I concur with the majority decision because the Supreme Court's ruling in State, ex rel. Nyitray, v. Indus. Comm. (1983), 2 Ohio St.3d 173, mandates that result. Nyitray allowed a deceased worker's surviving family to recover compensation payable for the deceased worker's temporary disability under R.C. 4123.60, despite clearly contrary statutory language. The Supreme Court's rationale applies with equal force to allow recovery by such survivors of compensation payable for the deceased worker's dismemberment under R.C. 4123.57(C).
In Nyitray, the court invalidated a prohibition against the survivors' recovery for temporary disability compensation which was "accrued but unpaid" when the injured worker died. R.C.4123.60 clearly allows such recovery if the worker died from conditions unrelated to an employment injury. The court reasoned that the statute denied workers' families equal protection when it denied the same recovery if the worker died from those work-related injuries.
The court did not rule that the statute denied equal protection because it excluded recovery for accrued but unpaid compensation. Rather, it ruled in its syllabus that the statute could not deny such recovery to one group of survivors while permitting it to another:
"That portion of R.C. 4123.60 which in effect denies accrued but unpaid workers' compensation to dependents of workers who died from work-related causes, while compensating dependents of workers who died from causes other than a compensable injury or occupational disease, violates the Equal Protection Clauses of the Ohio and United States Constitutions. (State, ex rel.Spiker, v. Indus. Comm., 141 Ohio St. 174 [25 O.O. 271], overruled.)"
It necessarily follows that the compensation laws cannot deny recovery for dismemberment by survivors of a worker who died from work-related injuries, while granting the same recovery to survivors of a worker who died from nonwork-related injuries. R.C. 4123.57(C) purports to do just that.
If two men sustained compensable injuries requiring amputations on the same date, and the first died later from that work-related injury while the second died from some other cause, R.C.4123.57(C) provides disparate remedies. The widow and children of the first worker would be barred from any recovery for his dismemberment, while the widow and children of the second would recover all unpaid compensation for his dismemberment — regardless of the date when either man died. Nyitray found that this distinction offends the state and federal Constitutions.
No real distinction exists between unpaid compensation for temporary disability and unpaid dismemberment compensation under R.C. 4123.57(C). Additional compensation accrues for temporary disability when the worker's temporary disability continues or he incurs additional medical expenses. R.C. 4123.56 and 4123.66. Therefore, no further compensation can accrue for a temporary disability or additional medical expense after the worker dies.
By contrast, compensation for dismemberment under R.C.4123.57(C) is fully determined when the dismemberment occurs. The total compensation payable under R.C. 4123.57(C) is measured as a fixed multiple of the worker's "average weekly wage" rate, as defined by the Revised Code. However, the "accrued" compensation is payable by a *Page 218 lump sum disbursement or by weekly installments as the Industrial Commission deems appropriate. R.C. 4123.64. Thus, the total compensation for dismemberment under R.C. 4123.57(C) is "accrued but unpaid" immediately after the dismemberment occurs. Counsel for the employer acknowledged this fact in appellate argument for this case.
The Nyitray holding authorizes recovery by survivors of a worker who died from the same work-related injury for anycompensation described in R.C. 4123.60. That section concerns post-homous payments for permanent partial disability as well as temporary disability. Like compensation for dismemberment under R.C. 4123.57(C), payments for unscheduled permanent partial disabilities are fixed multiples of the worker's "average weekly wage" rate. R.C. 4123.57(B).
Indeed, compensation for dismemberment is simply a special form of compensation for permanent partial disability. R.C. 4123.57. Both types of compensation are payable in weekly installments or subject to commutation into a single lump sum. R.C. 4123.64. It would be strangely incongruous to allow the disputed survivors recovery for unscheduled permanent partial disabilities while denying them recovery for scheduled permanent partial disabilities.
Those who believe this result imposes an unfair burden on industry apparently contend it is unduly solicitous to surviving widows and children. Their quarrel is not with this decision. Rather, they challenge the Supreme Court's reasoning in Nyitray. As an intermediate appellate court, we are bound to apply and enforce the Supreme Court's principles. Just as we cannot ignore legislative directives, we cannot disregard principles adopted by our state's highest court.