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3fn trje *UpYPTTT.C Court of bto S'TATE ex rel. JOANNE R. SIMPSON, CASE NO. 2010-0124 vs. Defendant-Appellant, On Appeal from the Franklin County Court of Appeals, 7:'enth Appellate District DOLGENCORP, INC. (AKA DOLLAR GENERAL), Court of Appeals Case No. 08AP-1014 Plaintiff-Appellee, and INDUSTRIAL COMMISSION OF OHIO, Defendant-Appellant. MERIT BRIEF OF APPELLANT, INDUSTRIAL COMMISSION OF OHIO AMY S. THOMAS (0074380) * Counsel of Record Reminger Co., LPA 65 East State Street, 4a' Floor Columbus, Ohio 43215 614-232-2627 614-232-2410 - fax athomas@reminger.com Counsel for Plaintiff-Appellee, Dolgencorp, Inc. (AKA Dollar General) ROSS R. FULTON (0082852) * Counsel of Record PHILIP J. FULTON (0008722) Philip J. Fulton. Law Office 89 East Nationwide Boulevard, Suite 300 Columbus, Ohio 43215 614-224-3838 614-224-3933 - fax ross@fultonlaw.com phil@fultonlaw.com Counsel for Defendant-Appellant, Joanne Simpson RICHARD CORDRAY Ohio Attorney General CHARISSA D. PAYER* (0064452) * Counsel ofrecord Assistant Attorney General 150 East Gay Street, 22 a Floor Columbus, Ohio 43215 614-466-6696 614-728-9535 - fax charissa.payer@ohioattorneygencral.gov Counsel for Defendant-Appellant, Industrial Commission of Ohio 1'LFU'Et,^)1 G11U1si aul'l^i^.llif OUM jm'0i-lfo!

TABLE OF CONTENTS "I'ABLE OF AUTHORITIES...... ii INTRODUCTI ON...1 STATEMENT OF THF CASE AND FACTS...1 ARGUMENT...5 Standard of review...5 Appellant Industrial Commission of Ohio's Proposition of Law...5 The surgical removal of a cornea results in a total loss of use of the eye, and the subsequent replacement of the cornea is corrective, nnt restoralive...5 CONCLUSION....8 CERTIFICATE OF SERVICE...10 APPENDIX............................................................................................11 Second Notice of Appeal...App. I Judgment Entry, Court of Appeals, 'I'enth District...App. 4 Decision, Court of Appeals, Tenth District...... App. 5 R.C. 4123.5 7(B).................................................:.......................App. 34 R.C. 4123.95............................................................................. A p p. 38

Cases TABLE OF AUTHORITIES State ex rel. AutoZone, Inc, v. Indus. Comrn., 117 Ohio St.3d 186, 2008-Ohio-541... 6, 7 State ex rel. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76... 5 State ex rel. : iber-lite Corp. v. Indus. Comm. (1988), 36 Ohio St.3d 202... 5 State ex rel. General Electric v. Indus. Comna., 103 Ohio St.3d 420, 2004-Ohio-5585... 6,7 State ex rel. Kroger v. Stover (1987), 31 Ohio St.3d 229... 5 State ex rel. Parsec v. Agin, 155 Ohio App.3d 303, 2003-Ohio-6186... 6, 7 State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141... 4 Other Authorities R.C. 4123.57(B)...:... 7 R.C. 4123.95... 7 ii

INTRODUCTION Under the Workers' Compensation Act, a claimant niay be entitled to permanent partial disability benefits for specific "scheduled" losses due to an industrial injury. These scheduled losses are listed in R.C. 4123.57(B), and cover thumbs, fingers, hands, aims, toes, legs, vision, and hearing. Loss of sight in one eye entitles the injured worker to one hundred twenty-five weeks of pay. R.C. 4123.57(B). For the permanent partial loss of sight, the administrator may determine the portion of the award due the injured worker based on the percentage of vision lost as a result of the injury or occupational disease, "but, in no case shall and award of compensation be made for less than twenty five per cent of uncorrected vision. `Loss of uncorrected vision' means the percentage of vision actually lost as the result of the injury or occupational disease." R.C. 4123.57(B). In this case, although Appellant, Joanne Simpson's ("Simpson's") vision lost due to her industrial injury was less than twenty-five percent, Appellant, the Industrial Commission of Ohio ("commission") fotmd that Simpson was entitled to a total loss of use award. The eonunission granted Simpson a total loss of use award because her own cornea had to be surgically removed and a donor cornea implanted. During the time between the surgical removal of Simpson's own cornea, but before the attachment of the donor cornea, Simpson suffered a total loss of vision. Thus, under the circumstances presented here, and under State ex rel. Kroger v. Stover (1987), 31 Ohio St.3d 229, and its progeny, Simpson is entitled to a total loss of use award. STATEMENT OF THE CASE AND FACTS This case arose as an action in mandamus in the Tenth District Court of Appeals for Fraiildin County. Simpson sustained an injury to her left eye when she accidentally splashed bleach into it while working for Appellee, Dolgencorp, Inc. ("Dolgencoip"). [Supplement ("S.") 1

p. 7]. Her workers' compensation claim is allowed for the conditions of interstitial keratitis left eye, corneal opacity and corneal neovascularization of the left eye, Id. In May, 2005, Dr. George Calloway, Jr., examined Simpson to determine the extent of her impairment due to the injury to her left eye. (S. pp. 2-3 ). Dr. Calloway opined that she had a 15% impairment: Ms. Simpson has sustained an alkali burn to the left eye and as a result, she appears to have a decreased visual acuity as well as significant subjective photophobia. Based on the fifth edition AMA guidelines, I find her to have a 5% impairment of the visual system based on her visual acuity loss with no loss of visual field. However, due to her photophobia, I do consider that to be significant and staying within the fifth edition AMA guidelines, I atn finding her to have an additional 10% iinpairment based on that. This brings her total visual systein impairment of 15%, which corresponds to a 15% impairment of the whole person. Id. Dolgencorp appealed Dr. Calloway's opinion. Dr. James Moses examined records regarding Simpson's left eye condition. (Supp. p. 3). Dr. Moses opined that Simpson's visual acuity withont correction was 20/70 and he gave her a permanent loss percentage of 5%. Id. But, he further opined that "AMA guidelines do not allow for impairments such as constant epiphora (tearing), glare phenomena, loss of depth perception, and involuntary blepharospasm" and therefore, he could not provide Dolgenoorp with a percentage of permanent partial disability from an ophtlialmic standpoint. Id. Simpson had another examination regarding permanent partial loss of use of her left eye in February, 2006, with Dr. Jeffrey Hutchinson. (S. pp. 5-6). Dr. Hutchinson opined that she had a total impairment of 10%: In summary, Ms. Simpson is demonstrating evidence of interstitial keratitis and comeal opacity with neovascularization of the cornea in the left secondary to her alkali burn. Based on the most recent edition of the American Medical Association's Guide to the evaluation of permanent impaiiment the visual system is impaired and therefore the whole body impairment is estimated at 10%. This includes approximately 5% based strictly on visual acuity 2

impairment and approximately an additional 5% for her subjective symptoms of photophobia. Id. After Dr. Hutchinson's exainination of Simpson, the matter was sent back to a District Hearing Officer ("DHO") for the commission concerning the tentative order of permanent partial disability ("PPD") compensation. (Supp. p. 7). The DHO found Simpson "has a 4% of permanent partial disability" based on the reports of Dr. Hutchinson and Dr. Moses. ( S. pp. 7-8). Simpson appealed. A Staff Hearing Officer ("SHO") affirmed the DHO's order regarding the percentage of permanent partial impairment for Simpson. (S. pp. 9-10). In August, 2007, according to Simpson's treating physician, Dr. Erdey, Simpson «^** recently became a candidate for a cotneal transplant for purposes of vision rehabilitation." (S. p. 11). Simpson underwent corneal transplant surgery in August, 2007. (S. p. 12). According to Dr. Erdey, Simpson's pre-surgical visual acuity was 20/80: The time leading up to the corneal transplant Joanne's vision fluctuated fi-om 20/30 to 20/150. Her percentage of vision loss from the injury is 30% based on her presurgical visual acuity of 20/70 in her left eye and 20/20 in her right eye. Her peripheral vision in both eyes is ftill. Post operatively her vision in the left eye is 20/80 uncorrected and 20/60 corrected with a clear graft. Id. After her transplant surgery, Simpson's visual acuity was 20/60. She filed a motion for a 100% scheduled loss of vision of the left eye under R.C. 4123.57(B). A DHO heard the motion and denied Simpson's request. The DHO found that she had a vision loss of less than 25%: It is the finding of the District Hearing Officer that the injured worker has not sustained her burden of proving that she has suffered a loss of sight of her left eye as a direct result of this industrial injury. Specifically, the District Hearing Officer finds that the preponderance of the medical evidence on file fails to document that the injured worker has suffered greater than a twenty-five percent loss of the uncorrected vision in her left eye. Based on this fact, the District Hearing Officer concludes that the injured worker is not eligible to receive a scheduled loss award for total loss of sight in the left eye at this time. 3

Accordingly, it is the order of the District Hearing Officer that the injured worker's request for a scheduled loss award for the total loss of sight of the left eye is denied. This decision is based upon Dr. Hutchinson's 02/10/2006 report, Dr. Calloway's 05/25/02005 report and Dr. Moses' report. The District Hearing Officer further relies upon Section 4123.57 of the Ohio Revised Code. (S. p. 13-14). Simpson appealed the DHO's order. (S. p. 15). An SHO vacated the DHO's order. (S. pp. 15-16). The SHO found that the surgical removal of the cornea required a total loss of use: It is the finding of the Staff Hearing Officer that the injured worker sustained a total loss of vision on the left eye as a result of her industrial injury. Therefore, it is the order of the Staff Hearing Officer that the injured worker is awarded 125 weeks consistent with ORC 4123.57(B). The start date of the award is 08/28/2007. The Staff Hearing Officer finds the injured worker sustained an injury to her left eye as the result of a chemical splash in her eye. Following treatment, it was determined that the injured worker needed a lens transplant. T'he lens^ was surgically removed on 08/28/2007. The surgical removal of the lens resulted in a total loss of use of the left eye. "I'herefore, a total loss of use is awarded consistent with ORC 4123.57(B). This decision is based on the records of Dr. Erdey from 08/09/2008 to the present, as well as the surgery of 08/28/2008. 'The Staff Hearing Officer notes the doctors concur the injured worker's loss of vision prior to the surgery was less than 25%. However, the injured worker is requesting a total loss of vision, not a partial loss of vision. Id. Dolgencorp appealed. The commission refused to hear the appeal. Dolgencorp filed an action in mandamus. A magistrate found Simpson not entitled to a total loss of use award because her vision loss was less than twenty-five percent. The magistrate found that the commission incorrectly figured Simpson's vision loss during her corneal transplant surgery, specifically when her own lens was removed, but before the donor lens was attached, into its calculation of her total loss of vision. The Tenth District Court of Appeals for 1 Simpson's cornea was surgically removed. Her surgery was not a "lens" replacement surgery as referred to by the SHO. 4

Franklin County affirmed the magistrate's decision. Simpson and the commission filed an appeal with this Court. ARGUMENT Standard of review For the Court to issue of writ of mandamus, Dolgencorp must demonstrate that it has a clear legal right to the relief sought and that the commission had a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141. To establish a basis for mandamus relief, Dolgencorp must show the commission abused its discretion by issuing an order not supported by evidence in the administrative record. State ex rel. Elliott v. Indus. Comm. (1986), 26 Ohio St.3d 76, 78-79. Where evidence in the record supports the commission's decision, courts will not disturb the administrative findings in a mandamus action. State ex rel. Fiber-Lite Corp. v. Indus. Comm. (1988), 36 Ohio St.3d 202. Here, a writ of mandamus must not issue because the commission's order awarding Simpson a total loss of use award is supported by law and by evidence. Appellant Industrial Commission's Proposition of Law: The surgical retnoval of a cornea results in a total loss of use of the eye, and the subsequent replacement of the cornea is corrective, not restorative. State ex rel. Kroger v. Stover (1987), 31 Ohio St.3d 229, followec7 The question of when a total loss of vision occurs for purposes of a total loss of vision award under R.C. 4123.57(B) has been subject to debate for years, but courts have consistently held that a corneal or lens transplant surgery is corrective and not restorative, and that therefore an injured worker undergoing such surgery has a total loss of use of the affected eye. In State ex rel. Kroger v. Slover (1987), 31 Ohio St.3d 229, the claimant was exposed to ammonia and sustained substantial vision loss resulting from severe buming and scarring of the 5

corneas. Following a corneal transplant of the right eye, the commission granted an award for an eighty percent (80%) loss of vision of the right eye. The claimant had not yet had a corneal transplant in the left eye and was awarded a total loss of vision of the left eye. Kroger asserted that a loss that has been surgically repaired does not represent an actual loss. Kroger asked the Court to find that a comeal transplant is not merely corrective, but restores vision permanently. The Court decliiied. Based on "the current state of the medical art," the Court held that a claimant's corneal transplant "was only corrective, not restorative, and could not be considered in making an award." Kroger, paragraph two of the syllabus. Thus, under Kroger, a total loss of use award is appropriate wlien an individual's own lens or cornea is removed and replaced with a transplant lens or comea. The courts of appeals and this Court have consistently followed the principle set forth in Kroger. For exainple, in State ex rel. Parsec v. Agin, 155 Ohio App.3d 303, 2003-Ohio-6186, the Tenth District held that a lens implant surgery required a total loss award. Claimant was struck in the left eye with a wire causing intra-ocular penetration. Clinical evaluation showed that there was a central corrteal laceration that was leaking aqueous humor and that there was some bowing of the iris and a defect in the left lens capsule medially with opacitication of the lens. The claimant had surgery to remove the lens and insert a three piece silicone intraocular lens. Parsee at 8. The coinmission found "a total loss of his natural or uncorrected vision." Parsec at 16. 1'he court of appeals noted that the claimants' lens, as with the comeas in Kroger "w[as] rendered completely useless and had to be removed." Parsec found that granting a total loss of vision award to the Kroger and Parsec claimants, due to the loss of the cornea and/or lens, was not an abuse of discretion. This Court upheld a total loss of use award in Slate ex rel. General Electric v. Indus. 6

