Thomas A. Robinson on Implanted Lens as "Corrective Lens" for Purposes of Determining Loss of Use: Johnson v. Beauty Unlimited Landscape Co.
Thomas A. Robinson tells us in this article that when determining the extent to which an injured worker has lost his or her vision, the dominant rule is that one’s loss of vision should be based on reading or other appropriate visual activity without the use of corrective lenses (with regard to hearing, the rule is the same; hearing loss is judged without the use of hearing aids). But Robinson points out that the dominant rule is under attack. “With the strides made in ophthalmology during the past several decades—particularly the ability to treat injuries such as traumatic cataracts with surgery—employers have begun to question whether the ‘old’ rule should apply to implants. Employers argue that if they are allowed to have the benefit of "repairs" made to a claimant's leg or arm, then they should also receive credit for the surgical enhancement of vision? For instance, the computation of loss of use related to a claimant's severely broken leg is not based on an "uncorrected" diagnosis. Rather, we wait until the claimant is medically stable and has reached the maximum point of improvement before the applicable loss of use is assessed.
In a recent South Carolina case, Johnson v. Beauty Unlimited Landscape Co., 2008 S.C. App. LEXIS 111 (June 17, 2008), the Court of Appeals of South Carolina agreed that there are fundamental differences between eyeglasses and contact lenses, on the one hand, and surgically implanted lenses, on the other. The court of appeals held that the claimant’s loss of use should be judged after the surgery (and a suitable healing period), not before. Robinson analyzes the case and discusses relevant issues related to "loss of a member" and "loss of use" and observes that “when it comes to the characterization of implanted intraocular lenses, there is a split in the half dozen or so jurisdictions that have considered the issue.” Robinson argues that the South Carolina court has it "right," because to hold otherwise is to allow the injured worker a double benefit—he or she gets the vision back and also receives an award for the loss of that vision.
Robinson examines the caselaw on the issue from a wide variety of jurisdictions in this article. He first sets out the relevant decisions in the states that follow the dominant rule, and points out that not all courts have stated their rationale for following the dominant rule. He next analyzes those decisions from jurisdictions that have not distinguished between implants and exterior lenses, and then analyzes the contrary jurisdictions that do distinguish between implants and exterior lenses. He concludes with an explanation as to why implanted lenses are fundamentally different from eyeglasses and contact lenses
To read Robinson's additional comments and practice points on this topic, see his expert commentary article.