Summary
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."
Summary of this case from State ex rel. Beyer v. Autoneum N. Am., Inc.Opinion
No. 87-159
Decided May 11, 1988.
Workers' compensation — Loss of vision — Aggravation of pre-existing disease — Percentage of vision loss calculated, how — R.C. 4123.57(C).
APPEAL from the Court of Appeals for Franklin County.
Claimant, Bob Dunkle, was injured on September 30, 1981, during the course of and arising out of his employment with appellant, Spangler Candy Company, when a foreign body lodged in his left eye while he was operating a lathe. Dunkle's claim for workers' compensation was allowed by the self-insured employer for "foreign body left eye with conjunctional infection due to foreign body."
On September 22, 1983, claimant filed a motion requesting an award of compensation for loss of vision pursuant to R.C. 4123.57(C). This motion was heard by a district hearing officer who issued an order stating, in pertinent part, that:
"It is the finding of the District Hearing Officer based on Dr. R.L. Hargis's [ sic] September 2, 1983, report indicates claimant's unaided visual acuity based on his July 17, 1978 examination. Dr. Richard M. Koop indicates that said pre-injury figures indicate a visual efficiency in the left eye of 16% and a post-injury vicual [ sic] efficiency in the left eye of 3-5% uncorrected vision. Ohio Revised Code Section 4123.57(C), in the 23rd paragraph, indicates that:
"[`"]Loss of uncorrected vision["] means the percentage of vision actually lost as the result of the injury or occupational disease.'
"Therefore, the percentage of vision actually lost as a result of the injury equals 16% pre-injury visual efficiency minus the 3-5% post-injury visual efficiency equals 11 to 13% percentage of vision actually lost. O.R.C. Section 4123.57(C) further provides that `in no case shall an award of compensation be made for less than twenty-five percent loss of uncorrected vision.'
"Therefore, claimant's motion is denied as no award can be made for a 13% loss of vision."
Claimant appealed this order to the regional board of review. The board issued an order affirming the order of the district hearing officer in all respects. Claimant then appealed to the Industrial Commission which issued an order on November 26, 1984, stating:
"Claim previously allowed for: foreign body left eye
"It is the finding and order of the Hearing Officers that the claimant's appeal filed 8-7-84 be granted. The order of the Regional Board of Review is vacated. The Commission finds that claimant's uncorrected pre-injury vision of left eye was 16% and post-injury vision of said eye is 5%, based on report of Dr. Koop. It further finds that the injury (foreign body) aggravated the herpetic condition of the left eye as per Dr. Koop and Dr. Bennett. It is therefore ordered that claimant be awarded 68.75 percent loss of vision of the left eye under R.C. 4123.57(C)."
A motion for reconsideration of this order was subsequently denied by the commission.
Appellant filed for a writ of mandamus in the Court of Appeals for Franklin County urging that the Industrial Commission abused its discretion by granting claimant an award pursuant to R.C. 4123.57(C). In an opinion rendered on December 2, 1986, the court of appeals denied the writ of mandamus. The court held that the commission could have reasonably found from the evidence presented that claimant incurred a 68.75 percent loss of vision pursuant to R.C. 4123.57(C). The court further held that it was not an abuse of discretion that such a finding of loss of vision included the effects of the herpetic condition of the left eye, which was aggravated by the injury but was not formally allowed as part of the claim.
The cause is now before this court on an appeal as of right.
Baker Hostetler and Stephen J. Habash, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Gerald H. Waterman, for appellee.
The first issue before this court is whether the commission improperly allowed an award for permanent partial disability based on the unallowed condition of an aggravation of the herpetic condition of the left eye caused by the injury of "foreign body left eye." Appellant urges that the commission recognized an entirely new medical condition in awarding permanent partial disability. Further, appellant argues the order of the commission denied it due process inasmuch as it was not permitted to dispute the finding based upon the new medical condition.
The appropriate standard to determine whether a pre-existing disease was accelerated by an injury and is therefore compensable is set forth in Swanton v. Stringer (1975), 42 Ohio St.2d 356, 71 O.O. 2d 325, 328 N.E.2d 794. In that case, this court held, in part, in paragraph one of the syllabus, that:
"a. A disabling condition, resulting from a pre-existing disease and claimed to have been accelerated by an injury in the course of and arising out of employment, is compensable under the Workmen's Compensation Act, where it is established that such disability was accelerated by a substantial period of time as a direct and proximate result of such injury."
Clearly, appellant was aware of claimant's pre-existing herpetic condition. In disputing claimant's application for permanent partial disability, Spangler, in a letter dated November 4, 1983, noted that claimant had "a history of herpetic infections in both eyes. The employer questions sight loss as a result of the herpetic infections as opposed to a foreign body in the eye."
The medical testimony was provided by two doctors. Dr. Thomas W. Bennett ultimately concluded that "* * * this presumed viral flare-up was stimulated by the episode related to the foreign body. I think it only fair, then, to assume that the reported foreign body was the proximal cause of the difficulty * * *."
Dr. Bennett, in another letter, noted that "* * * the treatment Mr. Dunkel received in October 1981 was related to the reported foreign body in the left eye, even though it may have been caused by a viral reaction. * * * I think it would be reasonable to assume that with the course of treatments through the end of 1981 the viral inflammation had been activated by the foreign body and that for my treatment from July 1982 the flare-ups cannot be traced directly to the foreign body."
A second medical expert, Dr. Richard Koop, noted in his "Report of Special Eye Examination" that:
"It is my finding at this time that the patient does have significantly reduced vision in the left eye which is secondary to a central corneal scar of moderate degree. The etiology of the central corneal scar left eye is quite probably related to the history of herpes involvement of the central cornea. The probability of the herpes being aggravated by a foreign body or corneal abrasion is my impression from the history."