Comm., 103 Ohio St.3d 420, 2004-Ohio-5585. There, the claimant received an electrical shock that caused cataracts in both eyes. Ilis vision decreased to 20/200 from 20/20. "I'he injury eventually required bilateral surgery and lens implants. The claimant's treating physician considered thc 20/200 level of visual acuity to be legally blind. The commission found the claimant "entitled to a total loss of vision for both eyes, as the claimant had no impairment prior to the injury and 20/200 vision after the injury." General Electric at 5. The clairnant had cataract surgery and intraocular lens implants for his eyes. Although the Tenth District Court of Appeals considered the comeal lens implant surgery restorative, this Court disagreed. This Court held the commission did not abuse its discretion when it granted the total loss of use award to claimant in General Electric. Most recently, the Court In Slate ex rel. AutoZone, Inc. v. Indus. C'omm., 117 Ohio St.3d 186, 2008-Ohio-541, the claimant sustained an industrial injury to his eye that required surgical repair. The Tenth District Court of Appeals cited Parsec and found that if an industrial iujury "to the claimant's cornea required its surgical removal and an artificial implant to restore his vision," the resulting "loss of that natural lens was sufficient to qualify as a total loss of vision for the purposes of R.C. 4123.57(B)." Then, the court of appeals found that the holding in General Electric, that a corneal transplant is corrective rather than restorative, recognizes "that some claimants might receive a full loss award for only a partial loss of vision." The court reasoned that such a result accords with the liberal construction required by R.C. 4123.95 and "`the beneficent intent and the social policies underlying the workers' compensation law."' On appeal, this Court held that, "pursuant to R.C. 4123.57(B), when a doctor determines that a claimant is rendered `legally blind' due to the loss of a lens in an industrial accident, that determination constitutes `some evidence' that the claiinant has suffered `tlre loss of sight of an 7

eye."' But, this Court refused to make a distinction between the claimant in AutoZone whose lens was lost due to the trauma and repair of the eye injury, and the claimant in Parsec who already had a complete loss of vision which necessitated the implantation of a new lens. Here, unlike in the cited cases, Simpson did not lose all or most of her visual acuity, but only 10-15%. Nonetheless, the industrial injury necessitated Simpson to undergo corneal transplant surgery. Specifically, her own cornea would not have needed to removed and a donor cornea implanted, but for the industrial injury. While her vision loss pre-surgery was less than twenty-five percent, Simpson's own cornea was removed and a donor cornea attached. Because, as in Kroger and its progeny, part of Simpson's own eye was removed and replaced with a transplant, Simpson is entitled to a total vision loss award. Thus, Simpson is entitled to a total loss of use award under R.C. 4123.57(B). CONCLUSION The commission did not abuse its discretion in finding Simpson is entitled to a total loss of use award. Simpson meets the requirements for entitlement to a total loss of use award under R.C. 4123.57(B) and Kroger. The commission's decision to award Simpson a total loss of use award was appropriate, based on evidence in the record, and was not an abuse of discretion. For the foregoing reasons, the commission requests that this Court reverse the decision of the Tenth District Court of Appeals and deny the requested writ of mandamus. Respectfully submitted, RICHARD CORDRAY Ohio Attorney General 8

^AMgSA D: P)kYBI,r (i9,064452) * Counsel of RecoYd Assistant Attorney General 150 East Gay Street, 22d Floor Columbus, Ohio 43215 614-466-6696 614-728-9535 - fax chari ssa.payer@ohioattorneygeneral. gov Counsel for Appellant, Industrial Commission of Ohio 9

CERTIFICATE OF SERVICE I certify that a copy of the Merit Brief of Appellant, the Industrial Commission of Ohio, was served by U.S. mail this 16`h day of April, 2010, upon the following counsel: Amy S.Thomas Ross R. Fulton Reminger Co., LPA Philip J. Fulton 65 East State Street, 4`h Floor P hi'p J. Fulton Law Office Columbus, Ohio 43215 89asf Nationwide ttlevard, Suate 300 s, Obip43215 CHUS^AJP -Xk.YE (0064452) Assistant Attorney eneral 10

APPENDIX Second Notice of Appeal...1 Judgment Entry, Court of Appeals, Tenth District...5 Decision, Court of Appeals, T enth District...6 R.C. 4123.57(B).....................................................................................34 R.C. 4123.95.....................................................................................38

3Jn t(je ^tlprqitce (CDUTx of 00iD STATE ex rel. JOANNE R. SIMPSON, CASE NO. 2010-0124 vs. Appellee, On Appeal from the Fratildin County Court of Appeals, Tenth Appellate District. Case No. 08AP-1014 DOLGENCORP, INC. (AKA DOLLAR GENERAL), et al., Appellants. SECOND NOTICE OF APPEAL AMY S. THOMAS (0074380) Reminger Co., LPA 65 East State Street, 4'h Floor Colambus, Ohio 43215 614-232-2627 614-232-2410 - fax athomas@reminger.com Counsel for Appellee, Dolgencorp, Inc. (AKA Dollar General) RICIIARD CORDRAY Ohio Attorney General CHARISSA D. PAYER (0064452) Counsel ofrecord Assistant Attomey General 150 East Gay Street, 22"d Floor Columbus, Ohio 43215 614-466-6696 614-728-9535 - fax charissa.payer@ohioattorneygeneral.gov Counsel for Appellant, Industrial Commission of Ohio ROSS R. FULTON (0082852) PHILIP J. FULTON (0008722) Philip J. Fulton Law Office 89 East Nationwide Boulevard, Suite 300 Colwnbus, Ohio 43215 614-224-3838 614-224-3933 - fax ross@fultonlaw.com phil@fultonlaw.com Counsel for Appellant, Joanne Simpson 1

NOTICE OF APPEAL OF APPELLANT INDUSTRIAL COMMISSION OF OHIO Appellant, Industrial Commission of Ohio, gives notice of appeal to the Supreme Court of Ohio from the judgment of the Franklin County Court of Appeals, Tenth Appellate District, entered in Court of Appeals Case No. 08AP-1014 ou December 15, 2009. A copy of the judgment entry is attached. This case originated in the Franklin County Court of Appeals. Therefore, this is an appeal as of right. Respectfully submitted, GHARD C6 io t, ttorne` q5. PfaAR (0064452) Counsel ofrecor Assistant Attonrey General 150 East Gay Street, 22nd Floor Columbus, Ohio 43215 614-466-6696 614-728-9535-fax charissa.payer@ohioattorneygeneral.gov Counsel for Appellant, Industrial Commission of Ohio 2

CERTIFICATE OF SERVICE I certify that a copy of the Second Notice of Appeal was sent to Amy Thomas, counsel for Appellee, Dolgencorp, Inc., Reminger Co., LPA, 65 East State Street, 4 th Floor, Columbus, Ohio, 43215, and Ross J. Fulton and Philip J. Fulton, Philip J. Fulton Law Office, counsel for Appellant, Joanne Simpson, 89 East Nationwide Boulevard, Suite 300, Columbus, Ohio 43215, and, by r U.S. Mail, postage pre-paid, this 15t day of February, 2010. Assistant Attorney General

IN THE COURT OF APPEALS OF OHIO State of Ohio ex rel. Dolgencorp, Inc. (aka Dollar General), TENTH APPELLATE DISTRICT 2i"9 DEC 15 PM12: 08 Ci_r=Rt+ OF Ci,URiS V. Relator, Industrial Commission of Ohio and Joanne R. Simpson, No. O8AP-1014 (REGULAR CALENDAR) Respondents. JUDGMENT ENTRY For the reasons stated in the decision of this court rendered herein on December 15, 2009, relator's objections to the decision of the magistrate are sustained, respondents' objections are overruled, we adopt the magistrate's findings of fact and we adopt, in part, the magistrate's conclusions of law, and supplement the same with our own conclusions set forth in the decision, and it is the judgment and order of this court that a writ of mandamus issue against respondent, Industrial Commission of Ohio, ordering it to vacate its order awarding claimant compensation under R.C. 4123.57(B) for total loss of vision of the left eye, and to enter a new order denying that compensation. Costs shall be assessed equally against respondents. Within three (3) days from the filing hereof, the clerk of this court is hereby ordered to serve upon all parties not in default for failure to appear notice of this judgment and its date of entry upon the journal. /I Judge `Lisa L. Sadler 4

PILED C'JU"' ^^F APPE,'t(,S 0. ONio IN THE COURT OF APPEALS OF OHIO 'T.r CEC I 5 PH 12: U2 TENTH APPELLATE DISTRICT OF COURTS State of Ohio ex rel. Dolgencorp, Inc. (aka Dollar General), V. Relator, Industrial Commission of Ohio and Joanne R. Simpson, No. 08AP-1014 (REGULAR CALENDAR) Respondents. D E C i S I O N Rendered on December 15, 2009 Reminger Co., L.P.A., and Amy S. Thomas, for relator. Richard Cordray, Attomey General, Charissa D. Payer, and Stephen D. Plymale, for respondent Industrial Commission of Ohio. Philip J. Fulton Law Office, Philip J. Fulton, and William A. Thonnan, 1t1, for respondent Joanne R. Simpson. IN MANDAMUS ON OBJECTIONS TO THE MAGISTRATE'S DECISION SADLER, J. (11} Relator, Dolgencorp, Inc. ("relator"), has filed this original action requesting that this _,ourt c issue a writ of mandamus ordering respondent, Industrial Commission of 5

No. O8AP-1014 2 Ohio ("commission"), to vacate its order awarding respondent, Joanne R. Simpson ("claimant"), compensation under R.C. 4123.57(B) for total loss of vision of the left eye, and to enter a new order denying that compensation. {12} Pursuant to Civ.R. 53 and Loc.R. 12(M) of the Tenth Appellate District, this matter was referred to a magistrate who issued a decision including findings of fact and conclusions of law, which is appended to this decision. Therein, the magistrate concluded that the commission abused its discretion and that we should grant the requested writ. The commission and the claimant filed objections to the magistrate's decision, in which they urged this court not to grant the writ, while relator filed objections urging us to grant the writ for reasons somewhat different than those articulated by the magistrate. This cause is now before the court for a full review. {13} On May 7, 2004, claimant sustained an alkali bum to her left eye in the course and scope of her employment with relator. The claim was allowed for left eye interstitial keratitis, corneal opacity of the left eye, and comeal neovascularization of the left eye. On August 14, 2004, three months after her accident, ctaimant's treating ophthalmologist, Dr. Erdey, reported that claimant's uncorrected vision in her left eye was 20/30. {14} Three years later, on August 20, 2007, Dr. Erdey submitted to the Bureau of Workers' Compensation a C-9 Request for Medical Service, in which he requested authorization to perform a corneal transplant on claimant's left eye. This request was apparently approved. On August 28, 2007, Dr. Erdey performed the corneal transplant. In a January 11, 2008 letter to claimant's counsel, Dr. Erdey stated that the uncorrected vision in claimant's left eye fluctuated between 20/30 and 20/150 prior to her surgery, and 6

No. 08AP-1014 3 that after her surgery the uncorrected vision in her left eye was 20/80. He further stated that her left-eye vision loss from the injury is 30 percent. {15) On March 3, 2008, claimant moved for an award for 100 percent loss of vision in her left eye pursuant to R.C. 4123.57(B). That section of the Ohio Revised Code provides, in pertinent part: Partial disability compensation shall be paid as follows. Except as provided in this section **' the employee may file an application with the bureau of workers' compensation for the determination of the percentage of the employee's permanent partial disability resulting from an injury or occupational disease..** (B) In cases included in the following schedule the compensation payable per week to the employee is the statewide average weekly wage * * * per week and shall continue during the periods provided in the following schedule: *** (Emphasis added.) For the loss of the sight of an eye, one hundred twenty-five weeks. 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 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. {16} Claimant based her motion for an award for total loss of vision on Dr. Erdey's January 11, 2008 report and his C-9 Request for Medical Service regarding the 7

