State ex rel. Danis Industries Corp. v. Betzner - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

The State ex rel. Danis Industries Corporation, Appellant, v. Betzner et
al., Appellees.
[Cite as State ex rel. Danis Industries Corp. v. Betzner (1996), ___ Ohio St.3d
___.]
Workers' compensation -- Application for determination of permanent partial
disability -- Extensive burns to forty percent of claimant's body --
Industrial Commission's award of fifty percent permanent partial
disability not an award for facial and head disfigurement when
disfigurement sustained by claimant extends beyond his face and head
region -- Industrial Commission's decision not disturbed by Supreme
Court when supported by some evidence in the record.

(No. 94-974 -- Submitted October 10, 1995 -- Decided January 17,
1996.)
Appeal from the Court of Appeals for Franklin County No. 93APD05-
694.

Appellee-claimant, Timothy J. Betzner, a cement mason for appellant,
Danis Industries Corporation, was seriously injured on July 28, 1987 when a
piece of equipment he was using came in contact with high tension electrical
wires. Claimant received an electrical shock of 70,000 volts and was knocked
unconscious. As a result of this industrial accident, claimant sustained

extensive burns to forty percent of his body and was hospitalized for sixty-two
days. The skin grafts claimant received caused scarring and multiple skin
contractures. As a result, claimant's right arm is two and one half inches
shorter than his left arm and he has limited range of motion.

Claimant filed an application for determination of the percentage of
permanent partial disability on July 19, 1991. He alleged that he was unable to
fully extend his right arm and due to the loss of sweat glands could not work in
extreme heat or direct sunlight. To help determine the percentage of disability,
the commission received medical reports from four physicians. Three of the
four physicians agreed that claimant sustained a fifty percent permanent partial
impairment of his whole body, with ten percent of his impairment referred to as
a "permanent partial impairment" and the remaining forty percent as a
"disfigurement impairment."1 The fourth physician, Dr. Steven S. Wunder,
who examined claimant at appellant's request, felt that claimant's total
impairment was fifteen percent.

On April 7, 1992, the administrator issued a tentative order allowing a
claim for "electrical shock, multiple burns to face, back, left shoulder, right ear,

2

arm and shoulder." Under the tentative order, claimant was found to have a
permanent partial disability of fifty percent. Appellant filed an objection to the
tentative order, which was denied by a district hearing officer. An application
for reconsideration was also denied by the Industrial Commission.

Appellant then filed a complaint for a writ of mandamus in the Franklin
County Court of Appeals challenging the forty percent portion of the award
which was referred to as a "disfigurement impairment." Appellant alleged that
this portion of the award was made pursuant to R.C. 4123.57(B) for serious
facial or head disfigurement and that the Industrial Commission abused its
discretion in compensating claimant for serious facial or head disfigurement
where there was no evidence to support this award. Appellant further alleged
that the commission's disfigurement award exceeds the statutory limit of five
thousand dollars.2 The matter was submitted to a referee, who ruled that the
forty percent portion of the award was not attributable to facial or head
disfigurement but was instead made pursuant to R.C. 4123.57(A). The court of
appeals adopted the referee's findings of fact and conclusions of law and
consequently denied the writ.

3

The cause is before this court upon an appeal as of right.
__________

Chernesky, Heyman & Kress, Brad A. Chalker and Karen R. Adams, for
appellant.

Lee M. Smith & Associates and Elizabeth P. Weeden, for appellee
Timothy J. Betzner.

Betty D. Montgomery, Attorney General, and Gerald H. Waterman,
Assistant Attorney General, for appellee Industrial Commission of Ohio.
__________
Francis E. Sweeney, Sr., J. At issue in this case is whether forty percent
of the award to claimant was part of the total award for permanent partial
disability, as determined by the Industrial Commission, or was an award for
facial and head disfigurement, as appellant contends. Since the Industrial
Commission's decision is supported by some evidence in the record, we reject
appellant's argument that claimant was compensated for facial and head
disfigurement and affirm the judgment of the court of appeals.

