CASE NO IN THE SUPREME COURT OF OHIO. STATE OF OHIO, ex rel. LAZ-Z-BOY FURNITURE GALLERIES, Appellant

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1 IN THE SUPREME COURT OF OHIO STATE OF OHIO, ex rel. LAZ-Z-BOY FURNITURE GALLERIES, V. Appellant MILLARD THOMAS, CASE NO ON APPEAL FROM THE FRANKLIN COUNTY COURT OF APPEALS, TENTH APPELLATE DISTRICT COURT OF APPEALS CASE NO. 08-AP-827 INDUSTRIAL COMMISSION OF OHIO, AND MILLARD THOMAS Appellees. MERIT BRIEF OF MILLARD TIIOMAS JANICE T. O'HALLORAN ( ) STEFANSKI & ASSOCIATES LLC 5437 Mahoning Avenue, Suite 22 Youngstown, OH Telephone: Facsimile: JOhallorangStefanski-law.com Counsel for Relator/Respondent La-Z-Boy Furniture Galleries MICHAEL FLAMENT ( ) 1370 Ontario Street Suite 2000, Standard Builcling Cleveland, OH Telephone: Facsimile: Flamentlawgaol.com Counsel for Respondent/Relator Millard Thomas NANCY H. ROGERS Attorney General of Oluo ANDREW J. ALATIS ( ) Assistant Attorney General Workers' Compensatin Section 150 B. Gay Street, 22"a Floor Colurnbus, OH ^,,2clephone: Facsimile: unsel for Respondent Wustriat Commission of Ohio

2 TABLE OF CONTENTS Table of Contents Table of Authorities Question Presented... iv Propositious of Law... v Statement of the Case and Facts... 1 Argument Proposition of Law 1: The lndustrial Commission does not abuse its discretion by using a claimant's improved functional vision as a baseline for measuring vision loss A. An award for total loss of vision was supported by undisputed evidence in the record... 5 B. Ohio case law does not mandate the use of uneoirected vision in measuring pre-injury visual acuity... 6 C. The result urged by Appellant is impermissible under this Court's ruling in State ex rel. Waddle v. Indus. Comm D. The equities of this case demand compensation E. As Mr. Thomas was rendered legally blind when he lost his natural lens in the work accident, he is entitled to compensation for total loss of vision F. Appellant's mandamus complaint was properly denied as contrary to established policy Conclusion Certificate of Service Appendix Ohio Revised Code

3 TABLE OF AUTHORITIES CASE AUTHORITIES: Azbill v. The Newark Group, Inc., Fairfield App. No. 07 CA00001, 2008-Ohio Schell v. Globe Trucking, Inc. (1990), 48 Ohio St.3d 1, 548 N.F,.2d State ex rel. AastoZone, Inc. v. Indus. Comm., Franklin App. No. 05AP-634, 2006-Ohio-2959, a'd 117 Ohio St.3d 186, 2008-Ohio-541, 883 N.E.2d , 9, 14, 15 State ex rel. Bradley v. Indus. Comm. (1997), 77 Ohio St.3d 239, 1971-Ohio State cx rel. Dolgencorp, Inc. v. Indt:s. Conam., Franklin App. No. 08AP-1014, 2009-Ohio State ex rel General Elec. v. Indus. Comm. (2004) 103 Ohio St.3d 420, 2004-Ohio-5583, 816 N.E.2d , 8, 10, 14, 15,16 State ex rel. Kincaid v. Allen Refractories Co. (2007) 114 Ohio St.3d 129, 2007-Ohio-3758, 870 N.W.2d State ex rel. Kroger Co. v. Stover, 31 Ohio St.3d 229, 510 N.E.2d State ex re. La-Z-Boy v. Thomas, Franklin App. No. 08AP-827, 2009-Ohio passim State ex rel. Nastaaik v. Indus. Comm., (1945), 145 Ohio St. 287, 30 O.O. 503, 61 N.E. 2d , 10 State ex rel. Pethe v. Indus. Comm, Franklin App. No. 02AP-1202, 2003-Ohio State cx rel. Spangler Candy Co. (1988), 36 Ohio St.3d 231, 522 N.E.2d State ex rel. Swander v. Indus. Comnz. (1983) 13 Ohio App. 3d 220, 468 N.E.2d ,10 State ex rel. Waddle v. Indus. Comm. (1993), 67 Ohio St.3d 452, 619 N.E.2d ,13 ii