No. 08AP-1014 4 corneal transplant surgery. A commission district hearing officer ("DHO") denied the motion, finding that claimant had failed to carry her burden of proof that she had sustained at least a 25 percent loss of uncorrected vision in her left eye as a result of her allowed conditions. This order was based on two medical reports obtained by the Bureau of Workers' Compensation and one report obtained by relator, all of which indicated that claimant had lost five to ten percent of the vision in her left eye as a result of the industrial injury. {17} In a fax dated June 18, 2008, Dr. Erdey told claimant's counsel that claimant had not lost 30 percent of the vision in her left eye, and that his January 11, 2008 letter stating such was incorrect and had been sent in error. He stated that the loss of vision in the left eye was not 30 percent, and directed counsel's attention to a July 27, 2007 report in which Dr. Erdey had noted a 10 percent vision loss in the left eye. {18} After claimant appealed the DHO order, a commission staff hearing officer ("SHO") vacated the DHO order and granted the requested award for total loss of vision in claimant's left eye. The SHO reasoned that because the comeal transplant involved removal of claimant's own comea before the donor cornea was put in place, "[t]he surgical removal of the lens resulted in a total loss of use of the left eye." (Stip.Rec. 45.) The SHO ended his analysis by stating, "[t]he Staff Hearing Officer notes the doctors concur the injured worker's loss of vision prior to the surgery was less than 25%. However, the injured worker is requesting a total loss of vision, not a partial loss of vision." Id. {19} Following the commission's refusal to consider relator's further appeal, relator instituted this action in mandamus. The magistrate recommended granting of the 8

No. 08AP-1014 5 writ because "the commission incorrectly held that the loss of the left eye cornea during the August 28, 2007 surgery, by itself, constitutes a total loss of use of the left eye." Ante, 49. While accepting as a fact that the industrial injury necessitated claimant's corneal transplant surgery, the magistrate based his ultimate conclusion primarily upon the nature of corneal transplant surgery, which the Supreme Court of Ohio has made ciear is corrective surgery, not restorative. State ex ret. Kroger Co, v. Stover (1987), 31 Ohio St.3d 229, paragraph two of the syllabus. {1101 Because the claimant must prove that she sustained a total loss of uncorrected vision as a result of her industrial injury, the magistrate viewed the evidence without regard to the corrective treatment she received (that is, the surgery). The magistrate determined that, in light of the undisputed medical evidence that claimant's left-eye vision loss was less than 25 percent, the commission had abused its discretion in granting an award for total loss of vision by calculating the vision loss at the point in time after the surgeon had removed claimant's natural lens, but before he attached the donor lens. fi11} In its objections, citing the dissent in Kroger, the commission argues that the magistrate should have focused on whether the surgery itself resulted in 100 percent vision loss before transplanting the donor lens. In other words, the commission splits the corrective surgery into two phases - removal of the natural lens and attachment of the donor lens - and argues that the former is not corrective, so calculation of loss should occur after that part of the procedure, and that the iatter is the only "corrective" aspect of the corneal transplant surgery and should thus not be taken into consideration when calculating vision loss. Based solely on the dissent in Kroger, the commission argues that 9

No. 08AP-1014 6 because corneal transplants are corrective, they should be treated exactly like a surgery in which a limb is surgically amputated and a prosthetic limb is then attached. The commission does not address whether the injured worker in the hypothetical involving a surgically amputated limb had lost the use of that limb prior to amputation. {112} The commission also directs our attention to the cases of State ex rel. Parsec, Inc. v. Agin, 155 Ohio App.3d 303, 2003-Ohio-6186, and State ex ret. Autozone, Inc. v. Indus. Comm., 10th Dist. No. 05AP-634, 2006-Ohio-2959, but does not elaborate as to how those two cases apply herein. We note that in Autozone, the injured worker was legally blind as a result of his industrial injury before any surgical intervention. Claimant, too, relies on Parsec to support her argument that because the industrial injury necessitated the corneal surgery, and because the surgery necessarily involved removal of claimant's natural cornea, then, at the point after that removal but before the donor comea was attached, the injury caused a 100 percent loss of vision in her left eye. {113} In Parsec, like in Autozone, the injured worker's lenses were rendered completely useless as a result of his industrial injury and, therefore, prior to his artificial lens transplant surgery, he had lost 100 percent of his vision in both eyes. Curiously, though, claimant argues that in Parsec, we did not require the injured worker to prove that he had sustained a pre-surgery vision loss, as the magistrate here is requiring, and that 'rf we adopt the magistrate's decision, and require all claimants to prove a 100 percent presurgery loss of vision, then we will preclude all claims under R.C. 4123.57 for total loss of vision, thereby undermining the goals of the workers' compensation system. {114} We reject both the commission's and claimant's arguments. We adhere, as we must, to the Supreme Court of Ohio's clear pronouncement in Kroger that corneal 10

No. 08AP-1014 7 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. {115} The Kroger court did not separate that surgery into two phases, as the commission and claimant urge us to do here, and we refuse to do so. The Supreme Court of Ohio rejected a similar argument in the case of State ex rel. Qiblawe v. Indus. Comm., 96 Ohio St.3d 347, 2002-Ohio-4759. In that case, the claimant suffered the amputation of her right middle finger in an industrial accident. She received a scheduled loss award for the loss of her middle finger, under R.C. 4123.57(B). Later, at the recommendation of her doctor, she underwent a procedure whereby the surgeon amputated her right index finger and then reaftached it at the site of the previously amputated middle finger, so that small objects would no longer fall through her hand. In other words, it was preferable, from a practical standpoint, to have a missing index finger instead of a missing middle finger. {116} Then, the claimant moved for an award for the loss of her index finger, reasoning that because, during the surgery, the index finger was amputated, she had "lost" it, even though minutes later it had been reattached to her body. The Supreme Court of Ohio refused to view the surgery in two separate phases, instead adhering to the statutory mandate of viewing loss prior to any corrective surgery. The court noted, "[c]laimant seeks to completely eliminate successful surgical reattachment from the equation. * * * Even if claimant's surgical-amputation rationale is given credence, the successful surgical reattachment at the long finger amputation site eliminates loss there, still leaving claimant entitled to just one award." Id. at 5. 11

No. 08AP-1014 8 {117} In Kroger, the court emphasized that it was the industrial injury - not any aspect of the surgery - that caused the loss of vision. It stated that "[u]ndeniably [the injured worker] sustained the substantial vision loss found by the commission. His loss resulted from severe burning and scarring of his corneas. The question is whether a transplant eliminates the loss of vision or is a correction of vision." Kroger at 234. The court noted that the medical evidence showed that the industrial injury (not the surgery) caused Stover "a percentage loss of eighty percent uncorrected visual acuity in the right eye and 96.7 percent in the left eye." (Emphasis sic.) Id. at 233. It was the industrial injury - not any aspect of the corrective surgery - that the court in Kroger viewed as the cause of the injured worlcer's vision loss. (118) We must analyze this case in the same manner, inquiring whether the evidence supports the conclusion that, prior to surgery, claimant had suffered a total loss of vision in her left eye as a result of her industrial injury. This brings us to relator's objection. Relator objects to the magistrate's acceptance of the premise that claimant's industrial injury necessitated her corneal transplant surgery. Relator points out that although claimant elected to have the surgery in order to improve her symptoms, there is no evidence that she had lost all of her vision in her left eye and needed surgery to restore it, as the injured worker in Parsec did. Indeed, we observe that in Parsec the commission found, and we agreed, that the injured worker's injury was so severe that it caused an immediate total loss of vision in his left eye, long before his corneal repair and implantation surgery. Here, claimant did not suffer a total loss of vision as a result of her industrial injury; according to her own treating ophthalmologist she had vision in her left 12

No. O8AP-1014 9 eye of between 20180 and 20/150 after her injury, with vision loss in the left eye of ten percent. 11191 The plain language of R.C. 4123.57(B) required the commission to decide whether claimant sustained "9oss of the sight of an eye" and whether that impairment was "resulting from an injury or occupational disease." Relator argues that when this plain language is applied to the record in this case, it was an abuse of discretion to find that claimant sustained a total loss of vision as a result of her industrial injury. We agree. In keeping with the Qiblawe court's rationale, even if the surgical removal of claimant's cornea is given credence, the successful attachment of the donor cornea eliminates the "9oss." Prior to her corrective surgery, the point at which R.C. 4123.57(B) and Kroger require evaluation of loss, claimant's vision was 20/30 to 20/150 and her treating physician stated that her vision loss in her left eye was 10 percent. Accordingly, the DHO's analysis was correct; review of the SHO's order compels the conclusion that the commission abused its discretion. {120} Thus, we agree with the magistrate's conclusion. However, we do so for slightly different reasons, as discussed herein. We deem unnecessary much of the magistrate's discussion of the differences between corneal transplant surgery and intraocular lens implantation surgery. Thus, we decline to adopt that portion of the magistrate's decision. {121} In summary, upon a full review of the record, the applicable law, and the arguments of the parties, we sustain relator's objections and we overrule the commission's objections and claimant's objections. We adopt the magistrate's findings of fact and we adopt, in part, the magistrate's conclusions of law, and supplement the same 13

No.08AP-1014 10 with our own conclusions as set forth in this decision. We find that the commission abused its discretion and, accordingly, grant a writ of mandamus ordering the commission to vacate its order awarding claimant compensation under R.C. 4123.57(B) for total loss of vision of the left eye, and to enter a new order denying that compensation. BROWN and TYACK, JJ., concur. Retators objections sustained; respondents' objections overruted; writ of mandamus granted. 14

No.08AP-1014 11 IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT State of Ohio ex rel. Dolgencorp, Inc. (aka Dollar General), V. Relator, No. 08AP-1014 Industrial Commission of Ohio (REGULAR CALENDAR) and Joanne R. Simpson, Respondents. MAGISTRATE'S DECISION Rendered on July 31, 2009 Reminger Co., L.P.A., and Amy S. Thomas, for relator. Richard Cordray, Attorney General, Chanssa D. Payer and Stephen D. Plymale, for respondent Industrial Commission of Ohio. Philip J. Fulton Law Office, Philip J. Fulton and William A. Thorman, tlt, for respondent Joanne R. Simpson. IN MANDAMUS {122} In this original action, relator, Dolgencorp, Inc. (aka Dollar General), requests a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its award of R.C. 4123.57(B) compensation for total loss of 15

No. 08AP-1014 12 vision of the left eye of respondent Joanne R. Simpson ("claimant"), and to enter an order denying an award of compensation. Findings of Fact: {123) 1. On May 7, 2004, claimant sustained a severe left eye injury while employed with relator, a self-insured employer under Ohio's workers' compensation laws. The industrial claim (No. 04-850817) is allowed for "left eye; interstitial keratitis; corneal opacity and corneal neovascularization of the left eye." {124} 2. In December 2004, claimant filed an application for the determination of her percentage of permanent partial disability ("PPD"). {125} 3. Claimant's application prompted the Ohio Bureau of Workers' Compensation ("bureau") to seek an evaluation from George F. Calloway, Jr., M.D., who examined claimant on May 25, 2005. Dr. Calloway reported: History of Present Iniury: * * * Ms. Simpson states that while working on May 7, 2004, she spilled bleach in her left eye and as a result of this, sustained an alkali bum to the eye. She was seen at St. Ann's Hospital Emergency Room and treated with copious flushing and then sent to another ophthalmologist who treated her with topical steroids as well as other mediations for inflammation. She is currently taking Pred Forte one drop in the left eye twice a day and Restasis one drop in the left eye twice a day. She continues to notice blurred vision and is having significant problems with photophobia and night driving. She denies any history of problems with her eyes prior to her injury and states that her general health is good. Physical Examination: Ocular examination revealed an uncorrected visual acuity of 20/50 in the right eye and 20/60 in the left. There was pinhole improvement in the left eye to 20/40. "** In the left eye, there was no conjunctival injection, however, there was a haze to the temporal peripheral cornea as well as intrastromal vessels (interstitial keratitis). The visual axis data appear to be intact. Dilated 16

