[Cite as State ex rel. Baker v. Coast to Coast Manpower, L.L.C., 129 Ohio St.3d 138, 2011-
Ohio-2721.]




   THE STATE EX REL. BAKER, APPELLANT, v. COAST TO COAST MANPOWER,
         L.L.C., APPELLEE; INDUSTRIAL COMMISSION OF OHIO, APPELLANT.
           [Cite as State ex rel. Baker v. Coast to Coast Manpower, L.L.C.,
                        129 Ohio St.3d 138, 2011-Ohio-2721.]
Workers’ compensation — R.C. 4123.57(B) — Loss of sight – Surgical removal of
          lens or cornea due to workplace injury does not automatically entitle
          claimant to award for total loss of vision — Proper measure of award
          based on loss of sight is percentage of vision actually lost prior to any
          corrective treatment — Loss of vision measuring less than statutory
          minimum of 25 percent is not compensable as scheduled loss under R.C.
          4123.57(B).
     (No. 2010-0211 — Submitted March 2, 2011 — Decided June 9, 2011.)
     APPEAL from the Court of Appeals for Franklin County, No. 09AP-287,
                                   2009-Ohio-6663.
                                __________________
          LUNDBERG STRATTON, J.
          {¶ 1} Today, we are asked to determine whether the surgical removal of
the lens of an eye in the course of treatment for a workplace injury entitles the
injured worker to compensation pursuant to R.C. 4123.57(B) for a total loss of
sight.
          {¶ 2} We decline to adopt a bright-line rule that a claimant is entitled to
an award for a total loss of vision under R.C. 4123.57(B) any time the natural lens
or cornea of the eye is surgically removed as a result of a workplace injury. The
court of appeals below properly calculated the loss of sight based on the
percentage of vision actually lost as a result of the injury, prior to any corrective
surgery. Because the amount of vision lost was less than the minimum 25 percent
                             SUPREME COURT OF OHIO




required by R.C. 4123.57(B), the claimant was not entitled to an award for loss of
sight. We affirm the judgment of the court of appeals.
                        Factual and Procedural History
       {¶ 3} On November 3, 2007, appellant Jamey D. Baker was struck in the
right eye by a piece of metal while working for appellee, Coast to Coast
Manpower, L.L.C. He went to an urgent-care facility, where his visual acuity in
that eye measured 20/25. He was immediately transferred to a hospital, where an
ophthalmologist surgically removed the metal piece and repaired the laceration of
his cornea.
       {¶ 4} Baker’s workers’ compensation claim was allowed for corneal
foreign body and laceration of the right eye. It was later amended to include
traumatic cataract.   On February 18, 2008, Dr. Jack Hendershot surgically
removed the cataract and replaced the natural lens with an intraocular lens
implant. Prior to the cataract surgery, Baker’s visual acuity in his right eye
measured 20/30. Following the lens implant, his visual acuity improved to 20/25.
       {¶ 5} Baker filed a motion with the Bureau of Workers’ Compensation
(“BWC”) for loss of vision of the right eye under R.C. 4123.57(B), based on the
cataract surgery in which his natural lens was removed and replaced by an
implant. Dr. Richard Tam examined Baker on behalf of the BWC and, asked to
assume that Baker’s vision was 20/20 before the accident, concluded that Baker
had an eight percent vision impairment as a result of his injury.
       {¶ 6} A district hearing officer granted Baker an 8 percent permanent
partial disability award based on the vision impairment. A staff hearing officer
vacated that order and granted an award for a total loss of vision in the right eye.
The employer appealed on the basis that Baker’s “loss of uncorrected vision” did
not exceed 25 percent prior to surgery as required by R.C. 4123.57(B). The
Industrial Commission agreed. The commission vacated the order of the staff
hearing officer and denied the claimant’s request for loss-of-vision benefits.



