Claim of Bervilacqua v. Clark

Hill, J. Claimant received an injury to his left eye which necessitated its removal. An award has been made for 160 weeks. Appellants argue that the full compensation provided by paragraph e of subdivision 3 of section 15 of the Workmen’s Compensation Law (as amd. by Laws of 1924, chap. 317), should not be awarded to the claimant, because the normal vision of the eye which he lost was only twenty-sixtieths of the theoretically normal eye which the experts used as a standard. This contention is not supported by the authorities. (Hobertis v. Columbia Shirt Co., 186 App. Div. 397; Przekop v. Ramapo Ajax Corp., 214 id. 512.) The reasoning in the Hobertis case is persuasive (p. 398): “ The claimant was working with defective vision. So far as appears her work was entirely satisfactory to her employer, at least so far as the wages she received. The wages received by her must be considered her wage-earning capacity with defective vision. She lost the use of [191] her eye, such as she had, and is entitled to compensation therefor based upon her earning capacity.” The word “ disability,” as used in subdivision 7 of section 15, is descriptive of a condition resulting from an injury received and does not apply to functional defects resulting from a natural cause. The authorities relied upon by my associates who disagree with these conclusions have to do with injuries which have caused partial loss of vision and the application of paragraph p of subdivision 3 of section 15, thereto. The opinion in the Przekop case distinguishes clearly between total loss of vision, as here involved, and a partial loss (p. 513): “ 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.” The award should be affirmed, with costs to the State Industrial Board. Van Kiric, P. J., and Davis, J., concur; Hinman, J., dissents, with an opinion in which Whitmter, J., concurs.