[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

ex rel. Cogan v. Indus. Comm., Slip Opinion No. 2023-Ohio-3567.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2023-OHIO-3567

THE STATE EX REL. COGAN, APPELLEE, v. INDUSTRIAL COMMISSION OF 

OHIO, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, 

it may be cited as State ex rel. Cogan v. Indus. Comm.,

Slip Opinion No. 2023-Ohio-3567.]

Workers’ compensation—Scheduled-loss compensation—Industrial Commission 

has discretion to use a claimant’s vision as corrected by hard contact lens 

as claimant’s preinjury visual baseline—Court of appeals’ judgment 

granting limited writ and remanding matter to Industrial Commission 

affirmed.

(No. 2022-1469—Submitted May 16, 2023—Decided October 5, 2023.)

APPEAL from the Court of Appeals for Franklin County,

No. 21AP-9, 2022-Ohio-3748.

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SUPREME COURT OF OHIO

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Per Curiam.

{¶ 1} Appellee, Kenneth E. Cogan, seeks scheduled-loss compensation 

under R.C. 4123.57(B) for the total loss of sight of his right eye. Appellant,

Industrial Commission of Ohio, denied Cogan’s request, concluding that he had not 

experienced a postinjury loss of uncorrected vision. Cogan then sought a writ of 

mandamus from the Tenth District Court of Appeals. The Tenth District issued a 

limited writ and remanded the matter to the commission, ordering it to determine 

Cogan’s appropriate preinjury visual baseline and to apply that baseline to his 

request for compensation. The commission appealed.

{¶ 2} At issue is whether the commission has discretion to use a claimant’s 

vision as corrected by a hard contact lens as the claimant’s preinjury visual baseline. 

See State ex rel. La-Z-Boy Furniture Galleries v. Thomas, 126 Ohio St.3d 134, 

2010-Ohio-3215, 931 N.E.2d 545. We answer that question in the affirmative and 

affirm the Tenth District’s judgment.

I. BACKGROUND

A. Visual Acuity

{¶ 3} Visual acuity is one of several “vision” components. State ex rel. 

Bowman v. Indus. Comm., 170 Ohio St.3d 270, 2022-Ohio-233, 211 N.E.3d 1167,

¶ 14. “Visual acuity ‘describes the ability of the eye to perceive details’ * * * [and 

is] usually stated in terms of a Snellen fraction, e.g., 20/20. A Snellen fraction 

reports the result of a test in which a patient reads letters from a chart positioned 

some distance away.” (Citation omitted.) State ex rel. Beyer v. Autoneum N. Am., 

157 Ohio St.3d 316, 2019-Ohio-3714, 136 N.E.3d 454, ¶ 4, quoting American 

Medical Association (“AMA”), Guides to the Evaluation of Permanent Impairment

280 (5th Ed.2001). “The numerator in a 20/xx Snellen fraction represents the 

distance in feet from the patient to the chart, and the denominator represents the 

distance at which an eye with 20/20 vision would see the smallest letter discerned 
January Term, 2023

3

by the patient.” Id., citing AMA, Guides to the Evaluation of Permanent 

Impairment 210 (4th Ed.1993).

{¶ 4} Visual acuity of 20/200 or less, with correction, is consistent with 

“legal blindness” under Ohio law. State ex rel. AutoZone, Inc. v. Indus. Comm., 

117 Ohio St.3d 186, 2008-Ohio-541, 883 N.E.2d 372, ¶ 22-24, citing R.C. 

3304.28(B)(1) (defining “blind” as “[v]ision twenty/two hundred or less in the 

better eye with proper correction”) and State ex rel. Nastuik v. Indus. Comm., 145 

Ohio St. 287, 292, 61 N.E.2d 610 (1945) (visual acuity of 20/200 or less is the

accepted standard of legal blindness, as reported by the AMA’s Committee on 

Visual Economics).

B. Factual and Procedural History

{¶ 5} A childhood injury and subsequent lensectomy (surgical removal of 

the natural lens of the eye) left Cogan without a lens in his right eye, a condition 

referred to as aphakia. Cogan’s use of a hard contact lens in his right eye corrected 

his visual acuity in that eye to 20/40, and he wore eyeglasses, enabling him to 

maintain a commercial driver’s license for many years. Without correction, the 

visual acuity in Cogan’s right eye was recorded as “count fingers” and “hand 

motions” at two to three feet, meaning that Cogan could count fingers or perceive 

hand motions when positioned two to three feet away but that he could not see any 

letters on the Snellen chart.

{¶ 6} In October 2009, decades after his childhood injury, Cogan sustained 

an industrial injury to his right eye while employed as a wrecker driver. The Bureau 

of Workers’ Compensation initially allowed Cogan’s claim for partial detachment 

of the right retina with multiple defects, followed by total right retinal detachment, 

bullous keratopathy, and photosensitivity of the right eye. The bureau disallowed 

his claim for the preexisting condition of aphakia.

