State ex rel. La-Z-Boy Furniture Galleries v. Thomas , 126 Ohio St. 3d 134 ( 2010 )

[Cite as State ex rel. La-Z-Boy Furniture Galleries v. Thomas, 126 Ohio St.3d 134, 2010-Ohio-
3215.]
THE STATE EX REL. LA-Z-BOY FURNITURE GALLERIES, APPELLANT, v.
THOMAS ET AL., APPELLEES.
[Cite as State ex rel. La-Z-Boy Furniture Galleries v. Thomas,
126 Ohio St.3d 134, 2010-Ohio-3215.]
Workers’ compensation — R.C. 4123.57(B) — Loss of vision — Claimant’s
industrial injury dislodged corneal transplant necessitated by nonallowed
condition of keratoconus — Preinjury transplant corrected claimant’s
vision from 20/200 to 20/50 — Postinjury surgery corrected vision from
20/200 back to 20/50 — Commission did not abuse discretion in using
20/50 preinjury corrected vision as measure of preinjury visual acuity for
purposes of calculating award.
(No. 2009-1706 — Submitted May 25, 2010 — Decided July 13, 2010.)
APPEAL from the Court of Appeals for Franklin County, No. 08AP-827,
2009-Ohio-4546.
__________________
Per Curiam.
{¶ 1} This is an appeal filed as of right by appellant La-Z-Boy Furniture
Galleries for a loss-of-vision award granted to its employee, appellee Millard
Thomas. Thomas has a long history of keratoconus in both eyes. Keratoconus
causes the cornea to thin and bulge, which can significantly impair vision. Severe
cases can require a corneal transplant or implant due to scarring, extreme
thinning, or contact-lens intolerance.
{¶ 2} Thomas had a corneal transplant in his left eye in 2005. Before the
transplant, Thomas’s left-eye vision was 20/200. After the procedure, it was
20/50. On May 1, 2006, Thomas injured that eye, losing the transplanted cornea,
while working for La-Z-Boy. After his industrial accident, the vision in his left
SUPREME COURT OF OHIO
eye reverted to 20/200. A corneal implant was then inserted into the damaged
eye, and his vision returned to 20/50.
{¶ 3} Thomas applied to appellee Industrial Commission of Ohio for
compensation under R.C. 4123.57(B), alleging that he had a total loss of vision in
the left eye. A district hearing officer granted Thomas’s application:
{¶ 4} “[P]rior to the date of injury in this claim, injured worker had
previously undergone a left eye corneal transplant as a result of an occular [sic]
disease in that eye.
{¶ 5} “The employer[’s] and administrator[’]s argument that since
injured worker had a total loss of vision in the left eye prior to the date of injury in
this claim and therefore is not entitled to [a] loss of vision award is not well taken
by the District Hearing Officer. The above argument seems to run counter to the
intent of the statute. The purpose of an award of compensation pursuant to [R.C.]
4123.57(B) is to compensate for the loss of a body part or body function resulting
from the industrial injury. In this case the injured worker had a functioning left
eye prior to the date of injury. The District Hearing Officer declines to
differentiate between the mechanism[s] of function for purposes of this order. It
would seem unfair to allow a loss of vision award to an injured worker who had a
‘natural’ functioning eye prior to date of injury but not to an individual who had a
functional eye only as a result of a previous medical procedure which was able to
restore functionality to the eye.”
{¶ 6} On appeal, a staff hearing officer reduced the amount of the award
to 75 percent, but did not explain why she reduced the amount or how she arrived
at that figure. Further appeal was refused.
{¶ 7} La-Z-Boy filed a complaint in mandamus in the Court of Appeals
for Franklin County, and Thomas filed a cross-claim. La-Z-Boy’s complaint
alleged that Thomas had suffered no vision loss, because his uncorrected vision
was the same after the industrial injury as it was before. It argued that previous
2
January Term, 2010
Ohio cases had used uncorrected vision to assess the amount of vision lost under
R.C. 4123.57(B). La-Z-Boy asserted that transplants and implants corrected
vision and thus could not factor into the analysis. It urged the court to find that
because Thomas’s uncorrected vision was 20/200 both before and after the injury,
no loss had occurred.
