concurring.
{¶ 23} I concur in the holding that R.C. 4123.57(B) does not support the commission’s reasons for denying Sandra Moorehead’s application for scheduled loss benefits, and I agree with the decision to remand this cause for a determina*31tion of the amount of benefits due Moorehead in light of State ex rel. Estate of McKenney v. Indus. Comm., 110 Ohio St.3d 54, 2006-Ohio-3562, 850 N.E.2d 694. However, because the courts below did not have the benefit of McKenney, I write separately to explain why I believe that it and the relevant statutory authority limit Moorehead’s award to one week of scheduled loss benefits.
{¶ 24} Sandra Moorehead was awarded death benefits under R.C. 4123.59, which authorizes payment of benefits to dependents of any employee who dies as a result of a workplace injury or occupational disease. These benefits are intended to compensate for the loss of wages and are calculated at a percentage of the average weekly wage. The award is paid from the employee’s date of death until the death or remarriage of the dependent spouse. R.C. 4123.59(B)(1).
{¶ 25} Scheduled loss benefits under R.C. 4123.57(B) are intended to compensate for an injured worker’s presumed loss of earning capacity. McKenney, 110 Ohio St.3d 54, 2006-Ohio-3562, 850 N.E.2d 694, ¶ 16. A scheduled loss award conclusively presumes that the loss of a member has an effect on one’s earning capacity. Id. at ¶ 15. However, this presumption is rebutted when the worker dies, for there is no longer an earning capacity to be impaired.
{¶ 26} R.C. 4123.57(B) authorizes an award of scheduled loss benefits to the surviving spouse when an employee has sustained a loss but the employee dies before the award is made. R.C. 4123.60 authorizes a surviving spouse to apply for and receive, in addition to death benefits, an award for compensation that the decedent would have been lawfully entitled to apply for at the time of his death. The amount of the award, however, may not exceed the compensation that the decedent might have received for the period prior to the date of death. Thus, R.C. 4123.60 appears to limit the surviving spouse’s recovery of benefits other than compensation for death to an amount not exceeding what the decedent might have received for the period prior to his death.
{¶ 27} The difficulty in this case is the application of these statutes, i.e., whether R.C. 4123.57(B) contemplates a scheduled loss award when the injured worker survived his injuries only briefly, or whether the General Assembly intended death benefits to compensate the surviving dependents under these circumstances.
{¶ 28} We addressed payment of scheduled loss benefits to a surviving spouse in McKenney. Patrick McKenney, a quadriplegic, had been awarded 850 weeks of scheduled loss benefits under R.C. 4123.57(B), payable in weekly installments. He died after six weeks of payment. His surviving spouse and sole dependent, Nancy, moved for a lump sum payment of the remaining 844 weeks of compensation. Nancy McKenney died one day later. Her estate pursued her motion, claiming that the entire amount of the scheduled loss award accrued to Nancy at Patrick’s death.
Stocker Pitts Co., L.P.A., M. Scott Kidd, and Thomas R. Pitts, for appellant. Jim Petro, Attorney General, and William J. McDonald, Assistant Attorney General, for appellee Industrial Commission. Philip J. Fulton Law Office, Philip J. Fulton, and William A. Thorman III, urging reversal for amicus curiae Ohio Academy of Trial Lawyers.{¶ 29} We did not agree that McKenney was entitled to the entire award upon Patrick’s death. Scheduled loss benefits, like most other forms of workers’ compensation, compensate for a loss of earning capacity. “It therefore follows that the loss of earning capacity that scheduled loss compensation was intended to ameliorate ceases upon the death of the injured worker — just as it does with all other forms of disability compensation.” Id. ¶ 16. R.C. 4123.57(B) anticipates the payment of scheduled loss compensation in weekly installments, which may be commuted to a lump sum under certain circumstances and only if the injured worker applies. R.C. 4123.64.
{¶ 30} Consequently, I believe that Moorehead may be entitled to one week of scheduled loss benefits under R.C. 4123.57(B) to compensate for her husband’s period of survival.1 The issue of consciousness is immaterial. But the presumed loss of earning capacity ceased upon William Moorehead’s death. At that point, Sandra Moorehead became entitled to apply for death benefits under R.C. 4123.59. I do not believe that the General Assembly intended for duplicate awards under these circumstances.
{¶ 31} Finally, I believe that an award of scheduled loss benefits under these circumstances has potential long-term financial ramifications. A successful scheduled loss application, depending on the extent of injury, can generate huge sums of money costing the State Fund and self-insured employers millions of dollars. In this case, Moorehead seeks the full award of 850 weeks. If scheduled loss benefits are awarded no matter how short the employee’s survival, this will likely encourage the dependent of any employee who dies in close proximity to an industrial injury to file for scheduled loss compensation. Such an award would have unintended results that would be financially devastating for the State Fund or a self-insured employer. I do not believe that the General Assembly intended R.C. 4123.57(B) to provide what would be the equivalent of an award of damages for personal injury.
O’Donnell, J., concurs in the foregoing opinion. Garvin & Hickey, L.L.C., Preston J. Garvin, and Michael J. Hickey, urging affirmance for amicus curiae Ohio Chamber of Commerce. Bricker & Eckler, L.L.P., and Thomas R. Sant, urging affirmance for amici curiae Ohio Chapter of the National Federation of Independent Business and Ohio Manufacturers’ Association. Vorys, Sater, Seymour & Pease, L.L.P., Robert A. Minor, and Robin Obetz, urging affirmance for amicus curiae Ohio Self-Insurers’ Association.. Because R.C. 4123.57(B) authorizes payment on a weekly basis, the claimant would be paid one week of compensation for a period of 90 minutes’ loss of earning capacity.