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Sheena Harrison

Man in vegetative state not due workers comp for vision, hearing loss

February 20, 2014 - 2:35pm


A man in a persistent vegetative state cannot receive workers compensation benefits for vision and hearing loss, partly because his condition doesn't allow him to be accurately tested for such injuries, the Ohio Supreme Court ruled in a split decision.

George Smith worked for Ohio State University, court records show. In December 1995, he suffered a hernia while pushing a heavy object at work.

Mr. Smith underwent surgery to repair the hernia in March 1996, records show. He suffered post-surgery complications, which later were diagnosed as anoxic brain damage and a seizure disorder, and has remained in a persistent vegetative state since then.

The Ohio Industrial Commission awarded workers comp benefits for Mr. Smith's hernia and later added permanent total disability benefits based on his brain damage and seizure disorder, records show. The commission awarded additional comp benefits in 2004 for Mr. Smith's loss of the use of his arms and legs.

A doctor examined Mr. Smith in March 2009 to determine the extent of his permanent impairment. The doctor said Mr. Smith showed no language comprehension, but his pupils reacted to bright light and his optic nerves were intact.

The doctor concluded that Mr. Smith suffered bilateral vision and hearing loss related to his brain damage, records show. Attorneys for Mr. Smith sought additional workers comp benefits.

No reliable testing

However, the doctor filed an addendum in August 2009, saying there “is no reliable physical test or examination that could be conducted that will determine that the injured worker suffered definite vision and hearing loss” because of his brain damage, records show.

Another doctor appointed by Mr. Smith's lawyers also found that Mr. “Smith's hearing and vision cannot be tested due to (his) inability to respond to external stimuli.”

The state industrial commission denied benefits for Mr. Smith's vision and hearing loss because of a lack of objective testing for those conditions. Mr. Smith's attorneys appealed, contending that a loss of the brain's ability to process visual or auditory stimuli is equal to a loss of ear or eye function.

However, the Ohio 10th District Court of Appeals found that the industrial commission did not properly apply medical evidence in the case and ordered the commission to reconsider its denial, records show. Ohio State appealed, contending that attorneys for Mr. Smith failed to present medical evidence that showed “actual” vision or hearing loss.

In its split 4-3 ruling Tuesday, the Ohio Supreme Court ruled that Mr. Smith should not receive comp benefits for hearing and vision loss.

The majority found that the portion of Ohio workers comp law relating to those conditions does not provide compensation for loss of brain-stem function. It also found that Mr. Smith's eyes appear to be functioning based on the reaction of his pupils to light, and noted that there is no test that can “establish definitively” whether Mr. Smith lost his hearing.

“Smith has already been awarded workers compensation benefits on the allowed condition of anoxic brain damage, and it appears that any inability to process sights and sounds in his brain directly results from that allowed condition,” the majority ruled.

In a dissent, Ohio Supreme Court Justice Judith Ann Lanziger said she would have affirmed the appellate court's order that Mr. Smith's case be reconsidered by the industrial commission.

Doctors “concluded, Smith suffered the loss of his visual and auditory functions for all practical purposes,” the dissent reads. “This medical evidence established that Smith is unable to see or hear and that the losses are the result of his allowed condition, i.e., the anoxic brain damage. I would hold that this medical evidence should have been considered by the Industrial Commission in determining whether Smith has established the right to additional compensation as a result of his allowed condition.”

 



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