{¶ 8} The court of appeals acknowledged that earlier cases used
uncorrected vision to measure R.C. 4123.57(B) vision loss. It did not, however,
rely on those cases, ruling instead that to deny the claim would amount to using a
nonallowed condition (the keratoconus) to defeat Thomas’s application for
compensation, contrary to State ex rel. Waddle v. Indus. Comm. (1993), 67 Ohio
St.3d 452, 619 N.E.2d 1018.
{¶ 9} Thomas’s cross-claim alleged that the commission had abused its
discretion in reducing his award from 100 percent vision loss to 75 percent. The
court of appeals agreed and granted his request for a writ of mandamus that
ordered the commission to issue an award for a total loss of vision in the left eye.
{¶ 10} La-Z-Boy now appeals to this court as of right.
{¶ 11} R.C. 4123.57(B) states:
{¶ 12} “In cases included in the following schedule the compensation
payable * * * shall continue during the periods provided in the following
schedule:
{¶ 13} “* * *
{¶ 14} “For the loss of the sight of an eye, one hundred twenty-five
weeks.
{¶ 15} “For the permanent partial loss of sight of an eye, the portion of
one hundred twenty-five weeks as the administrator in each case determines,
based upon the percentage of vision actually lost as a result of the injury or
occupational disease, but, in no case shall an award of compensation be made for
less than twenty-five per cent loss of uncorrected vision. ‘Loss of uncorrected
3
SUPREME COURT OF OHIO
vision’ means the percentage of vision actually lost as the result of the injury or
occupational disease.”
{¶ 16} Consistent with the statute, we have declared uncorrected vision to
be the standard by which postinjury vision must be measured. State ex rel.
Kroger Co. v. Stover (1987), 31 Ohio St.3d 229, 31 OBR 436, 510 N.E.2d 356;
State ex rel. Gen. Elec. Corp. v. Indus. Comm., 103 Ohio St.3d 420, 2004-Ohio-
5585, 816 N.E.2d 588, ¶ 12. These decisions stressed that correction enhances
vision but does not eliminate the vision loss. Id. at ¶ 18-23; Kroger at 234.
Glasses and contact lenses enhance vision until they become lost, broken, or
outdated. Implants and transplants, while much more sophisticated, also do not
completely replicate the extraordinary capabilities of one’s own lens or cornea.
As we noted in Kroger, corneal transplants are susceptible to rejection. Id. at 234.
In discussing lens implants, we observed that unlike the eye’s natural lens, an
implant cannot change focus or filter light. Gen. Elec. at ¶ 20. Accordingly, as
recently as 2008, we continued to characterize these procedures as mere
corrections to vision that could not be used to determine postinjury visual acuity.
State ex rel. AutoZone, Inc. v. Indus. Comm., 117 Ohio St.3d 186, 2008-Ohio-541,
883 N.E.2d 372.
{¶ 17} The litigants agree that Thomas’s postinjury corneal implant must
be excluded from consideration, meaning that his postinjury vision for R.C.
4123.57(B) purposes is 20/200. They disagree, however, on the applicable
measure of preinjury vision. All of the jurisprudence from this court on the issue
of R.C. 4123.57(B) vision loss has involved a dispute over the measure of
postinjury visual acuity. This is, therefore, a case of first impression. Never have
we been confronted with an individual who has had complicated corrective
surgery both before and as a result of an industrial injury.
{¶ 18} La-Z-Boy argues that because uncorrected vision is the postinjury
measurement, it must also be the preinjury standard. Appellees propose that in an
4
January Term, 2010
unusual situation such as this, a claimant’s uncorrected preinjury vision may not
always be the best baseline from which to determine the amount of postinjury
loss.
