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DUNN v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al.
32680.
Appeal; from Fulton Superior Court-- Judge Almand. June 23, 1949.
MACINTYRE, P. J.
MACINTYRE, P. J.
The findings of fact of the Workmen's Compensation Board are conclusive upon the reviewing courts and the superior court erred in vacating and setting aside an award of the board in which it was found as a matter of fact that the employee, by virtue of having been fitted with glasses, had suffered only a 4.3 percent loss of vision, as the result of an earlier injury, and consequently had sustained 92.4 percent loss of vision as a result of the last injury.
The claimant, John L. E. Dunn, an employee of the Atlanta Terra Cotta Company, on August 4, 1948 sustained an accidental injury which arose out of and in the course of his employment. On September 10, 1948, an agreement as to payment of compensation, was signed by the parties, under the provisions of which the claimant was to receive compensation at the rate of $20 per week, based on an average weekly wage of $40, covering temporary total disability. This agreement was received and approved by the State Board of Workmen's Compensation on September 23. On December 3, 1948, the claimant filed his claim for a hearing to determine the extent of disability. Upon a hearing of the claim which involved the sole question of the extent of disability the single director made the following findings of fact: "I find as a matter of fact that as a result of said accidental injury, claimant is suffering a 92.4% loss of industrial use of his left eye. The instant case poses a problem unique in the history of this department, and one which has necessitated considerable meditation. In the administration of cases involving an eye injury, the board has for many years employed the Snelling Chart, which chart has been approved by the American Medical Association, and which appears on page 84 of the Workmen's Compensation Act published by this board in 1947. Generally speaking, I think it will be conceded that the percentage of loss of vision to a claimant's eye resulting from an accidental injury is a medical question and the ultimate determination of visual acuity follows proper eye examinations. This being so, the law has found the Snelling Chart a fair and reasonable method for determining percentage of loss of use of the claimant's eye. Unfortunately, in the instant case, the Snelling Chart cannot be employed for the reasons hereinafter stated. If we refer to the Snelling Chart, we find that a vision of 20/200 represents an 80% loss of vision and is regarded by the American Medical Association as industrial blindness. Dr. J. H. Crawford testified that he examined claimant's eyes on May 29, 1943, at which time uncorrected vision in claimant's both eyes was 20/200. That with glasses the vision in the left eye was 20/50. Dr. Lokey testified that when he examined claimant in 1943, claimant had an uncorrected vision of 20/70 in the left eye and with glasses, had a 20/40 vision. That he fitted claimant for glasses in 1944, at which time claimant had a 20/200 vision in both eyes without glasses and with glasses he had a 20/25 minus vision in the left eye in 1944. Dr. Cyrus H. Stoner testified that he first treated claimant August 30, 1948. That he last treated him on November 15, 1948, and on the latter date the vision in the left eye was 20/400 and that the vision in the left eye could not be improved with glasses. The fact remains that prior to the injury of August 4, 1948, claimant, with the aid of a glass, had almost normal vision in his left eye, taking into consideration, of course, the fact that the last evidence regarding the vision of claimant's left eye corrected with glasses was in 1944, at which time Dr. Lokey testified that he had a vision of 20/25 minus with glasses, despite the fact that without glasses claimant had a vision of 20/200 in the left eye back in 1944 and presumably immediately prior to his accident of August 4, 1948. Be this as it may, the evidence discloses that claimant had good vision in the left eye with the aid of a glass and was able to engage in competitive labor with the use of the eye. The accident of August 4, 1948, resulted in the almost total destruction of the sight of the left eye for industrial purposes. Dr. Sooner testified that claimant now has 20/400 vision in the left eye, which is equivalent to a 96.7% loss of use. The 20/25 minus vision. which claimant had in the left eye with glasses in 1944 was equivalent to a 4.3% loss of use. Subtract 4.3% from 96.7% leaves a difference of 92.4%, the percentage of loss of use of claimant's left eye at the present time." The director ordered that the employer and/or the insurance carrier pay the claimant compensation at the rate of $20 a week beginning after
the date of the last temporary total disability period and continuing for a period of 92.4 weeks. These findings of fact and this award was affirmed by the board on appeal, with one of the directors dissenting. On appeal to the Superior Court of Fulton County by the employer and insurance carrier, the appeal was sustained and the award of the State Board of Workmen's Compensation was "vacated and set aside." The exception here is to the judgment of that court.
