Is an injured worker entitled to a scheduled loss of the great left toe when the toe is surgically transplanted to replace traumatically amputated thumb?
In State ex rel. Mast v. Industrial Commission, 2011-Ohio 2865 (Tenth District), decided June 14, 2011, the court answered in the affirmative.
The injured worker sustained traumatic loss of her left thumb, left index finger, and left long finger in a workplace injury. She was compensated under R.C. 4123.57(B) for a scheduled loss award equivalent to her entire left hand because of the loss of two or more digits on the same hand. The injured worker’s physician obtained authorization to surgically transplant her left great toe to her left thumb to improve the function of the left hand. The left great toe was subsequently amputated and transplanted to create a new left thumb. The claim was amended to allow “amputation of left big toe”, and the administrative order allowing this additional condition was not appealed. The injured worker thereafter filed for a scheduled loss of the left great toe under R.C. 4123.57(B) since she was now missing her left great toe. The Industrial Commission denied the scheduled loss of the left great toe, and the injured worker appealed.
The court discussed State ex rel. Qiblawe v. Indus. Comm., 96 Ohio St.3d 347, 2002-Ohio-4759 as the precedent cited for denying the scheduled loss of the great left toe. In Qiblawe the injured worker had her index finger surgically transplanted to the site of another finger that had been lost due to an industrial injury. Although Qiblawe involved two amputations, the court found that the injured worker was entitled to only one amputation award because the surgically amputated finger was transplanted with successful functionality and only one digit was lost. The Qiblawe court cited State ex rel. Welker v. Indus. Comm., 91 Ohio St.3d 98, 2001-Ohio-292, in which the injured worker’s thumb was completely severed and then successfully reattached. The issue in Welker was whether the scheduled loss should be determined as of the time of the injury or from the point of reattachment and recovery. The Welker court held in favor of the latter view. Applying Welker to the instant case, the court found the facts distinguishable from Qiblawe in two respects. First, the injured workers’ amputations involved two different extremities, and second, she was not separately compensated for the loss of her thumb. The court held that under the Welker rationale the injured worker is entitled to a scheduled loss for both the loss of her two fingers on her left hand and the loss of her great left toe because she is missing these digits after reattachment and recovery.
While this decision is favorable to the injured worker, it appears that the court was incorrect in finding that the claimant had not been compensated for the amputation of the thumb because the scheduled loss of the thumb was a component of the scheduled loss award for the entire loss of the left hand. Moreover, like Qiblawe, the injured worker in the instant case had two amputations (the left thumb and left great toe) but only the loss of one of those digits – the left thumb. This is a confusing decision and an issue that perhaps needs clarified legislatively.