State ex rel. Beyer v. Autoneum N. Am., Inc.

[Cite as State ex rel. Beyer v. Autoneum N. Am., Inc. , 2018-Ohio-1700.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Thomas H. Beyer, :
Relator, :
v. : No. 17AP-276
Autoneum North America, Inc. et al., : (REGULAR CALENDAR)
Respondents. :
D E C I S I O N
Rendered on May 1, 2018
On brief: Spitler & Williams-Young Co., L.P.A., William R.
Menacher, and Steven M. Spitler, for relator. Argued:
Steven M. Spitler
On brief: Michael DeWine, Attorney General, and Patsy A.
Thomas, for respondent Industrial Commission of Ohio.
Argued: Patsy A. Thomas.
IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Thomas H. Beyer, initiated this original action requesting that this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate the October 21, 2015 order of its staff hearing officer ("SHO")
that denied relator's December 11, 2012 motion for R.C. 4123.57(B) compensation for the
alleged permanent partial loss of sight of his right eye, and to enter an order awarding
compensation for 35 percent loss of uncorrected vision in the right eye.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53(C)
and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
No. 17AP-276 2
appended decision, including findings of fact and conclusions of law. The magistrate
concluded that Beyer failed to meet his burden before the commission of demonstrating
that his industrial injury is the proximate cause of his alleged 35 percent loss of vision in
his right eye. Thus, the magistrate recommends this court deny Beyer's request for a writ
of mandamus.
{¶ 3} Beyer has filed an objection to the magistrate's decision. In his sole objection,
Beyer asserts the magistrate erred in finding that there was insufficient medical evidence
for the commission to find that he sustained 35 percent vision loss in his right eye due to
his industrial injury. He argues that he met his burden of demonstrating his entitlement to
the requested compensation for permanent partial loss of vision. For the following reasons,
we agree.
{¶ 4} R.C. 4123.57(B) authorizes compensation for the loss of a claimant's vision.
"For the loss of the sight of an eye," a claimant is entitled to receive 125 weeks of
compensation. "For the permanent partial loss of sight of an eye," a claimant is entitled to
"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." R.C.
4123.57(B). In no case, however, "shall an award of compensation be made for less than
twenty-five per cent loss of uncorrected vision." R.C. 4123.57(B). " 'Loss of uncorrected
vision' means the percentage of vision actually lost as a result of the injury or occupational
disease." R.C. 4123.57(B). Under this standard, "correction enhances vision but does not
eliminate the vision loss." State ex rel. La-Z-Boy Furniture Galleries v. Thomas, 126 Ohio
St.3d 134, 2010-Ohio-3215, ¶ 16. Thus, "loss of vision is determined by the measurement
of uncorrected vision following the injury, but prior to any corrective surgery such as a lens
implant or cornea transplant." State ex rel. Baker v. Coast to Coast Manpower, L.L.C., 129
Ohio St.3d 138, 2011-Ohio-2721, ¶ 20 (plurality), citing La-Z-Boy Furniture Galleries at
¶ 16; State ex. rel. Gen. Elec. Corp. v. Indus. Comm., 103 Ohio St.3d 420, 2004-Ohio-5585,
¶ 16.
{¶ 5} Additionally, the claimant has the burden of persuading "the commission
that there is a proximate causal relationship between his or her work-connected injuries
and disability, and to produce medical evidence to this effect." State ex rel. Mid-Ohio Wood
Prods. v. Indus. Comm., 10th Dist. No. 07AP-478, 2008-Ohio-2453, ¶ 17, citing State ex
No. 17AP-276 3
rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 83 (1997). "Without medical
evidence, the commission has no basis to determine the cause of a medical condition -- it
simply does not have the expertise." State ex rel. Yellow Freight Sys. v. Indus. Comm., 81
Ohio St.3d 56, 58 (1998).
