528 A.2d 1036 | Pa. Commw. Ct. | 1987
Opinion by
This is an appeal by Tesco Tank Center, Inc. (Employer) from an order of the Workmens Compensation Appeal Board (Board) which affirmed a determination of a referee granting benefits for the specific loss of an eye to Victor Zmarzley, Jr., (Claimant).
The factual findings are undisputed. Claimant was employed by Employer on September 24, 1981 when a work-related injury occurred. Specifically, a foreign object penetrated Claimant’s left eye. On September 24, Claimant was hospitalized in Bethlehem, Pennsylvania for the injury. He was subsequently taken to Wills Eye Hospital (Wills) in Philadelphia for surgery and repair of the wound and the removal of the foreign object. A few days later Claimant developed a traumatic cataract
The referee granted Claimant benefits for the specific loss of an eye, and the Board affirmed. Employer’s petition to this Court ensued.
This Court has previously set forth the relevant legal inquiry for determining whether a claimant has incurred the specific loss of an eye. We said in Hershey Estates v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 470, 308 A.2d 637 (1973):
The standard to be applied in the determination of whether compensation for the specific loss of the use of an eye is due, where the eye has been injured but not entirely destroyed, has been the subject of numerous and lengthy opinions. . . . The ultimate test finally arrived at, after much travail, is that of whether the injured eye was lost for all practical intents and purposes, not whether claimant in fact has vision in the injured eye. In facilitation of the application of the ultimate test, a further standard has been adopted: Compensation may not be had if, using both eyes, the claimant can see better, in general, than by using the uninjured eye alone ... or, as otherwise stated, there may be compensation if the use of the injured eye does not contribute materially to the claimant’s vision in conjunction with the use of the normal eye. . . .
Id. at 473, 308 A.2d at 639 (citations omitted).
In the instant case, the referee determined, based upon medical evidence the competency and sufficiency of which is not challenged, that Claimant cannot see better using both eyes, without a corrective lens on the
Employer acknowledges, however, that, subsequent to Shannon and Criner, appellate courts have not distinguished between cases where binocularity is achieved through use of a corrective lens and those where it is not. See e.g., Bauer v. Workmen's Compensation Appeal Board (Ram Construction Co.), 102 Pa. Commonwealth Ct. 26, 517 A.2d 568 (1986) (where total binocular vision was the issue, the proper standard of measurement was the injured eye as uncorrected); DeVore v. Atlantic Manufacturing Co., 208 Pa. Superior Ct. 224, 222 A.2d 431 (1966). Employer asks us to reject DeVore and Bauer. We decline to do so and hold instead that Hershey Estates is and continues to be the
First, we note that the Hershey Estates standard has been the law of Pennsylvania at least since 1944, having been articulated by the Superior Court in Diaz v. Jones & Laughlin Steel Corp., 155 Pa. Superior Ct. 177, 38 A.2d 387 (1944). That standard was adopted by this Court in Hershey Estates. Second, to allow use of what is essentially a prosthetic device to negate specific loss in eye injuries would open the door to employing such standards lor other prosthetic devices such as hearing aids, artificial limbs, etc. We simply cannot believe that one who is forced to rely upon such an artificial device to replace that which nature has provided has not suffered a specific loss of that body part. This is clearly the case, here, inasmuch as the referee found that even with the corrective lens Claimants vision is blurred; that if water gets into his eye it causes tears to flow; that he must lubricate the eye three times a day; that the lens flips out accidentally; that he has to switch his position to different angles in order to see properly; that he must wear bifocals to read in addition to the contact lens; that night driving tires him; that on-coming headlights bother him; and that he perceives three or four sets of headlights because of the glare.
While we acknowledge that the use of contact lenses is more common than other prosthetic devices, we, nonetheless, conclude that where a work-related injury creates the need for such a device to restore normal vision, the proper focus is and must remain upon the uncorrected eye. Any change in the law due to medical advancements should come from the legislature, not from this Court.
Order
Now, July 20, 1987, the order of the Workmens Compensation Appeal Board in the above captioned matter is hereby affirmed.
Our research has revealed that, in 1939, the legislature amended the law on disability resulting from permanent eye injuries by deleting language which specificially permitted compensa
When these legislative changes are considered in pari materia, it is apparent that the legislative intent is, at best, ambiguous on whether the goal was to broaden the types of eye injuries viewed as compensable under the specific loss provision by using only the “loss of an eye” language, or to restrict compensability by deleting the “removal of a cataract” language.
Section 440 was added by Section 3 of the Act of February 8, 1972, P.L. 25.