State ex rel. Kroger Co. v. Stover

Wright, J.,

concurring in part and dissenting in part. I agree with the statement espoused in paragraph one of the syllabus, as well as Parts I and IIC of the majority’s decision. However, I am compelled to express vigorous disagreement with the rationale contained within Parts IIA and B, and the second paragraph of the syllabus.

The focal point of this case centers upon the intent of the General Assembly in enacting R.C. 4123.57(C) which provides 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. ” (Emphasis added.)

Admittedly, the statute contains some measure of ambiguity since the General Assembly did not provide either the Industrial Commission or the courts of this state with guidelines pertaining to the measures of medical correction which impact upon “uncorrected vision.” Thus, although “loss of uncorrected vision” is defined as the “percentage of vision actually lost,” we are not told whether the phrase “actually lost” refers to the injured employee’s condition immediately after the injury, or whether the condition should be evaluated after medical treatment or surgical repair has been performed.

I believe that all members of this court agree with the court of appeals when it reasoned that a claim for loss of vision under R.C. 4123.57(C) is not to be reduced because the claimant’s vision has been improved after the industrial injury with the aid of either glasses or contact lenses. To measure an award under such circumstances would be to ignore the language requiring actual loss under R.C. 4123.57(C), and take into consideration the fact that a prosthetic device or other removable appliance is aiding in the restoration of the claimant’s vision. By way of analogy, it cannot be seriously argued that a claim for the loss of a leg should be denied under R.C. 4123.57(C), simply because the injured worker is fitted with an artificial limb.

Nevertheless, in determining the time frame in which the commission must evaluate “the percentage of vision actually lost,” it is important to note that R.C. 4123.57(C) requires “permanent partial loss of sight of an eye * * (Emphasis added.) The requirement that some permanency attach prior to an award for loss of vision is a clear signal from the *237legislature that the award is not to be predicated upon the state of the claimant’s vision immediately after the industrial injury but, instead, within a reasonable time thereafter so as to allow for the effect of natural healing, medical treatment, surgical repair or rehabilitation.

Regrettably, the majority concludes that any improvement to vision as the result of corneal transplants is a correction to vision and cannot be considered when determining a loss of vision award under R.C. 4123.57(C). In reaching this conclusion, the majority states without explanation that “a corneal transplant is no more than a correction to lost vision.” Presumably, the majority perceives corneal transplants as functionally equivalent to prosthetic devices such as contact lenses or glasses and, therefore, the court has determined that appellee’s disability should be determined at the time he sustained the injury and-not after advanced medical procedures had been invoked in order to alleviate damage caused by the injury. Such a posture is just plain wrong. More incredibly, the court concludes that “at some future time” corneal transplants may eliminate the loss, but at present, this procedure constitutes no more than a correction to vision. The majority reaches this conclusion about the current state of the art of corneal transplantation despite no such evidence in the record or citation to authority. One can only conclude that the court has sua sponte taken some form of judicial notice of the current state of successfulness of corneal transplants without sharing this “knowledge” with members of the bench, bar, or the Industrial Commission.

In urging affirmance of the allowance of benefits as ordered, the commission argues by way of analogy, that “a worker who loses 100% of the use of one thumb through a crushing injury, and has the thumb of a perfect tissue-matched donor grafted on after surgical removal of the worker’s useless thumb, has nevertheless suffered the actual loss of his thumb, even if the transplant gives him 75% use of the new digit.” Research reveals the existence of at least one case virtually identical to the analogy set forth by the commission. In that case the court reached a result contrary to that advocated by the commission and accepted by the majority.

Thus, in Fogarty v. Rhode Island (1967), 103 R.I. 228, 236 A. 2d 247, the employee suffered an industrial injury resulting in the severance of his left thumb, and damage so severe to the left index finger that it was rendered practically useless. Testimony was adduced demonstrating that immediately following the injury, the employee’s hand was rendered seventy-five percent useless. Following the injury, however, extraordinary medical procedures were invoked whereby the damaged index finger was transplanted in place of the severed thumb, resulting in a twenty-five percent improvement in the hand.

