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Gilbert & Shughart Painting v. Ind. Com.

OPINION FILED AUGUST 30, 1985.

GILBERT & SHUGHART PAINTING CONTRACTORS ET AL., APPELLANTS,

v.

THE INDUSTRIAL COMMISSION ET AL. (VERNE S. SMITH, APPELLEE).



Appeal from the Circuit Court of McDonough County; the Hon. U.S. Collins, Judge, presiding.

PRESIDING JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

This appeal presents a narrow but difficult question concerning the loss of use of an eye: if as a result of an industrial injury the uncorrected vision is almost totally extinguished but is almost totally restored by the use of artificial lenses, what is the extent of the loss?

Claimant Smith worked as a painter for the respondent Gilbert & Shughart Painting Contractors. While so employed and on the job, Smith was struck in the left eye with a leather tie-down strap. This occurred on July 28, 1978. He was hospitalized and treated for a small laceration on the eyelid and a hemorrhage in the interior chamber of the eye. On discharge from the hospital it was determined that glaucoma had developed in the left eye together with a cataract. A vision test indicated 20/40 in the right eye and 20/400 in the left. This test was administered on August 11, 1978.

In October 1978 a further vision test was administered, and Smith's vision was recorded as 20/20 in the right eye and "finger counting at 10 inches" in the left. In November 1978 he underwent surgical removal of "traumatic cataract and interior vitreous." He was subsequently fitted with a contact lens, and a vision test in December 1979 indicated uncorrected vision in the right eye of 20/25 and corrected vision in the left of 20/30. The final diagnosis of the injury was (1) traumatic hyphema and (2) aphakia secondary to removal of traumatic cataract.

At the December 1979 examination, Smith's physician stated in his testimony that Smith had to wear the contact lens to correct his acuity and balance with the opposite eye. He also stated that no glaucoma was present at that time but that Smith would be prone to develop glaucoma in his left eye in the future.

Also at the arbitration hearing a physician's report on behalf of the respondent was received. It noted that Smith tolerated the contact lens very well. The report stated, inter alia, "The surgical result has been excellent, however, the condition of aphakia is quite different from that of having an aphakic eye."

Smith testified that prior to the accident he did not wear glasses and knew of nothing wrong with his eyes. He stated that since the operation his left eye was very sensitive to light and his depth perception was impaired. Without his contact lens, he stated, he could see light and dark and "when you get close up I can make it out, but other than that it is like looking at the bottom of a Coke bottle." He also stated that with the contact lens he attempted to read typewriter sized print, but it was "all blurry" and he could make out only the dark part.

The arbitrator noted that although Smith wore the contact lens comfortably for as long as 14 hours per day, he still had difficulty with depth perception and the reading of small print. He found that prior to the accident Smith had normal vision in his left eye, but since the accident his vision in that eye had been reduced to light perception and finger counting at four feet. Based on those findings, he awarded permanent and complete loss of vision of the left eye to the extent of 100% as provided in section 8(e)13 of the Workers' Compensation Act (Ill. Rev. Stat. 1983, ch. 48, par. 138.8(e)13).

On review the decision of the arbitrator was affirmed by the Commission, and on certiorari to the circuit court of McDonough County the Commission's order was confirmed. This appeal followed by the respondent.

Respondent's principal argument on appeal is that it is improper to make a mechanical comparison of uncorrected vision before and after the accident. Rather, it maintains, the comparison should be between the uncorrected vision before the accident and the corrected vision afterwards; so long as some usable vision remains, 100% loss is inappropriate. On this basis it claims that Smith's loss is only 50 to 75%. It further argues that if Smith should suffer a further loss to the left eye, rendering it totally blind with or without correction, he would be unable to claim compensation for that injury even though his ability to work would obviously be damaged as a result of that occurrence.

Claimant Smith counters that the record shows light sensitivity, impairment of depth perception, and inability to read small print. These factors, he maintains, indicate a complete loss and that the Commission's order is not against the manifest weight of the evidence. He also argues that what may happen in the future is not before any of the bodies concerned with the case since it in no way relates to the question of the manifest weight of the evidence.

Both parties cite the same series of supreme court opinions concerned with the question of the measurement of loss of vision. Not surprisingly, they come to opposite conclusions from these authorities. We believe that when closely analyzed the cases support the decision of the Commission.

The case most cited in this area is Lambert v. Industrial Com. (1952), 411 Ill. 593, 104 N.E.2d 783. It involved a worker with a congenital condition which rendered him industrially blind without the use of corrective lenses. With corrective lenses, however, the worker had normal vision. The accident destroyed the crystalline lens of the worker's left eye and reduced its corrected vision to 20/50 from 20/20. The accident also reduced the ability of that eye to accommodate. The lens required to correct the vision of the left eye after injury was of such strength that while wearing the lens the worker would be unable, without difficulty, to coordinate the use of both eyes without diplopia or "double vision." On this basis, it was stipulated that the worker's left eye had to be considered "industrially blind" after the accident. 411 Ill. 593, 598, 104 N.E.2d 783, 785-86.) The employer contended, on appeal, that in determining the loss of use of an eye, the naked or uncorrected vision before and after the injury is the relevant consideration. Since the employee was industrially blind both before and after the accident with respect to the naked vision of his left eye, the employer contended that the worker had sustained no compensable loss. In rejecting this argument, the court stated:

"The real difficulty, and one of the causes of the lack of harmony in the authorities, lies in the fact that neither [the corrected nor uncorrected vision] rule[s] 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 ...


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