LISA,M.

REYNOLDS, )

)"

Petitioner; )

vs. )

) ) IC OF OKLAHOMA LLC, INTERNATIONAL )

TRUCK & ENGINE CORP., OWN RISK )

# 19208, and THE WORKERS' )

COJvlPENSATION COURT, )

)

Respondents. ,)

.".

. ~~. .'r--~""

rms OPINION HAS BEEN RELE~ FOR PUBLIe~~ LEi ; BY ORDER OF THE COURT OF CIVIL APPEALS t\PR 1 ~ 'lJJ\G

IN THE COURT OF CIVIL APPEALS OF THE STATE OF O~~S~,~,;; Ci,_!\ •. ; coU~~"6relvIL AP~IfAL'

DIVISION I STATE: OF OKLAHOMA S

APR 1 B 2010 M1CHAEl S. RICHIE CLERK

Case No. 107,610 w.c.c.# 2008-8638F

PROCEEDING TO REVIEW AN ORDER OF THE WORKERS' COMPENSATION COURT

HONORABLE BOB LAKE GROVE, TRIAL JUDGE

VACATED AND REMANDED WITH INSTRUCTIONS

John N. MacKenzie, Tulsa, Oklahoma,

For Petitioner,

David J. L. Frette,

HASTINGS & ASSOCIATES, Tulsa, Oklahoma,

For Respondents.

OPINION BY CAROL M. HANSEN, JUDGE:

~l Petitioner, Lisa Reynolds (Claimant), seeks review of a Workers'

Compensation Court (WCC) order finding permanent partial disability (PPD) to her

left eye. She asserts the PPD finding was a lesser degree of impairment than that

dictated by proper application of wce Rule 23 (hereafter Rule 23). Rules of the

Workers' Compensation Court, 85 O.S.Supp.2006, Ch. 4, App. That rule sets forth

the criteria for measuring and calculating percentage of eye impairment. 1

~2 The operative facts are undisputed. Claimant was injured on June 2, 2008,

when she was hit in the left eye by a loose wire while working for Respondent, IC of

Oklahoma (Employer). Employer provided temporary total disability (TTD) benefits

and medical care. The injury required surgery, including a corneal graft, removal of

a traumatic cataract and natural lens, and implantation of an artificial intraocular lens

to replace the natural lens.

~3 At trial on September 2, 2009, the only material issues were the "nature and

extent" of Claimant's left eye injury, the injury already having been found

compensable. Claimant testified regarding the treatment of her injury and how the

1 Rule 23, as pertinent here, provides:

The physician should consult with the "Guides" regarding the equipment necessary to test the function of eyes and for the methods of evaluation. The following Snellen Chart may then be used for computing the percentage of visual efficiency. It should be noted that all measurements shall be based upon uncorrected vision.

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residual effects of the injury and treatment have impacted her vision and ability to

function. Claimant asked the court to take notice of Rule 23, particularly that portion

which provides "all measurements shall be based upon uncorrected vision."

(Emphasis added). Claimant argued to the WCC that without the artificial lens,

"which is from a physical standpoint not that much difference (sic) in eye glasses or

contact lens," she would have 100 percent impairment to the injured left eye.

-04 Claimant also introduced the February 11, 2009 report of Dr. Trinidad, her

medical expert. Employer countered with the April 14, 2009 report of Dr. Lee, its

medical expert. Employer cited Hereden v. Multiple Injury Trust Fund, 2001 OK

CIV APP 42, 46 P.3d 169, to the WCC on the issue of rating impairment with

corrected or uncorrected vision. Asserting there were no Oklahoma cases directly on

point, Claimant cited to opinions from other jurisdictions. Each party, based on the

respective interpretations of what was "uncorrected vision" under Rule 23, entered

probative value objections to the other's medical expert report.

-05 In his report, Dr. Trinidad, noting that Rule 23 required measurement based on

uncorrected vision, opined that without the artificial intraocular lens Claimant would

be industrially blind, "which is equivalent to 100 percent loss of her left eye."

. . -

However, Dr. Trinidad also opined, alternatively, that if Claimant's impairment were

based on "corrected" vision, "her visual acuity would be 20/70, which correlates to

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a 36 percent [PPD] to the left eye." Adding in the other residual effects of Claimant's

injury and treatment, e.g., photophobia, night glare and dry eye syndrome, Dr.

