While, for the reason hereinafter stated, I am in accord with the result reached by Mr. Justice STARR, I disagree with his statement: "It is clear that if he (plaintiff) had less than 20 per cent. of vision before the injury, he did not have an eye to lose within the meaning of the statute." Immediately following the quoted sentence, Justice STARR says:
"In its opinion the department made a finding of fact that plaintiff had lost more than 80 per cent. of vision in his left eye prior to his present injury. This was in effect a finding that he had less than 20 per cent. of vision in the eye before the injury and that he did not have an eye to lose within the meaning of the statute."
When in this type of cases we refer to "the loss of an eye" we normally mean loss of the sight of an eye. Rye v. ChevroletMotor Co., 229 Mich. 39. If an employee has 19 per cent. vision in an eye and as such it is adequate for the requirements of his employment, and by reason of an injury arising out of and in the course of his employment he is totally blinded in that eye, surely he has suffered a personal injury and is entitled to compensation. But he could not be awarded compensation under Justice STARR'S statement: "if he (the employee) had less than 20 per cent. of vision before the injury, *Page 222 he did not have an eye to lose within the meaning of the statute."
In the provision of the workmen's compensation act under consideration the only pertinent change made by the 1943 amendment was the addition of the italicized words in the following:
"For the loss of an eye, 66 2/3 per centum of average weekly wages during 150 weeks (but not more than $21 a week); for thepurpose of this act 80 per cent. loss of vision of one eye shallconstitute the total loss of that eye." 2 Comp. Laws 1929, § 8426, as amended by Act No. 245, Pub. Acts 1943 (Comp. Laws Supp. 1945, § 8426, Stat. Ann. 1945 Cum. Supp. § 17.160).
For reasons about to be noted, it seems clear that the added statutory provision means only that in case the injured person loses 80 per cent. or more of vision in an eye, the award shall be as for the total loss of the sight of that eye, notwithstanding there is not a total loss of sight. It does not mean that one who has defective vision in an eye to the extent that its efficiency is less than 20 per cent. (for example, 19 per cent., but still constituting industrial vision) may not recover compensation if he loses that industrial sight in consequence of an injury which arises out of and in the course of his employment. The statute does not provide that total loss of sight of an eye in which theretofore there was less than 20 per cent. of vision is not compensable; and courts are without power to modify the statute in that particular.
Another persuasive reason why the 1943 addition was made to the statute is that the legislature obviously sought thereby to obviate harsh and seemingly unjust decisions rendered under the statute as previously worded. For example, in Crane v. AetnaPortland Cement Co., 234 Mich. 110, it was *Page 223 held that loss of 87 per cent. of an employee's vision in an eye did not entitle him to compensation as for the loss of an eye. And in Powers v. Motor Wheel Corporation, 252 Mich. 639 (73 A.L.R. 702), the employee lost 90 to 98 per cent. of vision in an eye, but still it was held that such was not total loss of vision and hence the employee could not be awarded compensation as for the loss of an eye. A headnote in the Powers Case reads:
"No specific award is allowable under workmen's compensation act for partial loss of eye, but such injury is compensable only under general provisions of act if it reduces earning capacity."
But obviously the 1943 addition to the quoted statutory provision now renders it possible to award full compensation "for partial loss of eye."
The above construction of the words added in 1943 to the statute need not lead to the conclusion that an employee may recover compensation twice for the loss of the same eye. It will be more appropriate to pass upon that question when, if ever, an employee who has already received full compensation for total loss of sight in an eye thereafter in consequence of a subsequent injury to the same eye seeks further compensation therefor.
I am unable to conclude that the legislature by enacting the 1943 addition to the previous statutory provision intended to thereby make the right of an employee to compensation for the loss of an eye more restricted, as would result from my Brother's construction. Prior to 1943 we had repeatedly affirmed specific compensation for the loss of an eye, notwithstanding sight in the eye had previously been seriously impaired. It was so held inPurchase v. Grand Rapids Refrigerator Co., 194 Mich. 103, wherein as a result of his prior injury the employee had "just enough (vision) to distinguish daylight *Page 224 from dark, or to tell an approaching object." There was a like holding in Liimatta v. Calumet Hecla Mining Co., 229 Mich. 41. In that case by previous accident the employee's "vision (was) seriously impaired * * * to an extent rendering it impossible for him to see with that eye anything directly in front of him." In Hayes v. Motor Wheel Corp., 233 Mich. 538, compensation for the loss of an eye was awarded by the commission upon the following finding: "We find that while the plaintiff had a defective eye caused by the injury received when he was a small boy and which greatly impaired his vision in this eye, yet he had some vision and some use of the eye previous to the instant accident." We affirmed the award for loss of an eye in each of the above cases, notwithstanding as Justice STARR now construes the statute, the employee "did not have an eye to lose." I am of the opinion that the 1943 modification of the statute was designed to broaden right of recovery for loss of an eye, not to restrict it.
It seems pertinent to note in the instant case that the opinion of the department was broader than indicated by my Brother's statement: "that plaintiff had lost more than 80 per cent. of vision in his left eye prior to his present injury." The department's finding was:
"The evidence discloses without question that plaintiff did not have industrial vision in his left eye at the time he started working for the Abrasive Dressing Tool Company. In fact, at the time of Dr. Anslow's examination, plaintiff gave a history that he had been blind in the left eye for 24 years. * * * Based on the testimony of Dr. Anslow and the Harper Hospital records, we find that plaintiff had no industrial vision in his left eye at the time he was hired by Abrasive Dressing Tool Company." *Page 225
Based on the above finding, I concur in affirming the department's denial of compensation, with costs to defendants.
BUTZEL, C.J., concurred with NORTH, J.