{¶ 6} Thus, as the magistrate correctly noted, Beyer had the burden of producing
medical evidence demonstrating that his industrial injury is the proximate cause of his
alleged 35 percent loss of vision in his right eye. To meet this burden, Beyer needed to
submit medical evidence of his pre-injury uncorrected vision, medical evidence of his post-
injury uncorrected vision, and medical evidence of the causal connection between his injury
and the vision loss. In support of his request for compensation under R.C. 4123.57(B),
Beyer submitted April 2008 and December 2011 records from Optiview and a July 2012
report of ophthalmologist James G. Ravin, M.D. The April 2008 Optiview record indicates
that ophthalmologist William G. Martin, M.D., determined Beyer's bilateral uncorrected
visual acuity to be 20/20 at that time. The November 2011 Optiview record indicates that
Mahdi Basha, D.O., determined that Beyer had developed bilateral cataracts and had an
uncorrected visual acuity of 20/100 in the right eye and 20/50 in the left eye. Dr. Basha
performed cataract surgery on both of Beyer's eyes in December 2011. In July 2012,
Dr. Ravin opined that Beyer's long-term use of prednisone, due to his allowed condition of
bilateral silica pneumoconiosis, caused the development of his cataracts. On August 1,
2012, the Ohio Bureau of Workers' Compensation, relying on Dr. Ravin's report, mailed an
order additionally allowing the claim for bilateral cataracts.
{¶ 7} In view of the undisputed medical evidence in the record, Beyer had a pre-
injury uncorrected visual acuity of 20/20 in his right eye, and a post-injury uncorrected
visual acuity of 20/100 in that eye. The undisputed medical evidence further demonstrated
that the vision loss was caused by Beyer's industrial injury. The record before the
commission also contained a copy of Table 12-2, captioned "Impairment of Visual Acuity,"
from the American Medical Association Guides to Evaluation of Permanent Impairment,
Fifth Edition ("AMA Guides"). (Joint Stipulation of Evidence at 20958-A89.) This table
outlines visual acuity impairment ratings, as a percentage of ability lost, in relation to
normal visual acuity of 20/20. It indicates that visual acuity of 20/100 reflects a visual
acuity impairment rating of 35 percent in relation to 20/20 visual acuity.
No. 17AP-276 4
{¶ 8} Beyer argues that the Supreme Court of Ohio's decision in State ex rel.
Spangler Candy Co. v. Indus. Comm., 36 Ohio St.3d 231 (1988), is instructive as to the
issue of what evidence is necessary for a claimant to prove a partial loss of vision. We agree.
In Spangler, the court found it was not an abuse of discretion for the commission to
determine that, for the purpose of R.C. 4123.57(B), "the percentage of permanent partial
loss of sight of an eye is calculated by subtracting the amount of vision remaining from the
amount of vision existing prior to the injury and taking the percentage of the loss of sight
as the calculation of actual vision loss." Id. at 235. In Spangler, the pre-injury and post-
injury visual ability was already presented by a percentage by the medical evidence. As
such, determining loss of vision was based on the simple calculation described above.
However, when a claimant's visual acuity is presented by the medical evidence in a different
format, the calculation is not the same and requires a slightly different analysis.
{¶ 9} In State ex rel. Lay-Z-Boy Furniture Galleries v. Thomas, 10th Dist. No.
08AP-827, 2009-Ohio-4546, this court noted that a percentage loss of vision cannot be
calculated by simply numerically comparing results of distance eye testing. For example, it
would be improper to calculate the percent of vision loss by subtracting the 50 in 20/50
from the 200 in 20/200, to conclude that the percent loss of vision was 75 percent because
that number, 150, is 75 percent of 200. Id. at ¶ 58. Even so, this court in Lay-Z-Boy
Furniture Galleries also noted that, while such a calculation would be improper, "[c]entral
visual acuity for distance as noted by a Snellen fraction can be easily converted to a percent
loss of central vision by reference to tables." Id. at ¶ 59, citing 6A Lawyers' Medical
Cyclopedia (5th Ed., LexisNexis 2006), at Section 39.21. This is what occurred here. A
commission district hearing officer applied the information contained in Table 12-2 of the
AMA Guides to the Snellen fractions that reflected Beyer's pre-injury and post-injury visual
acuity, to conclude that Beyer had lost 35 percent of his actual vision in his right eye. The
SHO and the magistrate erroneously found that Beyer needed to submit additional medical
evidence to establish the percentage of vision loss for his right eye.
