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Loss of Vision in Workers’ Compensation
When an employee suffers a serious eye injury, there is the potential for a "total loss of vision" award, which is always substantial. The award for total loss of vision of one eye is 125 weeks at the maximum temporary total rate, regardless of the claimant’s average weekly wage. Thus, for a 2012 injury, total loss of vision of one eye amounts to an award of $101,125. Accordingly, the standard as to whether or not an injury actually resulted in a total loss of vision is crucial, as an award will have a huge impact on claim costs.The standard in Ohio is to compare the injured worker’s uncorrected vision prior to the injury to his uncorrected vision after the injury. The theory is to compensate the injured worker for the actual vision lost as a direct result of the injury.
Disputes have arisen in very serious eye injury claims which ultimately result in either cataract surgery or corneal transplant surgery. Attorneys for injured workers have argued that the surgical procedure itself results in a total loss of vision as the natural lens must be removed in cataract surgery and the cornea is removed in corneal transplant surgery. The argument has been that the few moments during the surgical procedure when the lens or cornea is removed constitutes a total loss of vision.
The Ohio Supreme Court recently addressed this issue in State ex. rel. Baker v. Coast to Coast Manpower. In that case, the injured worker was struck in the eye by a piece of metal, which ultimately resulted in a traumatic cataract. The claimant underwent surgery which involved removing the natural lens and replacing it with an intraocular lens implant.
The Ohio Supreme Court confirmed that loss of vision is determined by measuring the injured worker’s uncorrected vision before the injury, to the uncorrected vision after the injury, but prior to any corrective surgery such as a lens implant or cornea transplant. The Ohio Supreme Court thus found that loss of uncorrected vision following the injury is measured prior to any surgical procedure.
On the other side of the spectrum, employers have frequently made the argument that the surgery itself results in the same or very often better vision than the injured worker had prior to the injury. This is the standard of the medical community, which looks to "best corrected vision." However, this negates the fact the injured worker sustained a serious eye injury, ultimately resulting in a surgical procedure to correct and repair the lost vision.
The Industrial Commission has put this policy in writing in its Policy Statements and Guidelines, Memo F2. The guidelines state in pertinent part: "The proper measure for loss of vision is the percentage of vision actually lost when comparing the pre-injury vision to the post-injury vision, prior to any corrective treatment."
Employers should also be aware that an injured worker is entitled to a partial loss of vision award, using the same standard of pre-injury uncorrected vision compared to post-injury uncorrected vision. However, the partial loss of vision must be 25% or greater.
Obtaining a medical review or an actual independent medical evaluation by an ophthalmologist should always be considered by the employer in these cases. The physician must be made aware of the standard in workers’ compensation, comparing uncorrected vision prior to the injury to uncorrected vision after the injury, but prior to any corrective surgery.
Please feel free to contact Carol Strassman or any of the experienced workers’ compensation attorneys at RBS with questions or concerns regarding "total loss of vision" awards.