Further, in an interview memo, a commission employee noted that Dr. Koop provided the further information that he believed the visual efficiency of the claimant prior to the injury was at sixteen percent and the efficiency after the injury was at three to five percent. The memo also contains the information that probably only one-half of the loss of visual efficiency might be attributable to the injury.
The order of the district hearing officer did not discuss whether the pre-existing disease was aggravated by the allowed condition. Rather, the order concentrated only on whether claimant had suffered a percentage loss permitted by statute. The order denied claimant an award of permanent partial disability only on the basis that he had experienced an eleven to thirteen percent actual loss of vision. Because this vision loss was less than the permitted twenty-five percent as specified in R.C. 4123.57(C), the district hearing officer determined that the award should be denied.
The commission reversed the decision of the hearing officer on the basis first that the injury aggravated a pre-existing condition of the left eye and also that the practical loss of vision was 68.75 percent.
In applying the standards of Swanton, supra, it is clear that the claimant had a disabling condition. This condition resulted from the worsening of a pre-existing disease. The issue, therefore, is whether this condition was accelerated by the allowed injury of "foreign body left eye" and whether the disability was accelerated by a substantial period of time as a direct and proximate result of the injury.
In determining whether a claimant has established that a disability was accelerated by a substantial period of time as a direct and proximate result of an allowed injury the commission need only have some evidence that the disability was accelerated.
The report of Dr. Koop is some evidence that the pre-existing disease was aggravated and the disability was accelerated by the allowed condition. Koop noted that "[t]he probability of the herpes being aggravated by a foreign body or corneal abrasion is my impression from the history. I do not feel that the corneal foreign body of and by itself would have caused this degree of scarring." This determination is subject to correction by action in mandamus only upon a showing of an abuse of discretion. State, ex rel. Haines, v. Indus. Comm. (1972), 29 Ohio St.2d 15, 58 O.O. 2d 70, 278 N.E.2d 24. It cannot be said that, on the basis of the record before it, the commission's order in question was for a condition not allowed in the claim. State, ex rel. Internatl. Harvester Co., v. Indus. Comm. (1975), 43 Ohio St.2d 40, 72 O.O. 2d 23, 330 N.E.2d 660. To this extent, the judgment of the court of appeals is affirmed.
We must next determine whether the commission abused its discretion by calculating claimant's vision loss as being 68.75 percent. R.C. 4123.57(C) allows recovery for permanent partial loss of sight only where the amount of vision loss is twenty-five percent or greater. Appellant calculates the percentage by subtracting the percentage of vision remaining from the percentage of vision which a claimant originally had. In this case, appellant calculates claimant's vision loss as eleven percent. Therefore, according to appellant, because claimant's vision loss was less than twenty-five percent, the claimant is not able to receive an award for permanent partial loss of sight of an eye. Appellant relies on the case of State, ex rel. Nastuik, v. Indus. Comm. (1945), 145 Ohio St. 287, 30 O.O. 503, 61 N.E.2d 610.
In Nastuik, this court held, in paragraph one of the syllabus, that:
"An employee is not entitled to workmen's compensation for the loss of the sight of an eye through injury sustained in the course of and arising out of his employment, where he was industrially blind in that eye before the injury." (Emphasis added.)
R.C. 4123.57(C) (now [B]) provides, in pertinent part, that:
"For the permanent partial loss of sight of an eye, such portion of one hundred twenty-five weeks as the commission may in each case determine, 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."
The predecessor of R.C. 4123.57 (C) discussed in Nastuik, G.C. 1465-80, did not contain the term "uncorrected vision."
The premise of paragraph one of the syllabus in Nastuik is that industrial blindness in an eye before injury precludes recovery. The insertion by the General Assembly of the term "uncorrected vision" indicates a rejection of that premise.
The commission calculated claimant's percentage of vision loss by deducting the amount of vision remaining in the eye from the percentage of vision claimant had before the allowed injury. The commission concluded that claimant lost eleven-sixteenths of his pre-injury uncorrected vision of sixteen percent, which equated to a 68.75 percent loss of vision and, therefore, claimant was entitled to an award based on this percentage loss.
The commission is vested with the authority to interpret and implement legislation passed by the General Assembly. R.C. 4123.95 dictates that workers' compensation legislation shall be liberally construed in favor of employees. Therefore, the commission did not abuse its discretion in determining that, for purposes of R.C. 4123.57(C), 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.
However, appellant does raise the issue that there is no evidence to support the conclusion of the commission that the entire vision loss, 68.75 percent, was attributable to the allowed injury. The only evidence of vision loss percentages was provided by Dr. Koop. While that report is some evidence that vision loss occurred due to the allowed injury, an interview memo based on a conversation with Dr. Koop also reveals that he indicated that "probably only 1/2 might be attributable to the injury." Dr. Bennett's reports do not indicate any percentage of vision loss. Therefore, the medical evidence revealed that only half of the vision loss could be attributable to the allowed injury and the commission did abuse its discretion in holding that the entire amount of vision loss, 68.75 percent, was attributable to the injury. To this extent, the judgment of the court of appeals is reversed.
The judgment of the court of appeals is affirmed in part and reversed in part, and a limited writ is issued to the commission with instructions to reduce by one-half the compensation awarded to claimant for a loss of vision.
Judgment affirmed in part, reversed in part and limited writ allowed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS and H. BROWN, JJ., concur.
WRIGHT, J., concurs in judgment only.