Opinion
March 16, 1971
Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board, filed July 2, 1969, which affirmed an award for a schedule loss of 100% of the left eye. While working as a carpenter, claimant was injured when struck in the left eye by a wire, requiring surgical removal of the lens of the left eye. He was subsequently fitted with a contact lens which he now contends causes his eye to tear when inserted and, that after four or five hours, vision decreases and blurs. Without the lens he has a 100% loss of binocular vision of the left eye, and it appears that the loss of binocular vision cannot be corrected by the use of a spectacle lens. The board found "that the claimant is not able to tolerate the contact lens for more than a few hours and that he has a 100% causally related loss of vision of the left eye". The medical evidence establishes that claimant could not tolerate the lens for more than four or five hours, and, although the claimant had previously indicated that he could wear the lens for at least seven hours, it was not unusual for a person to experience increasing sensitivity to contact lenses with continued use, and that as the eyelids become more sensitive, the period of toleration lessens. There was, therefore, substantial medical evidence that claimant could not tolerate the lens for more than four or five hours. (Cf. Matter of Franzese v. Jellgren Constr. Co., 29 A.D.2d 1037, mot. for lv. to app. den. 22 N.Y.2d 644.) Decision affirmed, with costs to the Workmen's Compensation Board. Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur; Herlihy, P.J., dissents, and votes to reverse and remit, in the following memorandum: It is universally recognized that while the Workmen's Compensation Law is to be liberally construed in favor of claimants there must be on occasions stopgaps. The present claim presents a vivid example. The claimant has been awarded a 100% causally related loss of vision of the left eye. The appellants concede that the left eye was injured but dispute the 100% award. The medical testimony supports the position of the appellants. All of the doctors stated that upon examination of the claimant's eye there was no discharge, no tearing, no sensitivity, apparently objective findings associated with wearing contact lens. The claimant's doctor, on which the board relied, found no objective indices; the eye "was quiet" and apparently the claimant had no difficulty in wearing the lens. The doctors stated that he could wear the lens from "a few hours" a day up to seven hours a day. The testimony of the claimant's doctor as to "a few hours a day" is a relative term but the doctor did not further explain his opinion. In fact the doctor stated, "Well, first of all, in my three years of association with Mr. Clippard I feel that Mr. Clippard is the kind of person that is very, very difficult to get any kind of a reliable history from". The claimant's testimony amply supports the statement by the doctor. At a hearing on September 7, 1967 he stated he could not wear the lens more than six hours and a month later at a hearing he stated that he had trouble with his vision if he wore the lens more than four, five hours. There is no contention that the claimant did not work during the period involved, and there is no claim of diminution of earnings. The board found "that the claimant is not able to tolerate the contact lens for more than a few hours and that he has a 100% causally related loss of vision of the left eye". The finding of the board, under the circumstances, is mere speculation. The record, at best, substantiates mere inconvenience on the part of the claimant. (See Matter of Hurley v. E.R. Wolcott, Inc., 27 A.D.2d 788; Matter of Boskin v. Bresee Chevrolet Co., 27 A.D.2d 969.) The decision of the board should be reversed and the matter remitted for the purpose of establishing the percentage loss of vision of the left eye.