No. 24,228. | Minn. | Dec 19, 1924
It is true that the previous injury to the eye may be said to have resulted in a total loss of vision for industrial purposes. But, as stated, he had an eye that was of some use to him. We are not advised how much more comfortably he could have passed the balance of his days with that eye in the socket than with the socket empty or filled with a glass eye. At any rate, the last injury resulted in the loss not only of some vision but of the eye itself, and the question now is: Does the fact that the employe received compensation for the loss of the use of the eye by reason of an earlier injury bar him from receiving the full compensation under the specific schedule for the loss of the eye? The last injury in the case at bar deprived the employe of an eye having more vision remaining after the first injury than in the Hessley case. The only difference is that in the latter when the first injury occurred, the compensation law was not in force and Hessley received nothing on account thereof.
The employer concedes some compensation and suggests that it should be determined under this provision of the law: "If an employe receive an injury, which of itself would only cause permanent partial disability, but which combined with a previous disability does in fact cause permanent total disability, the employer shall only be liable for the permanent partial disability caused by the subsequent injury." (Section 16, c. 82, L. 1921.)
It would be a forced construction to make this statute applicable to this case. The combined injuries here did not produce permanent total disability. In fact, so long as the employe may have the full vision of his remaining eye, there is no total disability or really in *277
fact any disability in earning full wages in his accustomed work. Under that section one who was totally incapacitated by the loss of his only remaining eye, vision in the other having been lost in a previous injury, was awarded no more than the schedule specifies, for the loss of an eye. State ex rel. Garwin v. District Court,
Here was an actual removal of a member of the body for which the schedule fixes a specific compensation. To be sure, such member was impaired, but functioning to some extent. That it results in double compensation, in that a previous compensation has been paid by another employer, is the good fortune of the employe, for the statute has omitted to make provision for such cases. This is also apparent from the fact that, had the first injury resulted in the loss of a half or a third of the vision of the eye in question and compensation been paid accordingly, the law does not authorize the Industrial Commission to take the compensation therefor into consideration in the award for the subsequent injury resulting in the removal of the eye. The difference between such a case and the one at bar is only one in degree of what may seem unfair compensation because of defects in the law itself. We think the Hessley award controls and that the previous injury and compensation for the loss of the use of an eye cannot affect the schedule amount for a *278
subsequent injury necessitating its removal. The reasoning guiding the court under analogous compensation schedules seems to sustain the conclusion we reach (Mark Mnfg. Co. v. Ind. Comm.
The award is affirmed.