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       {¶ 7} Baker filed a complaint in the Tenth District Court of Appeals for a
writ of mandamus ordering the commission to grant his request for compensation
for a total loss of vision. The court of appeals relied on State ex rel. Kroger v.
Stover (1987), 31 Ohio St.3d 229, 31 OBR 436, 510 N.E.2d 356, and held that
Baker’s vision loss must be determined by comparing his preinjury uncorrected
vision with his presurgical uncorrected vision. Because his loss of uncorrected
vision was less than 25 percent, the court concluded that Baker did not meet the
statutory threshold for even a partial loss-of-vision award. State ex rel. Baker v.
Coast to Coast Manpower, L.L.C., 10th Dist. No. 09AP-287, 2009-Ohio-6663, ¶
5. The court denied the writ.
       {¶ 8} This cause is before this court on Baker’s appeal as of right. The
Industrial Commission has changed its position and has appealed in support of
Baker’s argument that he is entitled to an award for total loss of vision.
                                  Legal Analysis
       {¶ 9} The Industrial Commission’s order denying benefits for loss of
vision is a decision as to the extent of disability and not subject to appeal.
Kroger, paragraph one of the syllabus. Thus, mandamus is the proper method to
examine whether the commission has abused its discretion. Id., 31 Ohio St.3d at
232, 31 OBR 436, 510 N.E.2d 356. For a court to issue a writ of mandamus, a
relator must demonstrate a clear legal right to the relief sought and a clear legal
duty of the respondent to provide such relief. State ex rel. AutoZone, Inc., v.
Indus. Comm., 117 Ohio St.3d 186, 2008-Ohio-541, 883 N.E.2d 372, ¶ 14. If the
record contains some evidence to support the commission’s findings, there has
been no abuse of discretion and a court has no basis to award a writ of mandamus.
Id.
       {¶ 10} R.C. 4123.57(B) sets forth rates of compensation for the loss of
listed body parts. “Loss” includes loss of use of a body part. State ex rel. Walker




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v. Indus. Comm. (1979), 58 Ohio St.2d 402, 12 O.O.3d 347, 390 N.E.2d 1190.
The statute’s provisions relevant to the eye provide:
         {¶ 11} “For the loss of the sight of an eye, one hundred twenty-five
weeks.
         {¶ 12} “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.”
         {¶ 13} It is undisputed that Baker’s vision measured 20/25 following the
injury and that he had an 8 percent visual impairment. It is also undisputed that
he developed a traumatic cataract as a result of his injury that was surgically
removed and that his lens was replaced by an intraocular lens implant. Appellants
contend that the surgical removal of his natural lens during the cataract surgery
resulted in a total loss of vision. Appellants ask us to establish a broad rule that
compensation for a total loss of vision is warranted any time the natural lens is
removed during surgical repair of the eye due to a workplace injury, because
when a lens is surgically removed, the claimant has permanently lost a natural
part of the eye that is necessary for sight.
         {¶ 14} Appellee, on the other hand, argues that the loss of the lens, by
itself, does not result in a total loss of sight. The plain language of the statute
requires the claimant to have at least a 25 percent loss of sight. Here, Baker’s
decreased visual acuity did not reach the 25 percent statutory threshold for even a
partial loss-of-vision award. Therefore, he is not entitled to an award for total loss
of sight.




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         {¶ 15} We have previously awarded compensation for a total loss of
vision in cases where a claimant lost a lens or cornea as a result of a workplace
injury. In Kroger, 31 Ohio St.3d 229, 31 OBR 436, 510 N.E.2d 356, the claimant
was exposed to ammonia that burned his corneas.            He underwent a corneal
transplant in his right eye. The issue in Kroger involved whether to measure the
loss of vision before or after the transplant. We held that improvement of vision
from the transplant was a correction to vision that is not to be considered when
determining the percentage of vision actually lost. Consequently, the claimant in
Kroger was entitled to compensation for a total loss of vision based upon his
severely impaired vision prior to removal of his burned cornea.
         {¶ 16} In State ex rel. Gen. Elec. Corp. v. Indus. Comm., 103 Ohio St.3d
420, 2004-Ohio-5585, 816 N.E.2d 588, the claimant received an electrical shock
that caused cataracts in both eyes, and his visual acuity decreased to 20/200. The
claimant had cataract surgery and received intraocular lens implants in both eyes.
We upheld the commission’s award of compensation for total loss of sight in both
eyes based upon his loss of uncorrected vision as measured after the injury, but
prior to any corrective surgery. In both Kroger and Gen. Elec., the claimants lost
a natural part of the eye, but each had suffered a significant loss of uncorrected
vision that by itself satisfied the statutory standard to support the award for loss of
sight.
         {¶ 17} In State ex rel. AutoZone, 117 Ohio St.3d 186, 2008-Ohio-541, 883
N.E.2d 372, a screwdriver perforated the claimant’s left eye. As a result, he lost
his natural lens.   When he applied for total-loss compensation, the claimant
submitted the report of his physician, who concluded that the claimant was legally
blind as a result of the injury. We determined that a medical opinion of legal
blindness constituted some evidence that the claimant had lost the sight of the eye,
and we upheld an award of compensation for total loss of sight. Id. at ¶ 18.




