Owen v. Chesapeake Corp. of Va., 4614

• Citation: 198 Va. 440,94 S.E.2d 462
• Decision Date: 08 October 1956
• Docket Number: No. 4614,4614
• Parties: JOHN O. OWEN v. THE CHESAPEAKE CORPORATION OF VIRGINIA, EMPLOYER, AND THE AETNA CASUALTY AND SURETY COMPANY, INSURER. Record
• Court: Virginia Supreme Court

Page 462

94 S.E.2d 462

198 Va. 440

JOHN O. OWEN v. THE CHESAPEAKE CORPORATION OF VIRGINIA, EMPLOYER, AND THE AETNA CASUALTY AND SURETY COMPANY, INSURER.

Record No. 4614.

Supreme Court of Appeals of Virginia

October 8, 1956.

Edward E. Lane and Thomas P. Harwood, Jr. (Lane, Rogers and Paul, on brief), for the appellant.

Robert R. Parrish and Malcolm M. Christian (Parrish, Butcher and Parrish, on brief), for the appellees.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

Owen, an employee of the Chesapeake Corporation, was injured on January 23, 1950, in an industrial accident which occurred in the course of his employment, wherein he suffered caustic acid burns to both eyes.

Prior to the accident it had been determined that Owen had defective vision which was corrected by the use of glasses. However, as a Class A pipefitter he did not use glasses in the performance of his work but only for reading when off duty.

Several hearings were held before the Industrial Commission in which awards were made. On December 30, 1952, a supplemental agreement was entered into which provided for compensation at the rate of $20 per week for 120 weeks, effective retroactively to February 1, 1951, subject to a credit of 70 weeks compensation which had been paid under an award dated July 1, 1951. The Commission having determined the actual visual loss to be 75 per cent in each eye, with adjustment for the pre-existing visual disability of 20 per cent in the right eye and 10 per cent in the left, entered an award for loss of vision of 55 per cent in the right eye and 65 per cent in the left eye.

Later claimant alleged a change of condition and requested a hearing before the Commission. (Code, § 65-95) The case was reopened in April, 1954, and examinations were made to determine the condition of claimant's eyes. There were very slight variations in the reports of the three doctors who examined claimant as to the loss of vision due to the accident, and it was conceded that 'the vision uncorrected amounts to industrial blindness'.

On April 4, 1955, Hearing Commissioner Crenshaw rendered his opinion in which he found that claimant was selling his uncorrected but defective vision to industry, and held that the degree of loss of vision be determined on the basis of the uncorrected vision. However, he concluded that the ability of the claimant to work and to engage in gainful employment should be taken into consideration in determining the loss of vision as both eyes had been injured in the same accident.

From the medical evidence the Commissioner found that claimant had suffered 'a loss which was less than a total loss of vision and less than a total destruction of vision', and determined that a degree of useful vision remained in both eyes. He thereupon increased the award from 55 to 80 per cent loss of vision in the right eye and from 65 to 75 per cent in the left eye.

Thereafter, at the request of claimant, the decision of the Hearing Commissioner was reviewed by the full Commission, and on May 9, 1956, the majority opinion of the Commission approved 'the findings of fact and conclusions of law' of the Hearing Commissioner. From this ruling claimant was granted an appeal.

The issues presented are:

(1) Should claimant's disability be determined by his corrected vision as suggested by the employer, or should his disability be determined by his uncorrected vision as contended by claimant and as the Commission found; and if determined by the uncorrected vision,

(2) Is his ability to work a factor to be considered in determining the degree of loss of vision where both eyes have been injured in the same accident?

In treating the first issue, the Commissioner found, from uncontroverted evidence, that prior to the accident claimant was selling to industry uncorrected vision, and that after the accident, without the aid of glasses, the vision in each eye had been reduced to a fraction which by Snellen's Chart is equivalent to industrial blindness, and, as aforesaid, determined claimant's degree of loss without recourse to the artificial aid which proper glasses would render. This finding is in accord with our holding in Walsh Construction Co. v. London, 195 Va. 810, 80 S.E.2d 524.

Considering the second issue, claimant contends that as the Commission has found that the injury to his eyes amounts to industrial blindness no consideration should be given to his ability to work, and that he should be indemnified for the loss of his eyes. In this connection, however, it was conceded that as a result of the accident claimant was only reduced from a Class A to a Class B pipefitter, with no reduction in wages.

The Commission, in treating the issue, stated:

'That being our finding (the ruling on the first issue), does Section 65-53(18) ¹ make mandatory an award for total disability? I think not. If there was a loss by enucleation, the answer, of course, would be in the affirmative. But where the loss is a loss of use, the...