Can An Injured Worker Receive A Loss Of Use Award For Their Vision With No Damage To The Structure Or Function Of Their Eyes?

Donald G. Drinko By Donald G. Drinko

Under R.C. §4123.57, an injured worker can receive an additional award for the “loss of use” of a body part, one of these awards can include a loss of visual acuity. R.C. §4123.57(B). However, a distinction has been drawn between the loss of vision due to damage to the eye itself, and the loss of vision due to brain function. Can an injured worker receive this additional award when there is no actual damage to the structure of the eye itself?

The Tenth District Court of Appeals recently addressed this issue in State ex rel. Harris v. Indus. Comm., 2022-Ohio-3149. This case involved an injured worker who sustained severe head injuries in the course and scope of his employment as a corrections officer. As a result of these injuries, the injured worker sustained a 99% visual loss of the left eye and 97% visual loss of the right eye. The injured worker filed for an additional award based on his loss of vision pursuant to R.C. §4123.57.  Administratively, the injured worker’s request was denied based on a review performed by a BWC doctor, who concluded the injured worker suffered no visual acuity loss attributable to damage to the eyes themselves.  The injured worker filed a mandamus action in the Tenth District Court of Appeals seeking to vacate the Industrial Commission orders, and grant his request for a “loss of use” award. Applying the “some evidence” standard, the magistrate found that the BWC doctor’s report established that the injured worker’s loss of vision was not attributable to damage to the structure or function of his eyes, and therefore recommended the injured worker’s writ be denied. The injured worker filed objections to the magistrate’s decision.

In overruling the injured worker’s objections, the Tenth District Court held that State ex rel. Smith v. Indus. Comm., 138 Ohio St.3d 312, 2014-Ohio-513 was still valid law, and that R.C. §4123.57(B) did not authorize the  “loss of use” award when the loss of brain function is the cause of the vision loss rather than actual damage to the eye itself. The Court found that State ex rel. Bowman v. Indus. Comm., 65 Ohio St.3d 317, 603 N.E.2d 1000 (1992), and State ex rel. Beyer v. Autoneum N. Am., 157 Ohio St.3d 316, 2019-Ohio-3714 did not hold that Smith was no longer good law, as neither case cited Smith nor did they address vision loss without some physical injury to the eye itself. The Tenth District Court also held that the injured worker made no attempt to explain how or why the BWC doctor’s report was internally inconsistent or equivocal. Therefore, the Court affirmed the Magistrate’s decision and denied the injured worker’s request for a writ of mandamus.

As shown in Harris, even in situations where a loss of vision occurs, an injured worker can still be denied an additional award under §4123.57 if the loss of vision is not attributable to damage to the eye itself. If you would like to submit a question to Shop talk, or would like to discuss this or any other workers’ compensation issues, please feel free to contact me or my associate Gary Baker.