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        {¶ 18} The appellants also cite State ex rel. Parsec, Inc. v. Agin, 155 Ohio
App.3d 303, 2003-Ohio-6186, 800 N.E.2d 1180, in which the Tenth District
Court of Appeals issued a writ of mandamus ordering the Industrial Commission
to grant compensation for total loss of vision to a claimant who had suffered
intraocular penetration when a wire struck his left eye. The claimant underwent
surgery to repair the injury, which involved removal of the traumatized lens and
insertion of a replacement lens. The court, adopting the magistrate’s findings,
concluded that the claimant’s loss of vision in his left eye, before correction, was
total. Id. at ¶ 28-29.
        {¶ 19} AutoZone and Parsec are distinguishable from the facts in Baker’s
case.   Similar to the claimants in Kroger and Gen. Elec., the claimants in
AutoZone and Parsec both suffered major vision loss far exceeding the statutory
minimum of 25 percent. It was this loss of uncorrected vision following the
injury, not the loss of the lens or cornea by itself, that formed the basis for the
award of compensation for a total loss of sight in the eye.           Baker never
experienced any such loss.
        {¶ 20} When an injured worker applies for a scheduled-loss award, “[t]he
question under R.C. 4123.57(B) is whether a claimant has suffered loss of sight or
partial loss of sight.” AutoZone, 117 Ohio St.3d 186, 2008-Ohio-541, 883 N.E.2d
372, ¶ 18. The statutory standard for measuring even a partial loss of sight is “the
percentage of vision actually lost as a result of the injury.” R.C. 4123.57(B). The
loss of vision is determined by the measurement of uncorrected vision following
the injury, but prior to any corrective surgery such as a lens implant or cornea
transplant. State ex rel. La-Z-Boy Furniture Galleries v. Thomas, 126 Ohio St.3d
134, 2010-Ohio-3215, 931 N.E.2d 545, ¶ 16; Gen. Elec., 103 Ohio St.3d 420,
2004-Ohio-5585, 816 N.E.2d 588, ¶ 16.
        {¶ 21} Appellants emphasize the causal connection between the injury
and the removal of a natural part of the eye, either lens or cornea, that results in



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the loss of sight. This bright-line approach disregards the plain language of the
statute. R.C. 4123.57(B) requires a loss of sight of an eye for the employee to be
entitled to compensation. For even a partial loss of sight, the injured worker must
establish at least a 25 percent loss of uncorrected vision, defined as “the
percentage of vision actually lost as the result of the injury or occupational
disease.”
                                   Conclusion
       {¶ 22} It is undisputed that Baker’s vision in his injured right eye
measured 20/25 immediately following the accident. Prior to undergoing cataract
surgery several months later, his vision was 20/30. Dr. Tam opined prior to the
cataract surgery that Baker had suffered an 8 percent visual impairment. After
surgery, his vision returned to 20/25. At no time following his injury did Baker’s
“loss of uncorrected vision” reach the statutory threshold of 25 percent. It follows
that he was unable to establish a total loss of sight. Therefore, we hold that Baker
has not suffered a loss of sight that is compensable under R.C. 4123.57(B).
       {¶ 23} Because there was some evidence supporting the commission’s
decision to deny loss-of-vision benefits, there was no abuse of discretion and the
court below had no basis to grant a writ of mandamus. Consequently, we affirm
the judgment of the court of appeals.
                                                                Judgment affirmed.
       O’DONNELL and MCFARLAND, JJ., concur.
       CUPP, J., concurs separately.
       O’CONNOR, C.J., and PFEIFER and MCGEE BROWN, JJ., dissent.
       MATTHEW W. MCFARLAND, J., of the Fourth Appellate District, sitting for
LANZINGER, J.
                               __________________
       CUPP, J., concurring.