4

The computation of claimant's award of fifty percent permanent partial
disability is supported by three of the four medical reports contained in the
record. Nevertheless, appellant challenges that portion of the award (forty
percent) which was characterized in some of the medical reports as a
"disfigurement impairment." Appellant presumes that since the term
"disfigurement impairment" was used, the claimant was, in essence, being
compensated pursuant to R.C. 4123.57(B) for serious facial or head
disfigurement.

The evidence in the record fails to support appellant's position. In fact,
the disfigurement sustained by the claimant extends beyond his face and head
region and is estimated to cover forty percent of his body. Thus, the medical
reports that refer to "disfigurement" do not simply focus on disfigurement to
claimant's face and head but instead recognize more extensive scarring to his
whole body as well as the physical limitations which result from the scarring
and skin contractures. For instance, Dr. Conte notes that claimant has scarring
on the right side of his body with contraction and limitation of movement in his
right arm and that claimant will need ongoing therapy to prevent joint

5

contractures and possible future release surgeries. Likewise, Dr. Clarence J.
Louis, a commission specialist, notes that claimant has generalized scarring of
his body and recommends ongoing therapy to prevent contractures.

We do not believe that the Industrial Commission abused its discretion in
granting claimant a fifty percent permanent disability award. The claimant was
not merely compensated for facial or head disfigurement. As the court of
appeals referee notes, "the permanent partial disability award was not made for
head disfigurement and scarring per se but rather was awarded to compensate
for the physical dysfunctions noted in the medical evidence which resulted
from scarring and disfigurement due to claimant's injuries." Therefore, since
the commission's decision is supported by some evidence in the record, this
court will not disturb those findings. State ex rel. Milburn v. Indus. Comm.
(1986), 26 Ohio St.3d 119, 26 OBR 102, 498 N.E.2d 440. Accordingly, the
judgment of the court of appeals is affirmed.
Judgment
affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

WRIGHT AND COOK, JJ., dissent.

6

Footnotes:
1 Claimant's attending physician, Dr. Allen Ferguson, Jr., simply agreed with
Dr. Eugene T. Conte's opinion of fifty percent impairment, but did not mention
the term "disfigurement impairment" in his report.
2 Pursuant to R.C. 4123.57(B), the Industrial Commission may award a
claimant up to five thousand dollars for serious facial or head disfigurement
which impairs or may in the future impair the opportunities to secure or to
retain employment. In this case, claimant's award exceeds five thousand
dollars.

WRIGHT, J., dissenting. This court today upholds a determination by the
Industrial Commission of a fifty percent permanent partial disability that is in
large part attributable to a disfigurement. Such a determination is contrary to
statutory law (see R.C. 4123.57 [B]) and long-standing case law. Therefore, I
respectfully dissent.

Not all disfigurements caused by industrial accidents are compensable.
State ex rel. Butram v. Indus. Comm. (1932), 124 Ohio St. 589, 180 N.E. 61,

7

paragraph one of the syllabus. The court held that only those disfigurements
that affect the face or head, which are serious, and which impair the disfigured
person's ability to secure or retain employment are compensable. Id. That
holding is now codified as part of R.C. 4123.57 (B). Betzner has not applied
for an award under R.C. 4123.57 (B), which is the exclusive section of R.C.
Chapter 4123 that allows compensation for disfigurement. The disfigurement
suffered by Betzner, grievous as it is, is not compensable as a percentage of
permanent partial disability.

The issue here is whether the PPD award to Betzner included a
percentage for disfigurement. Given that the doctors' reports relied on by the
commission allocate forty percent of the whole person (of a fifty percent
award) to "disfigurement impairment," I would limit the determination of
permanent partial disability to ten percent: the maximum disability in the
record that is wholly attributable to medical impairment and therefore the
maximum disability for which there is some evidence.

Thus, for the reasons stated, I respectfully dissent.

COOK, J., concurs in the foregoing dissenting opinion.

8