The threshold consideration presented to the Rhode Island Supreme Court was “whether the percentage of employee’s permanent loss of use of his left hand should be determined [for purposes of workers’ compensa*238tion benefits] as of the time he sustained the injury [75% disability], or alternatively as of the time when surgery was completed and medical science had accomplished all it could to remedy the damage [resulting in a 50% disability to the hand].” Id. at 229, 236 A. 2d at 247. In resolving this issue, the court reasoned at 230, 236 A. 2d at 248, that prior to determining the usefulness of the claimant’s hand, a “full opportunity” must be afforded to medical science in order to ameliorate the effects of the industrial injury. The court stressed that permanency was integral to a disability determination since the Rhode Island statute, like Ohio’s, did not make an award for every loss, but, rather, for permanent losses. In at least one prior case, the Rhode Island court had determined that prosthetic devices were to be excluded when considering post-surgery disabilities. The claimant, relying on that rationale, as does the subject claimant and the Industrial Commission, maintained that the transplantation of the index finger in place of the severed thumb was functionally equivalent to the attachment of a prosthetic device. This rationale was ultimately rejected, when the court stated:

“The analogy in our judgment fails. Live tissue from an injured worker’s body applied by a skilled surgeon as a replacement for an injured thumb is not equatable with a prosthetic device purchased from a surgical appliance dealer. One is real; the other artificial.” Id. at 231, 236 A. 2d at 249.

A case even more analogous than Fogarty is Lee Connell Constr. Co. v. Swann (1985), 254 Ga. 121, 327 S.E. 2d 222. Therein, a worker sustained a lacerated cornea. Subsequent to the laceration, surgery was performed whereby a cataract was excised and a permanent lens was implanted into the employee’s damaged eye. After the injury, but prior to the surgical implantation, the employee possessed 20/400 vision without the aid of glasses and 20/100 vision with glasses. After the implant, the employee had 20/40 vision without glasses and 20/20 vision with them. His claim for workers’ compensation benefits was originally allowed based on 20/40 vision. The full board revised this award and granted the claimant benefits predicated upon total loss of the eye, in effect refusing to consider the improved vision subsequent to the surgical implant. Upon further review the lower court and the court of appeals affirmed the order of the board. Lee Connell Constr. Co. v. Swann (1984), 172 Ga. App. 305, 322 S.E. 2d 736.

After granting a writ of certiorari, the Supreme Court of Georgia reversed, stating at 121, 327 S.E. 2d at 223:

“1. The Court of Appeals equated the permanent lens implant with the wearing of eyeglasses or contact lens. We disagree, and adopt the view — consistent with the facts of the case and the advances of medical science — that vision has been restored to the eye to the extent of the correction of visual acuity resulting from the permanent lens implant. Larson’s Workmen’s Compensation Law, § 58.13(f).
“2. The claimant’s uncorrected vision was 20/40 after vision had been *239restored to the eye through the surgical procedure. The administrative law judge was authorized to enter an award based upon the claimant’s need for eyeglasses after the surgical procedure to attain 20/20 corrected vision.”

Both Fogarty and Swann recognize that a significant distinction exists between a prosthetic device and surgical restoration. It is common knowledge that glasses, which must be taken on and off, and contact lenses, which must be put in and taken out, are prosthetic devices which serve as constant reminders that vision is being corrected. Moreover, when these items are removed, lost or misplaced, the wearer suffers loss of vision. On the other hand, a corneal transplant is not a “prosthesis,” a term commonly defined as “* * * an artificial device to replace a missing part of the body * * *.” (Emphasis added.) Webster’s Third New International Dictionary (1961) 1822. Conversely, a “transplant” involves the “* * * transfer ([of] an organ or tissue) from one body or part of a body to another * * Id. at 2430. Clearly, the claimant received a transplant and not a prosthesis, despite the reasoning of the majority. Moreover, the majority’s reliance upon the térm “correction,” wherein corneal transplants are equated with corrective lenses, is equally unpersuasive.

