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State ex rel. Beyer v. Autoneum North America, Inc.

Court of Appeals of Ohio, Tenth District

May 1, 2018

The State ex rel. Thomas H. Beyer, Relator,
v.
Autoneum North America, Inc. et al., Respondents.

         IN MANDAMUS ON OBJECTION TO THE MAGISTRATE'S DECISION

         On brief:

          Spitler & Williams-Young Co., L.PA., William R. Menacher, and Steven M. Spitler, for relator.

          Michael DeWine, Attorney General, and Patsy A. Thomas, for respondent Industrial Commission of Ohio.

         Argued:

          Steven M. Spitler

          Patsy A. Thomas.

          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 LocR. 13(M) of the Tenth District Court of Appeals. The magistrate issued the 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 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.

         {¶ 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 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.

         APPENDIX

Rendered on November 28, 2017

IN MANDAMUS

         MAGISTRATE'S DECISION

          KENNETH W. MACKE, MAGISTRATE JUDGE

         {¶ 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 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 ...


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