State ex rel. Bowman v. Indus. Comm. (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Bowman v. Indus. Comm., Slip Opinion No. 2022-Ohio-233.]
NOTICE
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South Front Street, Columbus, Ohio 43215, of any typographical or other
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SLIP OPINION NO. 2022-OHIO-233THE STATE EX REL . BOWMAN, APPELLEE, v. INDUSTRIAL COMMISSION OF
OHIO, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Bowman v. Indus. Comm., Slip Opinion No.
2022-Ohio-233.]
Workers’ compensation—Awards under R.C. 4123.57(B) for permanent partial
loss of sight—Industrial Commission abused its discretion by basing its
award on application of American Medical Association’s Guides to the
Evaluation of Permanent Impairment (“AMA guidelines”) when only
medical evidence on which commission relied stated that AMA guidelines
do not adequately assess percentage of total vision employee lost—Court of
appeals’ judgment granting writ of mandamus ordering commission to
grant award affirmed.
(No. 2021-0007—Submitted October 26, 2021—Decided February 2, 2022.)
APPEAL from the Court of Appeals for Franklin County, No. 19AP-109,
2020-Ohio-5343.
SUPREME COURT OF OHIO
__________________
Per Curiam.
{¶ 1} Appellee, Cami R. Bowman, asked appellant, the Industrial
Commission of Ohio, for an award of compensation under R.C. 4123.57(B) for the
permanent partial loss of her sight, based on a 70 percent bilateral loss of vision.
The commission issued an order awarding compensation based on only a 45 percent
loss of sight in the left eye and maintaining a prior award based on a 67 percent loss
of sight in the right eye. The commission’s order relied on a physician’s report
stating that the American Medical Association’s Guides to the Evaluation of
Permanent Impairment (“AMA guidelines”) should not be applied to Bowman’s
unusual injury, because the AMA guidelines do not properly account for the
percentage of vision she lost but that if the AMA guidelines had to be applied, her
loss of vision under its rubric would be 45 percent in the left eye and 65 percent in
the right eye.
{¶ 2} Bowman asked the Tenth District Court of Appeals for a writ ordering
the commission to vacate its order and award the requested compensation. The
Tenth District granted the writ, concluding that the commission abused its
discretion by relying on the part of the report the physician had disclaimed. The
commission appealed. We affirm the Tenth District’s judgment.
I.FACTS AND PROCEDURAL HISTORY
{¶ 3} In December 2005, Bowman contracted an E. coli infection from food
provided by her employer, the Ohio State University Wexner Medical Center. The
infection led to unusual vision problems, including the development of a cataract
in her right eye, double vision, and the “involuntary disruption of her normal eye
movements.”
{¶ 4} Bowman sought an award of workers’ compensation benefits under
R.C. 4123.57(B), which allows compensation “[f]or the permanent partial loss of
sight of an eye * * * based upon the percentage of vision actually lost as a result of
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the injury or occupational disease.” In 2012, the commission granted Bowman an
award based on a 67 percent loss of sight in her right eye.
{¶ 5} Her problems worsened, however, coming to include a cataract in her
left eye and bilateral night blindness. In 2018, she applied for an R.C. 4123.57(B)
award based on a 70 percent bilateral loss of sight. Bowman supported her
application primarily with the report of Wesley J. Harnish, M.D., who had
conducted an independent medical examination.
{¶ 6} Dr. Harnish wrote that Bowman had “several ophthalmologic deficits
which stem from an infection with E. coli and treatment thereafter with anti-nausea
drugs approximately ten years ago.” He further observed, “It is unclear how much
of the deficit comes from the direct toxin of the bacteria versus the reaction to the
anti-nausea medications.” He went on to describe Bowman’s condition:
Her pupils react normally but she has vastly abnormal eye
movement which consists of darting of the eyes in abnormal
directions which is uncontrollable. She has blepharospasm[1] and
she complains of diplopia.[2] Discussing the situation with her, she
also has sensitivity to light which frequently is associated with such
neurologic deficits. She also has slow dark adaptation. She has
pseudophakia[3] on the right and a minimal cataract on the left. She
has been approved for poor dark adaptation which I did not check
today and she has patchy visual field loss.