4 STATUTES: R. C ,16 R.C , 10 ADMINISTRATIVE AUTHORITY: Industrial Commission's Policy Statements and Guidelines, Memo Fl, May 7, iii

5 QUESTION PRESENTED 1. Does the Industrial Commission abuse its discretion by using a claimant's improved PLinctional vision as a baseline for ineasuring vision Ioss7 iv

6 PROPOSITION OF LAW: 1. The Industrial Commission does not abuse its discretion by using a claimant's iniproved fiinctional vision as a baseline for measuring vision loss. v

7 MERIT BRIEF OF APPELLEE MILLARll TIiOMAS On May 1, 2006, Appellee Millard Thomas suffered severe trauma to his left eye as the result of an industrial accident. Several months earlier, the Appellee had undergone a corneal transplant in the same eye due to a congenital condition known as keratoconus. After the workplace accident, his visual acuity was reduced to 20/200 in the left eye, and he required an intraocular lens implant to correct (as opposed to restore) his vision. The issue raised in this appeal is whether the Injured Worker should be compensated for total loss of vision in the eye, as the Court of Appeals ruled, or whether he should receive no award for loss of vision, as the Employer argues. STATEMENT OF TI3E CASE AND FACTS Appellee Thomas contests the recitation of facts presented by Appellant- Employer in its statement of facts and argument. (Please see discussion below at page 2). Appellee adopts and cites to the evidence in the Appendix to Appellant's brief ("App"), as well as the supplement ("Supp.") to Appellant's brief. On May 1, 2006, 27-year-old Appellee Millard Thomas was employed by the Appellant, La-Z-Boy Furniture Galleries. (App , Supp. 1, 19). On that day, his left eye was severely injured when he was struck in the face with a cardboard box. He had been in the process of bailing or breaking down cardboard boxes when a corner of the cardboard struck him forcefully in the left eye. (App. 27, Supp. 1, 19). Prior to the work accident, Mr. Thomas had received a corneal transplant in his left eye. That corneal transplant surgery had been performed on September 22, 2005, to

8 remedy keratoconus, a congenital condition. (Supp ). After the corneal transplant, Mr. Thomas' visual acuity was recorded as 20/50 when tested on November, (Supp. 1, 19-20). On May 1, 2006, the date of the workplace accident, the sutures securing the corneal graft were damaged (dehiscence') and the left lens was dislocated. Id. As later described by Dr. Donald Stephens on May 22, 2006, Mr. Thomas "suffered blunt trauma resulting in corneal graft dehiscence, vitreous prolapse, choroidal hemorrhage and lens dislocation OS." (Supp. 10). The diagnosis by Dr. Thad Labbe, M.D. stated, "Corneal wound dehiscence in a patient with a corneal transplant performed previously in the left eye; hypopnea with clioroidal effusion; lens dislocation, vitreous prolapse." (Supp. 1). Surgery was performed immediately to repair the sutures of the corneal graft, and to remove the dislocated lens. (Supp. 3, 19-20). Dr. Eigner in his report dated January 24, 2008, stated: `The injury *** resulted in a 180 degree dehiscence of the graft. The surgery done at that time repaired the dehiscence. The vitreous prolapse and choroidal detachment problems were addressed and the disk location sic] lens removed." (Supp. 19). After the surgery, Mr. Thomas's vision was reduced to 20/200 in the left eye. (Supp. 19). An additional surgery was required on June 21, 2006, when a vitrectomy and intraocular lens implantation procedure was performed. (Supp. 10, 19). After Mr. Thomas recovered from that surgery, his vision tested 20/50 in the left eye. (Supp. 20) At this juncture, it should be noted that Mr. Thomas did not undergo two corneal transplants. In its statement of facts and arguments, Appellant misunderstands the medical evidence in the case. Appellant incorrectly states, "This is believed to be the ' The separation of a surgical incision or rupture of a wound closure. Mosby's Medical Dictionary, 8th edition. 2009, Elsevier 2

