Walsh v. State Department of Natural Resources

Bevilacqua, C.J. This is an appeal from a final decree of the Workmen’s Compensation Commission denying the petitioner’s claim for specific compensation under G.L. 1956 (1968 Reenactment) §28-33-19(d) for loss of sight in his right eye. The petitioner was injured on October 18, 1973, when a tow line on a boat he was operating in his capacity as a boat captain for respondent’s Division of Fish and Wildlife snapped and struck him in the right eye. The petitioner received compensation benefits for the initial period of incapacity. On September 18, 1975, petitioner filed a petition seeking specific compensation for permanent loss of sight in the injured eye. At the hearing on the petition, Dr. Reid Appleby, petitioner’s ophthalmologist, testified that, as a result of the October 1973 injury, petitioner’s right eye developed a mature cataract, a clouding of the crystalline lens behind the pupil of the eye which effectively blocks the passage of light through the eye. In order to allow light to pass unobstructed, albeit unfocused, from the front of the eye to the back, the lens was surgically removed. [369] Following surgery, sight in the injured eye was below the level at which useful vision is measured. The petitioner was only able to count fingers at 4 to 5 feet distances. Doctor Appleby testified that the damage is permanent. To restore focusing power in the damaged right eye, petitioner was fitted with a contact lens. With the lens, petitioner’s vision is approximately 90 percent of that considered normal. Doctor Appleby further testified that, while the lens corrected distance vision, petitioner would have to wear glasses in addition to the lens to effect near vision. He also noted that as a result of the accident petitioner suffered permanent and possibly progressive retinal damage at the macula. During cross-examination, Dr. Appleby admitted that the function of contact lenses is identical to that of glasses. However, he characterized a contact lens as a prosthesis and glasses as an optical device. The trial commissioner concluded that because contact lenses perform the same function as glasses, they are included within the meaning of the term glasses as it is used in §28-33-19(d). He held, therefore, that petitioner whose vision was correctable to 90 percent of normal with the lens had failed to prove that he had sustained a loss of vision sufficient to bring him within the ambit of §28-33-19(d). This decision was affirmed by the full commission. The petitioner filed this appeal pursuant to §28-35-29, alleging that the commission’s interpretation of the term “glasses” constituted an error of law. Section 28-33-19 is entitled “Additional compensation for specific injuries.” benefits paid thereunder are intended to compensate an injured worker for the loss of a specific member or sense rather than for the impairment of earning capacity caused by the loss. Coletta v. State, 106 R.I. 764, 771, 263 A.2d 681, 685 (1970). [370] Compensation is payable only when the loss is permanent and irrecoverable. Therefore, the loss is evaluated at that point at which rehabilitative procedures have been completed and functional development of the injured member or sense has reached its maximum potential. Tirocchi v. United States Rubber Co., 101 R.I. 429, 434, 224, A.2d 387, 391 (1966). In general, artificial aids and prosthetic devices are not a determinative factor in ascertaining the extent of a specific loss. Id. Section 28-33-19(d), in particular, provides that benefits are payable: “For the entire and irrecoverable loss of sight of either eye, or the reduction to one-tenth (RIO) or less [of] normal vision with glasses * * *.” Subsection (d) then is concerned not with loss of the eye itself or a part thereof, but with loss or reduction of sight. Thus if an employee suffers injury which results in loss of a part of the eye but suffers no loss or reduction of sight, he would not be entitled to compensation under this section. See Lease v. Baker, McHenry & Welch, Inc, 147 Ind. App. 3, 11, 258 N.E.2d 175, 180 (1970)(Hoffman, P.J., dissenting) petition to transfer denied, 256 Ind. 598, 271 N.E.2d 465 (1971). Additionally, it is clear that, contrary to the general rule, the correction effected by artificial aids is a factor in determining the extent of visual impairment for purposes of subsection (d). See Lamont v. Aetna Bridge Co., 107 R.I. 686, 691, 270 A.2d 515, 518 (1970). The petitioner argues that the language of the statute is clear that the only artificial aid within the purview of subsection (d) is spectacles or eyeglasses. Essentially he asserts that even complete visual correction when afforded by contact lenses is ineffective to bar recovery for loss of sight. We have said that a legislative enactment should be given what appears to be the meaning most consistent with its policy or obvious purposes. Providence Journal Co. v. Mason, 116 R.I. 614, 622, 359 A.2d 682, 686 (1976). The [371] obvious purpose of subsection (d) is to offer compensation in the nature of damages for irrecoverable and permanent loss or reduction to one-tenth of normal visual functioning. A loss or severe impairment of sight is neither irrecoverable nor permanent according to the terms of the statute when visual functioning can be restored with the use of glasses. It appears to us then that the restorative function of the aid used is controlling in our interpretation of the term glasses. Robert L. De Costa, for petitioner. Julius C. Michaelson, Attorney General, Richard R. Wooley, Special Assistant Attorney General, for respondent. In the case at bar, Dr. Appleby testified that in some cases the inability to focus light caused by removal of the lens of the eye may be corrected by framed cataract lenses worn outside the eye. However, in petitioner’s case the framed lenses, because they employed a 30 percent degree of magnification, produced total double vision. A single contact lens worn on the surface of the cornea of the injured eye effected correction of petitioner’s visual defect without producing an intolerable level of double vision. Thus the corrective function of the framed and unframed lenses in this case is identical. Therefore, we conclude that the term glasses as it is employed in §28-33-19(d) includes contact lenses where the lenses perform the same function as eyeglasses. This view is supported by our decision in Marszalkowski v. Rusakovich, 84 R.I. 302, 124 A.2d 244 (1956). In that case we held that the language in §28-33-19(a) providing that “the Snellen chart reading 20/200 shall equal one-tenth (1/10) of normal vision” did not bar the use of a functional equivalent of the Snellen chart to measure visual acuity as long as the method substituted incorporated the standards of the Snellen chart. Id. at 309, 124 A.2d at 248. The petitioner’s appeal is denied and dismissed, the decree appealed from is affirmed, and the case is remanded to the Workmen’s Compensation Commission. Melvin Chernick, for plaintiffs. Taft & McSally, Bernard F. McSally, for defendants.