As it relates to vision, the term “correction” means “* * * a setting right, as the provision of specific lenses for the improvement of vision * * and the term “lens” connotes “* * * a piece of glass or other transplant substance shaped as to converge or scatter the rays of light, especially the glass used in appropriate frames or other instruments to increase the visual amity of the human eye. ” (Emphasis added.) Dorland’s Illustrated Medical Dictionary (26 Ed. 1981). Accordingly, when the term “correction]” appearing within R.C. 4123.57(C) is read with its common, ordinary meaning in mind (see R.C. 1.42), it is apparent that the General Assembly intended that claimants seeking loss of vision awards should not be penalized for improvements to vision as a result of glasses or contact lenses, and not that corneal transplants or other corrective surgeries are to be excluded when determining loss of vision.

After a fair reading of the majority’s opinion, one can only conclude that, rather than interpret R.C. 4123.57(C) as written, the majority elected to interpret the statute to achieve a result which they thought the General Assembly should have provided for in the first place. One must remain cognizant, however, that the statute does not provide that “ ‘[l]oss of uncorrected vision’ means the percentage of vision actually lost as a result of the injury or occupational disease [and post-injury surgical measures may not be considered when determining the claimant’s award].” To interpret the statute in this fashion is to effectively insert words into the statute, rather than give effect to the words used by the General Assembly, in contravention of well-established rules of statutory construction. Bernardini v. Bd. of Edn. (1979), 58 Ohio St. 2d 1, 4, 12 O.O. 3d 1, 3, 387 N.E. 2d 1222, 1224; Dougherty v. Torrence (1982), 2 Ohio St. 3d 69, *24070, 2 OBR 625, 626, 442 N.E. 2d 1295, 1296; Ohio Assn. of Pub. School Emp. v. Twin Valley Local School Dish Bd. of Edn. (1983), 6 Ohio St. 3d 178, 181, 6 OBR 235, 238, 451 N.E. 2d 1211, 1214; Cleveland v. Public Util. Comm. (1984), 10 Ohio St. 3d 18, 20, 10 OBR 171, 173, 460 N.E. 2d 1113, 1115; Bockover v. Ludlow Corp. (1986), 23 Ohio St. 3d 190, 194, 23 OBR 352, 356, 492 N.E. 2d 149, 153. Moreover, the interpretation afforded R.C. 4123.57(C) by the majority will create a virtual Pandora’s Box, with claimants stampeding to the Industrial Commission to argue that all post-injury medical and surgical procedures not be considered when evaluating disabilities. Taken to its logical extreme, one can envision some truly extraordinary results as in the case of a claimant with a compensable heart ailment who subsequently undergoes heart transplant surgery.

In order to buttress its judgment, the majority expresses concern that corneal transplants do not result in a guarantee of permanent or trouble-free vision restoration since each transplant is accompanied by the threat of rejection. I likewise share this concern, but nevertheless can find adequate protection in case rejection comes to pass within R.C. 4123.52, which in relevant part provides:

“The jurisdiction of the industrial commission over each case shall be continuing, and the commission may make such modification or change with respect to former findings or orders with respect thereto, as, in its opinion is justified. No such modification or change nor any finding or award in respect of any claim shall be made with respect to disability, compensation, dependency, or benefits, after six years from the date of injury in the absence of the payment of compensation for total disability under section 4123.56 of the Revised Code, or wages in lieu of compensation in a manner so as to satisfy the requirements of section 4123.84 of the Revised Code, except in cases where compensation has been paid under section 4123.56, 4123.57, or 4123.58 of the Revised Code, then ten years from the date of the last payment of compensation or from the date of death, nor unless written notice of claim for the specific part or parts of the body injured or disabled has been given as provided in section 4123.84 or 4123.85 of the Revised Code, and the commission shall not make any such modification, change, finding, or award which shall award compensation for a back period in excess of two years prior to the date of filing application therefor. This section does not affect the right of a claimant to compensation accruing subsequent to the filing of any such application, provided such application is filed within the applicable time limit as provided in this section.
“This section does not deprive the commission of its continuing jurisdiction to determine the questions raised by any application for modification of award which has been filed with the commission after June 1,1932, and prior to the expiration of the applicable period but in respect to which no award has been granted or denied during the applicable period. ” (Emphasis added.)

