Przekop v. Ramapo Ajax Corp.

H. T. Kellogg, J.: The claimant received an injury to his left eye on May 12, 1923. Tests subsequently made showed the vision of the left eye, according to the Snellen method, to be 20 /100. The Industrial Board made an award as for the total loss of an eye. It is provided in the Workmen’s Compensation Law, in section 15, subdivision 3, paragraph p, as follows: “ Compensation for loss of binocular vision or for eighty per centum or more of the vision of an eye shall be the same as for loss of the eye.” The Industrial Board, in making the award, assumed that the Snellen symbol 20/100 signified the retention of twenty [513] per centum of vision; that the claimant’s loss, therefore, was eighty per cent of vision; that accordingly the quoted provision applied. The assumption that 20/100, Snellen, has the significance of a common fraction, or that the Workmen’s Compensation Law, by virtue of the section quoted, has stamped 20 /100, Snellen, as industrial blindness, has no authority in reason or in authority. (Struble v. Vacuum Oil Co., 210 App. Div. 344; S. C., 214 id. 844.) Furthermore, it appears that as early as the year 1914, due to corneal scars resulting from smallpox, the claimant’s left eye had 20/100 vision, Snellen test. That the Board believed the testimony given to this effect is shown by the opinion rendered by one of the two members of the Board who signed the findings. Thus, if the claimant was industrially blind after the accident he was similarly blind before the accident, and, therefore, sustained no loss therefrom. The Board had no reason to assume, as it apparently did, that, because the claimant’s right eye, which has also been afflicted with corneal scars, had improved from 20/100 to 20/70 between the years 1914 and 1923, the left eye had improved to an equal degree. Furthermore, if we disregard the testimony of the oculist as to the condition of the claimant’s left eye in 1914, there was no evidence as to the percentage of vision available to claimant from that eye before the accident. Concededly, claimant’s vision had previously been much impaired. It is true that if a claimant, having only fifty per cent vision, loses what remains, he may have a recovery as for the total loss of an eye. (Hobertis v. Columbia Shirt Co., Inc., 186 App. Div. 397.) Having lost all vision possessed his loss is total. However, it would be quite a different thing to say that a claimant, whose natural vision was fifty per cent of normal, had sustained a total loss under the eighty per cent provision, when his vision is reduced by an accident to twenty per cent, not of vision possessed, but of normal vision. The “ loss ” must be eighty per cent. One cannot lose what one has never had. There is here no proof that the claimant possessed a vision, prior to the accident, of which the loss complained of is eighty per cent. Therefore, there was no justification for the award. The award should be reversed and the claim remitted, with costs against the State Industrial Board to abide the event. AH concur. Award reversed and matter remitted, with costs against the State Industrial Board to abide the event.