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       {¶ 24} I am generally in accord with the discussion and analysis of the
lead opinion. I also concur in the majority’s decision to affirm the judgment of
the court of appeals. I write separately, however, to express the hope that future
loss-of-use analysis will be assisted by an updated perspective of medical science
as it relates to visual improvement.
       {¶ 25} This case is before us largely because implants and transplants
continue to be classified as corrective rather than restorative. That
characterization was first articulated in State ex rel. Kroger v. Stover (1987), 31
Ohio St.3d 229, 31 OBR 436, 510 N.E.2d 356, reaffirmed in 2004 in State ex rel.
Gen. Elec. Corp. v. Indus. Comm., 103 Ohio St.3d 420, 2004-Ohio-5585, 816
N.E.2d 588, affirmed again just last year in State ex rel. La-Z-Boy Furniture
Galleries v. Thomas, 126 Ohio St.3d 134, 2010-Ohio-3215, 931 N.E.2d 545, and
now here. In continuing to rely on Kroger, however, we are, by extension, also
relying on the state of medical science as it was 24 years ago when that case was
decided. At some point we must consider how long it is appropriate for us to do
so, given the vast improvements in medical science that have occurred since then.
But, to do so, we must have an adequate record on which to base our judgment.
Perhaps an appropriate case will come before the Industrial Commission in which
that record can be made, and the commission can evaluate the available evidence
on the present state of medical science in this regard.
                               __________________
       MCGEE BROWN, J., dissenting.
       {¶ 26} I respectfully dissent. Although it does not say so explicitly, the
majority breaks new ground by treating lens implants as restorative, rather than
corrective. This case does not warrant such a dramatic departure from the court’s
precedent in cases involving workplace eye injuries.         Moreover, by tying
compensation under R.C. 4123.57(B) to the degree of loss demonstrable before a
corrective procedure, the majority creates new law with unfortunate



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consequences. In the interests of stare decisis and of deferring to the General
Assembly’s determinations regarding compensation for workplace injuries, I
would reverse.
       {¶ 27} Pursuant to R.C. 4123.57(B), a worker who loses the sight of an
eye as a result of a workplace injury is entitled to 125 weeks of compensation.
Additionally, R.C. 4123.57(B) guarantees compensation when a workplace injury
causes the “loss of uncorrected vision.” Under our case law interpreting this
statute, the benefit of any postinjury correction to eyesight is not included in the
calculation of compensation owed to the injured worker. State ex. rel. Gen. Elec.
Corp. v. Indus. Comm., 103 Ohio St.3d 420, 2004-Ohio-5585, 816 N.E.2d 588, at
¶51 (explaining that “[c]ase law * * * distinguishes between correction and
restoration/recovery for purposes of making an award” and holding that “the time
had [not] arrived to reclassify corneal lens implants as restorative”). However, if
a procedure could permanently restore eyesight to its preinjury state, the effects of
that restoration would limit the compensation owed to the injured worker.
       {¶ 28} Over the years, this court repeatedly has been faced with the
question whether intraocular implants that mitigate eye injuries qualify as
corrective. See, e.g., State ex rel. Kroger Co. v. Stover (1987), 31 Ohio St.3d 229,
31 OBR 436, 510 N.E.2d 356; State ex rel. Gen. Elec.,103 Ohio St.3d 420, 2004-
Ohio-5585, 816 N.E.2d 588; State ex rel. AutoZone, Inc. v. Indus. Comm., 117
Ohio St.3d 186, 2008-Ohio-541, 883 N.E.2d 372; State ex rel. La-Z-Boy
Furniture Galleries v. Thomas, 126 Ohio St.3d 134, 2010-Ohio-3215, 931 N.E.2d
545. We have expressed optimism that advances in medical technology will bring
us a device or procedure that can eliminate the effects of the injury for the
purposes of R.C. 4123.57(B), but we have consistently found that modern eye
procedures remain merely corrective.         See, e.g., Kroger at 234.        These
improvements simply do not reinstate eyesight to its preinjury quality, and their
permanence is uncertain.       See, e.g., La-Z-Boy Furniture Galleries at ¶16



