[Cite as State ex rel. Bowman v. Indus. Comm., 2020-Ohio-5343.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Cami R. Bowman, :
Relator, :
v. : No. 19AP-109
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
D E C I S I O N
Rendered on November 19, 2020
On brief: Charles Zamora Co. L.P.A., and Charles Zamora,
for relator.
On brief: Dave Yost, Attorney General, and Natalie J.
Tackett, for respondent Industrial Commission of Ohio.
On brief: Perez & Morris, L.L.C., Juan Jose Perez,
Richard A. Hernandez, and Julian Heinrich, for respondent
Wexner Medical Center at The Ohio State University.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Cami R. Bowman, initiated this original action requesting this court
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order awarding her a 45 percent loss of vision of her left eye
and a 0 percent increase above a previously awarded 67 percent loss of vision for her right
eye, and ordering the commission to find that she is entitled to a 70 percent bilateral loss
of vision award.
No. 19AP-109 2
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R. 53
and Loc.R. 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
determined that Bowman demonstrated the commission abused its discretion in denying
her requested award, and that this court should issue a writ of mandamus ordering the
commission to find that Bowman met her burden of proving that she has a 70 percent
bilateral loss of vision and to accordingly grant the requested award.
{¶ 3} The commission has filed objections to the magistrate's decision.
Respondent, Wexner Medical Center at The Ohio State University ("OSU"), has joined in
those objections. The commission and OSU ("respondents") first contend the magistrate
improperly reweighed the evidence to determine that Bowman is entitled to a 70 percent
bilateral loss of vision award. Relatedly, respondents argue the magistrate improperly
substituted her evaluation of the evidence for that of the commission. And lastly,
respondents argue the magistrate ignored the statutory requirements for a loss of vision
award. Generally, respondents' objections center on whether the magistrate erred in
finding the commission abused its discretion in denying Bowman's request for a 70 percent
bilateral loss of vision award. For the following reasons, we find these objections lack merit.
{¶ 4} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, the relator must show a clear legal right to the relief
sought, the commission has a clear legal duty to provide such relief, and there is no plain
and adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus.
Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of mandamus exists where the
relator shows that the commission abused its discretion by entering an order which is not
supported by any evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio
St.3d 76 (1986). However, where the record contains some evidence to support the
commission's findings, there has been no abuse of discretion and mandamus is not
appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (1987). Thus,
at issue here is whether some evidence in the record supported the commission's denial of
Bowman's requested award for loss of vision. We concur with the magistrate's conclusion
that the commission's denial was not supported by some evidence.
No. 19AP-109 3
{¶ 5} 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., v.
Indus. Comm., 129 Ohio St.3d 138, 2011-Ohio-2721, ¶ 20 (plurality), citing La-Z-Boy
Furniture Galleries at ¶ 16; State ex rel. GE Corp. v. Indus. Comm., 103 Ohio St.3d 420,
2004-Ohio-5585, ¶ 16. Further, "[b]ecause the commission lacks medical expertise, claims
involving medical determinations may be established only by submitting appropriate
medical evidence." State ex rel. Beyer v. Autoneum N. Am. v. Indus. Comm., 157 Ohio St.3d
316, 2019-Ohio-3714, ¶ 12. Consequently, a claimant's degree of visual impairment "must
be evaluated by a physician and addressed in the medical evidence submitted to the
commission." Id. at ¶ 13. Conversely, the commission cannot independently apply
standard medical guidelines to determine a claimant's percentage of partial vision
impairment. Id. at ¶ 14-17.
{¶ 6} Therefore, in view of Bowman's request for an award of 70 percent bilateral
loss of vision under R.C. 4123.57(B), she had the burden of demonstrating, with medical
evidence, that her industrial injury caused that degree of visual impairment. The
commission denied the request based on its finding that Bowman did not meet her burden.
In particular, the commission found that Marshall Wareham, M.D., in his May 18, 2018
report and September 17, 2018 addendum report, concluded that Bowman suffered a 65
percent loss of vision in her right eye and 45 percent loss of vision in her left eye. But, as
the magistrate determined, the commission's reliance on only a certain limited aspect of
No. 19AP-109 4
Dr. Wareham's reports misconstrued this physician's opinion as to the extent of Bowman's
vision impairment.