{¶ 10} For these reasons, we sustain Beyer's sole objection to the magistrate's
decision. Based on our review of the record, we find the magistrate has properly discerned
the pertinent facts. However, the magistrate erred in applying the law to those facts.
Therefore, we adopt the magistrate's findings of fact but not his conclusions of law. We
No. 17AP-276 5
grant a writ of mandamus ordering the commission to vacate the order of its SHO denying
Beyer's request for R.C. 4123.57(B) compensation for the alleged permanent partial loss of
sight of his right eye, and to enter an order awarding compensation for 35 percent loss of
uncorrected vision in that eye.
Objection sustained;
writ of mandamus granted.
TYACK and DORRIAN, JJ., concur.
No. 17AP-276 6
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Thomas H. Beyer, :
Relator, :
v. : No. 17AP-276
Autoneum North America, Inc. et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on November 28, 2017
Spitler & Williams-Young Co., L.P.A., William R. Menacher,
and Steven M. Spitler, for relator.
Michael DeWine, Attorney General, and Patsy A. Thomas, for
respondent Industrial Commission of Ohio.
IN MANDAMUS
{¶ 11} In this original action, relator, Thomas H. Beyer, requests a writ of
mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate
the October 21, 2015 order of its staff hearing officer ("SHO") that denied relator's
December 11, 2012 motion for R.C. 4123.57(B) compensation for the alleged permanent
partial loss of sight of his right eye, and to enter an order awarding compensation for 35
percent loss of uncorrected vision in the right eye.
Findings of Fact:
{¶ 12} 1. On August 3, 2007, relator filed an application for workers'
compensation benefits. On his application, relator alleged that he acquired an
No. 17AP-276 7
occupational disease while employed with respondent Autoneum North America, Inc., a
state-fund employer.
{¶ 13} 2. On October 11, 2007, the Ohio Bureau of Workers' Compensation
("bureau") mailed an order allowing the industrial claim (No. 06-893318) for bilateral
silica pneumoconiosis.
{¶ 14} 3. The employer administratively appealed the October 11, 2007 order of
the bureau.
{¶ 15} 4. Following a January 3, 2008 hearing, a district hearing officer ("DHO")
issued an order affirming the bureau's order.
{¶ 16} 5. The employer administratively appealed the DHO's order of January 3,
2008.
{¶ 17} 6. Following a February 14, 2008 hearing, an SHO issued an order noting
that the employer had dismissed its appeal. Therefore, the findings of the DHO's order
remain in full force and effect.
{¶ 18} 7. On December 7, 2011, relator underwent cataract surgery to his right eye.
The surgery was performed by Mahdi Basha, D.O.
{¶ 19} 8. On December 21, 2011, relator underwent cataract surgery to his left eye.
That surgery was also performed by Dr. Basha.
{¶ 20} 9. On July 2, 2012, relator moved that his industrial claim be additionally
allowed for bilateral cataracts.
{¶ 21} 10. Relator's July 2, 2012 motion prompted the bureau to request that a
medical file review be prepared by ophthalmologist James G. Ravin, M.D. In his three-
page narrative report dated July 26, 2012, Dr. Ravin states:
The file indicates that the worker has pneumoconiosis and has
required long-term corticosteroids to treat this. There are
allegations that the cataracts were caused by the long-term
use of steroids.
The claimant was exposed to silica during his employment at
Rieter Automotive.
The file includes medical records from Optiview with notes of
cataract surgery having been done. There are also many
No. 17AP-276 8
records indicating his requirement for corticosteroids to treat
his lung disease.
The first ocular examination is by Dr. Martin at Optiview on
April 28, 2008. The visual acuity was 20/20 OU at that point.