No. 08AP-1014 13 fundus examination bilaterally showed the disk clear with a cup-disk ratio of 0,3 and sharp margins. The retinal vessels were of normal caliber. The macula, sclera, and the periphery were intact. Allowed Diagnoses: 1. Superficial injury, left eye. 2. Interstitial keratitis, NOS, left eye[.] 3. Corneal opacity, NOS, left eye. 4. Corneal neovascularization, NOS, left eye. Discussion. Recommendation, and Prognosis: Ms. Simpson has sustained an alkali burn to the left eye and as a result, she appears to have a decreased visual acuity as well as significant subjective photophobia. Based on the fifth edition AMA guidelines, I find her to have a 5% impairment of the visual system based on her visual acuity loss with no loss of visual field. However, due to her photophobia, I do consider that to be significant and staying within the fifth edition AMA guidelines, I am finding her to have an additional 10% impairment based on that. This brings her to a total visual system impairment of 15%, which corresponds to a 15% impairment of the whole person. This finding is again based on the medical record and examination of this patient. "' * {126} 4. Based upon Dr. Calloway's report, the bureau issued a tentative order to which relator objected. {127} 5. Following a November 14, 2005 hearing, a district hearing officer ("DHO") issued an interlocutory order instructing the bureau to obtain a new examination because the DHO found that Dr. Calloway had considered nonallowed conditions. (128) 6. Pursuant to the DHO's instructions, the bureau sought an evaluation from Jeffrey D. Hutchison, D.O., who examined claimant on February 10, 2006. Dr. Hutchison reported: 17

No. 08AP-1014 14 As you know Ms. Simpson was performing her usual duties as an employee of Dolgendorp {sicj Inc., on May 7th 2004 when she was splashed in the face with a bleach or alkali solution. She was immediately treated in the emergency room and subsequently by an ophthalmologist. She has been on several topical medications. At this point she is using Prednisolone acetate drops once a day and Restasis drops twice a day for her left eye. She continues to be bothered by light sensitivity and blurred vision on the left. She is currently otherwise healthy. On her exam today visual acuity without correction is 20/20-1 on the right and 20/30-2 on the left. Vision does not improve with refractive correction on the left. Extraocular muscle function, pupil exam, muscle balance exam and visual fields by confrontation are normal. The external exam is unremarkable. The slit lamp exam reveals no acute inflammation. The comea does demonstrate deep neovascularization as evidence of interstitial keratitis. There is a central haze, especially in the deep stroma centrally. The anterior chamber is deep and quiet and there is no evidence of intraocular inflammation at this time. Intraocular pressure is in the normal range. Ophthalmoscopy through dilated pupils is unremarkable. In summary, Ms. Simpson is demonstrating evidence of interstitial keratitis and corneal opacity with neovascularization of the comea in the left secondary to her alkali burn. Visual acuity as a result has been decreased, but her visual fields remain intact. In order to answer your specific questions: Number one: Has the injured worker sustained a percentage of permanent partial impairment as a result of the allowed injury/icd codes listed below? Yes. Based on most [sicj the most recent edition of the American Medical Association's Guide to the evaluation of permanent impairment the visual system is impaired and therefore the whole body impairment is estimated at 10%. This includes approximately 5% based strictly on visual acuity impairment and approximately an additional 5% for her subjective symptoms of photophobia. {129} 7. Relator obtained a report dated November 28, 2005, from ophthalmologist James L. Moses, M.D.: 18

No.08AP-1014 15 *** In response to the question about loss of visual acuity, this patient's loss of visual acuity OS (left eye) at this time is 20/70 without correction. Based upon her vision and AMA guidelines, her permanent loss of vision would be calculated at 5%. In regard to the second issue of permanent, partial disability, AMA guidelines do not allow for impairments such as constant epiphora (tearing), glare phenomena, loss of depth perception, and involuntary blepharospasm. Therefore, I cannot provide you with a percentage about permanent partial disability despite these symptoms. {130} 8. Apparently, the bureau mailed an order on February 28, 2006 to which relator objected. {131} 9. Following an April 27, 2006 hearing on retator's objection, a DHO issued the following order: 2006. The District Hearing Officer finds from proof of record that the injured worker has 4% of permanent partial disability, which entitles injured worker to an award of compensation for a period of 8 weeks. * * * I This order is based upon the report(s) of Dr(s). Hutchinson [sic] and Moses. {132} 10. Claimant moved for reconsideration of the DHO's order of April 27, {133} 11. Following a June 13, 2006 hearing, a staff hearing officer ("SHO") issued an order affirming the DHO's order of April 27, 2006. The SHO's order explains: It is the finding of the Staff Hearing Officer that the order of the District Hearing Officer be affirmed for the reason that it is supported by proof of record and is not contrary to law. This order is based upon the reports of Dr. Hutchison; Moses. 19

No. O8AP-1014 16 {134} 12. Earlier, on August 14, 2004, treating ophthalmologist Richard A. Erdey, M.D., wrote: (Emphasis sic.) I had the opportunity to evaluate Joann who presents with left eye irritation and photophobia[.) This began after she reported a splash with bleach to her left eye that occurred 6-04 [sic] while she was unloading a truck at work[.] She presented to St[.] Ann's emergency room and had the eye flushed[.] She has had some persistent problems thereafter[.] Visual acuity OD is 20/20, OS 20/30 Impression Interstitial keratitis OS as evidenced by deep corneal neovascularization in the temporal aspect of the left eye(.] There is some diffuse corneal stromal haze and fine keratic precipitates OS[.] This may likely be a result of the alkali burn OS[.] I have recommended vigorous topical steroids and I will follow her periodically in this regard. {135} 13. On August 20, 2007, Dr. Erdey wrote: We have been following Joanne's eye condition since 8-11- 04. She recently became a candidate for a corneal transplant for purposes of vision rehabilitation. We have tentatively scheduled Joanne for 8-28-07 to receive the transplantation. {136} 14. On August 28, 2007, Dr. Erdey performed a penetrating keratoplasty on the left eye. In his operative report, Dr. Erdey wrote: "The patient has severe loss of vision in the operative eye to the 20/70 range due to Corneal Scar in the operative eye. Penetrating keratoplasty of the operative eye is indicated to improve visual function." 20

No. 08AP-1014 17 (1371 15. According to the operative report, Dr. Erdey excised the "corneal button" and then "[t]he donor corneal button was placed endothelial side down into the resulting defect and sutured into place." {138} 16. The record contains an unsigned report, dated January 11, 2008, that was prepared for Dr. Erdey's signature. That report states: Joanne had a chemical burn to the left eye on 8-11-04 [sic] while unloading a truck at work[.] Her cornea in the left eye became partially opacified as a result of the chemicai burn[.] Neovascularzation [sic) of the cornea developed which made delaying corneal transplant surgery necessary until vascularization regressed[.] In early 2007 the neovascularization [sic] of the left cornea began regressing allowing for the cornea transplant to take place 08-28-07. The time leading up to the corneal transplant Joanne's vision fluctuated from 20/30 to 201150[.] Her percentage of vision loss from the injury is 30% based on her presurgical visual acuity of 20/70 in her left eye and 20/20 in her right eye[.] Her peripheral vision in both eyes is full[.] Post operatively her vision in the ieft eye is 20/80 uncorrected and 20/60 corrected with a clear graft[.] (139} 17. On March 3, 2008, citing Dr. Erdey's unsigned January 11, 2008 report, claimant moved for R.C. 4123.57(B) compensation for "100% loss of vision of the left eye." {140} 18. On April 7, 2008, Dr. Moses wrote to relator's counsel: * * * I reviewed your correspondence and the records and notes that have been provided to me[.] Your basic question is what percentage of loss of visual acuity am I able to opine that the client sustained prior to her corrective surgery. It seems from the notes that the visual acuity prior to penetrating keratoplasty performed by Richard Erdey for the injured left eye was in the 20/70 range[.] This was after a long, arduous course of inedical therapy[.] Given the criteria that has been supplied in relation to functional visual acuity, 21

No. 08AP-1014 18 the patient's percentage of loss of visual acuity would be calculated at 5%[.] Her vision utilizing both eyes was 20/20[.1 Her vision in the right eye was 20/20 and her vision in the left eye was 20/70[J This would calculate to a functional acuity score of 95% giving an impairment rating of 5% visual impairment[.] Unfortunately, this does not factor in any subjective problems that this patient has had and the loss of time and normal life activities because of sensitivity to light and the need for ongoing medical and surgical therapy[.] {141} 19. A June 18, 2008 facsimile letter, apparently originating from Dr. Erdey's office, indicates that the January 11, 2008 report contains an error in stating that the percentage of vision loss from the injury is 30 percent. The facsimile letter points out that Dr. Erdey did not sign the January 11, 2008 report and that it "should not have been mailed." [142} 20. Following a June 20, 2008 hearing, a DHO issued an order denying claimant's March 3, 2008 motion for R.C. 4123.57(B) compensation. The DHO's order of June 20, 2008 explains: It is the finding of the District Hearing Officer that the injured worker has not sustained her burden of proving that she has suffered a loss of sight of her left eye as a direct result of this industrial injury. Specifically, the District Hearing Officer finds that the preponderance of the medical evidence on file fails to document that the injured worker has suffered greater than a twenty-five percent loss of the uncorrected vision in her left eye. Based on this fact, the District Hearing Officer concludes that the injured worker is not eligible to receive a scheduled loss award for total loss of sight in the left eye at this time. Accordingly, it is the order of the District Hearing Officer that the injured worker's request for a scheduled loss award for the total loss of sight of the left eye is denied. This decision is based upon Dr. Hutchison's 02/10/2006 report, Dr. Calloway's 05/25/2005 report and Dr. Moses' report. The District Hearing Officer further relies upon Section 4123.57 of the Ohio Revised Code. 22

No. 08AP-1014 19 {143} 21. Claimant administratively appealed the DHO's order of June 20, 2008. {144} 22. Following a July 29, 2008 hearing, an SHO issued an order that vacates the DHO's order of June 20, 2008 and grants claimant's motion. The SHO's order explains: It is the finding of the Staff Hearing Officer that the injured worker sustained a total loss of vision of the left eye as the result of her industrial injury. Therefore, it is the order of the Staff Hearing Officer that the injured worker is awarded 125 weeks consistent with ORC 4123.57(B). The start date of the award is 08/28/2007. The Staff Hearing Officer finds the injured worker sustained an injury to her left eye as the result of a chemical splash in her eye. Following treatment, it was determined that the injured worker needed a lens transplant. The lens was surgically removed on 08/28/2007. The surgical removal of the lens resulted in a total loss of use of the left eye. Therefore, a total loss of use is awarded consistent with ORC 4123.57(B). This decision is based on the records of Dr. Erdey from 08/09/2008 to the present, as well as the surgery of 08/28/2008. The Staff Hearing officer notes the doctors concur the injured worker's loss of vision prior to the surgery was less than 25%. However, the injured worker is requesting a total loss of vision, not a partial loss of vision. {145} 23. On September 13, 2008, another SHO mailed an order refusing relator's administrative appeal from the SHO's order of July 29, 2008. {146} 24. On November 18, 2008, relator, Dolgencorp, Inc. (aka Dollar General), filed this mandamus action. Conclusions of Law: {147} It is undisputed that the industrial injury necessitated the surgical removal of the left eye cornea so that a donor cornea could be transplanted into the surgical site. 23

No. 08AP-1014 20 The commission, through its SHO, determined that the surgical removal of the left eye cornea constitutes a total loss of use of the left eye, even though a donor cornea was successfully transplanted. (148) The issue is whether the commission correctly held that the loss of claimant's own left eye cornea during the August 28, 2007 penetrating keratoplasty constitutes a total loss of use of her left eye within the meaning of R.C. 4123.57(B). {149} The magistrate finds that the commission incorrectly held that the loss of the left eye cornea during the August 28, 2007 surgery, by itself, constitutes a total loss of use of the left eye. Accordingly, it is the magistrate's decision that this court issue a writ of mandamus, as more fully explained below. 1150} R.C. 4123.57(6) provides a schedule for compensation for enumerated losses. The statute states: For the loss of the sight of an eye, one hundred twenty-five weeks. 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 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. {151} Analysis begins with the observation that a corneal transplant is a very different surgical procedure than an intraocular lens implant. Moreover, the surgical procedures operate on different components of the human eye. The corneal transplant which occurred in the instant case involves excision of the "corneal button" and 24

No. 08AP-1014 21 replacement with a"donor corneal button." This procedure is described as "penetrating keratoplasty" in the operative report of Dr. Erdey. {152} In State ex rel. Parsec, Inc. v. Agin, 155 Ohio App.3d 303, 2003-Ohio- 6186, the industrial injury resulted in a "total traumatic cataract" of the left eye. The claimant in Parsec underwent removal of the intraocular lens and the insertion of a "three-piece silicone intraocular lens." Id. at 9. Some of the language in Parsec suggests, however, that the claimant underwent a corneal transplant. {153} In reviewing the case law pertinent here, it is important to keep in mind the distinction between comeal transplant surgery and intraocular lens implant surgery. {154} Review begins with State ex ret. Kroger Co, v. Stover (1987), 31 Ohio St.3d 229, wherein paragraph two of the syllabus states: The improvement of vision resulting from a corneal transplant is a correction to vision and thus, shall not, on the current state of the medical art, be taken into consideration in determining the percentage of vision actually lost pursuant to R.C. 4123.57(C) [now R.C. 4123.57(B)]. {155} In State ex ret. Gen. Elec. Corp. v. Indus. Comm., 10th Dist. No. 02AP- 1291, 2004-Ohio-105 ("Generat Electric 1"), the commission awarded Randall Ross R.C. 4123.57(B) compensation for the total loss of use of both eyes. Ross had experienced an electrical shock at work which caused cataracts to develop in both eyes. Treating physician Ramesh M. Kode, M.D., recommended cataract surgery. In December 2000, the cataract was removed from the right eye. In February 2001, the cataract was removed from the left eye. The DHO noted in his order that Ross underwent "bilateral lens transplants." The SHO noted in his order that Ross "had cataract surgery and 25