{¶ 7} In a December 18, 2016 report, Wesley J. Harnish, M.D., opined that the
American Medical Association Guides to the Evaluation of Permanent Impairment (5th
Ed.2001) ("AMA Guides") does not provide an appropriate means to determine the extent
of Bowman's vision impairment. He further opined that Bowman has lost 70 percent of her
vision in both eyes based on her substantial loss of functional vision. In Dr. Wareham's
May 18, 2018 report, he agreed with Dr. Harnish's assessment regarding the
inappropriateness of strictly following the AMA Guides in this circumstance and his
conclusion that Bowman has a 70 percent bilateral loss of vision. In reviewing Bowman's
award request, the commission faulted Drs. Harnish and Wareham for not strictly adhering
to the AMA Guides, and it referred the matter back to the Administrator of the Bureau of
Workers Compensation to have Dr. Wareham opine as to Bowman's loss of vision using the
standard guidelines without reservation. In Dr. Wareham's amended report, and as
directed by the commission, he limited his analysis to impairment percentages derived
from strict application of the AMA Guides. He did not, however, negate his previously
provided full analysis of Bowman's degree of impairment, which considered Bowman's
vision loss inadequately addressed by the AMA Guides. In denying Bowman's award
request, the commission accepted the portion of Dr. Wareham's report and addendum
complying with its directive but excluded the remainder. The magistrate reasoned that this
constituted an abuse of discretion because the commission did not acknowledge the
medical experts' consensus that strict application of the AMA Guides "does not * * * do
justice to her actual impairment." (App'x. at ¶ 45.)
{¶ 8} Respondents challenge the magistrate's statement that measurement of
Bowman's visual impairment using the AMA Guides does not "do justice" to her actual
impairment. Respondents assert that the "do justice" language reflects the magistrate's
improper weighing of the equities to determine what, in her view, is fair. They contend the
magistrate substituted her factfinding judgment for that of the commission. We disagree.
Respondents correctly assert that Dr. Wareham's report and addendum indicate that
strictly applying the AMA Guides would result in a finding that Bowman has a 65 percent
vision loss in her right eye and 45 percent vision loss in her left eye. But, as the magistrate
No. 19AP-109 5
noted, Drs. Harnish and Wareham agreed that the degree of Bowman's impairment could
not be adequately assessed using the AMA Guides. Thus, the magistrate's reference to
doing "justice" was not an improper attempt to apply her own subjective view of fairness.
It was an acknowledgment of the physicians' view that limiting an analysis of Bowman's
visual impairment to the percentages reflected in the AMA Guides was not sufficiently
accurate in defining her impairment. In view of that qualification based on the unique
circumstances found in this case, we agree with the magistrate that those percentages could
not be relied upon by the commission. Therefore, we reject respondents' argument that the
magistrate improperly reweighed the evidence or improperly substituted her view of the
evidence for that of the commission.
{¶ 9} Respondents also argue the magistrate erroneously viewed the comparison
between pre-injury and post-injury measurements as not the operative measure of
impairment for the purpose of R.C. 4123.57(B). We disagree. In her decision, the
magistrate noted that, even if Bowman's Snellen fractions were 20/20 before and after the
injury, the medical evidence demonstrates that the myriad conditions negatively affecting
her ability to see not reflected in those measurements are significant. Contrary to
respondents' suggestion, the magistrate did not dismiss the comparison between pre-injury
and post-injury measurements. Instead, she emphasized the import of the experts'
opinions that the degree of Bowman's impairment cannot be adequately quantified using
Snellen fraction measurements and percentage reductions set forth in the AMA Guides.
Further, the magistrate correctly noted all the pertinent medical evidence demonstrated
Bowman's actual bilateral visual impairment is at least 70 percent. Therefore, we reject
respondents' contention that the magistrate ignored the statutory requirements for a loss
of vision award.
{¶ 10} For these reasons, we find respondents' objections to be without merit.
{¶ 11} Following our independent review of the record pursuant to Civ.R. 53, we find
the magistrate correctly determined that Bowman is entitled to the requested writ of
mandamus. The magistrate properly determined the salient facts and applied the pertinent
law to those facts. Therefore, we adopt the magistrate's decision as our own, including the
findings of fact and conclusions of law. Accordingly, we overrule respondents' objections
to the magistrate's decision and grant Bowman's request for a writ of mandamus. The
No. 19AP-109 6
commission is hereby ordered to vacate its order denying Bowman's 70 percent bilateral
loss of vision award request, and to enter an order granting that request.