{¶ 7} Cogan underwent three surgical procedures to address the conditions 

allowed under his claim: retinal detachment repair in December 2009, corneal 
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transplant in July 2011, and corneal transplant with secondary intraocular lens 

implantation in December 2019.

{¶ 8} Cogan filed multiple requests for scheduled-loss compensation under 

R.C. 4123.57. Most recently, in March 2020, Cogan requested compensation “for 

One Hundred Percent (100%) loss of pre-injury vision in the right eye.” Cogan 

relied on various medical and operative reports from his treating physicians and 

surgeons that he had submitted with his requests throughout the years. The reports 

indicate that Cogan’s uncorrected visual acuity remained unmeasurable by the 

Snellen chart following the industrial injury—e.g., “hand motions at three feet” 

prior to the retinal-detachment repair and “finger counting at four feet” prior to the 

first corneal transplant. Cogan’s corrected visual acuity, on the other hand, 

measured considerably worse than the preinjury measurement of 20/40: after the 

second corneal transplant, his best corrected visual acuity measured 20/400. A

handwritten note from his surgeon states that Cogan “does not have usable vision” 

in the right eye “because of refractive error.”1

{¶ 9} The bureau requested an independent file review from Khalil A. 

Raffoul, M.D. In Dr. Raffoul’s opinion, the industrial injury did not result in any 

significant loss of uncorrected visual acuity, which was recorded as “count fingers 

at two feet” both before and after the injury. He concluded, however, that Cogan’s 

corrected visual acuity of 20/400 after the industrial injury is worse than the legally 

blind 20/200 level and that the change “is related to all of the allowed conditions 

including retinal detachment and bullous keratopathy which later required retinal 

detachment repair and corneal transplant.”

{¶ 10} A district hearing officer denied Cogan’s request for scheduled-loss 

compensation based on Dr. Raffoul’s report, and a staff hearing officer (“SHO”) 

affirmed. The SHO found that R.C. 4123.57(B) requires a comparison between an 

1. The surgeon’s note also reads, “Vision today is 20/125,” but it is not apparent whether this is a 

corrected or uncorrected measurement or even which eye the note describes.
January Term, 2023

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injured worker’s preinjury and postinjury uncorrected vision. The SHO noted, 

however, that the bureau instructs examining physicians to account for 

improvement gained from preinjury surgical correction but not for improvement 

gained from preinjury correction through use of eyeglasses or contact lenses. 

According to the SHO, this instruction was the basis for the opinion in State ex rel. 

Lay-Z-Boy Furniture Galleries v. Thomas, 10th Dist. Franklin No. 08AP-827, 

2009-Ohio-4546, aff’d sub nom. La-Z-Boy, 126 Ohio St.3d 134, 2010-Ohio-3215, 

931 N.E.2d 545, which involved a preinjury corneal transplant. The SHO found 

that because Cogan’s preinjury visual acuity could be corrected with a hard contact 

lens but that he “most likely did not” have preinjury corrective surgery, the “starting 

standard to compare the loss of vision” is Cogan’s preinjury uncorrected vision of 

“count fingers at two feet.” Thus, based on Dr. Raffoul’s opinion that Cogan did 

not experience a loss of uncorrected visual acuity following the industrial injury, 

the SHO denied Cogan’s request for scheduled-loss compensation. The 

commission denied further administrative review.

{¶ 11} Cogan filed a mandamus action in the Tenth District Court of 

Appeals, contending that the commission had abused its discretion and misapplied 

Lay-Z-Boy to the facts of his case. The Tenth District found that the medical 

evidence had demonstrated that prior to the industrial injury, Cogan had “usable 

vision” in his right eye through use of a hard contact lens but that he was “legally 

blind” after the injury. 2022-Ohio-3748, 199 N.E.3d 205, ¶ 19. The court 

concluded that the commission had interpreted Lay-Z-Boy too narrowly and “predetermined that Cogan’s pre-injury uncorrected vision was the appropriate baseline 

without accounting for the circumstances unique to that case.” Id. at ¶ 14, 18. The 

court granted a limited writ of mandamus and remanded the matter to the 

commission with orders to “(1) exercise the discretion afforded to it to determine 

the appropriate pre-injury visual baseline, and (2) use the updated pre-injury visual 
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baseline to determine whether the medical evidence supports an award for loss of 

vision compensation under R.C. 4123.57(B).” Id. at ¶ 19.

{¶ 12} The commission has appealed.

II. LEGAL ANALYSIS

A. Mandamus Standard

{¶ 13} In a direct appeal of a mandamus action originating in a court of 

appeals, we review the judgment as if the action had been originally filed here. 

