State ex rel. Smith v. Indus. Comm'n of Ohio

• Decision Date: 13 March 2012
• Docket Number: No. 11AP–61.,11AP–61.
• Citation: 2012 -Ohio- 1011,967 N.E.2d 259,197 Ohio App.3d 289
• Parties: STATE ex rel. SMITH, v. INDUSTRIAL COMMISSION OF OHIO et al.
• Court: Ohio Court of Appeals

197 Ohio App.3d 289

967 N.E.2d 259

2012 -Ohio- 1011

STATE ex rel. SMITH,

v.INDUSTRIAL COMMISSION OF OHIO et al.

No. 11AP–61.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided March 13, 2012.

Malek & Malek and Douglas C. Malek, for relator.

Michael DeWine, Attorney General, and Rema A. Ina, Assistant Attorney General, for respondent Industrial Commission of Ohio.

Dinsmore & Shohl, L.L.P., Michael L. Squillace, and Christen S. Hignett, Columbus, for respondent the Ohio State University.

FRENCH, Judge.

[Ohio App.3d 291]{¶ 1} Relator, George Smith, filed an original action that asks this court to issue a writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its order that denied relator's request for scheduled loss-of-use awards for the loss of his vision and hearing and to order the commission to find that he is entitled to those awards.

{¶ 2} This matter was referred to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, which includes findings of fact and conclusions of law and is appended to this decision, recommending that this court deny the requested writ. No objections have been filed regarding the magistrate's findings of fact, and we adopt them as our own.

I. BACKGROUND

{¶ 3} As detailed in the magistrate's decision, relator suffered a work-related injury in 1995. In the course of undergoing surgery to correct the resulting allowed condition, relator suffered a brain injury. Claims were allowed for bilateral inguinal hernia, anoxic brain damage, and seizure disorder.

{¶ 4} In 1998, the commission granted relator's application for permanent total disability (“PTD”). In 2004, the commission granted his motion for scheduled loss-of-use awards for the lost use of his legs and arms.

[Ohio App.3d 292]{¶ 5} In March 2009, Bienvenido D. Ortega, M.D., examined relator and reported that relator is in a “persistent vegetative state with complete dependency and subsistence on nursing care and artificial medical means of support.” Based on Dr. Ortega's report, relator moved for scheduled loss-of-use awards for the loss of his hearing in both ears and vision in both eyes.

{¶ 6} In a July 23, 2009 report, Ortega stated that “it appeared” relator “suffered from bilateral visual and hearing loss. These were felt to be part of the loss of brain function.” In an August 26, 2009 addendum, Ortega answered an inquiry whether “the allowed Anoxic Brain Injury has resulted in vision and hearing loss and the mechanism by which these losses occur.” In response, Ortega stated, “There is no reliable physical test or examination that could be conducted that will determine that the injured worker suffered definite vision and hearing loss as a result of the aforementioned injury.” While relator's responses indicated “intact optic nerves,” relator “did not respond to any testing of the visual or hearing senses because of his anoxic brain damage.”

{¶ 7} In a December 28, 2009 report, Robert M. Hess, M.D., agreed that relator's hearing and vision could not be tested, due to his inability to respond to external stimuli. Hess also agreed that relator's optic nerve appeared to be functional. Nevertheless, Hess found that relator “does not process any visual stimulation that is meaningful to him or can be used to improve his life situation.” In Hess's view, relator had lost both visual and auditory “function” because his brain cannot process the signals his eyes and ears receive. Hess specifically noted the Supreme Court of Ohio's decision in State ex rel. Gassmann v. Indus. Comm., 41 Ohio St.2d 64, 67, 322 N.E.2d 660 (1975), in which the court stated that “[f]or all practical purposes, relator has lost his legs to the same effect and extent * * * or otherwise physically removed.” Hess then stated: “I believe this applies to the visual loss and hearing loss” of relator. (By comparison, after examining relator in 2004, Hess reported that relator appeared to respond to certain words. Relator's visual acuity could not be tested, but Hess “doubt[ed] whether he has any significant cognitive and visual acuity in either eye.”)

{¶ 8} Following a hearing in January 2010, a staff hearing officer (“SHO”) denied relator's motion for scheduled loss awards. As to both vision and hearing loss, the SHO found that relator's requests were “not supported by medical evidence which evaluates and documents [vision and hearing] loss as a result of the allowed conditions in the claim.” The SHO expressly relied on Ortega's August 2009 addendum and also noted Ortega's report of his March 2009 examination.