No. 08AP-1014 22 intraocular lens implants." Id. at 23, 30. Thus, the cataract surgeries involved placement of an artificial intraocular lens into each eye. (156} In General Electric l, this court held that Ross's surgeries "eliminated any actual permanent loss suffered as a result of the accident" and thus the surgeries were not viewed as a correction to vision under R.C. 4123.57(B). Id. at 6. This court, in General Electric I, attempted to distinguish Krogerwhich, as previously noted, involved corneal transplant surgeries. (157} This court's judgment and decision in General Electric I was appealed as of right to the Supreme Court of Ohio. On appeal, this court's judgment was reversed. State ex rel. Gen. Elec. Corp. v. indus. Comm., 103 Ohio St.3d 420, 2004-Ohio-55B5 ("General Electric If'). (158} The General Electric l1 court reaffirmed the continued viability of its decision in Kroger. It also noted that in Kalhom v. Bellevue (1988), 227 Neb. 880, 420 N.W.2d 713, the Supreme Court of Nebraska reached the same conclusion regarding a synthetic-lens implant. Id. at 28. Id. at 51. (159} In its final paragraph, the General Electric II court states: * * * The court of appeals in this case felt that the time had arrived to reclassify corneal lens implants as restorative. We do not agree and accordingly reverse its judgment. (160} Because this court, in General Electric l, had actually endeavored to reclassify intraocular lens implants necessitated by industrially-induced cataracts, presumably the language of the final paragraph of the court's decision in General Electric li should be read in that light. 26

No. 08AP-1014 23 Q61} In State ex re(. Autozone, Inc. v. Indus. Comm., 10th Dist. No. 05AP-634, 2006-Ohio-2959 ("Autozone f'), this court upheld the commission's decision to award to Stephen Gaydosh R.C. 4123.57(B) compensation for total loss of vision of his left eye. {162) On January 16, 2004, Gaydosh injured his left eye in an industrial accident. The claim was allowed for "perforated globe left eye." Id. at 2. (163) On May 6, 2004, Gaydosh was examined by ophthalmologist Francis S. Mah, M.D., who reported: Id, at 24. * * * The injury was significant and Mr. Gaydosh is fortunate to still have his eye. He has a corneal and scleral laceration, which extends from the 9 o'clock area to the central visual axis up to the 12 o'clock area and beyond the 12 o'clock area. He is aphakic due to the loss of the lens during the trauma and repair. In terms of vision loss today, he is legally blind, 20/200 although he does have better potential for vision. Most likely his vision will never be as good as it had been prior to the injury, which it is assumed his vision is [sic] 20/20 in the left eye. At this stage, I would say that he has lost at least 75 to 80% of his vision and this does not include obviously the surgery and hardship that he has had to entail [sic] from the rehabilitation of his eye. {164} Apparently, while Gaydosh had lost the natural lens of his left eye due to the industrial injury, and was said to be "aphakic," his left eye had not received a lens implant at the time he applied for R.C. 4123.57(B) compensation for total loss of use of the eye. That is, on October 5, 2004, Autozone's doctor, Dr. Magness, opined: "A penetrating Keratoplasty, vitrectomy, and lens implant would be necessary to provide visual rehabilitation." Id. at 126. 27

No. 08AP-1014 24 {165} In Autozone!, this court states that the "issue * * * is whether the loss of a natural lens qualifies as 'the loss of the sight of an eye' for purposes of R.C. 4123.57(B)." Id. at 14. (166)!n upholding the commission's award of compensation for total loss of vision of the left eye, this court, in Autozone l, explained: ***[I]t would appear obvious that one cannot see without a lens to focus the light entering the eye. Therefore, based upon the evidence presented, it is reasonable to find that respondent Gaydosh, who suffered aphakia or loss of the use of his lens, suffered a total loss of vision in that eye. The magistrate relied upon Parsec, in which the injured party suffered from a cataract as a result of an industrial injury that required his original lens to be removed and replaced with an artificial lens. In Parsec, it was undisputed that the injury to the claimant's cornea [sic] required its surgical removal and an artificial implant to restore his vision. As a result, we held that the loss of that natural lens was sufficient to qualify as a total loss of vision for purposes of R.C. 4123.57(B). This case is factually very similar to Parsec. Two separate examinations of Gaydosh's injuries revealed that he was aphakic, meaning he no longer had the natural lens of his eye. It is undisputed that the loss of the lens was the result of Gaydosh's industrial injury. Therefore, we agree with the magistrate that, under Parsec, "the commission can conclude that the loss of the natural lens due to an industrial injury produces a total loss of uncorrected vision of the eye." (Magistrate's decision, at 8.) (Emphasis added.) Relator asserts that, although Parsec granted an award for 100 percent vision loss, the claimant in Parsec still had the burden of showing that he suffered a 100 percent loss of vision prior to the removal of his natural lens. Therefore, even though Parsec applies insofar as the claimants in each case lost the lenses of their eyes, relator suggests that Gaydosh is not entitled to recovery because there is no evidence that he suffered a complete loss of vision. We believe that relator's argument fails in light of Gen. Elec. Corp. In Gen. Elec. Corp., the Ohio Supreme Court found 28

No. 08AP-1014 25 Id. at 15-20. that claimant's corneal transplant [sic] was not restorative and thus awarded claimant a scheduled-loss award. In doing so, the court recognized that some claimants might receive a full loss award for only a partial loss of vision. However, the court observed that R.C. 4123.95 is to be liberally interpreted and "the beneficent intent and the social policies underlying the worker compensation law do not necessarily produce mathematically logical results in every case." Gen. Elec. Corp., at 426, quoting Dawson's Charter SerV. v. Chin (1986), 68 Md.App. 433, 444, 511 A.2d 1138. In Parsec, the claimant's lens had been rendered useless and required removal. Gaydosh also lost his lens. In both cases, the claimants did not have functioning lenses. One cannot see without a functioning lens. Based upon the facts and circumstances of this case and the holdings in Parsec and Gen. Elec. Corp., relator's objections are overruled. {167} Autozone appealed as of right the judgment of this court to the Supreme Court of Ohio. On appeal, this court's judgment was affirmed, State ex ret. Autozone, Inc. v. Indus. Comm., 117 Ohio St.3d 186, 2008-Ohio-541 ("Autozone If'), but on different grounds than this court offered in Autozone 1. Id. at 18. (168) In Autozone It, the court holds: * * * Today, we make the unremarkable holding that pursuant to R.C. 4123.57(B), when a doctor determines that a claimant is rendered "legally blind" due to the loss of a fens in an indust(al accident, that determination constitutes "some evidence" that the claimant has suffered "the loss of the sight of an eye" pursuant to R.C. 4123.57(B). {169} The Autozone Il court explains: * * * Dr. Magness found that the claimant's corrected vision in his injured eye was 20/200. That 20/200 measurement is a significant standard in the definition of blindness. R.C. 3304.28(B)(1) defines "blind" as 29

No. 08AP-1014 26 "[v)ision twenty/two hundred or less in the better eye with proper correction." In State ex ret. Nastuik v. Indus. Comm. (1945), 145 Ohio St. 287, 292, 30 O.O. 503, 61 N.E.2d 610, this court wrote that " '[t]he reduction in visual acuity to 20/200 '`' or a reduction in visual efficiency to 20 per cent or less, is the accepted standard of industrial blindness.' " Id., quoting a report of the Commiftee on Visuai Economics of the American Medical Association, reprinted in May, Diseases of the Eyes (18th Ed.1943) 221. In Nastuik, this court denied a claimant's writ of mandamus, holding that since the claimant had 20/200 corrected vision before his industrial injury, he was already blind before his injury and thus was not entitled to compensation for loss of sight. In State ex ret. Gen. Elec. Corp. v. Indus. Comm., 103 Ohio St.3d 420, 2004-Ohio-5585, 816 N.E.2d 588, the claimant's vision decreased to 20/200 after an industrial accident, and the commission granted a scheduled loss award under R.C. 4123.57(B) for total loss of vision in both eyes. The fact that the claimant's 20/200 vision was bad enough to constitute "the loss of the sight of an eye " was not disputed in that case. Instead, this court dealt with whether corrective surgery that resolved the claimant's vision loss foreclosed an award for total loss of vision. We held that the surgery constituted a correction, not a restoration, of the claimant's sight, and that the court of appeals had erred in disallowing the commission's award based upon the claimant's surgical correction. Gaydosh here suffered essentially the same injury as the claimant in Parsec, and at least the same extent of vision loss as the claimant in Gen. Elec. Both doctors found Gaydosh's vision in his injured eye to be 20/200. That level of vision is consistent with legal blindness under Ohio statutory and case law. R.C. 4123.95 directs liberal construction of workers' compensation statutes in favor of injured workers. A liberal construction is not necessary in this case. It is self-evident that blindness fulfills the requirement of "the loss of the sight of an eye. Therefore, the opinions of two doctors that Gaydosh was rendered legally blind in his left eye due to a workplace injury constituted "some evidence" in the record to support the commission's decision that Gaydosh had 30

No. 08AP-1014 27 suffered "the loss of the sight of an eye" under R.C. 4123.57(B). Id. at 21-25. (Emphasis sic.) {170} At best, under the case law analyzed above, only this court's decisions in Autozone I and Parsec can be seriously argued to support the commission's award of R.C. 4123.57(B) compensation for the surgical loss of claimant's own cornea during the corneal transplant surgery. However, reliance upon this court's decisions in Autozone I and Parsec is problematical because those cases involved intraocular lens implants, not a corneal transplant which is at issue here. There exists no Ohio case holding that corneal transplant surgery itself presents a total loss of vision of the left eye. {171} Further undermining any supposed commission reliance upon Autozone I and Parsec is the court's four-to-three decision in Autozone Il. To begin, the Autozone ll majority did not adopt this court's rationale in Autozone I that Gaydosh's loss of his natural lens automatically entitled him to an award of total loss of vision. Rather, the majority relied upon the doctors' opinions that Gaydosh's injury produced 20/200 visual acuity which meets the definition of legal blindness. (172) Moreover, the three justice Autozone It minority specifically rejected this court's Autozone I rationale. The dissenting justices in Autozone!I wrote: "[I]n the instant case, Dr. Mah, Gaydosh's treating physician, specified that the percentage of vision actually lost in the left eye was 75 to 80 percent. The commission relied upon Dr. Mah's medical report in granting Gaydosh's motion, but made an award for a 100 percent loss of vision. The commission concedes that none of the medical evidence of record supports a finding of 100 percent loss of vision in the left eye. Accordingly, in line with our precedent in [State ex rel. ABF Freight Sys., Inc. v. Indus. Comm., 96 Ohio St.3d 80, 2002-Ohio-3612, State ex rel. Moorehead v. 31

w " _ X-1 No. 08AP-1014 29 (175) Accordingly, for all the above reasons, it is the magistrate's decision that this court issue a writ of mandamus ordering the commission to vacate the July 29, 2008 order of its SHO awarding R.C. 4123.57(B) compensation for total loss of use of the left eye, and to enter an order denying the compensation. 161 'Kensa.e.tfy W. M aae KENNETH W. MACKE MAGISTRATE 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). 33

