Wilson v. State Indus. Acc. Commission

• Decision Date: 23 May 1950
• Citation: 189 Or. 114,219 P.2d 138
• Parties: WILSON v. STATE INDUSTRIAL ACCIDENT COMMISSION.
• Court: Oregon Supreme Court

219 P.2d 138

189 Or. 114

WILSON v. STATE INDUSTRIAL ACCIDENT COMMISSION.

Supreme Court of Oregon.

May 23, 1950

Argued and Submitted April 18, 1950.

Roy K. Terry, Asst. Atty. Gen. (George Neuner, Atty Gen., T. Walter Gillard and Ray H. Lafky, Asst. Attys. Gen on the brief), for appellant.

Wesley A Franklin, Portland (Anderson & Franklin of Portland, on the brief), for respondent.

Before BRAND, Acting Chief Justice, and BELT, ROSSMAN, BAILEY, HAY and LATOURETTE, JJ.

LATOURETTE Justice.

This is an appeal by the State Industrial Accident Commission from a judgment awarding the plaintiff permanent partial disability because of the loss of the sight of his left eye, occasioned by aggravation. Plaintiff suffered an injury to his left eye on April 24, 1947, while employed, subject to the provisions of the Workmen's Compensation Act. O.C.L.A. § 102-1701 et seq. The plaintiff filed his claim for compensation with the Commission, which claim was approved and allowed, and plaintiff was granted an award for total temporary disability, and thereupon, the Commission closed plaintiff's case on July 24, 1947.

On October 26, 1948, plaintiff filed his petition for increased compensation because of aggravation, claiming an award of permanent partial disability equal to the complete loss of the sight of his left eye, and also an award of permanent partial disability because of chronic pain and nervousness equal to 96 degrees. The Commission denied plaintiff's petition; hence, the appeal to the trial court.

The jury's verdict was for plaintiff for the total loss of the sight of his eye and for pain, headaches and nervousness equal to 20 per cent loss of an arm. A judgment was entered accordingly, from which the Commission appealed.

The Commission moved for a nonsuit and for a directed verdict, the denial of which formed the basis of its Assignments of Error No. I and No. II, which we will treat together. The motion for the directed verdict, following closely in the language of the motion for nonsuit, is as follows: 'At this time, your Honor, the defendant desires to interpose a motion directing a verdict in its favor; first, as to the demand for eighty degrees for the loss of the eye, on the ground and for the reason that not only did their own expert, but the defendant's expert have both testified that the eye was industrially blind at the time of the accident and had been for a considerable time prior thereto, and he is asking to recover for the loss of an industrially blind eye; secondly, the motion as to the demand for ninety-six degrees for pain and nervousness upon the ground and for the reason that there can be no recovery for pain as such, and there is not one scintilla of evidence in here that the pain has ever kept him from any gainful occupation, the one at which he earns his livelihood, and also that the nervousness--trying to get recovery for the nervousness is an attempt to collect twice for the same accident.'

Under Assignment of Error No. I, it is asserted: 'There can be no recovery for the loss of sight of an eye that in already industrially blind.' It is argued that the two doctors in the case, Dr. Canfield Beattie, plaintiff's expert witness, and Dr. E. Merle Taylor, defendant's expert and sole witness, both testified that plaintiff was 'industrially blind' in his left eye prior to the accident, and, such being the case, it is urged that there could be no aggravation. On the argument, counsel for the Commission, in answer to a question propounded by a member of the court, said: 'There is no definition, your Honor, of industrial blindness. It is--it varies in each particular state, there is no degree--it just means that your eye is useless for ordinary industrial purposes.'

It is true that both doctors testified that the plaintiff's left eye was industrially blind before the accident, that being their conclusion; however, Dr. Beattie testified as follows:

'A. Well, he had--he had vision in the left eye. The extent to which that vision could be improved I couldn't say, but he had some useful vision to the eye because, even without the glasses he could count fingers out at about three feet, which was----

'* * *

'A. (continuing) Well, of course, that--such a vision is not a very accurate vision, not what you consider good vision, but it is a very useful vision if it is the only vision you have. I mean it allows you to get around in daylight, see doorways, see steps, protruding objects, walls or things pro--sticking out from a wall and, providing there is adequate illumination, it is considered a useful vision. It is not a vision that you could do a job with that required any skill or was difficult but it is a very useful vision.'

Plaintiff himself testified as follows:

'Q. Now, between that time and the time you had this accident in 1947 what was your vision in that eye? A. Well, I thought it was pretty good.

'Q. That is a pretty general term. Can you tell us what you could see and what trouble, if any, you had with it, what you could use it for? A. Just a few days before that happened I was walking around down in the basement with my hand over my right eye. Seemed like it was getting better and I remarked to my wife about it, that I was quite pleased with it because, frankly, at first we were disappointed. We thought when you got a cataract operation your eye was going to be as good as it ever was, but when it wasn't--and then when it seemed like it was improving, maybe it was just my idea. But I was naturally quite happy about it.

'Q. Well, how far could you see with it and what could you see and what could you use it for? Can you give the jury a little idea? A. I could see you but you weren't straight up and down.

'Q. Well, could you count or could you see doorways and see where you were going, things like that? A. Sure.

'Q. What was the use--A. I could saw shingles; I could tell when there was a knot in the block. That carriage runs on my left side here (indicating).

'Q. Was it of any use to you in driving your automobile? A. I could see that saw. That saw is about fifty inches and runs seventeen hundred revolutions just running right towards you (indicating). The shingles come off right alongside of you.'

Let us now look to the law on the question. Under the Workmen's Compensation Act of this state, in injured workman is compensated for the total loss of the sight of an eye without regard to whether or not the eye was perfect prior to the accident. Section 102-1760, O.C.L.A. defines permanent partial disability as '* * * loss of one eye * * *', and the workman under the Act is awarded 80 degrees 'for the permanent and complete loss of the sight of one eye.'

Only one Oregon case has been cited which has any particular bearing on the subject at hand, and that is Chebot v. State Insutrial Accident Commission, 106 Or. 660, 212 P. 792, 797. In that case, the workman lost the sight of an eye in an accident, and as a result thereof, his other eye became weak and inflamed, and as claimed by him, causing him to become incapacitated for performing any useful work or occupation. He contended that he was entitled under the Act to be awarded for the permanent and complete loss of the sight of his other eye. The evidence disclosed that he had some use of the remaining eye. The Commission asserted in that case that since plaintiff had some sight left in his eye, he should be compensated on the basis of a partial loss of the sight of the eye. The court upheld the Commission's position and said: 'The reported cases tend to support the contention of the Attorney General. Those cases indicate that where any useful vision remains, the disability is partial, and an award of compensation for total disability is not authorized.'

The court further said: 'The Commission, under the authority of the statute, may require plaintiff to submit himself to the examination and treatment of eye specialists from time to time, and if, under such treatment, the useful vision of plaintiff's left eye increases, a modification of the award to conform to the improved condition and diminished disability may be made, after reasonable notice to plaintiff...