Objections overruled;
writ of mandamus granted.
SADLER, P.J., and BROWN, J., concur.
No. 19AP-109 7
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
The State ex rel. Cami R. Bowman, :
Relator, :
v. : No. 19AP-109
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on June 30, 2020
Charles Zamora Co. L.P.A., and Charles Zamora, for relator.
Dave Yost, Attorney General, and Natalie J. Tackett, for
respondent Industrial Commission of Ohio.
Perez & Morris, L.L.C., Juan Jose Perez, Richard A.
Hernandez, and Julian Heinrich, for respondent Wexner
Medical Center at The Ohio State University.
IN MANDAMUS
{¶ 12} Relator, Cami R. Bowman, has filed this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which awarded her a 45 percent loss of vision of her
left eye and a 0 percent increase above a previously awarded 67 percent loss of vision for
her right eye, and ordering the commission to find that she is entitled to a 70 percent
bilateral loss of vision.
No. 19AP-109 8
Findings of Fact:
{¶ 13} 1. On December 30, 2005, relator was working as a nurse for respondent-
employer, Wexner Medical Center at The Ohio State University ("OSU"). She was
attending a work holiday party and ate some lunch meat provided at the event. Later that
same day, relator became ill. It was later determined that she contracted a shiga toxin
strain of escherichia ("E. Coli").
{¶ 14} 2. No one could have anticipated the unprecedented degree of injury that
would follow her exposure to this particular strain of E. Coli.
{¶ 15} 3. Ultimately, relator's workers' compensation claim would be allowed for
the following conditions:
E Coli/shiga toxin colitis; right blepharospasm; movement
disorder right eye; aggravation cataract right eye; right
anisometropia; left anisometropia; diplopia; dark adapted
electroretinography (ERG) changes; 67 percent loss of
uncorrected vision in right eye; nyctalopia bilateral eyes;
cataract left eye.
{¶ 16} Blepharospasm is defined in Taber's Cyclopedic Medical Dictionary 280
(23d Ed.2017) as "A twitching or spasmodic contraction of the orbicularis oculi muscle
due to tics, eye strain, or nervous irritability." In other words, involuntary closure or
twitching of the eye. Nyctalopia is defined at page 1668 as "inability to see well in faint
light or at night." Anisometropia is defined as the "condition in which the two eyes
have unequal refractive power. One eye may be myopic (nearsighted) and the other
hyperoptic (farsighted) or one eye may be markedly stronger than the other." See
http://www.medicinenet.com/script/main/art.asp?articlekey=20150. Diplopia is
commonly known as double vision.
{¶ 17} 4. On April 16, 2012, relator filed a motion to have a scheduled loss of
bilateral vision greater than 25 percent pursuant to R.C. 4123.57(B) based on reports from
Thomas Mauger, M.D, and Mary Lou McGregor, M.D. In his January 23, 2012 report,
Thomas Mauger, M.D., opined that relator had lost at least 25 percent of her functional
capacity based on her visual system. Specifically, Dr. Mauger stated:
Cami Bowman sustained an injury to her eyes concurrent with
her E. coli/Shigatoxin colitis that resulted in right eye
blepharospasm and a movement disorder of the right eye. She
No. 19AP-109 9
also had a secondary cataract which required removal and
resultant anisometropia. She has had ongoing problems using
her eyes and now with the increase in computer work do [sic]
the installation of an electronic medical record system at Ohio
State she is unable to function.
It is difficult to determine an exact percentage of loss, but I
feel, due to her motion disorder and blepharospasm, that she
has lost at least 25% to her functional capacity based on her
visual system.
I would note that she has seen Dr. Mary Lou McGregor for her
ocular motility problem and she might be able to be more
specific on the grading of this problem. Please contact me if
you have any questions regarding her care.
{¶ 18} In her April 4, 2012 report, Dr. McGregor opined that relator had a 50
percent loss of use of functional vision. Specifically, Dr. McGregor stated:
Following Cami's infection, she developed a cataract in the
right eye, which required surgery. Postoperatively, she has
had a constant problem with double vision and fusion. Prior
to the cataract surgery and immediately after the infection she
also developed an involuntary disruption of her normal eye
movements. She has blepharospasm and spontaneous
involuntary saccades. I believe this abnormal eye movement
is the most likely cause of the fusional difficulties and
diplopia. She has a small exotropia and right hypertropia,
which are objective and not subjective findings, which require
prism therapy. Even with the prism in her glasses she cannot
maintain fusion all the time, which makes driving much more
difficult and limits her to daytime driving. Even if she closes
one eye to get rid of the double vision, she still has the
abnormal eye movements which continue to cause problems.