1. Blepharospasm is “spasmodic winking from involuntary contraction of the orbicular muscle of
the eyelids.” Webster’s Third New International Dictionary 233 (2002).
2. Diplopia is “a disorder of vision in which two images of a single object are seen owing to unequal
action of the eye muscles.” Webster’s Third New International Dictionary at 638.
3. Pseudophakia is “[a]n eye in which the natural lens is replaced with an intraocular lens.”
Stedman’s Medical Dictionary 1453 (26th Ed.1995).
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{¶ 7} Dr. Harnish had been asked to respond to two questions: (1) Under
the fifth edition of the AMA guidelines, what, if any, percentage of permanent
partial disability does Bowman have based solely on the allowed conditions in her
claim? and (2) Did Dr. Leonard Jacobson—who opined in 2016 that Bowman had
a 20 percent permanent partial impairment—properly apply the AMA guidelines?
Dr. Harnish’s combined response to both questions, while lengthy, is helpful to
understanding this case:
The measurement of Snellen visual acuity[4] is inappropriate
when trying to evaluate her ability to see. She can only fix on a
target for a few microseconds at a time. Despite normal acuity, the
ability of the brain to use that data is much impaired. I cannot,
should not and will not give an answer to a misleading question.
The AMA guidelines are not and never were intended to evaluate
this situation. The ability to use visual field data is dependent on the
eye being fixed on a target and therefore visual field data is of no
use in trying to evaluate her problem. After reviewing Dr.
Jacobson’s letter, I have concluded that he did not apply the AMA
guidelines properly, in particular the AMA guidelines are useful,
when central vision or peripheral vision has been damaged.
Nevertheless, there are substantial and even devastating damages to
vision which may occur which do not register in any significant
manor [sic] when measuring central or peripheral vision. Ms.
4. Visual acuity “describes the ability of the eye to perceive details.” American Medical
Association, Guides to the Evaluation of Permanent Impairment 280 (5th Ed.2001). Visual-acuity
values are usually stated in terms of a Snellen fraction, e.g., 20/20 or 20/40. Id. at 284; see also
State ex rel. Beyer v. Autoneum N. Am., 157 Ohio St.3d 316, 2019-Ohio-3714, 136 N.E.3d 454, ¶ 4.
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Bowman has had loss of the muscular control of the eyes both in
terms of the extra ocular muscles and the eye lid muscles which, as
I had mentioned in the above description, causes the eyes to move
suddenly and unpredictably so that she gets double vision on some
occasions, loss of fixation on other occasions (loss of seeing the
target), and loss of vision all together [sic] if she has blepharospasm.
All three of these occur at random intervals therefore make
[sic] it impossible for her to function in a normal way when reading.
In particular, either one, two or three of these events are occurring
approximately 60% of the time, which is an estimate due to the fact
that I cannot measure these exactly. This means that she is only able
to acquire information from a target (see it) approximately one third
of the time. The brain requires time to comprehend target data after
it has fixed on that target. Therefore, the useful time of having the
target acquired is probably even less than a third of the time. This
means that she can only read a few letters or words at a time and
cannot really function to do the job of a nurse adequately or with
any reasonable efficiency. * * * A layman’s comparison would be:
Imagine trying to read a book that someone kept jerking away. Now
imagine that someone kept putting their hand in front of you every
few seconds while the first person was still jerking the book away at
odd intervals. Now imagine that in the moments when you could
actually see the book you had double vision because your eye
muscles would not keep your eyes pointed in the same directions.
All of this is assuming that the viewer has normal visual field and
acuity. This is much like the situation Ms. Bowman experiences.
As a result, I conclude that her loss is substantial. She has a
combination of abnormal eye movement disorder, blepharospasm
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and diplopia which all contribute to diminishing her ability to
function visually. Therefore, the use of the standard guidelines to
evaluate this disease is worse than misleading. Therefore, we can
only give professional estimates as to what kind of deficits these
disorders would cause.
