State ex rel. Guisinger v. Indus. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State ex rel. Guisinger, Appellee, v. Industrial Commission
of Ohio; Crown-Zellerbach Corporation, Appellant.
[Cite as State ex rel. Guisinger v. Indus. Comm. (1995),
Ohio St.3d .]
Workers' compensation -- Industrial Commission does not err in
offsetting claimant's entitlement to former R.C.
4123.57(A) compensation by amounts previously paid under
former R.C. 4123.57(B) and (C).
(No. 93-2621 -- Submitted April 24, 1995 -- Decided June 28,
1995.)

Appeal from the Court of Appeals for Franklin County, No.
92AP-1436.
Appellee-claimant, Glen Guisinger, suffered a compound leg
fracture in 1969 while in the course of and arising from his
employment with appellant, Crown Zellerbach Corporation
("CZC"). Eventually, his injury forced a midcalf amputation,
which condition was allowed by respondent Industrial Commission
of Ohio.
In 1972, claimant applied for scheduled-loss compensation
for his amputation pursuant to former R.C. 4123.57(C). That
motion was granted and claimant received $8,400 in paragraph
(C) benefits.
Claimant later requested a determination of his partial
disability under former R.C. 4123.57. On June 17, 1982, a
twelve percent permanent partial disability was found. Given
the statutory option of receiving his award as a lump sum
permanent partial disability compensation under R.C. 4123.57(B)
or as bi-weekly impaired earning capacity benefits under former
R.C. 4123.57(A), claimant elected the former, and was paid
$1260 in paragraph (B) compensation. Claimant later received a
permanent partial disability increase which resulted in an
additional $315 in paragraph (B) compensation.
In 1989, claimant moved to change his benefit election
from paragraph (B) benefits to R.C. 4123.57(A) compensation.
That motion was granted on October 23, 1989 for:
"* * * good cause * * * because his condition has become
worse then [sic] could have been foreseen at the time of the

original election. However, claimant has not documented that
he suffered any impairment of earning capacity due to the
industrial injury on 8-27-69. Therefore there is no basis for
any award to be made under Paragraph A at this time."
That motion was administratively affirmed by the regional board
of review.
Staff hearing officers, on appeal, modified the board's
order on August 3, 1990, as follows:
"It is found that claimant has demonstrated an impairment
of earning capacity due to the conditions allowed in this
claim. However, it is further found that claimant has
previously been awarded $8400.00 under former R.C. 4123.57(C)
and $1575 under former R.C. 4123.57(B), for a total of
$9,975.00. The statutory maximum award for 'temporary
partial' compensation for an injury occurring in 1969 is
$10,000 from which, per former R.C. 4123-57[sic](D), the
$8,400.00 award must be deducted, leaving $1600.00 payable for
'temporary partial' compensation. As a change of election has
been granted in this claim, the $1575.00 previously paid under
R.C. 41233.57(B)[sic] must be deducted from $1600.00, leaving
$25.00 currently payable in this claim under R.C. 4123.57(A)."
Claimant successfully moved for reconsideration. The
order generated therefrom on June 6, 1991, however, read:
"The 8-3-90 order of the Staff Hearing Officers is
modified only to clarify the payment of compensation. It is
found the claimant has demonstrated an impairment of earning
capacity due to the conditions allowed in this claim. The
change of election to 4123.57(A) entitles the claimant to a
maximum of $8425.00 ($10,000.00 statutory maximum minus the
$1575.00 paid under 4123.57[B].) This conversion puts the
claimant on the same level as if he had originally elected
under paragraph (A). (The claimant should not be put in a
better position through a change of election than if he had
originally elected under [A].) In essence, it is saying that
the claimant has previously received $1575.00 of his impairment
of earning capacity award.
"Next, [R.C.] 4123.57(D) must be applied, as the statute
indicates the amount of compensation paid for partial
disability under division (A) is not in addition to the
compensation paid for permanent partial disability under (C).
Thus, the $8400.00 award under [R.C.] 4123.57(C) must be
deducted from the $8425.00 impairment of earning capacity
award, leaving $25.00 currently payable in this claim under
R.C. 4123.57(A).
"The Staff Hearing Officers' order is affirmed in all
other respects. * * *"
Claimant sought a writ of mandamus from the Court of
Appeals for Franklin County, alleging that the commission
abused its discretion in offsetting the amount of compensation
for which claimant was statutorily eligible under R.C.
4123.57(A) by the amounts previously paid under R.C. 4123.57(B)
and (C). The appellate court agreed and also found that
mandamus was the appropriate vehicle for relief.
This cause is now before this court upon an appeal as of
right.

Robert B. Liss, for appellee.

Thompson, Hine & Flory, Janis Rosenthal and Timothy E.
Cowans, for appellant.

