State ex rel. Kroger Co. v. Stover, 86-1357

• Decision Date: 15 July 1987
• Docket Number: No. 86-1357,86-1357
• Citation: 31 OBR 436,31 Ohio St.3d 229,510 N.E.2d 356
• Parties: , 31 O.B.R. 436 The STATE ex rel. KROGER COMPANY, Appellant, v. STOVER et al., Appellees.
• Court: Ohio Supreme Court

Page 229

31 Ohio St.3d 229

510 N.E.2d 356, 31 O.B.R. 436

The STATE ex rel. KROGER COMPANY, Appellant, v. STOVER et al., Appellees.

No. 86-1357.

Supreme Court of Ohio.

July 15, 1987.

Syllabus by the Court

1. An order of the Industrial Commission pursuant to R.C. 4123.57(C), granting or denying benefits for loss of vision resulting from an injury previously allowed, is a decision as to the extent of disability and not subject to appeal pursuant to R.C. 4123.519.

2. The improvement of vision resulting from a corneal transplant is a correction to vision and thus, shall not, on the current state of the medical art, be taken into consideration in determining the percentage of vision actually lost pursuant to R.C. 4123.57(C).

On September 26, 1978, appellee, John W. Stover, sustained severe burns to multiple parts of his body as a result of ammonia exposure in the course of his employment with relator-appellant, the Kroger Company (hereinafter "Kroger"). Kroger certified Stover's workers' compensation claim for his injuries which included corneal burns to both eyes. Kroger paid Stover's medical expenses which covered a corneal transplant to his right eye performed in November 1979. On June 16, 1981, Stover filed an application for additional compensation for loss of uncorrected vision in both eyes pursuant to R.C. 4123.57(C).

The district hearing officer awarded Stover compensation for twenty-five percent loss of sight in the right eye, but disallowed benefits for the left eye, finding that there was insufficient proof of vision loss since Stover had not undergone additional treatment which medical records indicated could improve the vision in his left eye. ¹ The Columbus Regional Board of Review affirmed. Two staff hearing officers sitting for the commission, however, vacated the board of review's order and granted Stover an award for eighty percent loss of vision of the right eye and total loss of vision of the left eye.

Kroger filed an appeal and an alternative application for a writ of mandamus in the Franklin County Court of Common Pleas. The trial court dismissed the appeal pursuant to R.C. 4123.519, holding that it lacked subject matter jurisdiction because the order appealed from was an order as to extent of disability. The trial court denied Kroger's application for a writ of mandamus, finding that there was a "necessary quantum" of evidence in the record before the commission to support its award pursuant to R.C. 4123.57(C). The court of appeals affirmed.

This cause is before this court pursuant to the allowance of a motion to certify the record.

Porter, Wright, Morris & Arthur, Darrell R. Shepard and Charles J. Kurtz III, Columbus, for appellant.

Ward, Kaps, Bainbridge, Maurer, Bloomfield & Melvin and William J. Melvin, Columbus, for appellee John W. Stover.

Anthony J. Celebrezze, Jr., Atty. Gen., and Jeffery W. Clark, Columbus, for appellees Administrator, Bureau of Workers' Compensation, and Industrial Com'n of Ohio.

Marshall & Melhorn, Terrance L. Ryan and Jennifer J. Dawson, Toledo, urging reversal for amicus curiae, Acklin Stamping Div.

HERBERT R. BROWN, Justice.

The primary issues presented are (1) whether the trial court erred in dismissing appellant's appeal brought pursuant to R.C. 4123.519 and (2) whether the trial court erred in denying relator- application for a writ of mandamus. We hold in the negative as to both issues and, accordingly, affirm the judgment of the court of appeals.

I

R.C. 4123.519 provides in pertinent part: "[t]he claimant or the employer may appeal a decision of the industrial commission * * * in any injury or occupational disease case, other than a decision as to the extent of disability, to the court of common pleas * * *." (Emphasis added.) Kroger submits that its appeal pursuant to 4123.519 was proper since the commission's award under R.C. 4123.57(C) ² for loss of vision constituted a new diagnosis or condition not recognized as a previously allowed injury and, therefore, was an order "other than a decision as to the extent of disability." Kroger primarily relies on our holding in Zavatsky v. Stringer (1978), 56 Ohio St.2d 386, 10 O.O.3d 503, 384 N.E.2d 693.

In Zavatsky, this court found that the claimant could appeal the commission's order under R.C. 4123.519 to the extent that the commission had determined that claimant's lower back and leg condition was not the result of or related to the allowed injury, laceration and abrasion to the left elbow. Injuries to different parts of the body were involved. Thus, Zavatsky is distinguishable and does not support Kroger's contention. Though holding that allowance of a claimant's right to participate for injury to one specific part of the body did not preclude appeal on another specific part of the body, we also held at paragraph two of the syllabus:

"A determination of 'extent of disability' under R.C. 4123.519 presupposes that claimant has been allowed the 'right to participate' in the Workers' Compensation Fund for injury to a specific part or parts of the body involving the loss or impairment of bodily functions. The decision of the Industrial Commission as to 'extent of disability' constitutes a determination of the basis for the computation of the compensation or benefits payable under the provisions of the workers' compensation law for those losses or impairments of bodily functions allowed as compensable injuries." (Emphasis added.)

