Ohio: Comatose Injured Worker’s Additional Claim for Loss of Vision and Hearing Fails

The Supreme Court of Ohio, reversing an earlier decision by an intermediate appellate court, recently affirmed the state Industrial Commission’s denial of a loss of vision and hearing claim under Ohio’s scheduled injuries provision, Ohio Rev. Code § 4123.57, filed by (on behalf of) a worker who, following complications from surgery related to a compensable injury, remains in a persistent vegetative state [see State ex rel. Smith v. Industrial Comm’n, 2014-Ohio–513, 2014 Ohio LEXIS 265 (Feb. 18, 2014)]. 

Background

In 1995, the Industrial Commission allowed the worker’s claim for bilateral inguinal hernia. Postoperative complications from surgery to repair the hernia resulted in brain damage, leaving the worker 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.

The worker sought additional scheduled awards for the loss of vision in both eyes and the loss of hearing in both ears. The Industrial Commission denied the request for additional compensation based on the lack of any objective testing showing vision or hearing loss. The court of appeals reversed, finding that, for purposes of R.C. 4123.57(B), scheduled loss benefits could be awarded for a total loss of vision or hearing where the medical evidence considered “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 (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 the worker’s application.

Employer: Claimant Had Shown No Percentage Loss of Vision or Hearing

The employer appealed, contending in relevant part 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 contended that the Industrial Commission properly denied the additional award because the worker failed to present medical evidence showing any actual loss of vision or hearing.

The worker countered that an injured worker could receive an award for loss of vision or hearing despite the lack of definitive evidence quantifying the exact amount of the loss.

High Court: No Evidence Sight or Hearing Actually Lost

The high court agreed with the employer, noting that in the instant case, there was no evidence that the worker lost the sight of an eye. It observed further that the worker had already been awarded workers’ compensation benefits on the allowed condition of anoxic brain damage. Any inability to process sights and sounds in his brain directly resulted from that allowed condition. The medical evidence showed that the worker lacked the ability to process visual and auditory stimuli because there was no relay of the impulses past the brain stem to the visual cortex on either side and because there was a loss of efferent pathways from the mid brain and auditory nerve to the auditory cortex. There was apparently no test that could be performed to establish definitively whether he had an actual loss of sight in one or both eyes or an actual loss of hearing in one or both ears. The high court concluded, therefore, that the evidence presented to the Industrial Commission did not support a finding that the worker’s eyes and ears no longer functioned.

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