Opinion
August 1, 1961
Appeal by claimant from decision of the Workmen's Compensation Board which determined he suffered 33 1/3% schedule loss of the right eye. While working on a demolition project, claimant was struck in the right eye by a piece of stone. All of the medical testimony conceded that claimant had a pre-existing condition described as "high myopia" (a colohoma of the optic disc and chorio-retinal patches in the retina). Claimant argues that having some vision in the eye prior to the accident, although it was conceded he was industrially blind, that he should receive 100% loss of the eye. While there was a difference of opinion among the doctors as to the amount of vision before the accident, there was testimony he was industrially blind. In Matter of Ladutsky v. Tri-Motor Auto Serv. ( 6 A.D.2d 935) relied upon by the appellant, it was there conceded that the claimant was industrially blind before the accident, that the light perception he had prior to the accident was lost and on such facts the board made an award of 100% loss of vision. Section 15 (subd. 3, par. p) of the Workmen's Compensation Law determines whether or not a claimant is entitled to a 100% schedule loss: "Binocular vision or percentum of vision. Compensation for loss of binocular vision or for eighty per centum or more of the vision of an eye shall be the same as for loss of the eye." The decision here makes no mention of the above section but seems to be predicated upon the amount of loss of vision of the eye attributable to this particular accident, there being proof of some prior loss of vision. We think that was not the applicable rule but the above section should have been considered and upon another hearing, if necessary, a determination can be made as to whether or not the section is applicable. Decision and award of the Workmen's Compensation Board reversed and the matter remitted, with costs to the claimant-appellant against the board. Gibson, J.P., Herlihy, Reynolds and Taylor, JJ., concur.