Opinion
June 19, 1967
Appeal by the employer and its carrier from a decision of the Workmen's Compensation Board granting claimant an award for 100% loss of vision of his left eye. Claimant sustained a work-connected injury to his left eye which concededly substantially impaired his vision without corrective lenses. The board has found that "inasmuch as the injury has resulted in an aphakic left eye with a consequent loss of binocular vision and inasmuch as claimant is unable to tolerate a contact lens because of the discomfort engendered by the flying sand and grit on the job, the Board finds that he is entitled to an award for 100% schedule loss of vision of the left eye as provided by statute (Section 15, subdivision 3, paragraph p)." Since partial loss is not compensable ( Matter of Gainey v. Warren Nash Motor Corp., 231 App. Div. 768), we presume the board found a 100% loss of binocular vision and there is substantial evidence that such would be the case without the aid of corrective lenses. However, there is no medical proof whatsoever that corrective lenses would not aid claimant's binocular vision and we do not believe the board could assume that such would be the case. Also the discomfort at work which allegedly makes the corrective lenses unusable does not automatically form the basis for a 100% loss absent substantial medical proof. In Matter of Hurley v. E.R. Wolcott, Inc. ( 27 A.D.2d 788) this court stated: "Where the correction possible is less than 100% the extent thereof, without undue discomfort, is determinative of the amount of the award ( Matter of Walton v. Leach Steel Corp., 15 A.D.2d 975). The board, apparently recognizing these rules, held that claimant was, nevertheless, entitled to a 100% award because of the discomfort he experienced in wearing contact lenses on the job. We cannot accept the applicability of this position in the instant case. It is true that claimant testified that because of the dust created in his work on road construction, his eye would become irritated and he would have to remove the contact lens; that as an estimate he wore the lens only about 50% of the time on the job; and that he could not as an alternative use his glasses on the job because he would `fall all over everything.' However, there is absolutely no indication that claimant because he was unable to wear the corrective lenses provided was prevented from performing his job or suffering any diminution in earnings as a result thereof. In fact, the record reveals that on the day prior to the hearing before the Referee claimant worked 11 hours, 7 without aid of corrective lenses. As this court in Matter of McNamara v. McHarg, Barton Co. [ 200 App. Div. 188] ( supra) noted, the wearing of glasses always brings some inconvenience. Mere inconvenience, however, without an effect on earning capacity is not enough to support an award whereas here there is no question that off the job his sight has been substantially restored, without undue discomfort. Accordingly, the case must be returned to the board to determine the extent of partial loss sustained, if any." This rationale is equally applicable here and accordingly the case must be remitted for further development of the issue of loss of binocular vision and if there should not prove to be a 100% loss of binocular vision for determination of the extent of partial loss sustained. Decision reversed, with costs to appellants against the Workmen's Compensation Board, and matter remitted for further proceedings not inconsistent herewith. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Reynolds, J.