9 first case in Ohio where an injured worker who sought a vision loss award experienced a corneal transplant both prior to and ajier the work injury. " Appellant's brief at p. 2, (emphasis added). Throughout Appellant's argument, references are made to two corneal transplant operations. Id. at 2, 3, 4, 6. In fact, Mr. Thomas's only corneal transplant procedure occurred before his workplace injury. (Supp ). After the accident at issue here, Mr. Thomas endured two surgical procedures: (1) a surgery on May, 2006, to repair the comeal graft and remove the dislocated lens, and (2) lens implantation surgery on June 21, Id. Mr. T'homas applied to the Ohio Bureau of Workers' Compensation for compensation under BWC Claim No (App. 28). His claim was allowed for the following conditions: corneal abrasion, left; vitreous prolapse, left; ocular laceration with prolapse, left; posterior dislocation of lens, left; choroidal detachment NOS, left. (App. 26). On or about March 16, 2007, Mr. Thonias filed a motion with the BWC requesting compensation for total loss of vision, left eye. On September 18, 2007, a hearing was held before a District Hearing Officer (DHO), who granted the motion and awarded a total loss of vision, left eye. (App. 28). The DHO provided the following rationale for her decision: The employer and administrators argument that since injured worker had a total loss of vision in the left eye prior to the date of injury in this claim and therefore is not entitled to loss of vision award is not well taken by the District Hearing Officer. 'I'he above argument seems to run counter to the intention of the statute. The purpose of an award of compensation pursuant to (B) is to compensate for the loss of a body part or body function resulting from the industrial injury. In this case the injured worker had a functioning left eye prior to the date of injury. The District Hearing Officer declines to differentiate between the mechanisms of function for purposes of this order. It would seem unfair to allow a loss of vision award to an injured worker who 3

10 has a "natural" functioning eye prior to date of injury but not to an individual who had a functional eye only as the result of a previous medical procedure which was able to restore functionality to the eye. (App. 26). I.a-Z-Boy appealed the decision. On June 16, 2008, a hearing was held before a Staff Hearing Officer (SHO), who rejected "... the employers' argument that, as the claimant had already had a September 2005 corneal transplant, he was not entitled to the within award." (App. 28). The SHO also "found persuasive the claimant's argument that the employer takes his employee, in toto, as he finds him on the date of hire." (App. 28). Although the SFIO adopted the rationale of the DHO's decision, she ordered a reduction in the vision loss award to 75%. Mr. Thomas and La-Z-Boy both appealed the SHO's decision. The lndustrial Commission refused both appeals. (App. 30). On September 24, 2008, La-Z-Boy requested a writ of mandamus from the Tenth District Court of Appeals, challenging the Staff Hearing Officer's decision to grant a loss of vision award. On November 24,2008, Mr. Thomas answered and filed a counterclaim in mandamus, challenging the SHO's reduction of the award and requesting that the 100% loss of vision order be reinstated. The Tenth District appellate court referred the case to its magistrate. On March 24, 2009, the Magistrate issued a decision recommending that La-Z-Boy's mandamus complaint be denied, and that Mr. `I'homas' mandamus complaint be granted. The SHO's order was to be vacated, and a new order was to be entered "that awards R.C (B) compensation for the total loss of vision of the left eye." (App. 25). On September 3, 2009, after further briefing and argument, the appellate court adopted the Magistrate's decision. State ex re. La-Z-Boy v. Thomas, Franklin App. No. 08AP-827, 2009-Ohio-4546 (App. 5). La-Z-Boy filed a notice of appeal in this Court on 4

