Lease v. Baker, McHenry & Welch, Inc.

Sharp, J.

This is an appeal from the award of the Full Industrial Board which allowed Appellant-Employee 41.125 weeks of compensation based upon a permanent impairment of 23.5% loss of vision to his right eye. The eye was injured in an accident within the scope of Appellant’s employment, and liability was stipulated below. This appeal concerns only the manner in which compensation is to be fixed.

The facts are not in dispute. Prior to the accident Appellant-Employee had vision as follows:

Uncorrected With Glasses
Right 20/400 to 20/500 20/20
Left 20/400 to 20/500 20/20

Following the accident and corrective surgery his vision was:

Uncor- With rected Glasses With Contact Lens & Glass
Right Aphakia Aphakia 20/20 or 20/50
Left 20/400 20/20 20/20 No Contact Necessary

Appellant-Employee’s uncorrected vision prior to the accident was a natural condition, fully correctable by glasses.

The Appellant was injured on February 14, 1967, when a test plug blew out while he was testing a drain line under pressure. Aphakia is “absence of the crystalline lens of the eye, or the anomalous state of refraction resulting therefrom” ; necessary surgery following the accident required the lens of Appellant’s eye be removed. When a contact lens is inserted in Appellant’s right eye it performs the function of the removed lens, allowing restored vision in Appellant when he wears glasses.

*5This appeal involves the question of how Appellant’s compensation is to be measured. Appellant argues that he has suffered a complete loss of his right eye and should be totally compensated for such a loss under the Workmen’s Compensation Statute. That section, Acts 1929, ch. 172, § 31 (as amended), the same being Burns Indiana Statutes Annotated § 40-1303 (a) (3), reads as follows:

“(3) For the permanent and complete loss of vision by enucleation or its reduction to one-tenth [1/10th] of normal vision with glasses, one hundred seventy-five [175] weeks.”

The Appellees contend that Appellant was industrially blind prior to the accident in that his uncorrected vision was 20/400 to 20/500. As such, Appellees state, his industrial blindness is considered a prior physical condition by the Workmen’s Compensation Statute, Acts 1929, ch. 172, § 33, as amended by Acts 1945, ch. 284, § 2, the same being Burns Indiana Statutes Annotated § 40-1305. That section reads as follows:

“Subsequent permanent injury — Aggravation — Amputation. If an employee has sustained a permanent injury either in another employment, or from other cause or causes than the employment in which he received a subsequent permanent injury by accident, such as specified in section 31 [§ 40-1303], he shall be entitled to compensation for the subsequent permanent injury in the same amount as if the previous injury had not occurred: Provided, however, That if the permanent injury for which compensation is claimed, results only in the aggravation or increase of a previously sustained injury or physical condition, regardless of the source or cause of such previously sustained injury or physical condition, the board shall determine the extent of the previously sustained permanent injury or physical condition, as well as the extent of the aggravation or increase resulting from the subsequent permanent injury, and shall award compensation only for that part of such injury, or physical condition resulting from the subsequent permanent injury. Provided further, however, That amputation of any part of the body or loss of any or all the vision of one or *6both eyes shall be considered as a permanent injury or physsical condition.”

By following Burns § 40-1305, Appellant would be compensated as provided by Acts 1929, ch. 172, § 31, as amended by Acts 1963, ch. 387, § 7, found as Burns Indiana Statutes Annotated § 40-1303 (b) (4) :

“ (4) For any permanent reduction of the sight of an eye less than a total loss as specified in section 31 (a) (3), a compensation shall be paid for a period proportionate to the degree of such permanent reduction without correction or glasses. However, when such permanent reduction without correction or glasses would result in a one hundred per cent [100%] loss of vision, but correction or glasses would result in restoration of vision, then in such event, compensation shall be paid for fifty per cent [50 %] of such total loss of vision without glasses, plus an additional amount equal to the proportionate amount of such reduction with glasses, not to exceed an additional fifty per cent [50 %].”