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 164, 228 N.E.2d 631 

(1967). Cogan is entitled to a writ of mandamus if he shows by clear and 

convincing evidence that he has a clear legal right to the requested relief, that the 

commission has a clear legal duty to provide it, and that there is no adequate remedy 

in the ordinary course of the law. State ex rel. Zarbana Industries, Inc. v. Indus. 

Comm., 166 Ohio St.3d 216, 2021-Ohio-3669, 184 N.E.3d 81, ¶ 10. A writ of 

mandamus may lie when there is a legal basis to compel the commission to perform 

its clear legal duty under the law or when the commission has abused its discretion 

in carrying out its duties. State ex rel. Gen. Motors Corp. v. Indus. Comm., 117 

Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 9. “When an order [of the 

commission] is adequately explained and based on some evidence, there is no abuse 

of discretion and a reviewing court must not disturb the order.” State ex rel. 

Aaron’s, Inc. v. Ohio Bur. of Workers’ Comp., 148 Ohio St.3d 34, 2016-Ohio-5011, 

68 N.E.3d 757, ¶ 18.

B. Scheduled Loss-of-Sight Compensation

{¶ 14} R.C. 4123.57(B) sets forth rates of compensation for the loss or loss 

of use of listed body parts and functions. Scheduled-loss compensation payable to 

an injured worker for loss of sight is authorized as follows:

For the loss of the sight of an eye, one hundred twenty-five 

weeks.
January Term, 2023

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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.

(Emphasis added.) R.C. 4123.57(B).

{¶ 15} “R.C. 4123.57(B) contains two provisions authorizing scheduled 

loss-of-vision awards: one for the total ‘loss of sight of an eye,’ regardless of the 

percentage of vision lost, and another for the ‘permanent partial loss of sight of an 

eye,’ which depends on the percentage of vision lost.” Beyer, 157 Ohio St.3d 316, 

2019-Ohio-3714, 136 N.E.3d 454, at ¶ 18; see also Nastuik, 145 Ohio St. at 290, 

61 N.E.2d 610 (discussing the General Code antecedent and concluding that

“compensation for total loss of sight is not dependent upon the percentage of the 

loss but upon the fact that there was sight which could be lost and was lost 

completely through the injury”). Thus, an award for total loss of sight may be 

supported by medical evidence of postinjury vision loss that renders a claimant 

“legally blind” (i.e., having a corrected visual acuity of 20/200 or less). Beyer at ¶ 

18; AutoZone, 117 Ohio St.3d 186, 2008-Ohio-541, 883 N.E.2d 372, at ¶ 18; see 

generally State ex rel. Gen. Elec. Corp. v. Indus. Comm., 103 Ohio St.3d 420, 2004-

Ohio-5585, 816 N.E.2d 588.

{¶ 16} In accord with R.C. 4123.57(B), the standard for assessing 

postinjury vision is the claimant’s uncorrected vision. La-Z-Boy, 126 Ohio St.3d 

134, 2010-Ohio-3215, 931 N.E.2d 545, at ¶ 16, citing Gen. Elec. at ¶ 12 and State 

ex rel. Kroger Co. v. Stover, 31 Ohio St.3d 229, 510 N.E.2d 356 (1987). Neither 
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surgical procedures (e.g., corneal transplants and lens implants) nor optical 

prostheses (e.g., eyeglasses and contact lenses) may be considered when 

determining a claimant’s postinjury vision. La-Z-Boy at ¶ 16, citing Gen. Elec. at 

¶ 20, Kroger at 234, and AutoZone.

{¶ 17} R.C. 4123.57 does not address the standard for assessing preinjury

vision. We have stated that a more flexible approach may be necessary in certain 

circumstances and that the commission therefore should be afforded some 

discretion in determining a claimant’s preinjury visual baseline. La-Z-Boy at ¶ 20. 

For example, in La-Z-Boy, the claimant had a corneal transplant in his left eye 

before injuring that eye in an industrial accident. Before the corneal transplant, the 

claimant’s left-eye vision was 20/200; after the transplant, it was 20/50; and after 

the industrial injury, it reverted to 20/200. Id. at ¶ 2. We held that the commission 

did not abuse its discretion in using the claimant’s 20/50 posttransplant vision rather 

than his 20/200 pretransplant vision as the preinjury visual baseline. Id. at ¶ 25.

C. Preinjury Corrections to Vision

{¶ 18} The commission’s essential argument on appeal is that Cogan’s use 

of a hard contact lens to correct his preinjury vision is distinguishable from the 

corneal transplant surgery the claimant underwent in La-Z-Boy, 126 Ohio St.3d 

134, 2010-Ohio-3215, 931 N.E.2d 545. The Tenth District found no merit to this 

argument, agreeing with Cogan’s view that La-Z-Boy is not limited to preinjury 

surgical corrections. 2022-Ohio-3748, 199 N.E.3d 205, at ¶ 17. The Tenth District 

held that “even if Cogan cannot demonstrate prior surgical correction to his vision, 

the commission still has discretion to consider the unique facts of Cogan’s visual 

and medical history.” Id. We agree.

