115 N.E. 710 | NY | 1917
The state industrial commission has awarded claimant in this case compensation for the loss of the use of the right eye, which, under the Workmen's Compensation Law, is the equivalent of the loss of the eye.
The finding of the commission, which was affirmed at the Appellate Division by a divided court, is that the claimant was employed in caulking a water main when "a chip of lead was accidentally thrown into his right eye, causing an abrasion of the cornea, resulting in iritis, and eventually in the loss of eighty per cent of the vision of that eye, and the consequent loss of use of the right eye."
The facts in the case are undisputed. The finding of the commission is based upon the report of a specialist in the treatment of eye troubles, who was agreed upon by the claimant and the insurance carrier. The report is as follows:
"The vision of the right eye equals 20/100 not materially improved with glasses. Aside from this opacity the eyeball is in good condition. The back-ground of the eyeball appears to be normal. Fields of vision normal in extent. If an artificial pupil were made, the vision would be much improved, but in all probability would not be *325 sufficiently good to permit him to follow any vocation requiring reading or any other relatively fine work. Prospects are that the vision will remain about as it is at present until the artificial pupil is made. There is no danger to the other eye from the injured eye."
It seems to me that neither the findings of the commission nor the evidence before it justify the conclusion that the claimant has lost the "use of the right eye."
If the claimant still has vision in the eye, which equals twenty per cent of normal, he is very far from having lost the use of the eye and no amount of argument can add much to the force of that bare statement.
The cases cited by the attorney-general do not sustain the award. In Beauregard v. Titchener Co. (6 Neg. Com. Cases, 887, note) the Illinois industrial board held that ability "to only distinguish light and objects moving before the eye" is for all practical purposes a total loss of such eye. In Sheanon v.P.M.L. Ins. Co. (
These cases are all based upon the principle that when a member of the claimant's body or the use thereof is practically gone or destroyed the award may be for the loss of the whole member.
The case under consideration is not within that principle, but falls rather within our decision in Matter of Grammici v.Zinn (
If in the future the impairment of the claimant's vision should increase, the law gives the industrial commission the power to reconsider the award.
I recommend that the order appealed from be reversed and that the case be remitted to the industrial commission for further consideration.
HISCOCK, Ch. J., CHASE, HOGAN, POUND, McLAUGHLIN and ANDREWS, JJ., concur.
Order reversed, etc.