Trinidad found a total of 46 percent PPD based on "corrected" vision.

~6 In his report, Dr. Lee, Employer's medical expert, found Claimant's "visual

acuity on Snelling's (sic) eye chart, is 20170 bilaterally without corrective lenses."

Dr. Lee, noting Claimant was using glasses used before the injury, further found,

"[ w]ith her current corrective lenses," Claimant's vision remained 20/70 in her left

eye, with the right eye correcting to 20/20. Dr. Lee found that because Claimant's left

eye visual acuity was equal to her right eye, "with regards to visual acuity there is not·

particularly any impairment." However, Dr. Lee did note there was impairment to the

left eye caused by clouding of vision and loss of visual fields, and opined Claimant's

impairment was 20 percent, beyond any preexisting changes to visual acuity related

to myopia. Dr. Lee commented on the. presence of the intraocular lens implant, but

made no mention of what consideration, if any, he gave to the artificial lens in his

evaluation of Claimant's visual impairment.

~7 The WCC determined in its order of September 16, 2009:

THAT as a result of said injury, claimant sustained 39 percent [PPD] to the LEFT EYE (BASED UPON CORRECTED VISION-WITH LENS Uv1PLANT - PER CLAIMANT'S EXHIBIT #1 AS SUBSTANTIVE EVIDENCE), ... (Emphasis in original).

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«il8 Claimant now seeks our review of the WCC's order. She puts forth a single proposition of asserted WCC error, that is, the WCC "erred as a matter of law in finding a [PPD] amount based upon 'corrected vision' contrary to Rule 23 of the [Wec]." The crux of our review is thus what is "uncorrected vision" within the meaning of that rule.

«il9 We must first examine the WCC's rule-making authority. The WCC is empowered by 85 0.S.2001 § 1.2(E) to "adopt reasonable rules within its respective areas of responsibility." Pursuant to § 1.2(E), such rules, after approval by the Supreme Court, "shall be binding in the administration ofthe Workers' Compensation Act." Rule 23, which dictates the manner in which physicians must measure eye impairment for the WCC's consideration in determining disability, is within that court's area of responsibility and thus comes within its rule-making authority.

«ill 0 Rules of court, including the wec, which are properly promulgated and not exceeding the limitation of the court's rule-making power, have the force of law. Texas Oklahoma Exp. v. Sorenson, 1982 OK 113, 652 P.2d 285. We thus consider such rules as we would in the interpretation and construction of statutes. Statutory construction presents a question of law which is subject to de novo review. Multiple Injury Trust Fund v. Harper, 2008 OK ClV APP 82, 194 P.3d 790. Under that standard, we have "plenary, independent and non-deferential authority to examine a

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trial court's legal rulings." Samman v. Multiple Injury Trust Fund, 2001 OK 71,33 P.3d 302. Where a statute, or in this case a rule, is ambiguous or its meaning uncertain, it is to be given a reasonable construction. UYlie v. Chesser, 2007 OK 81,

173 P.3d 64.

~11 The WCC's PPD finding was, as the court stated in its order, "[b]ased upon corrected vision with lens implant - per Claimant's exhibit #1." Claimant's exhibit #1 was the report of Dr. Trinidad, her medical expert. Dr. Trinidad's alternative findings were that Claimant's left eye would be 100 percent impaired without the artificial lens, but 46 percent impaired based on "corrected vision with the lens." Claimant's assertion -- that the WCC erred by basing its PPD finding upon "corrected vision" -- is thus reliant upon the premise that visual acuity after artificial lens implantation is "corrected vision" within the meaning of Rule 23's mandate that eye impairment measurements must be based upon "uncorrected vision."

~12 The term "uncorrected vision" is not defined in the WCC rules, nor in the Workers' Compensation Act. The one Oklahoma case which has dealt with the question of corrected or uncorrected vision, as it relates to Rule 23, is Hereden v. Multiple Injury Trust Fund, which was cited to the WCC as noted in paragraph 4 above. In Hereden, the claimant asserted the WCC failed to consider preexisting

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impairment to his left eye in deciding questions of material increase and disability in

his claim against the Fund as a previously impaired person under 85 0.S.2001 § 171.