***
[M]y final conclusion is that she has substantial loss of
functional vision. It is approximately at the level of 70% which is
the best estimate that we can give and while it does not refer to the
AMA guidelines it is because they are not appropriate for this sort
of disease.
{¶ 8} The Bureau of Workers’ Compensation commissioned a report by
Marshall Wareham, M.D. Dr. Wareham agreed with Dr. Harnish’s opinion
regarding the inapplicability of the AMA guidelines, but he also opined on what
Bowman’s visual impairment would be under the AMA’s rubric, if it were required
to be followed:
In general, I would be in agreement with the report that was prepared
by Wesley Harnish, MD, dated 12/18/2016. I think that
[Bowman’s] difficulties are not adequately assessed by the AMA
Guidelines, Fifth Edition, so I would agree with his estimate of a
70% loss in both eyes; however, if the AMA Guidelines, Fifth
Edition, must be followed strictly, then it would be a 65% loss in the
right eye and 45% loss in the left eye.
I feel, on several levels, this assessment of her visual loss is
inadequate and incorrect. * * *
***
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[S]he does have significant motility[5] disturbances and as
noted in Dr. Harnish’s report, where he summarizes it very well, she
has significant difficulty with her vision because of the motility
disturbance which was clearly caused by the injury as well as the
blepharospasm of her right eye. The combination of these factors,
certainly makes her visual disability far greater than is assessed by
strictly following the AMA Guidelines, Fifth Edition.
In summary, strictly following the AMA Guidelines, Fifth
Edition, I would assess a 65% vision loss in the right eye, 45% vision
loss in the left eye, but I feel this is a very poor assessment of her
condition from many aspects.
{¶ 9} The district hearing officer (“DHO”) observed that Dr. Wareham’s
report “effectively declaims [sic: disclaims] the applicability of the AMA
Guidelines Fifth Edition and undermines his reliance upon post-injury visual acuity
in so doing.” The DHO asked Dr. Wareham to provide an addendum to his report
“expressly opining upon loss of use of uncorrected vision bilaterally based upon
uncorrected vision post-injury, absent recitation of conditions negating the viability
of the assessment.” Dr. Wareham provided the requested addendum, reiterating
that under the AMA guidelines, Bowman’s loss of vision would be 65 percent in
the right eye and 45 percent in the left eye, and he did not retract his previous
statement that the AMA guidelines do not provide an accurate assessment of
Bowman’s vision loss.
{¶ 10} Citing Dr. Wareham’s opinion and addendum, the DHO issued an
order maintaining a previous award based on a 67 percent loss of vision in the right
eye and granting a new award based on a 45 percent loss of vision in the left eye.
5. Motility is “[t]he power of spontaneous movement.” Stedman’s Medical Dictionary at 1131.
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Both Bowman and her employer filed appeals. The staff hearing officer affirmed
the DHO’s order, in reliance on Dr. Wareham’s opinion and addendum. Bowman
and her employer again appealed. The commission refused both appeals.
{¶ 11} Bowman brought this mandamus action in the Tenth District,
arguing that the commission’s reliance on the portion of Dr. Wareham’s opinion
that the doctor had expressly disclaimed was an abuse of discretion and that the
commission’s order was therefore not supported by some evidence and was
contrary to law. She sought a writ ordering the commission to vacate its prior orders
and enter a new order granting her request for compensation or, alternatively, a writ
ordering the commission to enter an order based on some evidence. The Tenth
District agreed with Bowman and granted a writ ordering the commission to vacate
its denial of her request for compensation. 2020-Ohio-5343, ¶ -9. The commission
appealed to this court.
II. ANALYSIS
A. Mandamus Standard
{¶ 12} When reviewing a claim for a writ of mandamus in a workers’
compensation case, a court’s role is to determine whether the commission abused
its discretion. See State ex rel. Packaging Corp. of Am. v. Indus. Comm., 139 Ohio
St.3d 591, 2014-Ohio-2871, 13 N.E.3d 1163, ¶ 29. The commission is the
exclusive finder of fact and has the sole responsibility to evaluate the weight and
credibility of the evidence. State ex rel. Perez v. Indus. Comm., 147 Ohio St.3d
383, 2016-Ohio-5084, 66 N.E.3d 699, ¶ 20.
