State ex rel. Smith v. Indus. Comm'n of Ohio
| Decision Date | 18 February 2014 |
| Docket Number | No. 2012–0734.,2012–0734. |
| Citation | 138 Ohio St.3d 312,6 N.E.3d 1142 |
| Parties | The STATE ex rel. SMITH, Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Appellee; Ohio State University, Appellant. |
| Court | Ohio Supreme Court |
OPINION TEXT STARTS HERE
Malek & Malek, Columbus, and Douglas C. Malek, for appellee George Smith.
Michael DeWine, Attorney General; and Dinsmore & Shohl, L.L.P., Michael L. Squillace, and Christen S. Hignett, Columbus, for appellant.
{¶ 1} The Ohio State University appeals from a judgment of the Tenth District Court of Appeals that granted a writ of mandamus ordering the Industrial Commission to conduct a new adjudication of George Smith's application requesting compensation for the scheduled loss of his vision and hearing pursuant to R.C. 4123.57(B).
{¶ 2} Smith has been diagnosed with anoxic brain damage resulting from complications of surgery following an injury he sustained while working for the university. Tragically, he remains in a persistent vegetative state. Because of this condition, no test can be performed to determine whether he has suffered an actual loss of sight in one or both eyes or an actual loss of hearing in one or both ears, and the medical evidence shows that Smith is unable to process sights and sounds because of damage to his brain, not because of any injury to his eyes or ears. However, the General Assembly has not included loss of brain-stem functioning in the schedule for compensation set forth in R.C. 4123.57.
{¶ 3} Accordingly, the Industrial Commission properly denied the claim seeking additional compensation for loss of vision and hearing, and therefore, the judgment of the court of appeals is reversed.
{¶ 4} In 1995, George Smith suffered an injury while working for the Ohio State University. The Industrial Commission initially allowed his claim for bilateral inguinal hernia, but postoperative complications from surgery to repair the hernia resulted in brain damage, leaving Smith in a persistent vegetative state. He amended the claim to add the conditions of anoxic brain damage and seizure disorder, and in 1998, the Industrial Commission awarded him benefits for permanent total disability. In 2004, it granted additional benefits for the scheduled loss of use of both of his arms and legs.
{¶ 5} In March 2009, Dr. Bienvenido Ortega examined Smith to determine the extent of his medical impairment. Dr. Ortega noted that Smith showed no comprehension of language and did not respond to verbal questions. He also observed that although Smith's gaze was fixed, his pupils reacted to bright light, signifying that his optic nerves remained intact. Dr. Ortega concluded that Smith had bilateral vision and hearing loss caused by the loss of brain function.
{¶ 6} Smith sought additional scheduled awards for the loss of vision in both eyes and the loss of hearing in both ears. On August 26, 2009, Dr. Ortega issued an addendum to his report in which he stated,
{¶ 7} On December 28, 2009, Dr. Robert Hess examined Smith at the request of his counsel and agreed that “Smith's hearing and vision cannot be tested due to the claimants' [sic] inability to respond to external stimuli.” He also recognized that “the optic nerve, with its central connections in the mid brain which activate a reactive pupil to light[,] * * * is functional.” However, he opined that Smith is not able to “process any visual stimulation that is meaningful to him or can be used to improve his life situation,” because “no significant relay of the impulses past the brain stem to the visual cortex on either side exists.” Dr. Hess therefore concluded that Smith suffered “a loss of function as if the effector organ has been traumatically removed.” He also stated that he “[did] not believe that [Smith] hears or is able to receive communication that he can respond to, also because of loss of efferent pathways from the mid brain and auditory nerve to the auditory cortex bilaterally in the posterior superior temporal lobes.” Based on his observations, Dr. Hess concluded that Smith had lost the ability to process visual and auditory stimuli and, therefore, for all practical purposes, had lost the ability to see and hear.
{¶ 8} After considering the evidence presented, the Industrial Commission denied Smith's request for additional compensation based on the lack of any objective testing showing vision or hearing loss.
