Appeal from the Circuit Court of La Salle County, the Hon.
William P. Denny, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 30, 1979.
This is an appeal from the judgment of the circuit court of La Salle County which confirmed the Industrial Commission's denial of the petition of the respondent, Motor Wheel Corporation. The petition was filed under section 19(h) of the Workmen's Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(h)). The claimant, Rudolpho C. Escatel, had filed an application for adjustment of claim on September 1, 1970, for injuries he received to his eyes on August 15, 1968, and on July 16, 1970, in the course of his employment by Motor Wheel. Prior to his injury, claimant did not wear glasses and had uncorrected vision of 20/25 in both eyes; subsequent to the injury, he had uncorrected vision of 20/200. (Claimant testified the later injury occurred on July 15, 1970, but his application and the Commission's finding place the date of injury on July 16, 1970.) The arbitrator found the claimant sustained "permanent and complete loss of vision of * * * [each] eye to the extent of 100%" under paragraph 18 of section 8(e) of the Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e)(18)). On March 27, 1972, the Commission affirmed. Motor Wheel did not appeal. Within the required 30 months of the Commission's affirmance (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(h)), on August 15, 1974, Motor Wheel filed its section 19(h) petition with the Commission, alleging a diminution of claimant's disability.
The first issue is whether an award for permanent and complete loss of vision of both eyes pursuant to section 8(e)(18) of the Act may be reviewed under section 19(h) of the Act. Claimant argues that the 100% loss of vision under section 8(e)(18) is a "presumptive complete disability" which precludes review, under section 19(h), for diminution of the injury absent a material change. In support of this, claimant cites National Lock Co. v. Industrial Com. (1975), 62 Ill.2d 51, and Scandroli Construction Co. v. Industrial Com. (1973), 54 Ill.2d 395.
We disagree. Section 19(h) of the Act clearly provides:
"However, as to accidents occurring subsequent to July 1, 1955, which are covered by any agreement or award under this Act providing for compensation in installments made as a result of such accident, such agreement or award may at any time within 30 months after such agreement or award be reviewed by the Commission at the request of either the employer or the employee on the ground that the disability of the employee has subsequently recurred, increased, diminished or ended.
On such review compensation payments may be re-established, increased, diminished or ended. * * *" (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 48, par. 138.19(h).)
The plain language indicates that any award may be subject to a section 19(h) proceeding, initiated by either the employee or the employer. In Summit Coal & Mining Co. v. Industrial Com. (1923), 308 Ill. 121, the facts were similar to those present here: a claimant was found to have suffered the loss of both eyes "which, under the provisions of section 8 of the Workmen's Compensation act, constituted total and permanent disability" 308 Ill. 121, 122); the employer filed a section 19(h) petition which was denied by the Commission; and the circuit court confirmed. This court reversed because the evidence indicated the claimant was not totally blind at the time of the hearing on the petition, whereas at the time the award was made, which was a final determination of all questions in dispute at the time of that decision, the claimant was found to be completely blind. This court reasoned that because the injury had diminished, the Commission should have determined the extent of the diminution instead of denying the petition outright.
The cases of Scandroli Construction Co. (54 Ill.2d 395) and National Lock Co. (62 Ill.2d 51), cited by the claimant, are not helpful. We agree with the circuit court that those cases, which were before this court on direct appeal rather than on a section 19(h) petition, were concerned with the attempt by the employer to establish a diminution of an injury, resulting in complete disability under section 8(e)(18), on the basis of a claimant's return to work. Section 8(e)(18) of the Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.8(e)(18)) clearly establishes a distinct category of complete disability for the "specific case of loss of both hands, both arms, or both feet, or both legs, or both eyes, or of any two thereof" a category which is separate and apart from the complete disability under section 8(f). Where a claimant returns to work and has not suffered the loss of two members (under section 8(e)(18)), section 8(f) allows for the cessation of payments or modification of an award which had been based on complete disability (pursuant to section 8(f)). As held by Scandroli Construction Co. and National Lock Co., a claimant's return to work does not negate a finding of complete disability under section 8(e)(18), as it would a finding of complete disability under section 8(f). But those cases are limited to the situation where a claimant has returned to work after an award was made for complete disability under section 8(e)(18). They in no way prevent recourse by an employer to section 19(h) so long as a claimant's return to work is not the basis for establishing a claimant's decreased disability. Hence, a petition under section 19(h) could be properly filed by Motor Wheel here.
A petition for review of an award under section 19(h) is different from appellate review of the award. "A petition for review of an award under section 19(h) * * * is not a proceeding which will allow the reversal of a decision of the Industrial Commission or of a judgment of the circuit court. * * * The original award or settlement is not to be brought in question, for it must be considered final"; it is res judicata. (Zimmerly Construction Co. v. Industrial Com. (1972), 50 Ill.2d 342, 344-45.) In essence, then, the question in a section 19(h) proceeding is whether the employee's disability has, subsequent to the award, recurred, increased, diminished or ended. As this court noted in Zimmerly, the "change in condition must be a material one" (50 Ill.2d 342, 345-46); and "it is the function of the Industrial Commission to resolve factual questions and * * * a court will not set aside a finding of the Commission unless it is contrary to the manifest weight of the evidence" (50 Ill.2d 342, 346).
This is the second issue of the instant case: whether the commission's denial of Motor Wheel's petition was against the manifest weight of the evidence. Motor Wheel argues the denial was contrary to the evidence because the Commission should have considered a change in the claimant's condition, since the award was made, on the basis of improvement by the use of corrective lenses. It urges us to adopt a standard for the determination of loss of vision based on the degree of improvement, after an eye injury, due to correction by lenses; and it cites cases from other jurisdictions in support of that contention. We decline to do so.
Our reasons are firmly and clearly set out in Lambert v. Industrial Com. (1952), 411 Ill. 593, 604, 606-07. (Accord, Walker v. Industrial Com. (1978), 72 Ill.2d 408, 412-13.) In Lambert this court noted that there was a sharp conflict, which the parties agree still exists, among jurisdictions over which of basically two rules should be utilized to determine the extent of the damage to an injured eye. One rule would allow only "naked vision" as the measure of the loss of the eye; that is, the extent of the damage would be determined without recourse to corrective lenses. The other rule would require the loss of the eye to be determined by the "difference" between the eyesight at injury and as corrected by use of lenses. (Lambert v. Industrial Com. (1952), 411 Ill. 593, 603-04.) The Act is silent as to whether corrected or uncorrected vision should be the determinant of the extent of the loss of the eye. (Lambert v. Industrial Com. (1952), 411 Ill. 593, 606; Walker v. Industrial Com. (1978), 72 Ill.2d 408, 412.) This court, however, rightly declined to restrict the determination of the extent of eye loss to either rule:
"The real difficulty, and one of the causes of the lack of harmony in the authorities, lies in the fact that neither rule is adequate to cover all cases. If naked vision, alone, is considered, the worker with corrected vision is not adequately protected, and if corrected vision, alone, is considered, the worker with uncorrected vision is not fully protected. In the first instance, the loss of an eye `industrially blind' with naked vision, but normal with correction, would not be compensable; in the second, an injury rendering a normal eye industrially ...