~13 .As here, the Hereden claimant had received an implanted artificial lens after

\

surgery to remove a traumatic cataract, but there the cataract did not result from an

employment related injury. Mr. Hereden argued the loss of his natural lens resulted

in permanent loss of sight, asrequired by § 171 to make him a previously impaired

person, and that "implantation of the lens did nothing more than correct the loss of

natural sight by artificial means." Mr. Hereden further argued his eye impairment

must be determined on the basis of uncorrected vision pursuant to then W CC Rule 33,

which has been renumbered as Rule 23.

~14 The Hereden trial court refused to consider the injury and treatment because

there was no obvious and apparent injury to the eye at the time of his latest injury.

A three-judge panel vacated that portion of the trial court's order, and substituted a

finding that the "artificial lens is a permanent improvement to clamant's vision [and]

not in the nature of a prosthesis [so that claimant has no] loss of sight ... within the

meaning of 85 O.S. [Supp. 2000] § 171."

~15 The Court of Civil Appeals in Hereden "sustained" the wec' s order, although

holding it found "no evidence to support the three-judge panel's decision that the

artificial lens is a permanent improvement to claimant's vision." Nonetheless, the

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Hereden Court held, "we do find undisputed medical evidence that 'claimant clearly has not suffered loss of sight in the LEFT EYE within the meaning of85 O.S. § 171'." In so holding, the Court of Civil Appeals reasoned an intraocular artificial lens was, contrary to the three-judge panel's finding, indeed a prosthesis.

«jf16 The Hereden Court took its definition of a prosthetic device ., one which replaces a missing part or function of the human body - from the sales tax code. The Court noted the Supreme Court of Ohio, in construing a similar statute, had decided an intraocular artificial lens was a prosthetic device. The Court further noted 85 O.S. 2001 § 15 requires employers to furnish "prosthetic devices" when injury results in the "loss of one or more eyes." Reasoning from this requirement, the Hereden Court believed it unlikely the Legislature would mandate provision of a prosthetic device such as an intraocular lens, "so that anatomical or functional use can be restored, and then treat the prosthetic device as a mere correction of a deficiency to be disregarded in determining impairment to vision."

«jf17 The Hereden Court noted by footnote this line of reasoning may not apply to all prosthetic devices because "not all prosthetic devices have the ability to restore anatomical or functional use to the same extent that an artificial intraocular lens can restore lost sight to near normal." Hereden, 46 P.3d at 171, note 1. The Court went

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on to state "[ e [ach case will depend on expert medical evidence concerning the effect

of the prosthetic device on impairment." Id.

~18 It is evident that central to Hereden is the presumption that an artificial

intraocular lens restores "lost sight to near normal," rather than corrects the lost sight.

Implicit in making this distinction is the perceived permanency of an implanted

intraocular lens, as opposed to the temporary nature of an extraocular lens, i. e. glasses .

or contact lenses which are outside the eye and can be easily removed. Either of the

latter can also enable one who has lost a natural lens to regain "near normal" visual

acuity?

~19 In other words, using the standard as stated in Hereden, glasses or contacts

lenses, like an implanted lens, can enable one who has lost sight due to removal of a

natural lens to regain functional use of the eye." The difference, as we have noted,

2 In Parrott Motor Co. v. Jolls, 1934 OK 145, 168 Okla. 96, 31 P.2d 925, the injured worker's lens was removed and his "eye was almost useless unless fitted with glasses which focused the vision at a particular distance, and then he could not visualize except at that particular distance." The Jolls Court sustained a permanent total disability finding (claimant' s other eye already was without sight), citing the seminal case of Marland Refining Co. v. Colbaugh, 1925 OK 480, 110 Okla. 238, 238 P. 831. Colbaugh held the State Industrial Commission (WeC) was not required to take into consideration that an eye injury might be minimized by artificial means. See also, Lindsay v. Glennie Industries, Inc., 379 Mich. 573, 153 N.W.2d 642 (1967)(Claimant, after removal of natural lens, was fitted with contact lens "enabling him to enj oy virtually full vision in the eye while wearing the lens.")