11 September 22, The case was referred for mediation on October 27, 2009, and returned to the regular calendar on January 15, Appellant La-Z-Boy filed a merit brief on February 10, The merit brief he of Appellee Thomas now follows: Proposition of Law No. 1. ARGUMENT THE INDUSTRIAL COMMISSION DOES NOT ABUSE ITS DISCRETION BY USING A CLAIMANT'S IMPROVED FUNCTIONAL V ISION AS A BASELINE FOR MEASURING VISION LOSS. A. An award for total loss of vision was supported by undisputed evidence in the record. Appellant La-Z-Boy challenges the denial of its writ of mandamus by the Tenth District appellate court. Appellant contends that the Industrial Commission incorrectly used Mr. Thomas' functional (improved) visual acuity of 20/50 before the injury as a baseline for calculating vision loss. (Appellant's brief at 9-10). A writ of mandamus is appropriate only if La-Z-Boy can establish that it has a clear legal right to relief sought and that the Conunission has a clear duty to provide such relief. State ex rel. Autozone, Inc. (2008), 117 Ohio St.3d 186, 2008-Ohio-541, 883 N.E.2d 372, at ] 4 (citations omitted). The standard of review asks whether the Commission's decision was supported by "some evidence." Id. If so, no abuse of discretion occurred and a request for mandamus was properly denied by the court below. It is undisputed that Mr. 'I'homas' functional (improved) vision was 20/50 before the injury and 20/200 (uncorrected) after the injury. (Supp ). Moreover, a prosthetic lens implantion was required to correct the Injured Worker's vision. In 5

12 rejecting La-Z-Boy's argument, the SHO cited ample evidence in support of her conclusion that Appellee was entitled to a substantial loss of vision award. This evidence included medical records of Mr. Thomas's two eye surgeries in May and.iuly of 2006, reports of follow-up care, as well as an evaluative defense medical report by Dr. Eigner dated Jan. 24,2008. (Supp. 1-23). Dr. Eigner noted that Mr. Thomas's visual acuity in the left eye tested 20/50 on November 9, 2005, several months before the accident. (Supp. 19). Dr. Eigner also states that "2. I3e did have a functioning left eye prior to the accident. And the funetioning level was at the 20/5 [sic] range as described above.." (Supp. 20). Dr. Eigner also stated that Mr. Thomas sustained a vision to 20/200 which is considered legally binid prior to the lens replacement surgery. (Supp. 20). Thus, the Industrial Commission's finding of vision loss was certainly based on "some evidence." All parties have stipulated to this evidence, which establishes that Mr. Thomas's ftmetional vision was 20/50 prior to the injury and 20/200 after the injury, before surgical correction. As the Commission decision was based on this undisputed medical evidence, the denial of the Employer's mandamus request was appropriate. B. Ohio case law does not mandate the use of uncorrected vision in measuring pre-injury visual acuity. Appellant contends that Mr.1'homas' pre-injury acuity (20/50) could not be used as a baseline for measuring vision loss. Appellant argues that the correct baseline was Mr. Thomas' visual acuity of 20/200 before his pre-accident corneal transplant. In short, Appellant asserts that Mr. Thomas had no vision prior to the accident, and therefore no vision loss as a result of the accident. 6

13 For this contention, Appellant cites authority from this Court and the Tenth District Court of Appeals. However, each case cited by Appellant is easily distinguished from Mr. Thomas' case. As the following discussion will establish, this case raises an issue of first impression in Ohio. State ex rel General F,lec. v, Indus. Comm. Appellant cites this Court's holding in State ex rel. General Elec. v. Indus. Comm., (2004) 103 Ohio St.3d 420, 2004-Ohio-5583, 816 N.E.2d 288 (per curiam) for the proposition that "there is no authority to consider the correction to vision that occurred in the case at bar prior to the work injury... a claimant's uncorrected vision is the applicable standard under ORC (}3)" Appellant's brief at p. 5. However, General Electric does not address the baseline measurement issue presented in Mr. Thomas' case. The qiiesfion in General Electric was whether a comeal implant transplant should be deemed "restorative," rather than "corrective," in determining a loss of vision award. The employer had argued that no vision loss had occurred because the corneal implant had "restored" the claima.nt `s vision. The enlployer urged that the corneal implant procedure should be deemed "restorative" due to technological advances. Id. at 51. "I'his Court rejected that reasoning, refusing to overrule its earlier holding that corneal lens transplants are merely corrective, not restorative. See State ex rel. Kroger Co. v. Stover (1987), 31 Ohio St.3d 229, 510 N.E.2d 356, para. two of the syllabus. Rather, the court agreed with the Staff Hearing Officer's award of total loss of use of both eyes, based on the claimant's uncorrected vision after the injury. It is iinportant to read the "corrective" vs. "restorative" distinetion in context. Clearly, this Court deemed the corneal transplant procedure "corrective" so as not to 7