Our subsequent decision in State, ex rel. Bosch, v. Indus. Comm. (1982), 1 Ohio St.3d 94, 1 OBR 130, 438 N.E.2d 415, speaks more directly to the argument urged by Kroger.

The claimant in Bosch sustained an injury to his spinal cord which was deemed compensable as a permanent and total disability. He then filed for additional benefits pursuant to R.C. 4123.57(C) due to the resulting loss of the use of both legs. This court determined that an appeal pursuant to R.C. 4123.519 did not lie "[s]ince the same compensable injury would be the basis for the additional award, * * * and since his right to participate in the Workers' Compensation Fund for that specific injury ha[d] been determined, an additional award would be a determination as to the extent of * * * [his] disability." Id. at 99-100, 1 OBR at 134, 438 N.E.2d at 419.

We held: "Once a claimant's right to participate in the Workers' Compensation Fund for an injury to a specific part of the body has been determined, any further determination of the Industrial Commission pertaining to the computation of compensation payable under the workers' compensation law for that specific injury is as to 'extent of disability,' and is not appealable pursuant to R.C. 4123.519. (Zavatsky v. Stringer, 56 Ohio St.2d 386 [384 N.E.2d 693, 10 O.O.3d 503], followed; State, ex rel. Foley, v. Greyhound Lines, 16 Ohio St.2d 6 [241 N.E.2d 904, 45 O.O.2d 223], overruled.)" Id. at syllabus.

In the case sub judice, corneal burns and loss of vision are not separate injuries; rather, loss of vision is a condition flowing from the initial injury which has been allowed. The commission considered the degree of vision loss, not a new source of the loss.

Accordingly, we hold that an order of the Industrial Commission pursuant to R.C. 4123.57(C), granting or denying benefits for loss of vision resulting from an injury previously allowed, is a decision as to extent of disability and not subject to appeal pursuant to R.C. 4123.519. ³ The court of appeals properly found no error in the dismissal by the trial court of appellant's appeal.

We turn now to the mandamus issues raised by relator, Kroger.

II

Where appeal is unavailable because the commission's order constitutes a finding as to the extent of disability, mandamus is proper to test the commission's exercise of its discretion. See State, ex rel. General Motors Corp., v. Indus. Comm. (1975), 42 Ohio St.2d 278, 71 O.O.2d 255, 328 N.E.2d 387; State, ex rel. Campbell, v. Indus. Comm. (1971), 28 Ohio St.2d 154, 57 O.O.2d 397, 277 N.E.2d 219.

However, mandamus may only issue if relator has demonstrated a clear legal right to the relief sought. State, ex rel. Hughes, v. Goodyear Tire & Rubber Co. (1986), 26 Ohio St.3d 71, 26 OBR 61, 498 N.E.2d 459; State, ex rel. Elliott, v. Indus. Comm. (1986), 26 Ohio St.3d 76, 26 OBR 66, 497 N.E.2d 70; State, ex rel. Teece, v. Indus. Comm. (1981), 68 Ohio St.2d 165, 22 O.O.3d 400, 429 N.E.2d 433. To show a clear legal right, relator must demonstrate that the commission abused its discretion by entering an order which is not supported by any evidence in the record. State, ex rel. Hutton, v. Indus. Comm. (1972), 29 Ohio St.2d 9, 58 O.O.2d 66, 278 N.E.2d 34; State, ex rel. Teece, v. Indus. Comm., supra. Where the record contains some evidence to support the commission's findings, there has been no abuse of discretion and mandamus will not lie. State, ex rel. Milburn, v. Indus. Comm (1986), 26 Ohio St.3d 119, 26 OBR 102, 498 N.E.2d 440; State, ex rel. Hughes, v. Goodyear Tire & Rubber Co., supra; State, ex rel. Elliott, v. Indus. Comm., supra; State, ex rel. Hudson, v. Indus. Comm. (1984), 12 Ohio St.3d 169, 12 OBR 237, 465 N.E.2d 1289; State, ex rel. Allerton, v. Indus. Comm. (1982), 69 Ohio St.2d 396, 23 O.O.3d 358, 433 N.E.2d 159; State, ex rel. Teece, v. Indus. Comm., supra; State, ex rel. GF Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St.2d 446, 20 O.O.3d 379, 423 N.E.2d 99.

A

Kroger contends that the Industrial Commission abused its discretion in awarding benefits to Stover pursuant to R.C. 4123.57(C) because it refused to consider the improvement of his vision by virtue of the corneal transplants.

Kroger asserts that Stover's loss of vision in the right eye was only twenty-five percent not eighty percent, and that Stover was not entitled to an award for his left eye since permanent loss could not be calculated until a corneal transplant was performed. Dr. George T. Stine, a commission specialist, reported that Stover's corrected vision in the...