{¶ 1} Appellee-claimant, Robert R. Cox, injured his left hand and arm in a 1986 workplace accident. Despite efforts to save the limb, claimant’s left arm was eventually amputated just below the elbow. Continuing hypersensitivity at the amputation site has prevented claimant from ever wearing a prosthesis. Claimant’s ongoing difficulties with his left arm have affected his right arm as well, with “rotator cuff tear and right rotator cuff tendonitis” also being an allowed part of his claim.
{¶ 2} Claimant received a scheduled loss award for his left-hand amputation under former R.C. 4123.57(B). In 2002, he moved for a scheduled award under the same statute for loss of use of his left arm. In support, he offered the June 24, 2002 report of Dr. Robert H. Perkins:
{¶ 4} “It is my belief that given the claimant’s residual hypersensitivity, pain, and tenderness about his left distal forearm, that he is unable to use his left upper limb at all and he should be awarded for the loss of use of the entire left upper limb given his symptoms. He has been given in the past loss of use of the hand, but really he is unable to use a prosthesis since he has had the amputation, so virtually he is without use of his left upper limb * *
{¶ 5} Appellant-employer, Alcoa Building Products, submitted a report from Dr. Ron M. Koppenhoeffer. While Dr. Koppenhoeffer agreed that claimant had a functional loss of use of his left arm, the fact that some of the limb remained intact foreclosed, in his opinion, a finding of anatomic loss of use.
{¶ 6} Alcoa also submitted a videotape from a prior investigation of claimant’s physical capabilities. Many of the activities shown — such as petting his dog and driving — involved the right hand and arm. Left-sided activities included using his remaining left arm to push open a car door. Claimant was also filmed tucking paper under that arm.
{¶ 7} Appellee Industrial Commission of Ohio considered all of this evidence and gave claimant an award for loss of use of his left arm, relying on Dr. Perkins. Further appeal was refused.
{¶ 8} Alcoa petitioned the Court of Appeals for Franklin County for a writ of mandamus, alleging that the commission had abused its discretion in finding a total loss of use. The court of appeals found that for all practical purposes claimant had lost the use of his left arm to the same extent as if it had been amputated, and upheld the award.
{¶ 9} This cause is now before this court upon an appeal as of right.
{¶ 10} Scheduled awards pursuant to R.C. 4123.57(B) compensate for the “loss” of a body member and were originally confined to amputations, with the obvious exceptions of hearing and sight. In the 1970s, two cases — State ex rel. Gass
{¶ 11} Alcoa’s interpretation is unworkable because it is impossible to satisfy. Walker and Gassmann are unequivocal in their desire to extend scheduled loss benefits beyond amputation, yet under Alcoa’s interpretation, neither of those claimants would have prevailed. As the court of appeals observed, the ability to use lifeless legs as a lap upon which to rest a book is a function unavailable to one who has had both legs removed, and under an absolute equivalency standard would preclude an award. And this will always be the case in a nonseverance situation. If nothing else, the presence of an otherwise useless limb still acts as a counterweight — and hence an aid to balance — that an amputee lacks. Alcoa’s interpretation would foreclose benefits to the claimant who can raise a mangled arm sufficiently to gesture or point. It would preclude an award to someone with the hand strength to hold a pack of cards or a can of soda, and it would bar — as here — scheduled loss compensation to one with a limb segment of sufficient length to push a car door or tuck a newspaper. Surely, this could not have been the intent of the General Assembly in promulgating R.C. 4123.57(B) or of Gassmann and Walker.
{¶ 12} Pennsylvania defines “loss of use” much as the court of appeals did in the present case, and the observations of its judiciary assist us here. In that state, a scheduled loss award requires the claimant to demonstrate either that the specific bodily member was amputated or that the claimant suffered the permanent loss of use of the injured bodily member for all practical intents and purposes. Discussing that standard, one court has written:
{¶ 13} “Generally, the ‘all practical intents and purpose’ test requires a more crippling injury than the ‘industrial use’ test in order to bring the case under section 306(c), supra. However, it is not necessary that the injured member of
{¶ 14} This approach is preferable to Alcoa’s absolute equivalency standard. Having so concluded, we further find that some evidence indeed supports the commission’s decision. Again, Dr. Perkins stated:
{¶ 15} “It is my belief that given the claimant’s residual hypersensitivity, pain, and tenderness about his left distal forearm, that he is unable to use his left upper limb at all and he should be awarded for the loss of use of the entire left upper limb given his symptoms. He has been given in the past loss of use of the hand, but really he is unable to use a prosthesis since he has had the amputation, so virtually he is without the use of his left upper limb * * *.”
{¶ 16} Accordingly, the commission did not abuse its discretion in awarding scheduled loss compensation for the loss of the left arm.
{¶ 17} The judgment of the court of appeals is affirmed.
Judgment affirmed.