Moray v. Industrial Commission of Utah

• Decision Date: 09 July 1921
• Docket Number: 3675
• Citation: 58 Utah 404,199 P. 1023
• Court: Utah Supreme Court
• Parties: MORAY v. INDUSTRIAL COMMISSION OF UTAH et al

199 P. 1023

58 Utah 404

MORAY v. INDUSTRIAL COMMISSION OF UTAH et al

No. 3675

Supreme Court of Utah

July 9, 1921

Proceedings for compensation under the Workmen's Compensation Act by Thomas H. Moray, the employe, opposed by the Mountain States Telephone & Telegraph Company, the employer. Compensation was awarded by the Industrial Commission, and the employe applies for review of its findings and decision for insufficiency of compensation.

PROCEEDING DISMISSED, and award of Commission AFFIRMED.

D. M Draper, of Salt Lake City, for plaintiff.

Harvey H. Cluff, Atty. Gen., and J. R. Robinson, Asst. Atty. Gen for defendants.

FRICK, J. CORFMAN, C. J., and WEBER, GIDEON, and THURMAN, JJ., concur.

OPINION

FRICK, J.

The plaintiff makes application to this court for a review of the findings and decision of the Industrial Commission of Utah hereinafter called Commission.

In his application it is alleged that the Commission exceeded its powers in the following particulars (1) That total temporary disability having been established by the uncontradicted evidence, the Commission exceeded its authority "in refusing to find such disability and to make an award thereon"; (2) that, having found "that plaintiff suffered permanent loss of vision to the extent of 15 per cent. the Commission should have awarded compensation in proportion to compensation in other cases as provided in section 3138, c. 63, Laws Utah 1919, which it did not do;" and (3) section 3138, supra, provides that where the injury causes partial disability for work the employe shall receive compensation while such disability continues, and that such compensation shall be in addition to the scheduled awards for loss of members and bodily function, and, as shown by the record, the plaintiff is partially disabled for work, and therefore entitled to compensation as provided by said section."

We at this point insert sections 3138 and 3139 for the purpose of assisting the reader in obtaining a better understanding of the grounds upon which plaintiff bases his application for a review of the Commission's findings and decision.

Section 3138, as amended by chapter 63, Sess. Laws Utah 1919, so far as material here, reads as follows:

"Where the injury causes partial disability for work, the employe shall receive, during such disability and for a period of not to exceed six years, beginning on the fourth day of disability, a weekly compensation equal to 60 per cent. of the difference between his average weekly wages before the accident and the weekly wages he is able to earn thereafter, but not more than $ 16 a week. In no case shall the weekly payments continue after the disability ends, or death of the injured person and in case the partial disability begins after a period of total disability the period of total disability shall be deducted from such total period of compensation. In the case of the following injuries the compensation shall be 60 per cent. of the average weekly wages, but not more than $ 16, to be paid weekly for the periods stated against such injuries respectively and shall be in addition to the compensation hereinbefore provided for temporary total disability, to wit. * * *"

A statement of the number of weeks that allowances shall be made for specific injuries follows the foregoing quotation. We omit the statement, except two of the items which relate to injuries to the eyes, which are as follows: "One eye by enucleation, 120 weeks; total blindness of one eye, 100 weeks." The section concludes as follows:

"Any other disfigurement, or the loss of bodily function not otherwise provided for herein, such period of compensation as the Commission shall deem equitable and in proportion to compensation in other cases, not exceeding 200 weeks.

"The amounts specified in this section are all subject to the limitation as to the maximum weekly amount payable as hereinbefore specified in this section, and in no event shall more than a total of $ 5,000.00 be required to be paid."

Section 3139 reads:

"In cases of permanent total disability, the award shall be 60 per cent. of the average weekly wages for five years from date of injury, and thereafter 45 per cent. of such average weekly wages until the death of such person so totally disabled, but not to exceed a maximum of $ 16.00 per week and not less than a minimum of $ 7.00 per week. The loss of both hands or both arms, or both feet or both legs, or both eyes, or any two thereof, shall constitute total and permanent disability, to be compensated according to the provisions of this section."

