An Ohio appellate court recently affirmed a decision by the state’s Industrial Commission that had denied additional workers’ compensation benefits for the scheduled loss of use of both of a truck driver’s lower extremities in connection with a work-related vehicular accident in which the driver was killed [State ex rel. Wallace v. Industrial Comm’n, 2013 Ohio App. LEXIS 899 (Mar. 19, 2013)]. Death benefits earlier approved, but a dependent of the driver contended that under the doctrine established in State ex rel. Moorehead v. Industrial Comm’n, 112 Ohio St.3d 27, 2006 Ohio 6364, additional benefits should have been awarded because the driver lived approximately one hour after the accident and the driver’s injuries crushed his spine, causing a loss of use of both legs for that time period.
In Moorehead, the decedent fell 15-to–20 feet head first onto a concrete floor. Upon impact, he suffered severe spinal cord and other injuries. It was undisputed that the spinal cord injury rendered him a quadriplegic. Moorehead never regained consciousness and died 90 minutes after the fall. The decedent’s widow applied for death benefits and scheduled loss compensation for the decedent’s loss of use of both arms and legs. The commission denied the loss of use benefits on the grounds that injured workers must both experience a physical and sustained loss of use and also consciously perceive and experience the physical loss. Ultimately, the Supreme Court of Ohio determined that Ohio Rev. Code § 4123.57(B) did not specify a required length of time of survival or a cognizance requirement after a loss of use injury before benefits can be paid.
The Ohio appellate court distinguished the instant case from Moorehead, however, noting that here the Commission did not find that the truck driver survived the accident for any appreciable amount of time. When the EMS technicians arrived on the scene, the driver had no pulse and was not breathing; he was deceased. That EMS technicians and later, emergency staff at a hospital, attempted to revive the driver did not mean that he was alive for any appreciable period of time following the accident. The dependent’s claim that the driver lived some 59 minutes following the accident had been rejected by the Commission and the Commission, therefore, did not abuse its discretion in denying the application for total loss of use of both of the driver’s legs.