This case squarely presents for our consideration the definition of “industrial blindness”. The question is reduced in its essentials to whether industrial blindness is to be gauged by Appellant’s vision “with glasses” or Appellant’s vision “uncorrected”. Appellee’s position requires the latter test be applied in order that Appellant have a “physical condition” within the meaning of Burns 40-1305, which would then preclude any possible recovery for a total loss of his eye under Burns § 40-1303 (a) (3). If Appellant has a prior physical condition, industrial blindness, he of course cannot be compensated for the loss of something he does not legally have, industrial sight.

“Industrial Blindness” is defined by the section of the Workmen’s Compensation Statute which provides compensation for such condition, Burns § 40-1303 (a) (3), as follows:

“. . . permanent and complete loss of vision by enucleation or its reduction to one-tenth [1/10] of normal vision with glasses. . . .”

*7Normal vision is 20/20 under the Snellen chart, the testing chart method used by the Industrial Board. Under the above statutory definition and the binding precedents of our Supreme Court, we understand and hold the term “industrial blindness” to mean permanent and complete loss of vision by enucleation or its reduction to vision with glasses of less than 20/200. This is consistent with Kinzie v. Gen. Tire & Rubber Co., 235 Ind. 592, 603, 134 N.E. 2d 212 (1956) :

“We assume that in using the term “industrial blindness” the board intended to describe appellant’s prior injury as being “permanent”, and that the extent of such blindness was intended to describe a standard of vision of less than 20/200 “with glasses”. However, the board having failed to find in specific and certain terms the fact that appellant’s prior injury was “permanent” or that the extent of his “industrial blindness” was calculated “with glasses”, the cause is referred back to the board with instruction for further proceedings consistent with this opinion.”

Thus, Appellant was not “industrially blind” prior to his accident, and did not have a prior “physical condition” within the meaning of Burns §40-1305. Absent the limitation of Burns § 40-1305, the next question is whether or not the Appellant is entitled to relief under Burns § 40-1303 (a) (3), or stated in its factual context, is Appellant industrially blind now After his accident?

The evidence reveals that Appellant’s vision in his right eye following his accident and surgery, with glasses, is the condition aphakia, or no effective vision at all. However with both contact lens and glasses his vision was 20/50. We must then construe Burns § 40-1303 (a) (3) to decide whether or not that section would include contact lenses within the meaning of the term “with glasses”.

The initial Workmen’s Compensation statute, Acts 1915, ch. 106, § 31(d), p. 400, contains the following language:

*8“(d) for the permanent and irrevocable loss of the sight of one eye or its reduction to one-tenth of normal vision with glasses . . . 100 weeks;” (Emphasis supplied)

Thus the test under Burns § 40-1808 (a) (3) has survived the numerous revisions and amendments to the Workmen’s Compensation statute since its inception. When this language was written in 1915 contact lenses were not yet invented, and it therefore is obvious that the legislature did not specifically intend contact lenses within the meaning of its definition of “glasses”. The failure of the legislature to amend this section to include contact lenses or other forms of vision correction is significant in considering legislative intent to present date, and as noted above, the language has survived unscathed.

Taking “glasses” in its ordinary and common meaning, “contact lenses” is not included within any such definition. While on many occasions they perform the same function, the instant case is a glaring example of a different use of a contact lens, one which glasses could never perform. The contact lens used by the Appellant in his right eye actually takes the physical place and performs the functions of the lens of this original whole eye organ. It is, then, an artifical member or limb. In this sense, it would never be contended that because an amputee had been provided with a functional artificial limb that he should be denied compensation for the loss of his own limb. We believe there are more differences between glasses and contact lenses in their function, adaptability, problems of usage and various other factors which preclude “contact lenses” from being included in the plain and ordinary meaning of “glasses” as used in Burns § 40-1303(a)(3).

Applying our interpretation to the uncontroverted evidence that with glasses the vision in Appellant’s right eye is aphakia, Appellant is industrially blind after his accident. This clearly entitles him to compensation for the full loss of his right eye under the terms of Burns § 40-1303 (a) (3). How*9ever, since the Industrial Board has failed to enter a Finding of Facts upon which it based its decision as required by Acts 1929, ch. 172, § 60, being Burns § 40-1511, this cause must be and is remanded to the Industrial Board for further proceedings consistent with this opinion.

Pfaff, White, JJ., concur. Hoffman, P. J., Dissents with Opinion.