14 as not to foreclose a vision loss award. The Court stressed that R.C "demands liberal statutory construction [of the Workers' Compensation laws] in favor of claimants." Id. at 49. The Court was acting to protect the injm ed worker, as the statute mandates. Moreover, part of the General Electric Court's rationale was that, "The case at bar involves the implantation of an artificial device." (Id, at 43). By contrast, Appellant's reading of General Electric would have the opposite result of denying Mr. Thornas compensation for the loss of his lens, as well as the damage to his corneal graft. Such a result would violate the mandate of R.C As noted by the Magistrate in the Tenth District, the General Electric court's insistence on "uncorrected" vision does not control the case at bar: "[T]he General Electric court was not faced with the issue of whether vision improvement due to a pre-injury corneal transplant can be used as the baseline for determining uncorrected vision loss under R.C (B)." Thomas, su^ra, at 40 (Magistrate's Decision) (App. 19). Stale ex r el. Kincaid v. Allen Refi actories Co. Appellant cites this Court's dictum in State ex rel. Kincaid v. Allen Refractories Co. (2007) 114 Ohio St.3d 129, 130, 2007-Ohio-3758, 870 N.W.2d 701: "[W]ith respect to R.C (B), `loss of use' means `loss of uncorrected vision' (emphasis added)." Appellant's brief at. p.8, citing Kincaid at 18. Here again, this reasoning does not control the case at bar, as it does not address the same issue. In the context of Kincaid, the term "uncorrected" refers to the claimant's condition after, not before, his work injury. The court held that a claimant with intermittent blindness qualified for permanent total disability benefits. Kineaid does not reach the issue of how a pre-injury baseline should be established. 8

15 State ex rel. Nastzaik v. Indus. Comm. Appellant cites the 1945 case of Slate ex rel Nastuik v. Indus. Comm. for the proposition that a claimant who was industrially blind before his work injury is not entitled to au award for total vision loss. Appellant's brief at p. 8, citing Nastuik, supra, (1945), 145 Ohio St. 287, 292, 30 O.O. 503, 61 N.E. 2d 610. However, as this Court has noted, the General Assembly ehanged the R.C (B) [then (C)] by inserting the term "corrected" in the following phrase: "'Loss of uncorrected vision' means the percentage of vision actually lost as the result of the injury or occupational disease." State ex rel. Spangler Candy Co. (1988), 36 Ohio St.3d 231, 235, 522 N.E.2d 1078 (dictum): This Court explained, "The premise of... Nasluik is that industrial blindness in an eye before injury precludes recovery. The insertion by the General Assembly of the term `uneorrected vision' indicates a rejection of that premise." Id. Moreover, "The commission is vested with the authority to interpret and implement legislation passed by the General Assembly. R.C dictates that workers' compensation legislation shall be liberally construed in favor of employees." Id More recently, the 'Tenth District C'ourt of Appeals stated that Nastuik "is not controlling authority and provides no guidance under the current statute." State ex rel AutoZone v. Industrial Commission, Franklin App. No. 05AP-634), 2006-Ohio-2959 at 14, af f d, 117 Ohio St.3d 186, 2008-Ohio-541, 883 N.E.2d 372. State ex. red. Swander v. Indus. Comm. Appellant cites State ex rel. Swander v. Indus. Comm. (1983) 13 Ohio App. 3d 220, 468 N.E.2d 913, for the proposition that "loss of uncorrected vision is to be based upon measurements of uncorrected vision before and after the injury." Appellant's brief at p. 6, citing Swander, syllabus. Flere again, the court's language must be read in context. Swander was a case from the Tenth District 9