*241Two critical limitation periods are contained within the first full paragraph of R.C. 4123.52. State, ex rel. Consolidation Coal Co., v. Indus. Comm. (1985), 18 Ohio St. 3d 281, 283, 18 OBR 333, 334, 480 N.E. 2d 807, 809. The first limitation period requires that an. application for disability, compensation, dependency or benefits be submitted within six years of the date of the claimant’s injury. The second limitation period provides that “[i]f a claimant has, since the date of the injury, received temporary, partial or permanent total disability compensation under R.C. 4123.56, 4123.57 or 4123.58, respectively, or has received wages in lieu of compensation pursuant to R.C. 4123.84, then the commission may consider an application for additional compensation as long as the application is submitted within ten years of the last payment of such compensation. ” (Emphasis added.) Id. at 283,18 OBR at 334, 480 N.E. 2d at 809. In December 1967, R.C. 4123.52 was amended to provide that only when a claimant receives compensation, as opposed to medical benefits, does such receipt operate to toll the ten-year limitation period.

A legitimate concern thus arises that, if the claimant undergoes a corneal transplant and rejects the tissue more than ten years after having received compensation under R.C. 4123.56, 4123.57, 4123.58, or wages in lieu of compensation under R.C. 4123.84, a further award under R.C. 4123.57(C) would be barred and leave the claimant without recourse through no fault of his own. However, a liberal reading (R.C. 4123.95) of the second paragraph of R.C. 4123.52 set forth above with respect to tissue transplant cases serves to ameliorate any such harsh consequences. That paragraph appears to allow the commission to hold an application for permanent partial disability benefits in abeyance until such time as a transplant rejection occurs. In the event a rejection does occur outside the ten-year limitation period, and the patient elects not to undergo another transplant procedure, then the claimant is protected against losing his right to seek benefits under R.C. 4123.57(C). Accordingly, subsequent to the commission’s determination regarding appellee’s current application under R.C. 4123.57(C), he could, within ten years, file another application for compensation contingent upon rejection, which the commission could hold in abeyance until such time as a rejection may occur.

Based on the foregoing rationale, I would affirm the judgment of the court of appeals insofar as it sustains the allowance of an award for eighty percent loss of vision in the claimant’s right eye. Although Kroger, relying on the medical report of Dr. James M. Andrew, contends appellee has suffered only a twenty-five percent loss of vision in that eye subsequent to the transplant, the report of Dr. Hobart R. Helman, cited by the' majority in footnote five, constitutes some evidence supporting the commission’s decision. The most that can be said about the reports of Drs. Andrew and Helman is that a disputed factual situation was presented, the resolution of which was within the final jurisdiction of the commission. Accord State, ex rel. GF Business Equip., Inc., v. Indus. Comm. (1981), 66 Ohio St. 2d 446, 20 O.O. 3d 379, 423 N.E. 2d 99. Since some evidence exists sup*242porting this conclusion, it can not be said that the commission abused its discretion when making the award for appellee’s loss of vision in the right eye.

On the other hand, I can not agree with the majority that, despite a recent corneal transplant to the claimant’s left eye of which there is no medical evidence before the commission indicating the state of acuity since that transplant was performed subsequent to its decision, appellee is entitled to an award for total loss of vision. By summarily concluding that corneal transplants may not be taken into consideration in determining loss of vision awards under R.C. 4123.57(C), the majority has failed to allow medical science and employers to ameliorate the effects of the industrial injuries through surgical restoration. Corneal transplantation is but one form of rehabilitation, and since rehabilitation constitutes a cornerstone of the foundation underlying Ohio’s Workers’ Compensation Act, I am unable to concur in that portion of the holding which erodes that foundation, especially where the reasoning therefor is unsupported by the statutory provision.

For the foregoing reasons, I would affirm in part and reverse in part the judgment of the court of appeals, and remand the cause to the Industrial Commission for further consideration as to what loss of acuity, if any, appellee has sustained in his left eye.

Moyer, C.J., concurs in the foregoing opinion.