B. Loss of Vision and Medical Evidence
{¶ 13} R.C. 4123.57(B) provides, “[f]or the permanent partial loss of sight
of an eye,” an injured worker may receive as disability compensation “the portion
of one hundred twenty-five weeks [of the statewide average weekly wage] as the
administrator in each case determines, based upon the percentage of vision actually
lost as a result of the injury or occupational disease.” (Emphasis added.)
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{¶ 14} The statute refers to the percentage of vision lost. “Vision” is not
necessarily synonymous with “visual acuity.” As we recently explained, vision has
several components, including visual acuity, visual field, and ocular motility. State
ex rel. Beyer v. Autoneum N. Am., 157 Ohio St.3d 316, 2019-Ohio-3714, 136
N.E.3d 454, ¶ 4, citing the AMA guidelines. If the injured worker has conditions
affecting aspects of vision other than visual acuity, the “percentage of vision
actually lost” must account for those factors. See id.{¶ 15} We also explained in Beyer that the commission lacks medical
expertise and that therefore, “claims involving medical determinations may be
established only by submitting appropriate medical evidence.” Id. at ¶ 12. In
claims seeking compensation for the permanent partial loss of vision under R.C.
4123.57(B), the degree of the injured worker’s visual impairment, i.e., the
percentage of uncorrected vision lost, must be determined by physicians—not the
commission. Id. at ¶ 12-13, 17.
C. The Parties’ Arguments
1. The Commission
{¶ 16} The commission correctly points out that the court of appeals cannot
evaluate the weight and credibility of the evidence; that is solely a job for the
commission. See State ex rel. Teece v. Indus. Commission, 68 Ohio St.2d 165, 169,
429 N.E.2d 433 (1981); State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18,
20, 508 N.E.2d 936 (1987). The commission is also correct that courts typically
uphold commission decisions that are supported by “some evidence” in the record.
See State ex rel. Stephenson v. Indus. Comm., 31 Ohio St.3d 167, 170, 509 N.E.2d
946 (1987).
{¶ 17} The commission argues that the Tenth District violated these rules
by improperly reweighing the evidence and substituting its evaluation for that of
the commission. More specifically, the commission frames the treatment of Dr.
Wareham’s report as hinging on an issue of credibility: it argues that the Tenth
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District found the portion of Dr. Wareham’s report that disclaimed the applicability
of the AMA guidelines more credible than the portion that applied them; the
commission contends that therefore, the Tenth District granted the writ on an
improper basis. The commission asserts that some evidence—the portion of Dr.
Wareham’s opinion applying the AMA guidelines—supported its decision and that
the Tenth District’s disturbance of that decision thus was out of bounds.
{¶ 18} The commission further points out that when faced with two
different physicians’ opinions, each setting forth a different percentage of
impairment, the commission has the discretion to choose between the opinions—
adopting one and rejecting the other—or to find that the injured worker’s
percentage of impairment is somewhere between the percentages. See State ex rel.
Yellow Freight Sys., Inc. v. Indus. Comm., 97 Ohio St.3d 179, 2002-Ohio-5811, 777
N.E.2d 241, ¶ 9. The commission argues, essentially, that it applied this principle
when it selected the portion of Dr. Wareham’s report on which to rely.
{¶ 19} Finally, the commission argues that the determination of Bowman’s
impairment should be based on measurable, quantifiable factors and that it
“properly followed its standardized procedures, use of the AMA Guidelines, and
requirements of R.C. 4123.57(B) when it rendered its decision. It did not go rogue
and disregard the uniformity of the system just to accommodate Bowman’s rather
unusual combination of conditions.”
2. Bowman
{¶ 20} Bowman correctly points out that no statute or regulation requires
the commission to apply the AMA guidelines. She argues that the commission
abused its discretion by insisting on the strict application of the AMA guidelines in
this case, because those guidelines do not adequately assess her actual loss of
vision. More specifically, she argues that the commission abused its discretion by
relying on Dr. Wareham’s application of the AMA guidelines because Dr.