4123.57 OAIO IibNISGD CODE 238 Denial of wage loss compensation was unlawful where thcrc was no eidence dtat claimant was working less than thc maximum medically pvrmilted honrs at his former flill-time job and lost a part-rime job aa a result of an allowed acddenb State cx rel Dillosa v. Industrial ComnYn, 84 Oltio Sl. 3d 5f, 701 N.E.2d 991, 1998 Ohio 685, (1998). An adequate job search is a prerequisite to eligibility for wage loss compensation: State ex rel. Har.sch v. Industdal Comm'n, 83 Ohio St. 3d 280. 699 N.E.2d 503, 1998 Ohio 113, (1998). Wage loss benefits arc not barred simply because a claimant is no longer eotployed at the company where the lujury oecurred, even if the separation is employee-induced. A 6nding of lack of a good L'tith job search must be explained: Stateax rel Staffen3 I. Industrial Comen'n,84 Oltio St-:3d 225, 702 N-E.2d 1205, 1998 Olilo 322, (1998)- A limited writ of mandaniu,s would issue compelling tlte crommissiou to vacale its orders denying RC 4123.56(B) wage loss compensation to claimant and to reconsider her entitlement where her employer had terminated her by letter wltile she was under treatment for both physicel and mental lrealth problems: State ex rel. Banks v. Industrial C:omm'n, 1998 Ohio App. LEXIS 628 (1998). Voluntary acceptance of part-gme work for reasms unrelated to an injury bars wages`).nss compensation: State ex rel Reamer v. Industrial Comm'n, 77 Ohio St. 3d 450, 674 N.E.2d 1384, 1997 Ohio 42, (1997). Wage loss compcnsation r'equires a scarch for job,s withut the claimant's capabilities: State ox rel. Vanover v. Emery Worldwide, 80 Ohio St. 1(1367, 686 N-E.2d 518, 1997 Ohio 109, (1997). 'Phe meaning of "direct result" as contemplated by RC 4123.56(B) and OAC 4121-3-32 does not extend to any result lhat may eventually uccur down the line State ex rel. Tullis v. Cit,v Asphalt & Paving Co., 80 Ohio St. 3d 364, 686 N.E.2d 516, 1997 Ohio 110, (1997). Snbsequeut employe.e conduct is not a preeminenl factor in determining wage-loss elil,dbility: State cx re1. Sanese 9ervs. v lndustrial Comm'n, 79 Oluo St. 3d 213, 680 N.E.2d 991, 1997 Ohio 397, (1997). Wage loss compensation for a claimant w)to becomes selbemployed after an injury must he based on tlte claimant's net income afterbusiness expertses, rmton gross incnme: State ex rel. Ricltards v- Industrial Comntn, 110 Ohio App. 3d 109, 673 N.E2d 667 (1996). Tlre fact that a claimant has been fired for a reason unrelated to an allowed condition lias no bearing on a elaimant's eligibllily for wage loss compensation, wbere the medical evidence reveals that the claimant could nol have returned to bis or her ctnployment position regardless of tbe firurg: State ex rcl MeGonegle v. Industrial Comm'n, 76 Oltio St. 3d 272, 667 N.E.2d 392, 1996 Ohio 162, (1996)_ A wage loss motion pn:mised on inability to frud other suitable work require.s that the claimant actually sougbt work widtin his capacities: State ex rel. Consolidated Freightways v- Engerer, 74 Ohio St 3d 241, 658 N.E.2d 278, 1996 Ohio 136, 1996). Ohio AdtniNstrative Code 4121-332(D)(2) permits wageloss compensaflon, under certn3n eircmnstances, to elaimmtb who have resumed their fcrmer emplo}anent. What is, lmwevr,r, a preroquisite to wage-loss payment is a medical inability to secure comparably paying work. A full release to return negates aay assertion tlrat claunant's inability to eam at Ins preinjury ote is mcditally precipitated: State ex iel. Chora. 1 ndushial Conmi n, 74 Ohio St- 3d 238, 658 N.E.2d276, 1996 Ohio 318, (1996). Voluntary acts that llmit eamings may bar wage-loss csnupensation. OAC 4121332(D) docs not specify how an app0- cat9on for wageloss compensation must be made: State e-x rej. Pepsi-Cnla 6oltling Cu- v Morse, 72 Ohio St. :3d 210, 648 N.E.2d 827, 1995 Ohio 82, (1995)- Firing nn,y, but does not automatically, bar wage loss compensation under RC 412356(B): State ex rel. Watts v. Schottenstein Stores Corp.. 68 Ohio St. 3d 118, 623 N-C 2d 1202, 1993 Ohio 133,(1993). A elaimant's layoff does not ncxressmily bar wage loss compensation under RC 4123.56(33): State ea rel. Aodersons v. Industrial Com of Oluo, 64 Ohio St. 3d 539,597 - N.E.2d 143, 1992 Ohlo 911, (1992) -Bnnuses Prior to OAC 4125-1-01(A)(16), there was no approved metheduf allocating benuses for pmpnses of computing wage loss emmpensation- The method chosen by the contmission was reasonable: State ex rel. City of Middlebnrg Heights v. lndac Comm'n, 92 Ohio St. 3d 476, 751 N.E.2d 986, 2001 Ohio I267,(2001). -4veek by week analysis Under RC 4123.56, a week-by-week analysis ofwage loss is mandated: State ex rel Haddox v. Industrial Comni n, 88 Ohio St. 3d 279, 725 N.E 2d 635, 2000 Ohio 326, (2000). The hasic wage loss compensatiun formula mandates a week-by-week analysis to determinc a el.timant's actual wage loss: State ex rel. Bos v. Navistar Int'l Transp. Coq)., 90 Oluo St. 3,1314. 738 N.F..2d 791, 2000 Oldo 88, (2000). Wage rrplaeement 'ursurauce progranr Where an emplover made payment.s through its wage replacement insuranee program and witldteld taxes from the payments, mandamus was the employer's prnper remedy frum the cotnmission's denial of ao offset for taxes withheld: State ex rel. GMC v. tndus. Comni n, 117 (Ildo St. 3d 480, 884 N.E.2d 1075, 2008 Oliio 1593, (2008)- Weight loss program Approval of a weight-loss pmgram does not preclude a furding of maximum medical tmprovement: State cx rel. Wllliams v. Cincinnati Cuuntry Club, 83 Olno St. 3d 284, 699 N.33.2d 505, 1998 Ohio 112, (1998). Additional allowance of obesity is not a prerequisite to consideration of payment for a weight-reduction program. To be compensable, weight loss must improve allowed conditions, nol merely alleviatle pain, State ex rel. Miller v. Industrial Comm'n, 71 Ohio St. 3d 229, 643 V E.2d 113, 1994 Ohio 204, (1994). 4123.57 Partial disability compensation. Partial disabiflty compensation shall be paid as follows. 'Exc.ept as provirled in this secfiun, not earlier than twenty-six weeks after the clate of termina6mr of the latest period of payments under section 4123.56 of the Revised Code, or not earlier than twenty-six weeks after the date of the injiny or contraction of an occupational disease in the absence of payluents under secflon 4123.56 of the Revised Code, tlte employee may file an application with the bureau of workers' compensation for the determination of the percentage of tlie employce's permianent partial disability resulting from an injury er occupational disease. Wlrene,ver the application is filed, the bureau sliall send a copy of tlre application to the employuv"s entployer or the employer's representative and shall sc)teduln the employee for a niedioal examiuation by

No. 08AP-1014 28 tndus. Comm., 112 Ohio St.3d 27, 2006-Ohio-6364], and [State ex rel. Spangler Candy Co. v. Indus. Comm. (1988), 36 Ohio St.3d 231], I would assert that the determination of a 100 percent loss of vision is not supported by evidence of a total vision loss contained in the record. The majority relies heavily on State ex rel. Parsec, Inc. v. tndus. Comm., 155 Ohio App.3d 303, 2003-Ohio-6186, 800 N.E.2d 1180, in reaching its decision. In that case, an industrially induced cataract blocked all light, necessitating surgical replacement of the eye's natural lens with an artificial one. The commission awarded total loss of vision in that eye, and the employer filed a mandamus in the Tenth District Court of Appeals. The appellate court considered the question whether the artificial-lens implant was a "correction" of vision, something not taken into account when calculating the percentage of vision actually lost according to R.C. 4123.57(C). The appellate court concluded that it was a correction of vision and therefore upheld the commission's award. Parsec, however, is distinguishable from the facts in this case because, there, the record contained evidence that the claimant had suffered a 100 percent loss. Accordingly, Parsec should not be read as compelling a 100 percent award for the loss of a natural lens when the medical evidence indicates that the resulting loss of vision is 75 to 80 percent. Id. at 32-35. (Emphasis sic.) (173) To summarize, while this court's judgment in Autozone I was affirmed by the four-justice Autozone ll majority, the basis or grounds for this court's decision in Autozone I appears undermind by the Autozone tt court. {174} Given the above analysis of the case law, this magistrate must conclude that the commission's award of compensation for total loss of vision based solely upon the penetrating keratoplasty performed by Dr. Erdey on August 28, 2007 cannot stand. 32

239 WORKPIIS COMP);NSATION 4123.57 the brneau mediaal seceon. The bureau shall send a istrator shall review the application The adminzsttntor copy of the report of the medical examination to the may require a medical examiuation or rnedical review employee, tho employer, and their representafives. of tlre employee. Ttie administrator shall issue a tenta- Thereafter, the adniinistrator ofworkers' compensation tive order based npon tltc evidence before the adminsttall review the employee's claim file and makc a istrator, provided that if the administrator requires a tentative order as the evidence hefore the administra- medical examination or medical review, the administor at tlm time of the maldng of the order warrants. If trator s}tall not issue the tentative order until the the administrator delermines that therc is a conflict of completion of the examination or rcview_ evidenee, the administrator shall send the application, The employer may obtain a medical examination of alottg with the claimant's file, to the distiict hearing flte cmployee and may submit medical evidence at any officer who shall set the application for a hearing. stage of the process up to a hearing before the district The administrator shall nofify the employee, the hearing officer, pursuant to rules Of the commission. employer; and their represe,ntatives, in writing, of the The admuiishator shall notify the employee, the emtentative order and of the pmties' tight to request a ployer, and their representatives, in writiug, of the hearaig. Unless the employee, the ernptoye.r, or their nature and amount of any tentative- order issued on au representative notifies the administrator, in wriling, of applicatlon requesting a subsequcnt determination of an objection to the tentative order within twenty days the percentage of all ernployee's pertnanent disability. after receipt of the notice thereof, the tentative order An employee, employer, or their representatives may shall go into effect and the employee shall receive the object to the tentative order within twentv days after compensation provided in the order. In no event shall the reeeipt of the notice thereof. If no tirnely objection t}tere be a ree.onsideraflon of a tantative order issued is rnade, tho tentative order shall go into effect- In no under this rlivision. event shall there be a reconsideration of a tentative - If tttc employee, the employer, or their representa- order issued nnder this division. If an objection is tives 6mely notify the acltninistrator of an objection to tounly made, the application for a sidisequent deterthe tentative order, the rnatter shall be referred to a tnination shall be referred to a district heating officer disttict hearing officer who shall set the application for,yho shall set the application for a he.aring with written hearing with written notices to all interestcd peccons. notice to all interested persons. No application for Upon refetral to a district hearing officer, the employer s.ubsequent percentagc deterntinations on the same may obtain a medical examination of the employee, claim for injury or occupational disease shall be acpursuant to rules of the industrial commission. r;epted for review by the d9shict hcaring officer unless (A) The dtslriet hearing officer, tipon the applica- supported by substantial evidence of new and changed fion, slttill dehermine the pereentage of the employee's circumstances developtng ^ since the time of the hearing permanent dieabijity, except as is subject to division (B) of this section, bascd upmi that condition of the on the original or last determinaflon. employee resulting from the injuty or occupational No award s6a1l be made under this divisimt based disease and causing permanent iinpairment evidenced upon a pm'centage of disability which, when taken with by medical or clinical findirigs reasonably demotutra- all other percentages of permane.nt disabilitv> execeds ble. Ttte employec sltall receive sixty-six and two-thirds one hundred per cent. If the percentage of the permaper cent of the employee's average weekly wage, but nc.nt disability of the employee equals or exceeds not more than a maximum Of tlritty-three and one-thir-d ninety per cent, compensation for permanent partial per eent of the statewide average weskly wage as disability sltall he paid for two imndred weeks. defined in division (C) of section 4123.62 Of the Compensation payable under this division accrues Revised Code, per week rcgardless of the average aud is payable to the employee from the date of last weekly wage, for tha number of weeks which equals payment of compensation, or, in cases where no prethe percentage of two hundred weeks. Except on vious compensation has becn paid, from the date of the application for reconside,ration, review, or tnodifiea injury or the date of tbe c$agnosis of tite occupational 6on, whieh is filed witliln len days after thc date of disease. reeeipt of the decision of the district hearing officer, in When an awatrl under this division has been made no instance shall the former award be modified unless prior to the death of an employee, all unpaid installit is found from medical or clinical findings that the ments accrued or to accrue under the provisions of the condition of the claimant resulhng from thc injrny has award are payable to the smviving spouse, or if there is so progressed as to have increased the percentage of no sutviving spouse, to the dependent children of the permanent paitial disability_ A staff hearirtg ofiicer employee, and if tbere are no children surviving, then shall hear an application for reconsideration filed and to other dependents as the administrator determines, the staff bearing officer's decision is final. An employee (B) In cases inchtded in the following schedule the may file an application for a subsequent determination cornpettsation payable per week to the employee is the of the percentage of the emptoye-e s permanent disabil- state,wide average weekly wage as defined in division ity. Ifsueli an applicafion is filed, the burcau shalt send (C:) of section 4153.62 of the Revised Code per week a copy of the application to the employcr or the and shall continue during the periocls provided in the eutployer's representative. No sooner than sixty days following schedule: from the date of ihe mailing Of the applicatton to the For the loss of a first frnget', commonly known as a employer or the employet's representative, the admin- thumb, sixty weeks.