16 Court of Appeals involving a partial vision award. Mr. Swander had suffered significant vision loss before his work injury. On that basis, the Conunission had denied his partial vision loss claim without deterrnining the extent of loss attributable to the injury. The appellate court vacated that order, finding that the injury could be compensable based on the extent of vision lost. hi other words, the claimant's pre-injury vision loss did not automatically preclude the award. Like this Court's analysis in Kroger and General Electric, the Tenth District invoked the R.C mandate to construe workers' compensation laws liberally in favor of injured employees. Swander, supra, at 916. In that context, the court stated that the 25% threshold for recovery under R.C (C) (now subsection (I31) refers to uncorrected vision before and after the injury. The court held that the claimant was entitled to a determination of his actual vision loss. Id. at 223. By analyzing R.C (C) regarding partial vision loss, the court found that "twentyfive percent loss of uncorrected vision" refers to uncorrected vision before and after the injury. Id. This statement was made with regard to partial vision loss under R.C (t=)- The Court's approach is Swander makes sense in cases inivolving nartial vision loss, where some meaningful measurement is possible. But in the context of total vision loss, where a claimant with improved vision is rendered legally blind, the approach is flawed. It leads to an injustice and an absurdity. It creates a legal fiction -- that a claimant who loses his functional vision has actually suffered no loss. This fiction must be rejected, as it offends legislative intent. This is especially true in the case of Mr. Thomas, who lost his natural lens in the work accident and required the implantation of a prosthetic device to correct that loss. 10

17 Even in partial vision loss cases, Industrial Conunission policy does not preclude the use of corrected pre-injury vision as a baseline for measuring vision loss. The Industrial Commission's Policy Statements and Guidelines, Memo F1 dated May 7, 2001, direct that a partial loss of vision computation "shall be made on the basis of vision actually lost by the particular individual and not based on a percentage computed on a hypothetical scale of normalcy." (App. 37). This policy requires that the record must contain evidence of the claimant's actual acuity before and after the work injury. It does not prohibit the Conunission from using functional corrected vision as a baseline. Notably, the same court that rendered Swander has rejected Appellant's reasoning in the case at bar. La-Z-Boy, su ra at 5. After considering Appellant's case law interpretation, the Tenth District Court of Appeals rejected Appellant's conclusions, finding that the Comniission used an appropriate baseline acuity (20/50). Pethe ex re1 v. Indus. Comm. In support of its arglunent, Appellant cites another Tenth District case, State ex rel. Pethe v. Indus. Comm, Franklin App. No. 02AP-1202, 2003-Ohio-6832 (10" Dist., 2003). See Appellant's brief at pp Pethe bears little relevance to the instant case. There this court simply held that a vision loss calculation may not be determined when the record shows no evidence of the claimant's post-injury visual acuity. Id. at ^ Without such evidence, the claimant had not met its burden of proving the percentage of vision lost. Hence, the Commission properly denied a vision loss award. Id. By contrast, the record in this case contains stipulated evidence of Mr. Thomas' acuity before and after the injury. (Supp ). Again, the same court that rendered Pethe rejected Appellant's argument below. 11