The anterior segments were described as clear, as was
ophthalmoscopy. The diagnoses were astigmatism,
presbyopia, and hypertension. The pressure was normal at
14mm/Hg right eye and 12 mm/Hg left eye.
On November 17, 2011, Mr. Beyer complained of cloudy and
blurry vision for a few months. The visual acuity with
correction was 20/80 -1 right eye and 20/70 -1 left eye.
Through a pinhole it improved to 20/40- right eye and 20/30
left eye. The distant prescription was very weak. The pressure
was normal at 17 mm/Hg right eye and 18mm/Hg left eye. Slit
lamp examination was normal with the exception of nuclear
and posterior subcapsular cataracts. Discussion was carried
out on the ocular side effects of prednisone causing cataracts.
Surgery was scheduled.
On December 7, 2011, a postoperative visit was made
following cataract surgery, and the acuity without correction
was 20/30 right and 20/50 left eye. On December 22, 2011,
the visual acuity was 20/20 each eye without correction. The
pressure was 15 mm/Hg right eye and 26 mm/Hg left eye. The
last visit described appears to be in December 2011, although
the photocopy is not very legible. It was just a postoperative
visit for cataract surgery.
There are medical notes of the medications that Mr. Beyer had
been using including prednisone.
***
DISCUSSION AND OPINION
***
The above quoted records indicate the patient has suffered
from cataracts and has to undergo surgery to remove them.
Although cataracts can occur as a common aspect of aging,
this individual has been on long-term prednisone treatment,
which is a corticosteroid. Corticosteroids used long term often
cause cataracts. Therefore, the medication caused a flow-
No. 17AP-276 9
through form of effect and cataracts. The cataracts were not
directly caused by the pulmonary disease of Mr. Beyer but by
his medication.
{¶ 22} 11. On August 1, 2012, the bureau mailed an order additionally allowing the
claim for bilateral cataracts. The bureau's order states reliance upon the July 26, 2012
report of Dr. Ravin.
{¶ 23} 12. The employer administratively appealed the bureau's August 1, 2012
order.
{¶ 24} 13. Following an October 3, 2012 hearing, a DHO issued an order affirming
the additional claim allowance. The DHO's order states reliance upon the July 26, 2012
report of Dr. Ravin.
{¶ 25} 14. The employer administratively appealed the DHO's order of October 3,
2012.
{¶ 26} 15. Following a November 26, 2012 hearing, an SHO issued an order
affirming the additional allowance of bilateral cataracts.
{¶ 27} 16. On December 18, 2012, another SHO mailed an order refusing the
employer's appeal to the three-member commission.
{¶ 28} 17. On or about February 12, 2013, the employer filed a notice of appeal in
the Lucas County Court of Common Pleas. The notice of appeal indicated that the
employer appeals the November 26, 2012 order of the SHO, pursuant to R.C. 4123.512.
{¶ 29} 18. Earlier, on December 11, 2012, relator moved for an award of
R.C. 4123.57(B) compensation for an alleged 35 percent loss of vision of his right eye. In
support of his motion, relator cited to State ex rel. Baker v. Coast to Coast Manpower,
L.L.C., 129 Ohio St.3d 138, 2011-Ohio-2721.
{¶ 30} In further support of his motion, on form C-86, relator identified "4-28-08
and 11-17-11 records of Optivue [sic]; 7-26-12 BWC report by James Ravin, M.D."
{¶ 31} 19. Relator's December 11, 2012 motion for a loss of vision award prompted
the bureau to have relator examined by ophthalmologist David E. Eriksen, M.D.
Following his December 27, 2012 examination, Dr. Eriksen issued a two-page narrative
report, stating:
No. 17AP-276 10
This claimant was exposed to silica during his employment
and that silica caused a pneumoconiosis which required long-
term steroid therapy. The condition is chronic and permanent
and will continue to require oral steroid use. Cataracts
frequently occur as a common aspect of aging, but in a person
who is on long-term corticosteroid use, they frequently cause
cataracts. The types of cataracts that Mr. Beyer exhibited were
of this corticosteroid-caused type. These cataracts progressed
so that in 2011, it became necessary to take these cataracts out.