After the injury to his left eye, sustained in his employment at the Atlanta Terra Cotta Company, the director was authorized to find, that the visual efficiency of that eye, without glasses, was 3.3 percent and the percentage of loss of vision in that eye, without glasses, was 96.7 percent, or that the claimant had a visual acuity in his left eye according to the Snellen notations, of 20/400. The director was further authorized to find that following this last. injury no improvement in the visual acuity of the left eye could be effected by the use of glasses. Thus, with or without glasses, after the last injury the degree of loss of vision in the left eye was 96.7. The primary question is, therefore, what portion of the percentage of loss of vision should be attributed to the last injury? To determine this, should the fact be taken into account that after the first injury, which rendered the claimant industrially blind, the claimant's vision was almost completely restored with the aid of glasses, or should the glasses be left entirely out of the picture? Counsel for the insurance carrier and employer contend that the corrected vision may not be considered under the authority of Code 114-408 and the construction placed on this section in American Mutual Liability Ins. Co. v. Brock, 165 Ga. 771 (142 S. E. 101). Code 114-408 provides: "If an employee who suffers an injury in his employment has a permanent disability or has sustained a permanent injury, such as specified in 114-406, suffered elsewhere, he shall be entitled to compensation only for the degree of incapacity which would have resulted from the later accident if the earlier disability or injury had not existed." The Court of Appeals in American Mutual Liability Ins. Co. v. Brock, 35 Ga. App. 772 (135 S. E. 103), construed this section to mean that where an employee has suffered one injury in one employment and later suffers a second injury in another employment, in determining the extent of the second injury to the same member, the employee should be looked upon as having never sustained the first injury. In reversing this court in that case the Supreme Court said: "Properly construed, the language employed in section 34 of the Workmen's Compensation Act of 1920 (Acts 1920, p. 167 [Code 114-408]) evidences an intention on the part of the General Assembly to subject employers only to liability for accidents, misfortunes, or injuries resulting to their employees during the time of service or employment, and the provisions of this section were evidently embodied in the act with this end in view . . . If the language . . . be so construed as to render an employer liable for an injury accruing to an employee in his employment, who has already been previously injured in a prior employment, just as if such employee had never been previously injured, the incorporation of this section in the act would be ineffectual and nugatory." The total effect of the ruling is that, where an employee has sustained two permanent injuries superimposed one upon the other, and the injuries have been sustained in different employments, in determining the extent of the employee's disability attributable to the injury received during his last (current) employment, the Board of Workmen's Compensation should first determine the total disability found to exist after the last injury, determine the disability found to exist after the earlier injury sustained elsewhere and subtract the latter from the former, thereby arriving at the extent of disability to be attributed to the last injury and compensated by the last employer. The hearing director followed this rule exactly in making his award. He determined the percentage of loss of vision in the claimant's left eye after both injuries to be 96.7 percent. He determined the percentage of loss of vision after the first injury, and after the employee had been fitted with glasses and his vision corrected, to be 4.3 percent. He subtracted the latter disability from the total disability after both injuries and found the percentage attributable to the last injury to be 92.4 percent. It is elementary that this finding of fact is conclusive upon the reviewing courts. The Brock case laid down the mathematical procedure to be followed. The director followed it. There is nothing in the Brock case which says that the board may not take into consideration any improvement effected by artificial members or means in determining the extent of injuries where the question of the loss of use of the member is under consideration. The loss of the use of a member and the loss of the member are distinct questions. In the Brock case the claimant had lost a little more than his foot, but the question before the board in that case was the loss of the use of the leg. The Court of Appeals treated the question of the loss of the use of the leg as though there had been no first in-
jury at all. The Supreme Court in reversing this court in that case said, in effect, you may not disregard altogether the factum of the first injury. You must take it into account and determine the extent of disability caused by it, whatever it may be, in order to determine to what extent it bore upon the total extent of disability after the second injury; thereby you will place upon each employer his proportionate burden. The Supreme Court did not say that, in making that determination, the improvement effected by the artificial member or means can not be taken into account. In their liberal construction of the act in favor of the employee the courts endeavor to be fair as between employee and employer and also as between employer and employer. Would it be just to say to the first employer whose employee has received an eye injury resulting in a permanent partial loss of vision, you may not take advantage of the fact that with glasses the employee's vision may be restored within 4.3 percent of the visual efficiency of the average eye? Not in an era in which the "normal person" is the wearer of glasses. In a recent survey 69 percent of the population of the United States was shown to wear glasses. The intent of the General Assembly was to place upon each employer the burden of his proportionate share of the damage done employees in his employment; that is to say, the employer is to indemnify the employee for the loss the employee sustains by reason of that employment (within the limits of indemnification set by the statute). The Cases, treating of the question of whether or not the fact that loss of vision may be corrected by use of glasses shall be taken into consideration in determining the extent of disability, are numerous and are collected in the following annotations: 8 A. L. R. 1330; 24 A. L. R. 1469; 73 A. L. R. 716; 99 A. L. R.. 1507; and 142 A. L. R. 822. There are conflicts throughout all the cases, and it will serve no purpose here to endeavor to distinguish the cases. It suffices to say that there is no decision in this State of which we are aware that conflicts with what we here have held and as we interpret the Workmen's Compensation Act the fact that an employee's vision can and has been corrected should be taken into account in determining the extent of his loss of vision. The eye is a wondrous mechanism, and vision is an ephemeral power, the loss of vision is not comparable to the loss of the use of a foot, a leg, or finger. However, we are not to be understood as saying that where an employee suffers the loss of part of his vision which may be restored that he has lost nothing as a matter of law, the finders of fact will determine the extent of the loss in each individual case under its facts.
For the foregoing reasons the superior court erred in vacating and setting aside the award of the State Workmen's Compensation Board, which affirmed the award of the single director
ON MOTION FOR REHEARING.
The case of Wisham v. Employers Liability Assurance Corporation, 55 Ga. App. 778 (191 S. E. 489), was not overlooked by the court. The director in that case made no finding whatsoever with regard to whether the glasses, which the claimant refused after the second injury, would or would not improve his vision.
Rehearing denied. Gardner and Townsend, JJ., concur.
Neely, Marshall & Greene, for defendants.
Phillips, Johnson & Williams, for plaintiff.
DECIDED MARCH 10, 1950. REHEARING DENIED MARCH 27, 1950.
Saturday May 23 05:54 EDT


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