18 State ex rel. Dolgencorp.. Inc. v. Indus. Comm. Appellant quotes the following dictum from State ex rel Dolgencorp, Inc. v. Indus. Comm.,-Franklin App. No. 08AP-1014, 2009-Ohio-6565, 14: "[Cjorneal transplant surgery is corrective; therefore, any calculation of vision loss must be made without regard to any vision improvement achieved as a result of such a surgery." The corneal transplant at issue in Dolgencorp occurred after a workplace accident in which the claimant's natural comea was damaged. The Tenth District court rejected the claimant's theory that loss of the natural cornea per se constituted "loss of the sight of an eye." Id. at 19. The case did not reach the issue of how a pre-injury baseline should be established. Moreover, the claimant in Dolgencorp lost only 10% of her vision prior to correction. By contrast, Mr. Thomas's left eye acuity was 20/50 before his work injury and 20/200 afterward, prior to his lens replacement. In conclusion, none of the authorities cited by Appellant prohibit the Industrial Commission from using a claimant's corrected vision baseline if necessary to fulfill the mandate of R.C Rather, these precedents suggests the following principle: Corrections to vision may not be considered in determining vision loss calculation if that would_foreelose or diminish the claimant's award under R. C. 4123_57(B). C. The result urged by Appellant is impermissible under this Court's ruling in State ex reb Waddle v Iudus. Comm. The result urged by Appellant is impermissible under this Court's ruliug in State ex rel. Waddle v. Indus. Comm. (1993), 67 Olzio St.3d 452, 619 N.E.2d As the Magistrate observed below, Ld'addle establishes that a nonallowed medical condition may not be used to advance or defeat a claim for compensation. Id at 454. See La-Z- Boy, supra, at (App ). 12

19 Prior to his work accident, Mr. Thomas had suffered from congenital keratoconus in his left eye, which had been corrected by corneal transplant. (Supp. 1-2, 3, 19-20) T'he Tenth District Magistrate concluded that the improved vision resulted from the pre-injury transplant could be used as a baseline for measuring vision loss. La-7.-13oy, supra, at 6-11 (Supp. 7-9). To do otherwise would result in a non-allowed condition (the kerotoconus) being used to defeat the post-injury vision loss claim. Id., ^J (App ). That outcome is impermissible under Waddle. D. The equities of this case demand compensation. After Mr. Thomas's left eye was struck by a packing box, two surgical procedures were required. (Supp. 1-2, 3, 7-11,19-20) An immediate surgical procedure was necessary to repair the cornea graft and to remove the dislodged lens. (Supp. 1-2, 3, 4, 19-20). After the surgery, Mr. Thomas' vision was reduced to 20/200 in his lef4 eye. (Supp ). Approximately seven weeks later, a vitrectomy and intraocular lens implantation procedure were performed. (Supp. 7-11, 19-20). It was only through these delicate surgeries that Mr. Thomas' vision was corrected to his baseline acuity before the injury. As his natural lens was removed, he is now dependent on an artificial lens. Moreover, he suffered the pain, stress, mental anguish, inconvenience, risk, and vulnerability that such procedures entail. Yet Appellant argues, in effect, that Mr. Thomas has he suffered no loss. Such a result would be unconscionable. It would penalize Mr. Thomas while conferring a windfall on La-Z-Boy and similarly situated employers. It would cause hardship for claimants whose vision had been corrected. at any time before a work-related eye injury. On the facts of this case, there is no equitable reason to distinguish Mr. 13

20 Thomas' corrected functional vision from that of a person with naturally functional vision. As the court noted below, As pointed out by the DHO, "It would seem unfair to allow a loss of vision award to an injured worker who had a`natural' funetioning eye prior to [the] date of injury but not to an individual who had a functioning eye only as a result of a previous medical procedure which was able to restore functionality to the eye." La-Z-Boy, sllpra, 11 (Supp. 8-9). E. As Mr. Thomas was rendered legally blind when he lost his natural lens in the industrial accident, he is entitled to compensation for total loss of vision. In AutoZone, supra, the T'enth District held that loss of a natural lens qualified as "the loss of the sight of an eye" under R.C (B). The court reasoned that "one cannot see without a functioning lens." Id. at 20. The court was persuaded by this Court's reasoning in General Electric, su ra at 19 (intraocular lens implant deemcd "corrective," rather than "restorative," despite the risk of overcompensating some claimants). This Court affirmed AutoZone, stating, "It is self-evident that blindness fulfills the requirement of `the loss of the sight of an eye."' State ex red. AutoZone v. Indus. Comm. 117 Ohio St.3d 186, 2008-Ohio-541, 883 N.E.2d 372 at 25. As the record contained medical evidence that the claimant was blinded in the work accident, the Commission's award for "loss of the sight of an eye" was upheld. ld. at 25. In the case at bar, the Magistrate followed AutoZone in finding that Mr. Thomas sustained a total loss of vision: "Because the lens injury necessitated an intraocular lens implant, case law compels the conclusion that claimant did sustain a total loss of vision due to the loss of his natural lens." La-Z-Boy at 18, citing the Tenth District's opinion in 14

