121 P.2d 489 | Colo. | 1942
UPON proceedings under the Workmen's Compensation Act, the Industrial Commission made and entered the following findings and orders:
"Claimant sustained an injury to his left eye in an accident arising out of and in the course of his employment on February 19, 1941, which necessitated enucleation. When a boy of four years of age, claimant injured the same eye with a knife which rendered it industrially blind. He was temporarily and totally disabled until March 10, 1941. His permanent partial disability consists of enucleation of his blind left eye. His average weekly wage was $12.00.
"It is, Therefore, Ordered: That respondents pay compensation to the claimant at the rate of $6.00 per week from March 2, 1941, to March 9, 1941, inclusive, for and on account of temporary total disability; thereafter, at that same rate for an additional 35 weeks for and on account of the enucleation of the left eye.
"Further Ordered: That respondents pay for the necessary medical, surgical and hospital expense incurred within four months, but not to exceed the sum of $500.00 in value."
This award was affirmed by the trial court. Claimant is here seeking reversal. The facts, undisputed, are briefly as follows:
W. E. Downs, plaintiff in error, to whom we will hereinafter refer as claimant, was employed by D. W. Harris Sons Auto Wrecking and Rubber Company, one of defendants *14 in error; that in the course of his employment and on February 19, 1941, while he was loading scrap iron onto a truck, a fellow employee accidentally threw a forkful into claimant's face, causing injuries which required the enucleation of the left eye on the same day; that when he was a boy four years of age, claimant injured the same eye with a knife, seriously impairing the sight thereof; that at the time of the accident here under consideration he had sufficient vision in his left eye to distinguish objects, such as an automobile or a tree, and was able to avoid coming into contact with such objects; that he "could see a person," but was doubtful whether he could identify who the person was; that he thought he could find his way about the streets without using his good eye.
The statutory provision upon which claimant relies for his compensation is found in section 352, chapter 97, '35 C.S.A., and reads as follows: "In case an injury results in a loss set forth in the following schedule, the injured employee shall, in addition to compensation to be paid for temporary disability, receive compensation for the period as specified, to wit: * * * The loss of an eye by enucleation (including disfigurement resulting therefrom) 139 weeks. Total blindness of one eye 104 weeks."
[1] Upon the theory that the enucleated eye was "industrially blind" prior to the accident, the commission deducted 104 weeks allowed for "total blindness of one eye" from the allowance for "the loss of an eye by enucleation" of 139 weeks, awarding to claimant the difference, namely, 35 weeks, "for and on account of the enucleation of the left eye." These findings and award counsel for defendants in error seek to sustain upon the authority of London Guarantee Accident Co.v. Industrial Commission,
Counsel for defendants in error assert, in effect, that we have, in the following cases, held the phrases "total blindness," and "industrial blindness," to be synonymous:Employers' Mutual Insurance Co. v. IndustrialCommission,
[2] In Industrial Commission v. Johnson,
If the facts before us were such as to show that compensation for "total blindness" for 104 weeks had previously been awarded to claimant for a so-called "industrially blind" eye, and thereafter enucleation occurred, our answer to the problem might be different; however, that situation is not present, and we are not called upon to determine that question.
The judgment is reversed and the case remanded, with directions to the district court to return the case to the Industrial Commission with instructions to enter an award in favor of claimant in conformity with the views herein expressed.
MR. JUSTICE BAKKE dissents.
MR. JUSTICE JACKSON not participating. *17