On February 18, the Ohio Supreme Court issued a decision regarding eligibility for statutory awards for loss of vision and hearing which is deeply flawed and cause for concern on the part of all people who have been, or may be, seriously injured in the course of employment. State, ex rel. Smith v. Industrial Commission, 2014-Ohio-513, involves the claim of George Smith, who is in a persistent vegetative state as the result of permanent brain damage resulting from complications of surgery related to his work-place injury. Medical evaluations found that he did not respond to the spoken word or to visual stimulation. The examining physicians agreed that the damage to his brain left him unable to process visual or auditory signals and that, as a result, he could neither see nor hear. Based on this information, Mr. Smith’s attorney argued that because the work-related injury to his brain left him unable to see or hear, he was entitled to statutory compensation for total loss of sight and hearing.
The workers’ compensation act provides that an injured worker who has lost sight in one eye is entitled to a scheduled award equal to 125 weeks of compensation. The loss of sight in both eyes results in an award equal to 250 weeks. There are provisions for lesser awards for partial loss of sight, based on the amount of “vision actually lost as the result of the injury.” The statute also provides for the payment of an award equal to 125 weeks of compensation “for the permanent and total loss of hearing.” In the event of a dispute concerning the interpretation of these provisions — or any other statutory language contained in the workers’ compensation act — Ohio law directs the courts to interpret workers’ compensation statutes in the manner most favorable to injured workers and their dependents.
In a 4-3 decision, the Ohio Supreme Court rejected Mr. Smith’s argument and denied payment of compensation for his losses of sight and hearing. The four justices in the majority explained the decision by stating that Revised Code 4123.57 “authorizes compensation for loss of sight when the claimant shows an actual loss of vision as a result of injury to the eye or for loss of hearing occasioned by injury to the ear. At the present time, this statute does not authorize compensation for loss of brain stem functioning.”
With all due respect to the court, there is nothing — absolutely nothing — in the language of Revised code section 4123.57 which limits compensation for loss of sight to cases involving direct injury to the eye, or permits compensation for loss of hearing only when it results from an injury to the ears. What the plain language of the statute says is that one who cannot see or hear “as a result of the industrial injury” is entitled to the compensation specified for those losses. Someone whose brain has lost the ability to process visual and auditory stimuli has lost the functions of sight and hearing. The doctors who evaluated Mr. Smith agreed that that was exactly what happened in this case.
Instead of interpreting the language of the scheduled loss statute in the manner most favorable to the injured worker, which is the court’s legal obligation under Revised Code section 4123.95, the majority read into the law a requirement that losses of sight and hearing must result from injury to the eyes and ears, rather than injury to the portions of the brain which make sight and hearing possible. There has never been, and is not now, any such requirement in the statute as enacted by the General Assembly. All you need to know about the majority’s opinion in this case can be summed up in three words: elections have consequences.