21 Autozone, supra, at 52. (App. 22). The Magistrate found that the DHO's award of total loss of vision was supported by the record. La-7Boy at (App ). F. Appellant's mandamus complaint was properly denied as contrary to established policy. The Commission must liave the latitude and flexibility to nieasure vision loss in a way that reflects reality. Appellant urges a rigid restriction on the Commission's ability to measure vision loss. That rule would penalize clainrauts who had improved vision before their eye injuries. This Court had warned against such rigid rales that lead to untenable results: [T]he beneficial intent and the social policies underlying the workers' compensation law do not necessarily produce mathematically logical results in every case. We are not dealing with mere mathematics, but with the legislative response to a problenls of an industrial society." General Flec. Corp., su r at 28. This consideration supports the Tenth District's denial of mandamus. Finally, it is well settled that "the employer takes its employee as it finds him on the date of hire. In AzGell v. The Newark Group, Inc., Fairfield App. No. 07 CA00001, 2008-Ohio-2639., the Court of Appeals for the Fifth Appellate District noted: Id, at 54. In this case, the trial court instructed the jury in accordance with 3 OJI as follows: "Eniployers take their employees as they find them and assume the risk of having an employee's pre-existing condition made worse by some injmy wizich would not hurt or bother a perfectly healthy person. 15

22 This policy was approved by this Court in Sebell v. Globe Trucking; Inc. (1990), 48 Ohio St.3d 1, 548 N.E.2d 920, syllabus. The SHO invoked the policy in approving the use of improved vision as a baseline for measuring vision loss. (App. 28). Yet Appellant argues that Mr. Thomas' functional vision at the time of the injury may not be considered. This position contradicts a core principle of workers' compensation law. CONCLUSION In summary, La-Z-Boy's coniplaint for mandamus was properly denied. The Tenth District Court of Appeals correctly ordered compensation under R.C (B) for the total loss of vision of the left eye. That decision must be affirmed on the basis of case precedent, settled policy, and the equities of Mr. Thomas' case. WHEREFORE, Appellee Millard Thomas respectfully requests that this Honorable Court affirm the decision of the Tenth District Court of Appeals denying the mandamus petition of Appellant La-Z-Boy Furniture Galleries, and issuing a writ in Appellee's favor. Respectfully submitted, Michael J. Flam nt ) Attorney for Millard Thomas 1370 Ontario Street Strite 2000 Standard Building Cleveland, OH Phone: (216) Fax: (216) FlamentLaw@aol.com 16

23 CERTIFICATE OF SERVICE A copy of the foregoing Merit Brief of Appellee Millard Thomas was served by regular U.S. Mail this 2"d day of April, 2010, upon the following: JANICE T. O'HALLORAN ( ) STEFANSKI & ASSOCIATES LLC 5437 Mahoning Avenue, Suite 22 Youngstown, OH Counsel for Employer La-Z-Boy Furniture Galleries ANDREW J. ALATIS ( ) Assistant Attorney General Workers' Compensation Section 150 E. Gay Street, 22nd Floor Columbus, OH Counsel for Industrial Commission Michael J. Flame ) Counsel for Respon ent Millard Thomas 17

24 APPENDIX

25 1. Ohio Revised Code APPENID1X

26 Ohio Revised Code Liberal construction of chapter. Sections to , inclusive, of the Revised Code shall be liberally construed in favor of ernployees and the dependents of deceased eniployees. Effective Date: