134 P.2d 206 | Colo. | 1942
MATT KENDA, one of defendants in error, aged sixty-two years, to whom we hereinafter refer as claimant, was employed as a coal miner for approximately fourteen years by the Jewell Collieries Corporation, one of plaintiffs in error, hereinafter designated as employer. October 24, 1940, claimant, while digging coal in a mine of his employer, accidently injured his right eye, resulting in its enucleation. Claimant maintained that prior to this injury he had lost the vision of his left eye, and hence was entitled to the compensation provided for under section 355, chapter 97, '35 C.S.A., the pertinent portion of which reads as follows: "If the employee has previously lost vision of one eye and loses the vision of the remaining eye, he shall receive compensation for 312 weeks." December 30, 1941, the Industrial Commission, after various proceedings and orders, entered a supplemental award, the portions thereof which are pertinent here reading as follows:
"That for many years prior to claimant's injury of October 24, 1940, he had suffered from a congenital anomaly of the left or uninjured eye which caused that eye to be industrially blind. The Commission further finds from the evidence that both before and since the claimant's injury his left eye could be restored to useful industrial vision with the aid of a corrective lens.
"The Commission here points out that it has been its practice to award compensation on the basis of uncorrected vision. Many eye injuries which reduce uncorrected vision substantially can be corrected. However, to do so requires the wearing of a lens and many employments are not open to those who are forced to wear glasses. Therefore, to compensate for the handicap the injured is compensated on a basis of uncorrected vision.
"The Commission is, therefore, of the opinion and so finds that its award of April 30, 1941 is correct and is hereby approved as the final award of the Commission herein."
The award of April 30, 1941, allowed compensation *396 for the loss of vision of both eyes, as provided by section 355, supra, less a penalty of fifty per cent for failure of claimant to obey a safety rule. This award was affirmed by the trial court.
Several contentions are urged by counsel for the employer against this award, one being that, assuming claimant does not have vision in his left eye, the congenital loss thereof existing at birth does not come within the meaning of "lost vision" under section 355 — that claimant never had vision in the left eye, and therefore could not lose that which he never had. That, in our opinion, is a narrow construction, which, having in mind the historical purpose of the Workmen's Compensation Act, prohibits its adoption.
[1, 2] Another contention — perhaps the major one — is that both prior and subsequent to the accident claimant had and now has and enjoys the vision of his left eye. The commission found, on competent testimony, "that eye to be industrially blind." According to the testimony of the employer's medical expert, the vision of the left eye uncorrected "would be lower than the minimum vision, which is regarded as depriving the individual entirely of industrial vision in that eye." It is urged that in the determination of the vision of the left eye, its correction by lenses must be considered. The commission found "that both before and since the claimant's injury his left eye could be restored to useful industrial vision with the aid of a corrective lens." Whether correction of the eye in the determination of loss of vision was a necessary consideration, was a problem which we had before us in the case of Platt-Rogersv. Industrial Commission,
The judgment is affirmed.
MR. JUSTICE GOUDY not participating.
