Late last year the Ohio Supreme Court decided State ex rel. Baker v. Coast to Coast Manpower, 129 Ohio St. 3d 138. In a 4-3 decision, the court upheld the 10th District Court of Appeal’s finding that surgical correction is not to be considered in determining a loss of vision award. This is not a change in the law. But, the Court’s split decision is of concern as it relates to future loss of vision awards and determinations.

The claimant in State ex rel. Baker v. Coast to Coast Manpower sustained a laceration of his cornea. The cornea was sutured closed and Baker sustained a negligible loss of vision. However, over the course of time, the claimant began to develop a cataract resulting in an eight percent loss of his vision. The claimant then underwent a corneal transplant to correct the vision loss. Baker contended that it was the surgery that created his loss of vision with the removal of his natural cornea. However, in applying the statute as written, the court focused on the statutory requirement that a twenty-five percent loss of vision be sustained before an award could be made. Further, in reliance upon State ex rel. Kroger, the court noted that this twenty-five percent loss was to be considered prior to surgical intervention.

Justice Cupp, concurring with the majority, issued a separate opinion expressing hope that updates in medical science will soon guide determinations related to visual improvement. This concurring opinion raised the contention that by relying on Kroger, the Court was still relying on the state of medical science as it existed over twenty years ago. Justice Cupp suggested that it may now be time to consider technological advances to surgical procedures as being restorative in nature, as opposed to corrective, and advanced that the Commission should be able to make this determination when considering a loss of vision award.

The restorative versus corrective debate created by Kroger stems from the statutory language of loss of use awards. The statute is clear that loss of use of eyesight is measured based on the loss of uncorrected visual acuity in comparison to the visual acuity that existed before the injury. Procedures undertaken to correct post- injury eyesight could not be considered in calculating the award, regardless of the outcome of the procedure.

What makes Baker so concerning is the fact that Justice McGee-Brown, writing for a three justice dissent, also suggested that modern medical science should be considered in the award, thus signaling a shift from the corrective to restorative analysis. But, going further than Justice Cupp, she also suggested that surgical removal of the lens itself should entitle the injured worker to a 100% loss of vision award, thus invalidating the rule of law in Kroger.

At this time, Kroger is still good law and thus pre-surgical visual acuity is the determining factor when the Commission is asked to evaluate a loss of vision award. However, based largely on the fact that Justice Cupp and the dissenters make up a majority wishing to see change in this area of the law, a statutory change to the method of evaluation, or one imposed by judicial interpretation, could not be far off. Surprisingly, there are presently a number of similar cases pending before this court and, as the four justices suggested, the right set of facts may prompt a different result.

In the meantime, being proactive in the handling of loss of vision issues is key. Justice McGee-Brown suggested that if the state of the law did not change, injured workers would be faced with the option of delaying treatment in order to maximize their recovery. She further feared that injured workers would consult with a lawyer before deciding on appropriate medical treatment. If an injured worker has an eye injury where surgery is anticipated, claims managers should make every effort to obtain support of the injured workers’ pre-injury visual acuity. Also, it is advisable to consider utilizing a nurse case manager to work with the injured worker and his physician of record to facilitate any corrective surgery quickly and while visual acuity loss is minimal.

Should you have questions or issues related to the loss of vision issue, please contact one of our Workers’ Compensation Practice Group Members.

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