Therefore, I feel that Cami has 50% loss of the use of her
functional vision, because it interferes with driving, use of a
computer, which makes it difficult for her in her daily job,
reading and other leisure activities.
{¶ 19} 5. The Bureau of Workers' Compensation ("BWC") obtained an
independent medical eye examination by Kathleen McGowan, M.D. In her July 16, 2012
report, Dr. McGowan noted the following during her examination:
Her uncorrected distal visual acuity is 20/100 OD and 20/50
OS. Her uncorrected near visual acuity is Jaeger one (+2) OD
No. 19AP-109 10
and Jaeger 7 OS. With correction of her refractive error with -
2.50+0.50×45 OD, her corrected distance acuity is 20/20 OD.
With refractive correction of -0.75+0.75 x 175 OS, her
corrected distance acuity is 20/20 OS. With a near add of
+2.50 OU her corrected near acuity is Jaeger 1+ OU. Pupil
reflexes are normal. Ocular motility is full and normal but
there are abnormal ocular movements that consist of
intermittent, seemingly involuntary, saccades to the right and
right-upward. There are intermittent episodes of seemingly
involuntary rapid blinking, and blinking with a fluttering
movement and prolonged closure of the lids. At times the right
upper lid is slower to descend in the blinking movement than
the left upper lid. Slit lamp examination reveals clear cornea
OD, and the faintly visible corneal scars from the LASIK
surgery OS. The corneal surfaces are dry with decreased pre-
corneal tear film. The anterior chambers and iris are normal
OU. There is a posterior chamber intraocular lens implant in
good position OD. The lens is clear OS. Intraocular pressures
are 14 mm Hg OD and 12 mm Hg OS. Dilated fundus
examination reveals normal pink optic nerves with 0.2
cup/disc ratio, normal macula, retinal vessels and periphery.
Goldmann visual fields were performed with a 111-4 white test
and the visual fields are full and normal OU.
{¶ 20} Thereafter, Dr. McGowan provided her opinion as to the percentage of loss
of vision per the AMA Guidelines, stating:
According to the AMA Guides to the Evaluation of Permanent
Impairment, 4th Edition, the uncorrected acuity in the right
eye of 20/100, Jaeger 1, corresponds to a 63% loss of central
vision (allowing for pseudophakia) (Table 3, page 212). There
is no loss of ocular motility or diplopia, but there are some
fleeting incursions of abnormal eye movements, which may be
assigned a discretionary value of 10% impairment. There is no
loss of visual fields. Combining the loss of central vision (63%)
with an additional 10% impairment for the abnormal eye
movements, results in a 67% impairment (Combined Values
Chart, page 322).
{¶ 21} 6. Relator's motion was heard before a district hearing officer ("DHO") on
September 13, 2012. The DHO denied the motion in its entirety, stating:
It is the finding of the Hearing Officer that the Injured Worker
is requesting a bilateral loss of use of uncorrected vision. The
Hearing Officer finds that the Injured Worker, prior to the
date of injury, did wear contacts. The medical records
No. 19AP-109 11
submitted do not take into account what the Injured Worker's
vision was prior to the date of injury. Neither Dr. McGregor
nor Dr. Mulder compared the Injured Worker's uncorrected
vision now versus her uncorrected vision prior to the date of
injury. In addition, Dr. McGowan in a report dated 7/16/2012,
states that the Injured Worker does not have bilateral loss of
vision. It is therefore the order the Hearing Officer that the
Injured Worker's request for a SCHEDULED LOSS OF USE
AWARD FOR BILATERAL LOSS OF VISION is
DENIED.
(Emphasis sic.)
{¶ 22} 7. Relator appealed, and the matter was heard before a staff hearing officer
("SHO") on October 23, 2012. The SHO vacated the prior DHO order and granted
claimant a 67 percent loss of vision of uncorrected vision in her right eye based on the
medical report of Dr. McGowan. The SHO denied the request for loss of vision of the left
eye also based on the report of Dr. McGowan.
{¶ 23} 8. The commission refused OSU's appeal.
{¶ 24} 9. Thereafter, relator developed a cataract in her left eye and nyctalopia,
and underwent cataract surgery for the left eye. Essentially, all the problems that relator
had previously developed in her right eye, she began developing in her left eye as well.
