J. W. Jackson Realty Co. v. Herzberger
| Decision Date | 24 March 1942 |
| Docket Number | 16915. |
| Citation | 40 N.E.2d 379,111 Ind.App. 432 |
| Parties | J. W. JACKSON REALTY CO. v. HERZBERGER. |
| Court | Indiana Appellate Court |
James V. Donadio, Ross, McCord, Ice & Miller, and R. Stanley Lawton, all of Indianapolis, for appellant.
J B. Kammins, of Indianapolis, for appellee.
This appeal involves the question of the amount of compensation that should be paid an injured employee for the permanent reduction of the sight of the right eye where the vision of his left eye has never been more than one-tenth of normal with glasses, due to a congenital defect since birth.
All the facts were stipulated, and the part of such stipulation bearing upon the question for determination is as follows "It is further stipulated and agreed that said injury consisted of a perforation of plaintiff's right eye and a wound extending across the cornea thereof, and that no other part of plaintiff's body was injured in said accident that as a result of said injury to plaintiff's right eye the vision of said eye is reduced fifteen (15) per cent, and that said reduction is permanent; and that due to congenital defects in plaintiff's left eye the vision of said left eye has been since birth, and now is, not more than one-tenth (1/10) of normal vision with glasses, and that the vision of said left eye has in no way been affected by the said injury to plaintiff's right eye, and that said left eye has never been injured by any other accident."
The full Industrial Board made a finding which incorporated facts stipulated by the parties, including the above, and upon such finding it awarded the appellee compensation at the rate of eight dollars and eighty cents ($8.80) per week for a period of seventy-five (75) weeks for a fifteen (15) per cent permanent partial impairment to the man as a whole. The appellant has appealed and assigned as error that the finding and award of the full Industrial Board is contrary to law.
The sole question presented for determination is whether the award is in violation of Section 31 (Burns' R.S.1933 Sec. 40-1303, Sec. 16407, Baldwin's Ind.Statute 1934) of the Indiana Workmen's Compensation Act.
A majority of the full Industrial Board, without other evidence of impairment than the portion of the stipulation heretofore set forth reciting that as a result of the injury to plaintiff's right eye the vision of said eye had been reduced fifteen (15) per cent and that such reduction was permanent, determined that it should award him compensation for fifteen (15) per cent impairment to the man as a whole. It is appellant's contention that under such facts it was only entitled to award him compensation for the permanent reduction of the sight of an eye for the period proportionate to the degree of such permanent reduction; and that under the provisions of sub-section (f) of Section 31 this necessarily would be fifteen (15) per cent of one hundred fifty (150) weeks or twenty-two and one-half (22 1/2) weeks, instead of fifteen (15) per cent of five hundred (500) weeks, or seventy-five (75) weeks.
The question of the amount of compensation that should be awarded to an injured employee who had permanently lost the vision of one eye previous to his employment, or in employment by another employer, and who subsequently suffered the total loss of vision of his remaining eye by accident arising out of and in the course of his employment, has been before this court for determination in the following cases: Stevens v. Marion Machine, Foundry & Supply Co., 1921, 77 Ind.App. 28, 133 N.E. 23; Calumet Foundry & Machine Co. v. Mroz, 1923, 80 Ind.App. 619, 141 N.E. 883; Cain v. Staley Mfg. Co., 1933, 97 Ind.App. 235, 186 N.E. 265. In each of such cases it was held that the injured employee was not entitled to compensation for total permanent disability, or for permanent partial impairment to the man as a whole; but that he was entitled to compensation under sub-section (f) of Section 31, providing one hundred fifty (150) weeks compensation for the permanent loss of sight of an eye.
The appellee attempts to distinguish this case by the fact that...
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