It is my opinion, as has been the opinion of Dr. Martin and Dr.
Ravin that the medication required for his disease caused a
flow-through effect ending in bilateral cataracts. That is, a
flow-through effect from the silicosis from his employment.
Determining a percent of loss of vision is difficult to be
specific. His visual acuity pre-injury, that is before he had
disease was 20/20 in both eyes. Visual acuity in both eyes due
to the cataracts gradually decreased until it was necessary to
interfere with this process and do cataract extractions and
intraocular lens implantation. He has done quite well
postoperatively and, in fact, without correction, has 20/20
vision in each eye. I would opine, however, that this does not
represent a zero loss of vision secondary to his injury. He had
gradual loss of vision before surgery was done. In addition, he
had to undergo bilateral surgical procedures on his eyes and
must have regular examinations in the future to make sure he
has no complications.
There was no information on the review of the documentation
provided to me to determine why a 35% loss of vision in the
right eye was requested. In addition, I have looked through
the AMA Guides to the Evaluation of Permanent Impairment,
5th Edition, Chapter 12, and can find no loss of vision
guidelines for this specific case of cataracts caused by long-
term medication use. If those persons who have requested a
35% loss of vision in the right eye due to his employment
substantiate this with documentation, I would certainly be
happy to review it.
In the meantime, Chapter 12 in the AMA Guides to the
Evaluation of Permanent Impairment, 5th Edition, 12.4b
allows for individual adjustments and at the most, this
reduction should be 15 points. Because of his gradual loss of
vision and the necessity for surgery in both eyes, I would opine
the maximum of 15% loss of vision for Mr. Thomas Beyer.
No. 17AP-276 11
I have not provided care for this claimant. I have seen this
claimant one time on December 27, 2012, for the purpose of
an independent medical evaluation.
{¶ 32} 19. Following a February 13, 2013 hearing, a DHO issued an order finding
"there is no jurisdiction to hear" relator's December 11, 2012 motion for a loss of vision
award because the employer "has now filed an appeal into court regarding the allowance
upon which the Loss of Vision would be based."
{¶ 33} 20. On July 16, 2015, the employer's appeal to the Lucas County Court of
Common Pleas was dismissed by agreement of the parties.
{¶ 34} 21. By letter dated August 12, 2015, relator's counsel requested that
relator's December 11, 2012 motion for a vision loss award be scheduled for hearing before
a DHO.
{¶ 35} 22. By letter dated September 1, 2015, relator's counsel submitted to the
claim file a copy of the following described document:
Please include * * * the attached copy of Table 12-2 from the
AMA 5th Edition Guides to Evaluation of Permanent
Impairment in the file folder for the captioned hearing.
{¶ 36} 23. It can be noted that the September 1, 2015 letter from relator's counsel
refers to the American Medical Association Guides to the Evaluation of Permanent
Impairment, Fifth Edition. Therein can be found Table 12-2 captioned "Impairment of
Visual Acuity." In the conclusions of law of this decision, the magistrate refers to the
"AMA Guides" or "Table 12-2 from the AMA Guides."
{¶ 37} 24. Following a September 4, 2015 hearing, a DHO issued an order
awarding R.C. 4123.57(B) scheduled-loss compensation for a 35 percent loss of vision of
the right eye. The DHO's order explains:
The Injured Worker's C-86 Motion, filed 12/11/2012, requests
an award for a 35% loss of vision of the right eye, pursuant to
R.C. 4123.57(B).
This claim was originally allowed for silica pneumoconiosis of
the bilateral lungs. The Injured Worker was treated with long-
term corticosteroids for that condition. He subsequently
developed cataracts in both eyes and his treating physician,
No. 17AP-276 12
William G. Martin, M.D., a board-certified ophthalmologist,
stated his opinion that the bilateral cataracts were due to the
side effects of the daily use of prednisone. That opinion was
confirmed by an independent board-certified
ophthalmologist, James G. Ravin, M.D., who examined the
Injured Worker on behalf of the Bureau of Workers'
Compensation on 07/26/2012. Therefore, this claim was
additionally allowed for the condition of bilateral cataracts,
pursuant to the Industrial Commission order of 11/26/2012,
published 11/28/2012.