{¶ 25} 10. On March 21, 2018, relator filed a motion requesting a loss of
uncorrected vision bilaterally in the amount of 70 percent. Relator noted that the
commission had previously found that she had a 67 percent loss of uncorrected vision in
the right eye only, as such, relator was seeking a 3 percent increase in visual loss in her
right eye and a 70 percent loss of uncorrected vision in her left eye. Relator relied on the
previously filed reports of Drs. McGowan and McGregor.
{¶ 26} Relator also included the December 18, 2016 report of Wesley J.
Harnish, M.D., who was asked to utilize the Fifth Edition American Medical Association
("AMA") Guidelines and provide his medical opinion concerning relator’s percentage of
permanent partial disability. He was also asked to review the May 9, 2016 report of Dr.
Jacobson, and provide a detailed explanation regarding if Jacobson applied the Fifth
Edition of the AMA Guidelines properly. (Dr. Jacobson had opined that relator had a 0
percent permanent partial impairment due to the fact that her corrected vision was 20/20
No. 19AP-109 12
in each eye. He also was unable to test whether or not she had diplopia or night vision
problems, and he believed she should restart Botox injections for blepharospasm.
However, given the persistent blepharospasm and other problems, he opined that 20
percent impairment was fair.) Dr. Harnish responded:
The measurement of Snellen visual acuity is inappropriate
when trying to evaluate her ability to see. She can only fix on
a target for a few microseconds at a time. Despite normal
acuity, the ability of the brain to use that data is much
impaired. I cannot, should not and will not give an answer to
a misleading question. The AMA guidelines are not and never
were intended to evaluate this situation. The ability to use
visual field data is dependent on the eye being fixed on a target
and therefore visual field data is of no use in trying to evaluate
her problem. After reviewing Dr. Jacobson's letter, I have
concluded that he did not apply the AMA guidelines properly,
in particular the AMA guidelines are useful, when central
vision or peripheral vision has been damaged. Nevertheless,
there are substantial and even devastating damages to vision
which may occur which do not register in any significant
manner when measuring central or peripheral vision. Ms.
Bowman has had loss of the muscular control of the eyes both
in terms of the extra ocular muscles and the eye lid muscles
which, as I had mentioned in the above description, causes the
eyes to move suddenly and unpredictably so that she gets
double vision on some occasions, loss of fixation on other
occasions (loss of seeing the target), and loss of vision
altogether if she has blepharospasm.
All three of these occur at random intervals therefore make it
impossible for her to function in a normal way when reading.
In particular, either one, two or three of these events are
occurring approximately 60% of the time, which is an
estimate due to the fact that I cannot measure these exactly.
This means that she is only able to acquire information from
a target (see it) approximately one third of the time. The brain
requires time to comprehend target data after it has fixed on
that target. Therefore, the useful time of having the target
acquired is probably even less than a third of the time. This
means that she can only read a few letters or words at a time
and cannot really function to do the job of a nurse adequately
or with any reasonable efficiency. The best comparable
medical situation to this would be someone that has pieces of
central vision damage such as by macular degeneration where
they continue to lose their target because it falls into a tiny
No. 19AP-109 13
scotoma, and although she has no scotoma, she has a
functional experience similar to having a scotoma, because
she simply cannot keep the object that it is to be viewed on the
target of the retina. Therefore, she loses functionality a large
part of the time. A layman's comparison would be: Imagine
trying to read a book that someone kept jerking away. Now
imagine that someone kept putting their hand in front of you
every few seconds while the first person was still jerking the
book away at odd intervals. Now imagine that in the moments
when you could actually see the book you had double vision
because your eye muscles would not keep your eyes pointed in
the same directions. All of this is assuming that the viewer has
normal visual field and acuity. This is much like the situation
Ms. Bowman experiences. As a result, I conclude that her loss
is substantial. She has a combination of abnormal eye
movement disorder, blepharospasm and diplopia which all
contribute to diminishing her ability to function visually.
Therefore, the use of the standard guidelines to evaluate this
disease is worse than misleading. Therefore, we can only give
professional estimates as to what kind of deficits these
disorders would cause.
Finally, I will comment that my past experience in the field of
neuro ophthalmology and there is not a substantial care which
can be offered from neuro ophthalmology. I know as much
about strabismus as anyone who takes care of adults with
strabismus.