4123.57 01110 REVISED CODE 240 For the loss of a second finger, eommonly called administrator in cach case determines, based upon the, ir^dex fioger, thirty-flve weeks. percentage of vision actually lost as a result of thc For the loss of a third 6nger, thirty weeks. injury or occupational disease, but, in no case shall an For the loss of a fourth fhzger, twenty weeks. award of conipeosaflon be made for less than twenty- For the loss of a fi th finger, eomroonly kuown as tkre five per ee.nt loss of uncorrected vision. "1.oss of litile finger, fifteen weeks. uucurrected vision" means the percentage oe vision The loss of a second, or clistal, phalange of tbe thumb actually lost as the result of the injury or occupational is considered equal to ilte loss of one haff of such disease. thumb; the loss of more than one half of such thumb is For tlce permanent and total loss of heacing of one considered equal to the loss of the, whole thumb. ear, twenty-five weeks; hut in no case sball an award of The loss of the tlrird, or distal, phalange of any finger compensation be made for less than permanent and is considered equal to the loss of one-third of the total loss P'or Y^ o^ enn anent and total loss of hearing, one fnger. The loss of the middle, or second, plwlange of any hundred twenty-five weeks; bnt, except pursuant to the case awa o finger is considered equal to the loss of two-thirds of ^rrt^ensationgbe,nad<,pifor less than pcrman ntian d the fmger. The loss of more than the middle and distal phalan- total loss of hearing. ges of any f'rnger is considered equal to the loss of the ]n case an fnjury or occupallonal disease results in whole finger- In no onse shall the amount received for serious facial or head disfigureinent which either immore tharr one finger exceed the amount provided in pairs or may in the future, impair the oppatunities to this schedule for the loss of a Irand. secure or retain employment, ilie adminisu'ator shall For the loss of the metacarpal bone (bones of the rnake an awar(i of wntpensatiocn as it deems proper and palm) for the eorresponrling thumb, or tingers, add ten equitable, in view of the naturo of the disfigurement, weeks to the nuinber of weeks tinder this division, and not to exceed the sum of ten t,housand doltars. For For ankylosis (total stiffness of) or contractnres (due the purpose of making tbe award, it is not material to scars or injuries) which makes any of the finge.cs, whether the enploye.r is gainfully employed in any thumbs, or parts of either useless, the same number of occupation or trade at the tiine of the admiuistrator's weeks apply to the members or parts thercof as given dc^hennao award under this division has been madc for the loss thereof. If the claiinant has suffered the loss of two or more prior to the death of an employee all unpaid installfingers by amputation or ankylosis and the nature of ments acerued or to aceme under the provisions of the the claiinant'.s e,mployrnent in 9ie course of which the awmtrd shall be payable to the smviving spouse, or if claimant was worldng at the time of the injury or there is no surviving spouse, to the dependent children occupational disease is sneh that the handicap or of the employee and if there are no such eliildren, then disability resulting froin the loss of Gngers, or loss of to such dependents as the administramr deterinines. use of fingers, exceeds the rrormal handicap ur disabil- Wlien an employee has sustained thc loss of a iry resulting from the loss of Iingers, or loss of use of inember by severance, but no award has been made on fingers, the adniinistrator may take that fact into account thereof prior to the employee's death, the consideration and inerease the award of conipensation administrator shall make an award in accordance with ac,cordingly, but the award made.shall not exceed the this division for the loss which shall be payable to the ar nthe )n.ss of a hand, one shur dred dseventy-fivo the dependent cdrildren of the enqtl^ eenand ^f ther^ 1 Y r weeks. are no such children, then to such dependents as the For the loss of an arni, two hundred hventy-five adminustrator detemiines. weeks. (C) Compensation for partiat iinpairinent tinder di- For tbe loss of a great toe, thirty weeks. visions (A) and (B) of this section is in addition to the For the loss of one of the loes other than the great compensation paid die employee pursuant to section tne, ten weeks. 4123.56 of the Revised Code. A claiunant rnay receive The loss of more than two-thirds of any toe is compensation under divisions (A) and (B) of this considered equal to the loss of the whole toe. se.ction. 'I'he loss of less than two-thiids of any toe is corksid- In all cases arising under division (B) of this section, etuf no loss, except as to the gi'eat toe; the loss of the, if it is determined by any one of the following^ (1) thc great toe up to the inta'phalangeal joint is co-equal to amputee clinic at University liospital, Ohio state unithe lass of one-ltalf of the great toe; the loss of thc great v'ersity; (2) the rehabilifation services eonmiission; (3) toe beyond the interphalangeal joint is considered an amputee clinic or prescribing physician approved by equal to the loss of the whole great toe. the administrator or the adntinistrator's designee, that For the loss of a oot, ono hundred 6ftv weeks. ao injured or disabled employee is in ncod of an For the loss of a leg, two hundred weeks. artifircial appliance, or in need of a repair there.of, For the loss of the sight of an eye, one hundred regardless of whether the appliance or its repair will bc twenty-five weeks_ serviceable in the vocational rehabilitation of the in- For the permanent partial loss of sight of an eye, the jured employee, and regardless of whether the emportion of one hundred twenty-five weeks as the ployee has returned to or can ever again return to any

241 41rORKERS' CUMPENSA'IYUN 4123.57 gaiuiful employment, the brreau shall pay the cost of cufar and pulmonary disease as degned in division (W) the ariificial appliarnce or its repair out of the surplus of section 4123.68 of the Revised Code, and that a creatcd by division (B) of section 4123.34 of the changeof the firefighter's or police officer's occupation Revised Cude. te mcdically advisable in order to decrease substantially In those cases where a rehabilitation services eom- further exposure io smoke, toxic gases, chmnicat fmnes, mission recommeudation that an injured or disabled and other toxic vapors, and if tlie firefighter, or police employce is in ueed of an artificial appliance would officer; after the 6nding, has changed or clianges eonflict with their state pl an, adopted pursuant to the "liehabilitation Act of 1973;" 87 Stat. 355, 29 U.S.C.A. 761, the administrator or the adntinistrator's designee nr the bureau may obtain a recornmendahon front an amputee etinic or proascribing physician that they det8rinineajlpropriate. (D) If an employee of a state fund employer make_s application for a finding and the adlninistrator finrls that the employee has contracted silicosis as defined in divisioo (X), orcoal rniners' pneumoconiosis as defined in division (Y), or asbestosit as defrned in division (AA) of section 4123.68 of the Revised Code, and tllat a change of such employee.'s occupatiou is medically advisable in ordcr to decrease sub.stantially further exposure to silica dust, asbestos, or coal dust and if the employee, after the finding, has changed or shall change the ernployee's rkeupafion to an occupation in which the exposure to silica dust, asbestms, or coal dust is substantial>)^ decreased, the administrator shall allow to the eniployee an amount equal to fifty per cent of the statewide average weekly wage per week for a peliod of thuty weeks, comtnencin^ as of the date of the discontinuance or change, and for a petiod of onc htmdred weeks irnmediatcly following the expiration of the period of thirtv weeks, the employee sha11 receive sixty--six and two-thirds per cent of the loss of wages resulting directly and solely froir3 the change of occupation but not to exceed a niaximum of an amount eqnal to fifty pcr cent of the statewide average weekly wage per week. No such ernployee is enfitled to re,ceive more than one allowance on acconnt of discoutinuance of employment or change of occupation mid benefits strall cease for any period during which the employee is employed in an occupation in which ihe exposure to silica dust, asbestos, or coal rluzt is not substantially less thal the exposure in the occupation in which the employee was forinerly employed or for any period during which the employee may be entitled to reeeive occupation to an oceupafion in which the exposure to smoke, toxic gases, chemical fume_s, and olher toxic vapors is substantially decreascd, the administrator shall allow to the firefighter or police officer an amount equal to fifty per cent of the statewide averagc rveekly wage per week for a period of thirty weeks, colnmencing as of the date of the discontinuance, or change, and for a period of seventv-five weeks immediately following tl3e expiration of the period of thiity weeks the adn-iinistrator shall allow the 6refigllter or police offlcer sixiv-six aud two-tllirds pe,r ecnt of the loss of wages resulting direcily and solely from the change of occupation but not to exceed ainaximum of an anlount equal to fifty per eent of $te statewide average weekly wage per wcek. No such firefighter or police officer is entitled to receive more than one allowance on aecount of riiscontinuance of employnient or change of oceupation and benefits shall cease for any period during which the firefighter or police officer is employed in an oceupation in which the exposure to smoke, toxic gases, ehemical 5rnle.s, and other toxic vapors is not substantially less tttan the exposure in tfre occupation in vykch tfie firefighter or police officer waa forinerly cmployed or for any period during which the firefighter or police officer may be entifled to receive conrpe"nsation or benefits under section 4123.68 of t[ic Reviscd Code on aco^onnt of disability from a cardlovascular and pulmonary disnase. The administrator rr3av accord to thc firefiglrter or pohoe officer nredical and other benefits in accordance with secfion 4123.66 of the Revised C:ode. (F) An orde,r issuedunder this seetion is appealable pursuant to section 4123.511 14123.51-1] of the Revised C:odc but is not appealable to court under sectiou 412,1512 [4123.51.2] of the Revised Code. I(LS'I'ORY: GC I465-811; 103 v 72(85), 33; 107 v 161; 108 Yti, 313; 114 v 26; 117 v 113; 119 v 565(576); 120 v 449; 121 v the v 268(720); 660 122 123 v 250; 124 v 866; Rur'eau uf Codc compensation or benefits uuder section 4123.G8 of, Reaisiou, Io4-53; t26 v 1015(1628) (Eff 19-5-.55); 128, 743(757) Revised Code on account of (lisability from silicosis, (Elf 11-2-59); 130 v 932 (Eff 1.23-63); 130 v 926 (Eff 10-1-63); asbcstosis, or coal miners' pneumoconiosis. An award 132 v Il'331 (Eff 10-31-67); 132 v H 268 (Eff 12-11-67); 133 v li for change of oecnpation for a coal miner who has 686 (Eff 1 I-25-69); 134 v I3 280 (Eff 9-20-71); 135 v H 417 (Eff 11-16-78); 136 v H 662 (Eff 10 31-75); 136 v 11 714 (Eff 1-146); conttacted coal miners' pneurnoconiosis may be 136 v S 545 (Eff 1-17-77); t37 v 13 1282 (Eff 1-1-79); 138 v lt 138 granted under this division even though the coal miner (Eff 7-27-79); 141 v S 307 (Eff 8-22-86); 143 v 13 222 (Eff continues entployment with the samo employer, so 11-3-89); 144 v H 297 (Etl' 746-91); 145 v t7 107 (Eff 16-20-93); long as the coal minel's employment subsequent to the 147 v il 363 (Eff 6-30-97); 147 v S 45; 148 v H 180. EIT 8-6-99; 151 v S 71 1, eff. 6-30-66. change is sach that the coal miner's exposure to coal dust is substantially decre"ased and a change of occupation is certified hy the claiinaut as permanent. The See provis-ioas of :3 of 151 v S 7 fofloeing RC 4121.10. administrator may accord to thc employee medical and Effect of amendnrents other benefits in accordance ^vith section 4123.66 of 151 v S 7, e0ective June 30, 2006, in the secnnd pantgraph, the Revised Code, substituted "twenty-six' for "tbrty" tudcvc; and, in (B), inserted "first 8nger, commonly Imowa ati a" in the second (E) If a firefrghter or police officer makes applieatiml for a finding and the admini.strator linds that the paragraph, substituted "third" for "second" in the fourtfi paragraph, aubstiurted "second"' for "fast" ru the third firefighter or police officer has contracted a cardiovas- paragraph, subsfituted "fourtli" for "third" in the fifth