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Wareham stated that the assessment of her visual impairment under those
guidelines was “inadequate and incorrect.”
D. Tenth District’s Judgment Affirmed
{¶ 21} The AMA guidelines set forth a framework under which the degree
of impairment of various body systems may be estimated. American Medical
Association, Guides to the Evaluation of Permanent Impairment 1 (4th Ed.1993).
But even the guidelines themselves acknowledge that they are not necessarily
applicable to all medical situations. Id. at 3 (“the Guides does not and cannot
provide answers about every type and degree of impairment”). And as the
commission concedes, use of the AMA guidelines is not mandatory. Moreover, as
we explained in Beyer, it is the physician’s job—not the commission’s—to
determine the percentage of vision lost. 157 Ohio St.3d 316, 2019-Ohio-3714, 136
N.E.3d 454, at ¶ 12-13. We also stated in Beyer that “visual impairment may * * *
be established by evidence of a physician’s opinion regarding the percentage of
uncorrected vision that the claimant has lost.” Id. at ¶ 17. In this case, Dr.
Wareham’s opinion that Bowman suffers from a 70 percent visual impairment was
proper evidence, even though the opinion did not rely on the AMA guidelines.
{¶ 22} Though the commission relied solely on Dr. Wareham’s opinion, it
chose to ignore his assessment of Bowman’s vision loss in favor of a strict
application of the AMA guidelines, despite Dr. Wareham’s insistence that those
guidelines do not adequately assess the percentage of vision Bowman lost. The
commission’s reliance on Dr. Wareham’s grudging application of the AMA
guidelines was an abuse of discretion. In effect, the commission stepped into the
physician’s role by overruling the only doctor’s opinion it relied on to choose the
metric that would enable an accurate assessment of Bowman’s impairment.
{¶ 23} The commission correctly notes that it has the discretion to credit
one physician’s opinion over another, but that is not what it did in this case. That
discretion does not allow the commission to carve up the opinion of a single
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physician and base its decision on a portion of the opinion that the physician has
expressly disclaimed or repudiated. Indeed, we have long held that repudiated
opinions are not proper evidence. See State ex rel. Eberhardt v. Flxible Corp., 70
Ohio St.3d 649, 657, 640 N.E.2d 815 (1994) (“equivocal medical opinions are not
evidence * * * [and] equivocation occurs when a doctor repudiates an earlier
opinion, renders contradictory or uncertain opinions, or fails to clarify an
ambiguous statement”). In this case, the commission selected a percentage of
impairment that no physician backed—a basic failure to base its decision on
medical evidence. See Beyer at ¶ 13.
{¶ 24} We find unavailing the commission’s argument that it followed its
standard procedure by applying the AMA guidelines and that it did not “go rogue”
and sacrifice the “uniformity of the system” in order to “accommodate Bowman’s
rather unusual combination of conditions.” Accounting for Bowman’s unusual
conditions is exactly what R.C. 4123.57(B) required the commission to do: the
award must be based on “the percentage of vision actually lost.”
{¶ 25} Bowman’s allowed conditions resulted in an unusual kind of vision
loss, as described in detail by Dr. Harnish, with whom Dr. Wareham agreed.
Because the only medical evidence on which the commission relied stated that the
AMA guidelines do not adequately assess the percentage of total vision Bowman
lost, the commission abused its discretion by basing its award on the application of
the AMA guidelines.
{¶ 26} We affirm the Tenth District’s judgment granting a writ ordering the
commission to vacate its prior orders and to grant Bowman’s request for an award
under R.C. 4123.57 based on a 70 percent bilateral loss of vision.
III. CONCLUSION
{¶ 27} In light of the foregoing, we affirm the Tenth District’s judgment.
Judgment affirmed.
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O’CONNOR, C.J., and KENNEDY, FISCHER, DEWINE, DONNELLY, STEWART,
and BRUNNER, JJ., concur.
_________________
Charles Zamora Co., L.P.A., and Charles Zamora, for appellee.
Dave Yost, Attorney General, and Natalie J. Tackett, Assistant Attorney
General, for appellant.
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