Therefore, my final conclusion is that she has substantial loss
of functional vision. It is approximately at the level of 70%
which is the best estimate that we can get and while it does not
refer to the AMA guidelines it is because they are not
appropriate for this sort of disease.
{¶ 27} 11. The BWC obtained a report dated May 18, 2018 from Marshall
Wareham, M.D., who stated:
I would state there are several issues with this case. In general,
I would be in agreement with the report that was prepared by
Wesley Harnish, MD, dated 12/18/2016. I think that her
difficulties are not adequately assessed by the AMA
Guidelines, Fifth Edition, so I would agree with his estimate
of a 70% loss in both eyes; however, if the AMA Guidelines,
Fifth Edition, must be followed strictly, then it would be a 65%
loss in the right eye and 45% loss in the left eye.
No. 19AP-109 14
I feel, on several levels, this assessment of her visual loss is
inadequate and incorrect. First, it is very unlikely that her
uncorrected vision prior to the injury was 20/20 in each eye,
but I am told the report must be prepared that way despite the
fact that it is very likely untrue.
Second, it makes no sense to compare uncorrected visual
acuity when the claimant did wear contact lenses and glasses
previously. A much more valid assessment would be based on
vision with correction in both situations.
Third, she does have significant motility disturbances and as
noted in Dr. Harnish's report, where he summarizes it very
well, she has significant difficulty with her vision because of
the motility disturbance which was clearly caused by the
injury as well as the blepharospasm of her right eye. The
combination of these factors, certainly makes her visual
disability far greater than is assessed by strictly following the
AMA Guidelines, Fifth Edition.
In summary, strictly following the AMA Guidelines, Fifth
Edition, I would assess a 65% vision loss in the right eye, 45%
vision loss in the left eye, but I feel this is a very poor
assessment of her condition from many aspects.
{¶ 28} 12. The matter was heard before the DHO on August 13, 2018. The DHO
referred the matter back to the administrator for corrected and updated medical evidence
consistent with the requirements of the order. Specifically, the DHO order provides:
The Motion is fundamentally predicated upon a report by
Wesley J. Harnish, M.D., dated 12/18/2016. Dr. Harnish,
noting the unique circumstances of this particular case, finds
functional loss of vision at 70%, but essentially derives this
finding from the admittedly unique circumstances of
causation, outcome and symptoms in the claim, does not
appear to base his finding upon uncorrected vision provision
post-injury as required pursuant to R.C. 4123.57 (B) and
otherwise disputes the utility of application of AMA
Guidelines to the matter.
In connection with the application, the Administrator
commissioned the report of Marshall Wareham, M.D. dated
05/18/2018. Dr. Wareham agrees with Dr. Harnish that the
Injured Worker has an estimated 70% loss of use in both eyes,
effectively declaims the applicability of the AMA Guidelines
No. 19AP-109 15
Fifth Edition and undermines his reliance upon post-injury
visual acuity in so doing. Ultimately, Dr. Wareham agrees with
Dr. Harnish that the best estimate is a loss of 70%, which
appears not to be based upon the statutory assessments.
The District Hearing Officer thus orders that the matter be
referred back to the Administrator for an addendum by
Dr. Wareham expressly opining upon loss of use of
uncorrected vision bilaterally based upon uncorrected vision
post-injury, absent recitation of conditions negating the
viability of the assessment, and taking into account the prior
denial of loss of vision left eye exceeding 25 percent.
Once the opinion has been obtained, the District Hearing
Officer orders that the matter be referred back to the
Industrial Commission for placement upon the district-level
docket.
{¶ 29} 13. In his September 17, 2018 report, Dr. Wareham stated:
Based on the information that I have, we do not know what
the claimant's uncorrected vision was prior to her injury.
However, I am required to assume that was 20/20 in each eye
without correction. Her vision post-injury uncorrected was
20/200 in the right eye and 20/70 in the left eye. According
to the AMA Guides to the Evaluation of Permanent
Impairment, Fifth Edition, Chapter 12, because of her
significant motility disturbances, double vision, and
blepharospasm, she would have 15 points of visual acuity loss
to each eye. This would become 65% loss of vision in the right
eye and 45% loss of vision in the left eye.
While I disagree with the prior assumption of less than 25%
vision loss based on the information that I have and the
assumptions that I am required to make, same has been
adjudicated by the Industrial Commission, so any finding 25%
or more in the left eye would be moot.
