and writ granted.
O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, and DEWINE, JJ.,
concur.
O’NEILL, J., dissents.
_________________
Vorys, Sater, Seymour & Pease, L.L.P., and Rosemary D. Welsh, for
appellant.
Michael DeWine, Attorney General, and Andrew Alatis, Assistant Attorney
General, for appellee Industrial Commission.
Robert A. Muehleisen, for appellee Sherry L. Redwine.
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January Term, 2017
Philip J. Fulton Law Office, Philip J. Fulton, and Chelsea Fulton Rubin,
urging affirmance for amici curiae Ohio Association of Claimants’ Counsel and
Ohio Association for Justice.
Vorys, Sater, Seymour & Pease, L.L.P., and Robert A. Minor, urging
reversal for amicus curiae Ohio Self-Insurers Association.
Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey, urging
reversal for amicus curiae Ohio Chamber of Commerce.
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