The medical records from William G. Martin, M.D., indicate
that the Injured Worker had 20/20 visual acuity in both eyes
at the time of his examination on 04/28/2008. Thus, it is the
finding of this District Hearing Officer that the Injured
Worker's pre-injury visual acuity was 20/20 or better.
However, the Injured Worker's visual acuity decreased, over
time, due to the development of his cataracts. On 11/17/2011,
the Injured Worker's uncorrected vision was 20/100 in the
right eye and 20/50 in the left eye.
It is the further finding of this District Hearing Officer that the
AMA Guides to the Evaluation of Permanent Impairment, at
Table 12-2 Impairment of Visual Acuity, indicate that
uncorrected vision of 20/100 is a "Visual Acuity Impairment
Rating (%) (ability loss)" of 35%.
Therefore, it is the finding of this District Hearing Officer that
the Injured Worker's post-injury loss of vision in the right eye
is 35%.
Therefore, it is the order of this District Hearing Officer that
the Injured Worker is hereby GRANTED an award for
permanent partial loss of sight of the right eye in the amount
of 43.75 weeks of compensation pursuant to R.C. 4123.57(B),
based upon the pro-rata apportionment of the total 125 weeks
award for the loss of vision of one eye times the 35% loss of
vision determined above.
(Emphasis sic and omitted.)
{¶ 38} 25. The employer administratively appealed the September 4, 2015 order
of the DHO.
No. 17AP-276 13
{¶ 39} 26. Following an October 21, 2015 hearing, an SHO issued an order that
vacates the DHO's order of September 4, 2015 and denies relator's December 11, 2012
motion for a loss of vision award. The SHO's order explains:
The Staff Hearing Officer finds the file does not contain
sufficient evidence to support the Injured Worker's request
for 35% loss of vision right eye.
The file contains medical records from William Martin, M.D.
which show that the Injured Worker had bilateral visual
acuity of 20/20 when examined on dated [sic] 04/28/2008.
The file also contains an Optivue [sic] examination of the
Injured Worker from 11/17/2011 showing the Injured Worker
had uncorrected vision of 20/100 in the right eye and 20/50
in the left eye. The claim is allowed for bilateral cataracts due
to the Injured Worker's use of Prednisone for the allowed
conditions in the claim pursuant to Industrial Commission
order 11/26/2012.
The file does not contain an explanation by a qualified
physician that would support the percentage award that
Injured Worker requests. The legal standard for a loss of
vision award is the percentage of vision actually lost when
comparing pre-injury vision to post-injury vision prior to any
corrective treatment. The file does not currently contain any
medical evidence that supports a percentage award. The file
was reviewed by David Eriksen, M.D. on 12/27/2012 for the
Bureau of Workers' Compensation, however Dr. Eriksen did
not compare the Injured Worker's pre-injury vision to his
post-injury vision prior to corrective treatment. Dr. Eriksen
opines a 15% loss of vision award which is not the 25% loss of
uncorrected vision that is required by R.C. 4123.57.
As the claim does not currently contain a percentage
evaluation by a medical professional, the Hearing Officer
finds the Injured Worker's request is denied. The order of the
District Hearing Officer is vacated.
{¶ 40} 27. On November 24, 2015, another SHO mailed an order refusing relator's
appeal from the October 21, 2015 order of the SHO.
{¶ 41} 28. On March 25, 2016, at the request of relator's counsel, William Martin,
M.D., completed a two-page "Questionnaire" presumably prepared by relator's counsel.
No. 17AP-276 14
The "Questionnaire" poses two questions for Dr. Martin. By his mark, Dr. Martin selected
the "yes" answer for the following two questions:
Question No. 1: Based upon your evaluations of Mr. Beyer
and consideration of the above, was Mr. Beyer's loss of visual
acuity bilaterally as measured between April, 2008 and
November, 2011 secondary to the development of cataracts
bilaterally?