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(summarizing previous findings that “[i]mplants and transplants * * * do not
completely replicate the extraordinary capabilities of one’s own lens or cornea. *
* * [T]ransplants are susceptible to rejection [and] cannot change focus or filter
light”).
           {¶ 29} The majority ostensibly does not reach the corrective/restorative
dichotomy, because eye tests never demonstrated that Baker lost at least 25
percent of his vision, the threshold for compensation under R.C. 4123.57(B).
However, the effect of the majority opinion is to break with our precedent and to
treat lens implants as restorative. Without the replacement lens, Baker cannot see.
He clearly exceeds the 25 percent threshold. If Baker’s lens implant were treated
as corrective, therefore, we would compensate him for total loss of sight. Yet the
majority determines that Baker’s injury is insufficient to justify compensation.
The only way to reach this outcome is to presume that the lens implant completely
and permanently repaired the loss of a lens necessitated by Baker’s workplace
injury, i.e., to treat the lens implant as restorative. I cannot see a justification for
moving away from this court’s precedent based on the record before us.
           {¶ 30} In addition to departing from precedent, the majority creates two
new limits on compensation in this context. Despite the variable nature of eye
injuries (such as the progressive cataract suffered by Baker), R.C. 4123.57(B)
does not dictate when or how the Industrial Commission should measure loss of
sight. This court’s prior decisions likewise do not prescribe the mechanics of that
evaluation. Nonetheless, the majority incorporates new requirements that limit
when workers who lose their eyesight can receive compensation. I would leave
that determination to the General Assembly.
           {¶ 31} First, the majority interprets our decisions in this context to tie
compensation to the degree of injury before correction. Accordingly, the majority
identifies Baker’s 8 percent loss of vision, tested before the removal of his lens, as
the appropriate touchstone for calculating compensation. I would hold that our



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decisions tie compensation to the degree of injury without correction. And here,
because Baker cannot see through his right eye without the benefit of the
replacement lens, I would grant total-loss compensation.
       {¶ 32} I would not establish an artificial deadline for calculating loss of
vision at the moment when the injured worker, following his doctor’s advice,
takes action to address his condition before it completes its inevitable destruction
of his sight.   We can just as easily conclude, as Baker and the Industrial
Commission request here, that the removal of a lens in the course of corrective
surgery necessitated by workplace injury constitutes the loss of sight for the
purposes of R.C. 4123.57(B).
       {¶ 33} Second, the majority’s decision erects a hurdle for the injured
worker that is not mandated by the statute or by our precedent. The majority
concludes that Baker is not entitled to compensation, because vision tests never
demonstrated a loss of at least 25 percent of his sight. But we do not need test
results to tell us that Baker can no longer see through the injured eye without the
benefit of his corrective replacement lens. This is an undeniable fact. We can be
hopeful that Baker’s corrective procedure is permanently successful, but we must
be mindful that new medical technologies sometimes fail and that our bodies do
not always comply with doctors’ plans.         Moreover, regardless of the lens
implant’s success, the workplace injury deprived Baker of the irreplaceable
wonder of his natural eyesight.
       {¶ 34} The employer suggests that to allow Baker to receive workers’
compensation benefits for total vision loss will result in a windfall to him. Such
an argument misses the point. Baker sustained the loss of his natural eye lens due
to a workplace injury, and the General Assembly has determined that such harm is
compensable.
       {¶ 35} This appeal presents unresolved questions for the legislature. The
court, however, should not be making new law. Had Baker waited until his



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natural lens was opaque, the majority would find that he is entitled to
compensation; therefore, from the majority opinion today, we will apparently
require that injured workers wait until a cataract caused by a workplace injury
obscures sight before undergoing corrective surgery. In other words, injured
workers seeking compensation to which they are entitled must choose between
following doctors’ orders or receiving compensation for workplace injuries that
undeniably wrecked their eyesight. The result we reach today will require injured
workers to consult lawyers before they decide on appropriate medical treatment.
       {¶ 36} Baker, because of a workplace injury, lost sight in his right eye.
Yet because he followed his doctor’s orders and had a replacement lens implanted
before the injury completed its damage, the majority will deprive him of
compensation. We should not create an incentive for injured workers to delay
necessary medical treatment, nor should we pretend that a replacement lens is as
good as the original. Instead of producing this unfortunate result, we should treat
Baker like any other worker who loses the sight of an eye. Therefore, I dissent.
       O’CONNOR, C.J., and PFEIFER, J., concur in the foregoing opinion.
                              __________________
       Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., and Theodore A.
Bowman, for appellant Baker.
       Michael DeWine, Attorney General, and Colleen C. Erdman, Assistant
Attorney General, for appellant Industrial Commission of Ohio.
       Reminger Co., L.P.A., Amy S. Thomas, and Mick Proxmire, for appellee.
                           ______________________




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