{¶ 30} 14. The matter was reheard before a DHO on October 22, 2018. The DHO
made the following finding:
It is the order of the District Hearing Officer that the Injured
Worker's C-86 Motion, filed 03/21/2018, is granted to the
extent of this order.
No. 19AP-109 16
The District Hearing Officer finds that the Injured Worker is
entitled to a 45% schedule loss award under R.C. 4123.57 (B)
for scheduled loss of bilateral vision, specifically for the left
eye.
This finding is based on the report of Dr. Wareham's [sic],
dated 05/18/2018 and the addendum dated 09/17/2018, in
which Dr. Wareham opined the Injured Worker has
experienced a 65% loss of vision in the right eye and 45% in
the left. The District Hearing Officer notes the Injured Worker
received a previous award of bilateral loss of use of
uncorrected vision in the amount of 67% for the right eye by
Staff Hearing Officer order dated 11/01/2012. Therefore, the
District Hearing Officer does not find a basis to award an
additional amount for the right eye.
The District Hearing Officer orders the scheduled loss of use
award paid beginning 05/18/2018 based upon Dr. Wareham's
report dated the same.
{¶ 31} 15. Both relator and OSU filed appeals.
{¶ 32} 16. OSU obtained a medical records review and examination by Dan
Brown, M.D. In his October 25, 2018 report, Dr. Brown noted:
[Relator] says that she can see well with each eye individually,
but she has pain and fatigue and uncontrolled eye movement
when she attempts to use the eyes together. Covering either
eye improves her vision somewhat but results in an
intolerable level of dull pain around the right eye, and she
cannot cover either eye comfortably for more than a few
seconds. Various medications have been used to no avail; she
currently takes gabapentin daily but is not sure if it really
helps.
{¶ 33} Dr. Brown further noted the following findings on examination:
My exam on this date showed visual acuity uncorrected of
20/200 OD, 20/100 OS at distance. Her near acuity
uncorrected was Jaeger 1 in each eye. Her vision in the right
eye corrected to 20/30 with her refraction of -2.00-0.50×138,
and vision in the left eye corrected to 20/30 with her
refraction of -1.50-0.50×63. The external exam shows a mild
ptosis on the right with signs of levator aponeurosis
dehiscence on that side; there is intermittent spasm of the
twitch muscles around both eyes, worse on the right, and a
somewhat uneven blink response. Pupils are equal and
No. 19AP-109 17
reactive. Muscle balance shows full versions and no diplopia;
there are random saccades mostly up and to the right, with
greater amplitude on the right. There is no true nystagmus.
Visual field testing was normal. Slit lamp exam showed
evidence of LASIK flap on the left cornea, well centered
posterior chamber lens implants, and an open capsule on the
right with a clear capsule on the left. There was some
reduction of tear meniscus bilaterally but no corneal staining.
There was no evidence of intraocular inflammatory changes.
Intraocular pressure was 13 OD, 10 OS. Opthalmoscopic exam
was unremarkable with C/D ratio of 0.3 OU; the nerves were
of normal color and were flat. The maculae, vessels and retinal
periphery were all unremarkable.
{¶ 34} Thereafter Dr. Brown stated:
I have no objective evidence of nyctalopia for review; if indeed
that condition exists, I would estimate an additional 10 to 15%
loss in the right eye.
***
As above, I cannot ascertain a definitive diagnosis of
nyctalopia. With respect to the cataract, her uncorrected
vision is now 20/100 in the left eye so there would be a further
loss of function; using the AMA guide [Fourth Edition] chart,
I believe this increases to 70 to 80%.
{¶ 35} 17. The appeals were heard before an SHO on December 26, 2018. The
SHO affirmed the prior DHO order, stating:
The Staff Hearing Officer finds Injured Worker is entitled to a
45% scheduled loss award pursuant to R.C. 4123.57 (B) for
scheduled loss of bilateral vision, specifically as it relates to
her left eye. This decision is based on the report and
addendum report from Marshall Wareham, M.D., dated
05/18/2018 and 09/17/2018. Dr. Wareham concluded the
Injured Worker suffered a 65% loss of vision in her right eye
and 45% in her left eye. The Staff Hearing Officer notes, as the
District Hearing Officer did below, the Injured Worker
previously received an award for bilateral loss of use of
uncorrected vision of 67% for the right eye pursuant to
Industrial Commission order, dated 11/01/2012. Accordingly,
the Staff Hearing Officer finds insufficient basis to award an
additional percentage for the right eye.