Question No. 2: Taking into consideration the enclosed
Table 12-2 of the Guides to the Evaluation of Permanent
Impairment, Fifth Addition [sic], does Mr. Beyer's
uncorrected visual acuity as of November, 2011, as measured
against his uncorrected visual acuity as reported in April,
2008, demonstrate a visual acuity impairment rating
percentage of 35%?
(Emphasis sic.)
{¶ 42} 29. On October 27, 2016, relator moved for the commission's exercise of
continuing jurisdiction over the SHO's order of October 21, 2015. In support, relator
submitted the "Questionnaire" completed by Dr. Martin on March 25, 2016.
{¶ 43} 30. Following a November 28, 2016 hearing, a DHO issued an order
denying relator's October 27, 2016 motion for the exercise of continuing jurisdiction.
{¶ 44} 31. Relator administratively appealed the DHO's order of November 28,
2016.
{¶ 45} 32. Following a January 19, 2017 hearing, an SHO issued an order that
affirms the DHO's order of November 28, 2016 and denies relator's motion for the
exercise of continuing jurisdiction. The SHO's order explains:
It is the finding of this Staff Hearing Officer that the answers
to the questionnaire completed by William Martin, M.D., on
03/25/2016, was evidence which, by due diligence, could have
been discovered and filed by the Injured Worker prior to the
date of the Staff Hearing Officer's hearing conducted on
10/21/2015.
Therefore, it is the finding of this Staff Hearing Officer that
the Injured Worker failed to meet his burden of proving one
of the five prerequisites for the exercise of continuing
jurisdiction, pursuant to R.C. 4123.52.
No. 17AP-276 15
Therefore, it is the order of this Staff Hearing Officer that the
Injured Worker's request to exercise continuing jurisdiction is
hereby DENIED.
(Emphasis sic and omitted.)
{¶ 46} 33. On February 15, 2017, following a review by two SHO's, an SHO issued
an order refusing relator's appeal from the SHO's order of January 19, 2017. The order
explains:
This appeal was reviewed by two (2) Staff Hearing Officers on
behalf of the Commission. Both Staff Hearing Officers concur
with this decision.
{¶ 47} 34. On April 20, 2017, relator, Thomas H. Beyer, filed this mandamus
action.
Conclusions of Law:
{¶ 48} As earlier noted, on December 11, 2012, relator moved for an
R.C. 4123.57(B) award for an alleged 35 percent loss of vision of the right eye. In support,
relator submitted the April 28, 2008 and November 17, 2011 records from Optiview and
the July 26, 2012 report of Dr. Ravin.
{¶ 49} The April 28, 2008 Optiview record indicates that relator
demonstrated 20/20 visual acuity without refractive correction in both eyes on that date.
The April 28, 2008 Optiview record indicates that relator was a patient of Dr. Martin on
that date.
{¶ 50} The November 17, 2011 Optiview record indicates that relator demonstrated
post-injury 20/100 visual acuity without refractive correction in the right eye on that date.
Also, relator demonstrated post-injury 20/50 visual acuity without refractive correction
in the left eye. The November 17, 2011 Optiview record indicates that relator was the
patient of Dr. Basha on that date.
{¶ 51} It can be noted that the November 17, 2011 Optiview record predates the
December 7, 2011 cataract surgery performed on the right eye by Dr. Basha.
{¶ 52} It can be further noted that relator's C-86 motion, filed December 11, 2012,
fails to list Table 12-2 from the AMA Guides for supporting evidence or documentation.
Relator's counsel did not reference the AMA Guides until his September 1, 2015 letter to
No. 17AP-276 16
the bureau. Thus, when Dr. Eriksen examined relator on December 27, 2012 at the
bureau's request, relator had not yet referenced Table 12-2 as support for his motion.
However, Dr. Eriksen did indicate in his report that he had looked through the AMA
Guides but he could find "no loss of vision guidelines for the specific case of cataracts
caused by long-term medication use."