{¶ 19} First, we have consistently held that there is no legal distinction in 

this context between surgical procedures and optical prostheses—they are each 

considered a correction to vision, not a restoration of vision. La-Z-Boy at ¶ 16; 

Gen. Elec., 103 Ohio St.3d 420, 2004-Ohio-5585, 816 N.E.2d 588, at ¶ 51; Kroger, 
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31 Ohio St.3d at 233-234, 510 N.E.2d 356; see also State ex rel. Baker v. Coast to 

Coast Manpower, L.L.C., 129 Ohio St.3d 138, 2011-Ohio-2721, 950 N.E.2d 924, 

¶ 20 (lead opinion). It has been suggested that future medical advancements may 

justify reclassifying a corneal transplant from corrective to restorative. E.g., Kroger

at 233-234; see Gen. Elec. At ¶ 51; Baker at ¶ 25 (Cupp, J., concurring) (“Perhaps 

an appropriate case will come before the [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”). However, the commission fails to set forth any 

argument that has not previously been considered and rejected by this court, nor 

has it cited any record medical evidence that convinces us to overturn the above

precedent.

{¶ 20} Moreover, we have not limited application of La-Z-Boy to corneal 

transplants and have not suggested that the presence of surgical correction is

determinative in these cases. If one type of correction—a corneal transplant—may 

be considered when assessing preinjury vision, then another type of correction also 

may be considered. Of relevance, in La-Z-Boy, we said: 

The commission is particularly concerned about situations in 

which the preinjury correction significantly predates the industrial 

injury, and we share that concern. Had [the claimant’s] corneal 

transplant occurred in 1985 rather than 2005, for example, he would 

have had 20/50 vision not for just one, but for 21 years prior to his 

industrial accident. Under [the employer’s] proposal, the 

appropriate measure of [the claimant’s] preinjury vision would be 

the 20/200 vision that [he] had as a child in 1985, rather than the 

20/50 vision that he enjoyed for over two decades. We cannot 

endorse this result.
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Even when preinjury correction does not significantly 

precede the industrial injury, we can foresee situations in which the 

appropriate measure of preinjury vision could require a more 

flexible approach. Perhaps most obvious is a situation in which 

glasses or contact lenses are used to further correct a surgical 

correction. In this case, the record is silent as to whether [the 

claimant] used glasses to correct his preinjury 20/50 vision to 20/20. 

If he did, his 20/200 vision would seem largely irrelevant since his 

glasses would have been refracted to correct 20/50 vision, not 

20/200. The presence of what effectively are two corrections 

supports the desirability of affording the commission some 

discretion in establishing a claimant’s preinjury visual baseline.

Id. at ¶ 19-20.

{¶ 21} It is undisputed that for over 40 years before his industrial injury 

rendered him legally blind in his right eye, Cogan had enjoyed 20/40 vision by 

using a hard contact lens in that eye, and he wore eyeglasses. This is the type of 

circumstance we foresaw in La-Z-Boy: a preinjury correction that significantly 

predates the industrial injury and the presence of what effectively are two 

corrections.

{¶ 22} Whether a claimant had preinjury surgical correction is not 

determinative under R.C. 4123.57 or our caselaw applying it. The commission 

abused its discretion by using Cogan’s uncorrected vision as his preinjury visual 

baseline merely because the facts of his case did not align exactly with those in LaZ-Boy. Cogan has a clear legal right to correct application of the law, which is that, 

depending on the circumstances of each case, a claimant’s preinjury visual baseline 

may not always be his or her preinjury uncorrected vision.
January Term, 2023

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III. CONCLUSION

{¶ 23} We uphold the Tenth District’s conclusion that a writ is appropriate 

to compel the commission to exercise its discretion, in the first instance, to 

determine Cogan’s preinjury visual baseline and to then use that baseline to 

determine whether the medical evidence supports an award for total loss of sight 

under R.C. 4123.57(B). We therefore affirm the Tenth District Court of Appeals’ 

judgment granting a limited writ of mandamus remanding this matter to the 

commission for further proceedings.

Judgment affirmed.

FISCHER, DEWINE, DONNELLY, STEWART, BRUNNER, and DETERS, JJ., 

concur.

KENNEDY, C.J., concurs in judgment only.

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Spears & Marinakis, L.L.C., and David R. Spears, for appellee.

Dave Yost, Attorney General, and Cindy Albrecht, Assistant Attorney 

General, for appellant.

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