{¶ 19} The commission is particularly concerned about situations in
which the preinjury correction significantly predates the industrial injury, and we
share that concern. Had Thomas’s corneal transplant occurred in 1985 rather than
2005, for example, he would have had 20/50 vision not for just one, but for 21
years prior to his industrial accident. Under La-Z-Boy’s proposal, the appropriate
measure of Thomas’s preinjury vision would be the 20/200 vision that Thomas
had as a child in 1985, rather than the 20/50 vision that he enjoyed for over two
decades. We cannot endorse this result.
{¶ 20} Even when preinjury correction does not significantly precede the
industrial injury, we can foresee situations in which the appropriate measure of
preinjury vision could require a more flexible approach. Perhaps most obvious is
a situation in which glasses or contact lenses are used to further correct a surgical
correction. In this case, the record is silent as to whether Thomas used glasses to
correct his preinjury 20/50 vision to 20/20. If he did, his 20/200 vision would
seem largely irrelevant since his glasses would have been refracted to correct
20/50 vision, not 20/200. The presence of what effectively are two corrections
supports the desirability of affording the commission some discretion in
establishing a claimant’s preinjury visual baseline.
{¶ 21} As an alternative basis for upholding the commission’s decision,
the court of appeals cited State ex rel. Waddle v. Indus. Comm., 67 Ohio St.3d
452, 619 N.E.2d 1018. This reliance is misplaced.
{¶ 22} Waddle had sustained industrial injuries to his neck, shoulder, arm,
and back and was awarded temporary total disability benefits. He later developed
serious heart problems unrelated to his work. When Waddle applied for
permanent total disability compensation, he asserted that his nonallowed heart
5
SUPREME COURT OF OHIO
condition was immaterial to the merit of his claim because his allowed conditions,
standing alone, prevented sustained remunerative employment. The commission
was not persuaded that Waddle was incapable of sustained remunerative
employment and denied his claim for permanent total disability benefits,
prompting his petition in mandamus.
{¶ 23} The court of appeals vacated the commission’s order and returned
the cause to the commission to consider Waddle’s nonallowed heart condition as
an independent disability factor under State ex rel. Stephenson v. Indus. Comm.
(1987), 31 Ohio St.3d 167, 31 OBR 369, 509 N.E.2d 946. We reversed, holding
that Waddle’s nonallowed conditions could never factor into the analysis of a
claim for permanent total disability benefits and hence could not advance or
defeat such an application. The key question was instead whether the allowed
medical conditions, either alone or coupled with nonmedical vocational factors, so
disabled the claimant as to foreclose employment.
{¶ 24} Waddle is difficult to apply to Thomas’s situation. In Waddle, the
nonallowed heart condition could easily be excluded from the analysis. The
commission simply had to determine whether the allowed conditions for injuries
to Waddle’s neck, back, shoulder, and arm foreclosed sustained remunerative
work. Here, separating the effects of Thomas’s allowed conditions from the
nonallowed is more problematic. Thomas’s allowed eye conditions are tied
directly to his nonallowed eye disease. If Thomas did not have keratoconus, he
would not have had a transplanted cornea to dislocate. Moreover, if Thomas’s
keratoconus cannot be considered, it is unclear what the preinjury vision baseline
would be. It seemingly could not be 20/200, because that level of visual acuity
was due to the keratoconus. Nor could it be 20/50, because the implant
responsible for that degree of acuity also arose from the keratoconus. Thus, the
court of appeals’ logic appears to leave the commission and this court without a
6
January Term, 2010
preinjury figure against which to measure Thomas’s postinjury vision. Its
reasoning cannot, therefore, be sustained.
{¶ 25} In conclusion, we find that the commission did not abuse its
discretion in using Thomas’s 20/50 vision as the measure of his preinjury visual
acuity. The judgment of the court of appeals is affirmed.
Judgment affirmed.
BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
O’DONNELL, LANZINGER, and CUPP, JJ., concur.
__________________
Stefanski & Associates, L.L.C., and Janice T. O’Halloran, for appellant.
Michael Flament, for appellee Millard Thomas.
Richard Cordray, Attorney General, and Andrew J. Alatis, Assistant
Attorney General, for appellee Industrial Commission.
______________________
7