3 "In [the treating optharnologist's] opinion, there is no distinction between the function of a contact lens or eyeglass lens and that of [claimant's] plastic lens implant." Creative Dimensions (continued ... )

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is that one is implanted within the eye, and the others are used outside the eye - but

all are artificial. The functional result is substantially the same. If permanency is the

distinguishing factor, we note the Heredon Court, 46 P.3d at 173, found no evidence

the implanted lens was a "permanent improvement to claimant's vision."

-020 As in Hereden, the wee here must have based its use of "corrected vision with

lens implant" on finding that Claimant's vision had been restored by the implant,

rather than corrected. Irrespective of the nomenclature used in its order, the wee

was clearly aware of the Rule 23 requirement that impairment and disability ratings

must be based on "uncorrected vision." The wee just as clearly was not intending

use of "corrected vision" in its order to have the same meaning as it does in Rule 23.

-021 While Hereden uses restored vision as its reasoning basis, the Hereden Court

did not examine what restored vision actually is, or how it differs from 'corrected

vision. In fact, the restorative versus corrective distinction in terms of eye

impairment evaluation has never been examined in this jurisdiction. For that reason,

we must look to other courts for guidance in our consideration of that distinction, but,

to put the question in proper context, we first review the origins of the requirement

in our law that eye impairment be evaluated upon uncorrected vision.

3 ( ••• continued)

Group Inc. v. Hill, 16 Va. App. 439, 430S.E.2d 718 (1993), quoting Kalhorn v. Bellvue, 227 Neb. 880,420 N.W.2d 713 (1988).

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l

1 _

,-r22 The Oklahoma Supreme Court long ago determined "the State Industrial

Commission [now WCC] is not required to take into consideration that the loss [of

vision] sustained might or might not be minimized by artificial means." Marland

Refining Co. Colbaugh, 1925 OK 480, 110 Okla. 238, 238 P. 831. The Colbaugh

Court found the Legislature had not provided for such consideration in the

Workmen's (now Worker's) Compensation Act and, if the Legislature had so

intended, "we would expect to find some intimation of it in the act."

,-r23 The Worker's Compensation Act has been amended many times SInce

Colbaugh, and other appellate holdings reiterating its rule," and the Legislature is yet

to act to require the WCC to take into consideration minimization of loss of sight by

"artificial means," which would include artificial intraocular lenses. Nor has the

Legislature acted to modify the language of Rule 23, which had been in effect since

1981 and effectively codifies the holding in Colbaugh regarding consideration of

artificial enhancements of sight. As in Colbaugh, we find no "intimation" to suggest

the Legislature "intended that a reduction of injury by artificial means should be taken

into consideration" in determining loss of sight. In the absence of statutory mandate

4 See, e.g., Parrott Motor Co. v. Jolls, note 2, supra; Reynolds v. State Indus. Com 'n, 1949 OK 20,201 Okla. 139,202 P.2d 994.

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or definition, we are left to give a "reasonable construction" to the Rule 23 requirement to use uncorrected vision. WYlie v. Chesser, 173 P.3d at 71.

~24 In our consideration of the restorative versus corrective dichotomy, we find instructive the Ohio Supreme Court's comprehensive discussion of that question in State ex reI. General Electric Corp. v. Industrial Commission a/Ohio, 103 Ohio St.3d 420, 816 N.E. 588 (2004). This is one of the cases cited by Claimant in the WCC. Ohio provides by statute for use of uncorrected vision in determining loss of sight compensation, R.C. 4123.57(B), and the General Electric Court notes this is the standard for evaluation in "most states."

~25 The claimant in General Electric had no visual impairment prior to the accident, 20/200 vision after the injury, and his "eyes were fully repaired surgically" by corneal transplants. The Ohio Industrial Commission found the improvements through surgery were "no more than a correction to vision and as such not to be taken into consideration in determining the percentage of vision lost." The Ohio Court of Appeals held the transplant procedure "had evolved to the point where claimant's surgery could be considered restorative" and vacated the award. The matter was then appealed to the Ohio Supreme Court.

~26 While General Electric involved corneal transplants, much of the law examined by the Ohio Supreme Court related to lens implants and that Court

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.... ..:

considered the rationales to be equally applicable. The Supreme Court there defined

its inquiry as follows:

The difficult distinction between recovery/restoration and correction remains the cornerstone of scheduled-loss-of-vision litigation. Although these terms are statutorily undefined, case law returns to two criteria again and again: visual improvement and permanence. (Emphasis added).