No. 19AP-109 18
The Staff Hearing Officer orders the scheduled loss of use
award shall be paid beginning 05/18/2018 based on Dr.
Wareham's previously cited report.
{¶ 36} 18. The appeals by both parties were refused by the commission.
Thereafter, relator filed this mandamus action in this court.
Conclusions of Law:
{¶ 37} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
{¶ 38} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 39} R.C. 4123.57 pertains to partial disability compensation and provides, in
pertinent part:
Partial disability compensation shall be paid as follows:
***
(B) * * * 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
No. 19AP-109 19
compensation be made for less than twenty-five percent loss
of uncorrected vision. "Loss of uncorrected vision" means the
percentage of vision actually lost as a result of the injury or
occupational disease.
{¶ 40} In State ex rel. Chrysler LLC v. Indus. Comm., 10th Dist. No. 08AP-1005,
2010-Ohio-85, this court stated at paragraph 54:
This court has repeatedly held that it is within the
commission's discretion to fashion a PPD award by choosing
a percentage of impairment within the range of percentages
contained in the medical reports upon which it has relied.
State ex rel. Core Molding Technologies v. Indus. Comm.,
Franklin App. No. 03AP-443, 2004-Ohio-2639; State ex rel.
Wrenn v. [The] Kroger Co., Franklin App. No. 03AP-14,
2003-Ohio-6470. In that situation, there is no requirement
that the commission explain why it selected the percentage
chosen.
{¶ 41} This particular case is made especially difficult due to the fact that all of the
physicians who authored reports for the commission's consideration opined that relator
has sustained a significant amount of loss of vision which is not easy to objectively
quantify due to her inability to keep her eyes open and maintain focus. Furthermore, all
the physicians agree that the use of the AMA Guidelines is an insufficient method whereby
to measure relator's actual visual impairment.
{¶ 42} The AMA Guidelines are traditionally used by physicians to provide
impairment ratings; however, the commission has never adopted the guidelines as a rule,
regulation, or guideline to be used by hearing officers.
{¶ 43} In the present case, when asked to use the guidelines, the medical providers
generally agree that relator has sustained a 65 percent loss of vision in her right eye and
a 45 percent loss of vision in her left eye. However, when asked what her actual
impairment is, without necessarily confining themselves exclusively to the guidelines, all
of the medical professionals agree that her loss of vision is at least 70 percent.
{¶ 44} The commission argues that it is permitted to choose a percentage within
the range of percentages opined by the medical physicians. While this is a true statement
of law, in the present case, the commission chose to accept one portion of Dr. Wareham's
report and addendum where he confined his opinion to the AMA Guidelines and excluded
No. 19AP-109 20
the remainder of his report wherein he stated that use of the guidelines is inadequate, and
relator has at least a 70 percent impairment. His opinion that her impairment was
actually at least 70 percent bilaterally is consistent with all the medical evidence.
{¶ 45} Workers' compensation statutes must be liberally construed in favor of the
injured worker. While generally speaking, it would be acceptable for the commission to
select a percentage within the range of percentages stated by the physicians, the
magistrate finds that here, where all the physicians agree that relator's actual visual
impairment is 70 percent or greater, the commission did abuse its discretion in finding
that she had a 65 percent impairment in the right eye and a 45 percent impairment in the
left eye. The reality is that, even if this injured worker had 20/20 vision, the additional
conditions which affect her (her inability to keep her eyes open, the uncontrollable
blinking of her eyes, the uncontrollable side to side movement of her eyes, double vision,
the inability of her eyes to focus in concert with each other, and night blindness)
significantly impair her ability to see making the fact that this hypothetical injured worker
had 20/20 vision inconsequential and irrelevant. To the extent that her loss can actually
be measured, that measurement does not, in the opinion of all of the medical experts, do
justice to her actual impairment. As such, the magistrate finds the commission did abuse
its discretion in this situation.
{¶ 46} Based on the foregoing, it is this magistrate's decision that relator has
demonstrated that the commission abused its discretion here, and this court should issue
a writ of mandamus ordering the commission to find that relator has met her burden of
proving that she has a 70 percent loss of vision bilaterally, and this court should order the
commission to make that finding.
/S/ MAGISTRATE
STEPHANIE BISCA
No. 19AP-109 21
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).