343 WORKERS' COMPENSA'1'lON 4123.95 thcir judgrnent or scttlement were barred by the afflrmative defense of acouid and satisfaction fmm secking the uluitable reliefofpayment of.sun:s given to the Burr:mt pursuant to RC 4123.93and412:3.931.Upourepaytuentofthesumstothc Burcau, the c.mpfovees each ktad signed a settlement agrcenrent that contained awotd and satisfaction language as to any purported claims arising themfiom. Dambolena v. Ohio Burcau of Workers' Cornp-, - Ohio App- 3d -, - N. E- 2d -- 2007 Ohio Ap[). LEXIS 4004, 2007 Ohio 4435, (Aug. 30, 2007), abhined by 117 Ohio SL 3d 541, 2008 Otuu 1735, 885 N.E.2d 244, 2008 Ohio LF.XIS 909 (2008). Retroactitity Pursuant to RC 1.48, the amendment torc 412393 cannot be applied retroaetively: (decided underformeranalogous section) Bates v_ Shcewin-Williams Co., 105 Ohin App 3d 529, 664 NB.2d 612 (1995), lievised Code 4123.93, granfing automatic sttbrogation rights to selfinsuring employers, carmot be applied retroactively: (decided under former analogous section) Williams Winston, 65 Oftio Misc 2d 44, 640 N.E.2d 923 (CP 1994). 4123.94 Prvferenee of judgtnents. All judgments obtained irt any action prosecuted by the administrator of workers' compensation or by the state unrier lhe authority of this chapter shall have (lie same prr,ferencra against the assets of the emplnyer as is allowed by law on judgmmcnts rendered for daims for taxes. HIS10147: CC 1465-77; 103 v 72(85), 30; Burrnu af Cudc Bevisio, 104-53; 143 v Il 222. Ell 113-89. 4123.95 Liberal construction. Sections 4123,01 to 4123.94, inclusive, of the Revised Code shall bc liberally construed in favor of employees and the dependents of deceased employees. tiistoby: 128 v 743(771). Eff 11-2-59. G'encrally Amouut ot visinn lost Appeal Cbsnge of occupatioo Continuing jurmllenon of wm Co-ts and attnmey fees Course of empfoyment Deatl: beoeftts &ddentiary ruhngs Lyop,lasses Firefq{hters and pollce okicets Heusohuld or casual rvorlmts lrnnrunity Inferencros tujury, ge.nerallp job offer Jumdictlon Iry, cqnsent Jury Inswcflon Los.v of body parc Nntico of daim Occupatinnal diseases Ph)rsiud trauma Res judirata Suspenslun of benefks CASE NOTES ANp OAG INDEX s.vion in favor of cmployees emd the depeudents of dece<ised employees; nt a wnrkers' coatpensation action, tire iudushial crommission erred in denying an injured worker's applir:ation for T1't) because the coautussion should have focused its inyuiry upon what the employc e reasonably understood his medical rrstrictions. State ex rel. Mackenzie v. Ford Moter Co., 2003 Ohio App. LEXIS 2980, 2003 Ohio 3339, (2003), appeat dismisscd by 100 Ohio St. 3d 1440, 2003 Ohio 5691, 797 N.fti,2d 1288, 2003 Ohio LEXIS 2782 (2003). A bill for x-rays which contains no suggestion of injuries is not proper notic c under RC 4123.84: Woodrufl v. Springfield Utiited Roofrng, Inc., 1993 Ohio App. LEXIS 9575 (2nd Dut.1993). Ilcldiug that the commission had no duty to pay RC 4123.57(B) aad RC 4123.57(C) benefits witlmut au offset, the court obsorved that under RC 4123.95 (1te courts and thc commission must not eonstrne RC Chapter 4123 in favorof wltichever claimartt happens to appear before them at auy given time, but in favor of all employees and their dependents equally: State ex ret. Maurer v_ Indus. Comm-, 47 Ohio St. 3d 62, 547 N.C.2d 979 (1989). Revi.sed Code 4123,95 does not override the cnmmissiou s anthority to formulate policies and standards for administering the workers' cumpensatiou laws: Swallow v. lndus_ Cuutm., 36 Ohio St. 3d 55, 521 N.E.2d 778 (1988). 17tc mandate of BC 4123.95 cannot overcome tlre dear language ef RC 4123.02.1 excluding workms' cuntpensalion benefits respecting Natioual Cuat$ members for whom benefits are othenvise provided by the, federal govemmcnt: Forrier v. Connor, 12 Ohio St. 3d 219, 12 Ohio B. 30.3, 466 N.E.2d 557 (1984). Construed in accordance with RC 412,'3.95, RC 4123.57(B) docs not preclude an award for a percentage of permanent partial dlsability after a daimant bas already been dctetmined to be permanently and totally disabled: State ex rel. Consolidated Coal Co. v. Indos. Comm., 62 Ohio St_ 2d 147, 16 Ohio Op. 3d 166, 404 N.E.2d 141 (1980). Applying RC 4123.95, the court concluded that the RC 4123.57(B) rerfuirenrent of substautial evidence of new and changed circumstances," being aseat fioni RC 4123.58, was intended to apply only to partial disabibty clainis under the fomrer section: State ex rel. Generril Motors C'orp. v. Industrial Comrn., 42 Ohio St. 2d 278, 71 Ohio Op. 2d 255, 328 N.E.2d 387 (1975). Tlre enachnent of BC 4123.95 most probably resulted, in part, from the priorjudicial use of procr,domi niceties to eause unjust results in cettafn cases: Wfres v. NL Industi ies, Ine., 46 Oluo App. 2d 40, 75 Oluo Op. 2d 35, 345 N.C.2d 629 Q974). Citing RC 4123.95, dre court held that ftc 4123.01 extended the scope of compensable injuties to include untrsual and unexpected ar:cidents resulting frorn eatploytnent without regard to the presence of an "extemal accidentxd ntcaas": Moudy v. Keller, 33 Ohio App. 2d 300. 62 O1tio Op. 2d 446, 295 N.E.2d 216 (1973). Appfying RC 4123.95, the court held that an injured emplovec who filed an appbcatfou for ntodificatiun of an award more tltan two years after the original injmy lo se.cure coutpcnsatimt for a.subseyuont resultaut disability not de scribed in the oriy'nal application was not baned by virlue of RC 4123.84:K3ttlev-Kefler 9O1rioSt.2d177,38OhioOp. 2d 414, 224 N.E.2d 751 (19671. Anmtmt of vision lost The comrnission is v'ested u4th the authority to fnterpret and 11"plement legislation passed by the Ceneral Assenbly- Revised Code 4123.95 dictales thxt workers' coutpensugon 11 egts a tton hf s ah1 e hberaily mnstrued m tavor nf emptoyees. Generally Tlrercfore, the commissiun rlid not abuse its discrefien in Workers' eompansallun stntutes shall be liberally construed detennining tbat, for putposrs of RC 4123.57(C), the

4123.95 OH10 R7'sVISED CODE 344 percentage of pennanent pariial loss of siglrt of an eye is calculated bysubtracthtg tfm amountofvision remainurg frotn the amount of vision existing prior to the injuryand taking tlkc percentage of the loss of sight as the calculation of actual vision loss: State ex rel. Sp:ntgler Candy Co. v. indus. Cornm., 36 Oldo St. 3d 231, 522 N-E2d 1078 (1988). Applying RC 4123.95, tlte court held tlwt the improvement of vision resulting froni a eonreal transplant is a correction to vision and, thus, shall not, on the current state of &e medicai art, he taken into consideration in determining the percantage of vision actually lost pursuant to RC 4123.57(C): State ex rel. Kroger v. Stover, 31 Ohio St. 3d 229, 31 Ohio B. 436, 570 N.E.2d 356 (1987). Appeal Even tltough OAC 4123-3-16 provides that a motion is not to be nsed as a substi6tte for an appeal, ihe cotmnission did not abuse its discretion by treating the claimant's C-86 form as an appeal: State ex rol. Kroger Co. v. Morelrouse, 74 Ohio St. 3d 129, 656 N.E.2d 936, 1995 Ohio 300, (1995). Construed in accordance with RC: 4123.95, substanhal compliance witlr the notice of appeal requirements of RC 4123.51.9 was sufficient to vest jurisdicuou in tlm mmt of common pleas: Wells v. Chrysler Corp., 15 Ohio St. 3d 21, 15 Ohio B. 18, 472 N.E_2d 331 (1984)_ Revised Code 412351.9 shall be liberallv construed, as required by BC 4123.95. [C:adle v. General Motots C:orp., 45 OS2d 28, 74 002d 50, overrrded in part to the extent hereby inconsistent.j: Muliius v. Wluteway Mfg. Co., l5 Ohio St 3d 18, 15 Oltiu B. 15, 471 N.b;-2d 1383 (1984). Change ofoccupation Citing RC 412195, the court construed "discnnlimtance" and "change" of occupaflon in RC 4123-57(1)) to bc synonymous, so as to allow silicusis benefits for 30 weeks to a claimant who had made reasonable efforts to secure the new employment required thc.reby: State ex rel. Sayre v. Industrial Comm., 17 Ohio St. 2d 57, 46 Ohio Op. 2d 297, 244 N.E.2d 509 (1969). Continuing jurisdiction of commission Applying RC 4123.95, the court held that the 6)ing of an appllcation for allowance ofan additional condition supported by evidence wtuch estntenrplates the payment of workers' compensation benefits meets the requirement of an application for cornpensat3on pursuant to RC 4123.52; State ex rel. General Refractories v. Indus. Comm., 44 Oltiu St. 3d 82, 541 N.E.2d 52 (1989). Costs and attorney fees 1'xial judge rhd ttot abuse Iris discretion in awarding the aosts for the in-s.vurt testimony of the employee's medical expcrt as a reimbursable cost of the legal pmceedings in the workers' eempensation ease- Dixon v. Ford Motor Co., 2003 Ohio App. LEXIS 3521, 2003 Olrio 3959, (2003). Pursuant tu RC 4123519, a cotnmon pleas court may tax to the employer tlre costs of an expert's witness fee preparing and giving his deposition as a"cost of any legal proceedings authorized by this sectioti': Muore v. General Motors Corp., 18 Ohio St. 3d 259, 18 Oltio B. 314, 480 N.E.2d I I01 (1985). Course of employurent Sumnrary judgment was properly grantcd in favor of the employer in regard to the worker's injury while returning to a motel from a restaurant at a work site approximately two Itours from the wnrkers home as thc worker was a fixed-situs employee whose travel to aud front a restaurant after work hours in the evenutg was not to the benefit of fus employer and did not expose him tn a special hazard or to a risk quantitatively greater than that encountered by other drivers. Richardson v. Conmd, 2004 Ohio App- LEXIS 1IS7, 2004 Ohio 1340, (20(}4). Claimant s injuries in an anto ac cidead as he reutrned one cvening to the motel when; Itc tvas staying while working on a coostmction project for the ernployer, from having just caten dinner at a restaurant away frotn the motel, was not a mmpeasahle worker's compensation injury, even construing the phrase "arising out of the course of emplo}'ment' liheralfy, as a compensable injury had to he sustained by tm employee while the employee engaged in an activity tlrat was consistent with lhe contract for hire and which was logically related to the employer's business. Richardson v. Cuumd, 2004 Ohio App, LEXIS 1133, 2004 Ohio 1303, (2004). Death benefits Upon the remaniage of a dependent spouse wbo was receiving death bene$ts pursuant to RC 4123.59, IiC 4123.59(B)(1) and 4123.95 reqtilre that the death bencfits be reappmiioned mnong the remaining dependents effective with the date of the remarriage, and not two years thereafter: State ex rel. Endlich v. Indus. Comm., 16 Ohio App. 3d 309, 16 Ohio B. 340, 475 N.E2d 1309 (1984). Citing RC 4123.95, the court held that wlrere a workman died of iujuries sustaincd in an industtial aecident more than 3 yearx thereafler, received uo emnpensation dnring any part of' the year before his death, and Irad filed no additional application, his wido.v was uottetheless entitled to dcath benefits tmder RC 4123.59: RulLt v. Keller, 17 Ohio App, 2d 79, 46 Ohio Op. 2d 97, 244 N.E.2d 509 (1968). Bviderrtiary rvtfings In workers' compensation appeals, a judge's discretion in evidentiary nilings sltould be exercised to resolve close qucstions in favor of injured workers; Allen v. Conrad, 141 Oldo App. 3d 176, 750 N.E.2d 627 (21101). Eyeglasses Construing eyeglasses required becanse of an injmy sustained at work as a compensable "loss susyained on acc:otmt of such injury" undcr RC 4123.54, the coutt said that the liberal construction mandated by RC 4123.95 precluded the mechanical application of the maxim e.ynessio (inius est excluspo alterius so as to defcat the intcnt ofthe legislature: Swartz v. Flowers, 38 Ohio bfisc. 20, 67 Olrio Op. 2d 167, 311 N.E.2d 41 (CP 1973). Eirr,fighters and police officers Construing RC 4123.02, exduding municipal firemen eligible to participate in municipal pension furtds from workmen's compensation coverage, the court lteld that such exclusion does not apply to firemen receiving a pension under RC 742.26, saying that RC 4123.95 prohibits tht; construftion of RC 4123.02 so as to exclude meu;ly by inference any class el' employees from coverage: State ex rel. Currin v. Industtial C:omm., 20 Ohio App, 2d 175, 49 Ohio Op. 2d 243, 252 N.E_2d 652 (1969), af$mted 22 Ohio St. 2d 204, 51 Ohiu Op. 2d 281. 259 N.E.2d 122. Ilousehold or casualivorkerv Uuder RC 4123.95, ecmrts shall liberally constnte provisions of dte Workers' CornpensaGon Aer, RC 4123.01 et seq., in favor of employees, but it does not nccessarily follow that a household or casual worker is antontati udly entitled to defirution as an employee where there is no clear evidence that the worker has met tltc statutory requirements. Clark v. Dolence, --Ohio App. 3d --; N.E. 2d -, 2007 Oluo App, LEXIS 4943, 21107 Ohio 5622, (Oct. 19, 2007)- Itnnrunity Thc, immnnity granted to employers and fellow workers under the workers' cornpeusation laws does not extend to