The plaintiff, in his application to the Commission, alleged that he suffered injury to his eyes from "shock to optic nerve" caused by an "electric flash from a high-tension current" on December 21, 1920, and that he suffered a "relapse March 1, 1921." The evidence is conclusive that there was an "electric flash," as alleged by plaintiff, and that his eyes were injured thereby. The evidence is also clear that his vision is affected in both eyes. Whether the defective vision was caused by said electric flash, or whether it was partly caused thereby, or was partly or wholly caused from astigmatism, and whether the astigmatism was also caused by said flash, or whether plaintiff was afflicted with it before the accident, and whether the same is permanent, or whether his defective vision is due to nervous disturbance and is merely temporary, are all questions which are left in doubt. It is difficult to determine, therefore, whether plaintiff's defective vision is permanent or whether it is merely temporary. The facts that his eyes are affected with astigmatism and that at the time of the hearing and for some time prior thereto he was afflicted with hysteria, make the case still more complicated. There is no evidence whatever of the relapse.

One of the specialists, Dr. Irvine, who made a number of examinations of plaintiff's eyes, covering a period of several months commencing immediately after the accident, in substance testified that he first examined plaintiff on December 26, 1920, or within five days after he had received the shock from the electric flash; that he had examined plaintiff's eyes "three or four times"; that plaintiff came to the doctor's office on December 26th aforesaid complaining that his "eyes smart, vision blurs, when he reads--eyes water and itch." The witness said: "There was no other complaint. The plaintiff stated that he 'got an electric flash in his eyes.'" The doctor further said:

"Examination of his eyes at that time found no evidence of external injury or burns, action was ordinary in both eyes. There was found, in complete examination of eyelids and eyeballs, both internally and externally, no evidence of pathology. His vision * * * would be 90 per cent. in his right eye and 95 per cent. in his left eye."

The doctor further said that plaintiff's eyes "turned out," that is, "diverged," 20 degrees.

"A measurement of his eyes showed one-half a dioptre of astigmatism in both eyes, meaning his eyeball was a little bit longer in diverted axis. With his correction of his glasses he got 20/20 vision, which is 100 per cent. in both eyes."

The doctor also said that on the first examination he found that the normal blind spots in plaintiff's eyes were considerably increased, but that on a later examination, on February 21, 1921, the blind spots were normal again. There was, however, what the doctor calls an additional blind spot in the left eye which was "still there." The doctor further testified that at the time of the hearing the plaintiff, with glasses, had 100 per cent. vision; that the astigmatism in plaintiff's eyes made it necessary for him to continue wearing glasses; that in the opinion of the doctor the electric flash did not cause the astigmatism; that there are very many people who should wear glasses to correct eye defects but do not do so, and who do not know of the defects in their eyes until later on in life; that in the opinion of the doctor plaintiff was afflicted with astigmatism before the accident, and that the astigmatism was not caused by the electric flash.

It also appeared that the plaintiff had served in the army during the late war, that his eyes had been examined by an army surgeon before plaintiff entered service. As to that, the doctor said that one could be examined for the army and the astigmatism not discovered; that the doctor himself had served as an eye examiner for the government and that such defects as plaintiff had would not necessarily be noticed, and that plaintiff could have served in the army with the astigmatism. The doctor further said: "My conclusion is that this patient's (plaintiff) complaint is largely due to nervous disorder or hysteria, and in time will become normal;" that the hysteria "could be [caused by] any kind of shock"; that the doctor did not know whether the shock produced the defective vision. He said:

"I can hardly conceive that the shock could produce the astigmatism, but even during all his worry his vision with his correction [glasses] is normal. * * * but the very fact that the blind spots became less and less in size makes it evident that there must have been some nervous disorder."

The doctor also said:

"I couldn't possibly state definitely that his astigmatism could be due to any nervous disorder. Astigmatism is a change in the shape of the eyeball."

The doctor further testified that worry was the cause of hysteria, and, in his experience, when the cause for the worry was removed the hysteria also disappeared.

Another eye specialist was examined, and upon the main features agreed with the statements we have just recorded. He however, said that it was possible that an electric flash and consequent...