Per Curiam. Two questions are presented: (1) Is mandamus
the appropriate remedy? and (2) Did the commission err in
offsetting claimant's entitlement to former R.C. 4123.57(A)
compensation by amounts previously paid under former R.C.
4123.57(B) and (C)? We answer only the first question in the
affirmative.
CZC asserts that declaratory judgment provides claimant
with an adequate remedy at law, thereby barring mandamus
relief. This argument is unpersuasive for two reasons.
First, mandamus has been the accepted remedy in other cases addr
essing former R.C. 4123.57's offset provisions. See State ex
rel. Hammond v. Indus. Comm. (1980), 64 Ohio St.2d 237, 18 O.O.
3d 438, 416 N.E.2d 601; State ex rel. GF Business Equip., Inc.
v. Indus. Comm. (1982), 2 Ohio St.3d 86, 2 OBR 639, 443 N.E.2d
147; State ex rel. Maurer v. Indus. Comm. (1989), 47 Ohio St.3d
62, 547 N.E.2d 979. Second, because declaratory judgment
cannot provide complete relief in this case, it cannot provide
adequate relief. State ex rel. Fenske v. McGovern (1984), 11
Ohio St.3d 129, 11 OBR 426, 464 N.E.2d 525. Even if claimant's
statutory interpretation prevailed, he would still need an
additional writ to compel payment of the requisite amount under
R.C. 4123.57(A). The appellate court's judgment is, therefore,
affirmed in this respect.
We now turn to the merits of the offset provisions of
former R.C. 4123.57. Claimant was injured in 1969. R.C.
4123.57(A) at that time provided:
"(A) In case of injury or occupational disease resulting
in partial disability other than those exclusively provided for
under division (C) of this section, the employee shall receive
* * *." (Emphasis added.)
Former R.C. 4123.57(B) also stated in part:
"The industrial commission, upon such application, shall
determine the percentage of the employee's permanent
disability, except such as is subject to division (C) of this
section, based upon that condition of the employee resulting
from the injury or occupational disease * * *." (Emphasis
added.)
The present claimant first received R.C. 4123.57(C)
benefits. Claimant then received R.C. 4123.57(B) benefits, but
eventually switched his election to impaired-earning-capacity
compensation under R.C. 4123.57(A). The commission deducted
compensation paid under paragraphs (B) and (C) from the $10,000
maximum payable under R.C. 4123.57(A), leaving claimant with
$25 in his 4123.57(A) "account."
Relying on former R.C. 4123.57(D), claimant contends that
the commission abused its discretion in deducting the $1,575 in
4123.57(B) benefits from the $10,000 paragraph (A) maximum.
R.C. 4123.57(D) reads:
"* * * the amount of compensation paid for partial
disability under division (A) of this section is not in
addition to the compensation paid for permanent partial
disability under division (B) or (C) of this section and the
amount of compensation paid for partial disability under
division (A) of this section shall be deducted from the amount

of compensation payable for permanent partial disability under
division (B) or (C) of this section but only one deduction
shall be made if payments are made under both divisions (B) and
(C) of this section for permanent partial disability involved
in the same claim." (Emphasis added.)
Paragraph (D) states that "only one deduction shall be
made if payments are made under both divisions (B) and (C) of
this section for permanent partial disability involved in the
same claim." (Emphasis added.) Claimant interprets "in the
same claim" as meaning "for the same condition." However, as
established in Maurer, citing Hammond, both supra, such a
construction is impermissible. Maurer demonstrates that for
purposes of R.C. 4123.57, "in the same claim" and "for the same
condition" are very different terms. A claimant can collect
paragraphs (B) and (C) compensation in the same claim if, for
example, paragraph (C) benefits are paid for an amputated hand
and paragraph (B) benefits are paid for a psychiatric condition
also recognized in the claim. See GF Business Equip., supra.
Paragraphs (B) and (C) compensation, however, cannot be paid
for the same leg condition, even if that leg condition
subsequently worsens to the point of amputation. Maurer, supra.
The "one deduction" language, therefore, does not apply in
a case such as this, where claimant seeks paragraphs (A), (B)
and (C) compensation for the same condition. Claimant's
suggestion that he is not being compensated for the same injury
fails. First, Maurer specifically states that a condition that
worsens to the point of amputation does not constitute two
distinct conditions. Second, claimant's argument fails
chronologically as well. Claimant's amputation occurred before
any compensation was sought under R.C. 4123.57. His condition
at that time was already the "worsened" condition he seeks to
allege as distinct.
Accordingly, that portion of the judgment of the court of
appeals that found mandamus to be the proper remedy is
affirmed. The remainder of the judgment is reversed.
Judgment affirmed in part
and reversed in part.
Moyer, C.J., Douglas, Wright, Resnick, F.E. Sweeney,
Pfeifer and Cook, JJ., concur.