{¶ 9} In this mandamus action, relator argued to the magistrate that the SHO should not have relied on Ortega's August 2009 addendum, because a representative of the Ohio Bureau of Workers Compensation (“BWC”) made the request for [Ohio App.3d 293]clarification of Ortega's March 2009 report by telephone and not in writing, as R.C. 4123.651(D) requires. Relator also contended that Ortega's reports were equivocal and contradictory. Finally, relator contended that the commission should have relied on Gassmann and similar cases to make an award because relator had lost his hearing and vision for all practical purposes.

{¶ 10} As noted, the magistrate concluded that the commission did not abuse its discretion by relying on Ortega's reports and by finding that relator had failed to support his requests for scheduled loss awards with medical evidence.

II. RELATOR'S OBJECTIONS

{¶ 11} Relator presents the following objections:

(1) The [State ex rel. Alcoa Bldg. Prods. v. Indus. Comm., 102 Ohio St.3d 341, 2004-Ohio-3166, 810 N.E.2d 946] standard in its current incarnation does not apply, but this standard must be extended to apply to the use of eyesight and hearing while subsiding in a persistent vegetative state.

(2) There is clear and convincing evidence that Relator has lost the use of his eyesight and hearing and to find that there is no evidence is an abuse of discretion.

(3) State ex rel. Lockheed Martin Corp. v. Channell, 10th Dist. No. 05–AP–311, 2006-Ohio-215, 2006 WL 158629, as it relates to the definition of hearing is not distinguishable from this case.

(4) The reports of Dr. Ortega are internally inconsistent and therefore, reliance upon only Dr. Ortega's Aug. 26, 2009 addendum without reconciling these internally inconsistent reports is an abuse of discretion by the Industrial Commission.

III. DISCUSSIONA. First and Third Objections: Defining the Applicable Standard

{¶ 12} In his first objection, relator contends that the standard articulated in Alcoa,Gassmann, and similar cases should apply to a determination whether relator, who exists in a persistent vegetative state, should receive scheduled loss awards for his lost vision and hearing. In his third objection, relator also contends that the analysis and holding in Lockheed should apply. To determine the appropriate standard, we decline relator's request to analyze and rely upon statutory schemes and common law applicable to circumstances outside the workers' compensation arena, including those that apply to life-support-removal situations. Instead, we turn to R.C. 4123.57(B) which authorizes specific weekly awards for the loss of a claimant's vision or hearing.

[Ohio App.3d 294]{¶ 13} “For the loss of the sight of an eye,” a claimant will receive 125 weeks of compensation. R.C. 4123.57(B). “For the permanent partial loss of sight of an eye,” a claimant may receive the percentage of 125 weeks BWC determines is 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” a 25 percent “loss of uncorrected vision.” R.C. 4123.57(B). For these purposes, “ ‘[l]oss of uncorrected vision’ means the percentage of vision actually lost as the result of the injury or occupational disease.” R.C. 4123.57(B).

{¶ 14} For the loss of hearing, a claimant may receive an award only if the claimant has suffered “permanent and total loss of hearing” in one or both ears. R.C. 4123.57(B). “For the permanent and total loss of hearing of one ear,” the award is equivalent to 25 weeks. R.C. 4123.57(B). “For the permanent and total loss of hearing,” the award is 125 weeks. R.C. 4123.57(B).

{¶ 15} The award provisions for the loss of an appendage refer to “the loss of” that appendage or a specified portion of an appendage. R.C. 4123.57(B). The Supreme Court of Ohio has interpreted these loss-of-appendage provisions to allow an award not only where an appendage has been severed or amputated, but also where a claimant has lost the use of an appendage for all practical purposes. See Alcoa; Gassmann; and State ex rel. Walker v. Indus. Comm., 58 Ohio St.2d 402, 390 N.E.2d 1190 (1979).

{¶ 16} In Alcoa, the Supreme Court recognized that a claimant could recover for the loss of an arm even where residual use of the arm remained. Citing a Pennsylvania case with approval, the court stated that “ ‘it is not necessary that the injured member of the claimant be of absolutely no use in order for him to have lost the use of it for all practical intents and purposes.’ ” Alcoa, 102 Ohio St.3d 341, 2004-Ohio-3166, 810 N.E.2d 946, at ¶ 13, quoting Curran v. Walter E. Knipe & Sons, Inc., 185 Pa.Super. 540, 547, 138 A.2d 251 (1958). Similarly, in State ex rel. Kroger Co. v. Johnson, 128 Ohio St.3d 243, 943 N.E.2d 541, 2011-Ohio-530, ¶ 15, the court stated that the retention of “residual function” in a claimant's hand did not automatically defeat his claim for loss of use. Rather, “the pivotal question is how much function remains.” Id.

{¶ 17} R.C. 4123.57(B) requires different proof to support a loss of vision or hearing, however. As to vision, the statute allows recovery for a total or permanent partial “loss of sight.” R.C. 4123.57(B). If the loss is less than total, BWC must determine the percentage of the loss and grant an...