{¶ 9} Smith filed a complaint for a writ of mandamus in the Tenth District Court of Appeals seeking to compel the Industrial Commission to vacate its order denying his application and to find that he is entitled to awards for loss of use of his eyes and ears. The court of appeals held that for purposes of R.C. 4123.57(B), scheduled loss benefits may be awarded “for a total loss of vision or hearing where the medical evidence considers the practical application of clinical or other data showing a loss of 100 percent or less.” 197 Ohio App.3d 289, 2012-Ohio-1011, 967 N.E.2d 259, ¶ 23 (10th Dist.). Because the commission did not apply that standard, the appellate court issued a writ of mandamus ordering the commission to conduct a new adjudication of Smith's application. Id. at ¶ 26.
{¶ 10} The Ohio State University appealed as of right, asserting that R.C. 4123.57(B) permits an award for loss of vision when the claimant presents evidence showing the percentage of vision actually lost and authorizes an award for loss of hearing when the loss is shown to be permanent and total. It contends on this appeal that the Industrial Commission properly denied the additional award because Smith failed to present medical evidence showing any actual loss of vision or hearing.
{¶ 11} Smith maintains that an injured worker may receive an award for loss of vision or hearing despite the lack of definitive evidence quantifying the exact amount of the loss. He asserts that the loss of the brain's ability to process visual or auditory stimuli—i.e., to comprehend sights and sounds—is equivalent to a loss of functioning of the eyes and ears and for all practical purposes he cannot see or hear because he remains in a persistent vegetative state. He notes that in other contexts, the law recognizes that one lacking brain-stem functioning exists in a permanent unconscious state. According to Smith, the medical evidence therefore supports his claim for compensation for loss of vision and hearing because Dr. Ortega and Dr. Hess agreed that Smith cannot use his senses of sight and hearing.
{¶ 12} Therefore, the issue is whether R.C. 4123.57(B) permits an award of compensation for the scheduled loss of vision or hearing when the inability to comprehend sights or sounds results from a lack of brain-stem function.
{¶ 13} R.C. 4123.57(B) authorizes compensation for a specific number of weeks for the loss of sight and hearing as follows:
For the loss of the sight of an eye, one hundred twenty-five weeks.
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.
For the permanent and total loss of hearing of one ear, twenty-five weeks; but in no case shall an award of compensation be made for less than permanent and total loss of hearing of one ear.
For the permanent and total loss of hearing, one hundred twenty-five weeks; but, except pursuant to the next preceding paragraph, in no case shall an award of compensation be made for less than permanent and total loss of hearing.
(Emphasis added.) Notably, the statute provides for compensation for the loss of sight of one or both eyes and the loss of hearing of one or both ears. R.C. 4123.57 does not, however, provide for compensation for a loss of brain-stem functioning that precludes the claimant from processing and understanding the visual and auditory stimuli that are received by functioning eyes and ears.
{¶ 14} The court of appeals relied on State ex rel. AutoZone, Inc. v. Indus. Comm., 117 Ohio St.3d 186, 2008-Ohio-541, 883 N.E.2d 372;State ex rel. Kincaid v. Allen Refractories Co., 114 Ohio St.3d 129, 2007-Ohio-3758, 870 N.E.2d 701; and State ex rel. Sheller–Globe Corp. v. Indus. Comm., 66 Ohio St.2d 51, 419 N.E.2d 1084 (1981), to support the proposition that a claimant may receive compensation for a total loss of vision or hearing “where the medical evidence considers the practical application of clinical or other data showing a loss of 100 percent or less.” 197 Ohio App.3d 289, 2012-Ohio-1011, 967 N.E.2d 259, ¶ 23. But each of these cases involved injuries to the eyes or ears, not the brain stem. In AutoZone, the claimant perforated his left eye with a screwdriver while installing a wiper blade; in Kincaid, the claimant sustained an injury to his face that damaged his eyes and also resulted in scintillating scintellens, a condition causing periodic ocular disturbances in the eye; and in Sheller–Globe Corp., the claimant suffered an unspecified injury that resulted in a hearing loss in both ears. In none of these cases was an injured worker awarded compensation for the inability of the brain to process visual or auditory signals caused by a loss of brain-stem function.
{¶ 15} R.C. 4123.57 authorizes compensation for loss of sight when the claimant shows an actual loss of vision as result of...
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