{¶ 53} In addition to the foregoing, it can be noted that, in her order of October 21,
2015, the SHO held that "the file does not contain sufficient evidence to support [relator's]
request for 35% loss of vision right eye." The SHO further held that "[t]he file does not
contain an explanation by a qualified physician that would support the percentage award
that [relator] requests."
{¶ 54} Given the above scenario, the main issue here is whether the SHO of
October 21, 2015 abused her discretion in refusing to make her own determination based
upon Table 12-2 as to whether relator shall be awarded a 35 percent vision loss. That is,
did the SHO abuse her discretion in requiring that a determination of vision loss under
Table 12-2 be supported by a medical opinion from a qualified physician.
{¶ 55} Finding that the SHO did not abuse her discretion in denying a partial loss
of vision award for the failure of relator to support his motion with medical evidence from
a qualified physician, it is the magistrate's decision that this court deny relator's request
for a writ of mandamus, as more fully explained below.
Basic Law─Loss of Vision
{¶ 56} R.C. 4123.57(B) sets forth a schedule for the payment of compensation for
the loss of a body member. It provides:
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 vision" means the percentage of vision actually
lost as the result of the injury or occupational disease.
{¶ 57} "The loss of vision is determined by the measurement of uncorrected vision
following the injury, but prior to any corrective surgery such as a lens implant or cornea
transplant." Baker, plurality opinion at ¶ 16 citing State ex rel. La-Z-Boy Furniture
No. 17AP-276 17
Galleries v. Thomas, 126 Ohio St.3d 134, 2010-Ohio-3215, ¶ 16 and State ex rel. Gen. Elec.
Corp. v. Indus. Comm., 103 Ohio St.3d 420, 2004-Ohio-5585, ¶ 16.
Basic Law─Burden of Proof
{¶ 58} "The claimant's burden is to persuade the commission that there is a
proximate causal relationship between his work-connected injuries and disability, and to
produce medical evidence to this effect." State ex rel. Quarto Mining Co. v. Foreman, 79
Ohio St.3d 78, 83 (1997).
{¶ 59} "Without medical evidence, the commission has no basis to determine the
cause of a medical condition─it simply does not have the expertise." State ex rel. Yellow
Freight Sys., Inc. v. Indus. Comm., 81 Ohio St.3d 56, 58 (1998).
{¶ 60} "[T]he appropriate standard of proof in mandamus cases is proof by clear
and convincing evidence." State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-
6117, ¶ 55, citing State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 161 (1967).
Thus, in mandamus, the relator must prove his entitlement to the writ by clear and
convincing evidence. Doner at ¶ 57.
Analysis
{¶ 61} In the instant case, relator had the burden of producing medical evidence
that his industrial injury is the proximate cause of his alleged 35 percent loss of vision in
his right eye. Quarto. The burden of producing medical evidence extended to the use of
the AMA Guides (and presumably Table 12-2) in determining the percentage of vision lost
due to the industrial injury.
{¶ 62} Because the commission and its hearing officers do not have medical
expertise, they cannot by themselves, use the AMA Guides in determining a percentage of
vision loss.
{¶ 63} Although the commission and its hearing officers have the duty to
determine the weight and credibility to be given to the medical reports admitted into
evidence, State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 21 (1987), they cannot
render their own opinion as a substitute for a medical opinion from a "qualified physician"
that determines the percentage of vision lost due to the industrial injury. Yellow Freight.
No. 17AP-276 18
{¶ 64} Because relator failed to produce medical evidence or opinion that applies
Table 12-2 of the AMA Guides to the visual acuity data of record, relator failed to meet his
burden before the commission. Foreman.
{¶ 65} Likewise, relator has failed to show his entitlement to the writ by clear and
convincing evidence. Doner.
{¶ 66} Accordingly, for all the above reasons, it is the magistrate's decision that this
court deny his request for a writ of mandamus.
/S/ MAGISTRATE
KENNETH W. MACKE
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).