'if27 Regarding visual improvement, the General Electric Court looked beyond "just

enhancement of distance vision." The Court quoted from two lens implant cases-

Kalhorn v. Bellvue, 227 Neb. 880,420 N.W.2d 713 (1988) and Creative Dimensions

Group Inc. v. Hill, 16 Va. App. 439, 430 S.E.2d 718 (1993). In both cases the

appellate courts determined the lens implant was not restorative, but corrective. In

making that determination, the courts relied on medical evidence of visual

differences, side effects and deficiencies between a natural lens and an implant. Most

notably, both courts noted the implant was monofocused, meaning it focuses only at

one distance, and the implant did not have light filtering powers, causing glare.

These are two of the post-surgery effects of which Claimant complains here .

'if28 As to the permanence prong of the restorative/corrective inquiry, both Kalhorn

and Creative Dimensions noted medical evidence of possible future complications

with the implant, with the Kalhorn Court concluding "[t]here is no evidence that such

intraocular lenses will be risk- free in the future." In Kalhorn, the court noted the long

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term effects of lens implantation was unknown, as was how long the eye can tolerate an implant. In Creative Dimensions, there was medical evidence regarding circumstances which might necessitate removal of the implanted lens.

~29 The General Electric Court observed that both Kalhorn and Creative Dimensions, plus the earlier Ohio case of State ex rel. Kroger v. Stover, 31 Ohio St.3d 229,510 N.E.2d 356, which reached the same conclusions on similar facts, "rest on the belief that medical technology ha[ d] not progressed to the point where permanent, trouble-free improvement [could] be confidently predicted." The Court further observed, however, that these opinions were, at the least, then 11 years old. This raised the question whether medical advances in that 11 years had "transformed a comeallens transplant, once considered a correction, into a restoration." The Ohio Court of Appeals had answered that question affirmatively. The Ohio Supreme Court reversed that holding because, inter alia, there was no medical evidence "of record" to support it, and disagreed with Court of Appeals conclusion.

~30 Similarly to General Electric, the WCC, relying on Hereden, based its PPD finding on the presumed fact that Claimant's left eye vision had been "restored," even though the court used the term "corrected." Also, here, as General Electric, the medical evidence of record does not address that issue. The two medical experts obviously based their opinions on their respective unexpressed views of what

l

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"uncorrected vision" in Rule 23 means. However, whether Claimant's sight has been

restored, rather than corrected, is a legal determination construing Rule 23, but that

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determination must be based on and supported by medical evidence, generally as to

the state of medical technology regarding artificial intraocular lens implants, and

specifically as to Claimant's implant. The wec erred as a matter of law in making

its PPD finding in the' absence of such evidence.

~31 Accordingly, the order of the WCC is VACATED. This matter is

REMANDED to the WCC to reconsider its disability determination after taking

further medical evidence, consistent with the opinions discussed herein, as to whether

Claimant's left eye vision has been restored, rather than corrected, through the use of

the artificial lens implant.

HETHERINGTON, J., concurs.

KENNETH L. BUETTNER, Presiding Judge, dissenting:

-032 In the case of Hereden v. Multiple Injury Trust Fund, 2001 OK CN APP 42,

46 P.3d 169 (cert. denied), now Justice Rief, wrote:

We do not agree with Mr. Hereden's characterization of the implanted lens as a mere correction of Mr. Hereden's vision.

46 P.3d at 170.

We hold that where a prosthetic device has replaced a missing biological part or natural function of the human body, the inquiry of impairment

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does not end with the biological or natural loss; the inquiry extends to determining the degree of anatomical or functional loss that remains after the prosthetic device is in use.

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46 P.3d at 171.

~33 I agree with Justice Rief, and would hold that Workers' Compensation Court

Rule 23 's reference to "uncorrected vision" was not intended to apply to an implanted

lens. If it did, and under the majority's interpretation, then any employee, who had

had cataract surgery before an on-the-job injury, could receive an "industrially blind"

rating without any reference to the injury itself. This result would not be the intent

of Rule 23. I respectfully dissent.

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