Burke v. Eg & G/Morrison-Knudsen Construction Co.

885 P.2d 372, 126 Idaho 413, 1994 Ida. LEXIS 70
CourtIdaho Supreme Court
DecidedJune 6, 1994
DocketNo. 20303
StatusPublished
Cited by1 cases

This text of 885 P.2d 372 (Burke v. Eg & G/Morrison-Knudsen Construction Co.) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burke v. Eg & G/Morrison-Knudsen Construction Co., 885 P.2d 372, 126 Idaho 413, 1994 Ida. LEXIS 70 (Idaho 1994).

Opinion

JOHNSON, Justice.

This is a workers’ compensation case. The primary issue presented is whether the Industrial Commission correctly determined the degree of permanent disability due to the loss of vision in the claimant’s eye when the injury required the removal of the natural lens and when the claimant chose to accept the implantation of an artificial lens in its place. We conclude that the Commission applied the correct legal standard in determining the degree of permanent disability and in determining not to retain jurisdiction concerning the degree of permanent disability-

We also conclude that there is substantial and competent evidence to support the Commission’s decision not to increase the claim[414]*414ant’s permanent disability beyond the degree of permanent physical impairment, and not to retain jurisdiction concerning the award of permanent disability.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

Reece Burke, an electrician, was hit in the left eye by a metal fragment during the course of his employment with Morrison-Knudsen Construction Company (MK). The fragment caused a cataract in Burke’s eye, requiring the surgical removal of Burke’s natural lens. Burke’s, ophthalmologist told Burke he would be left with very poor vision unless he were to wear a contact lens or have an artificial lens implanted in his eye. Burke chose to accept the implantation of the artificial lens (the intraocular lens), instead of wearing a contact lens.

Following the implantation of the intraocular lens, Burke’s ophthalmologist concluded that Burke had a fifty percent loss of central visual efficiency, corresponding to a total loss of fifty percent visual efficiency in the left eye. MK’s surety compensated Burke for permanent partial impairment of fifty percent of the left eye as well as Burke’s medical expenses related to the injury.

Four years after the implantation of the intraocular lens, Burke requested that the Commission award him one hundred percent permanent disability of his left eye, or, in the alternative, to retain jurisdiction over his case until the long-term effect of his intraocular lens implant became known. The Commission declined to award Burke any increased permanent disability over and above the degree of permanent physical impairment or to retain jurisdiction. Burke appealed.

II.

THE COMMISSION APPLIED THE CORRECT LEGAL STANDARD IN DETERMINING THE DEGREE OF PERMANENT DISABILITY.

Burke asserts that the Commission did not apply the correct legal standard in determining the degree of permanent disability resulting from the loss of the natural lens in his left eye. We disagree.

I.C. § 72-428 contains the following provisions:

An employee who suffers a permanent disability less than total and permanent shall, in addition to the income benefits payable during the period of recovery, be paid income benefits for such permanent disability in an amount equal to fifty-five percent (55%) of the average weekly state wage stated against the following scheduled permanent impairments respectively:
(3) Loss of Vision and Hearing
Total loss of vision of one eye.............150 [weeks]
(4) Total loss of use. Income benefits payable for permanent disability attributable to permanent total loss of use of [or] comparable total loss of use of a member shall not be less than as for the loss of the member.
(5) Partial loss or partial loss of use. Income benefits payable for permanent partial disability attributable to permanent partial loss or loss of use, of a member shall be not less than for a period as the permanent impairment attributable to the partial loss or loss of use of the member bears to total loss of the member.

In Kelley v. Prouty, 54 Idaho 225, 30 P.2d 769 (1934), the Court considered the implications of a statute similar to T.G. § 72-428. This statute was I.C. § 43-1113 (1932), which contained the following provisions:

In ease of the following injuries the compensation shall be fifty-five per cent of the average weekly wages, but not more than the weekly compensation provided in section 43-1110, in [415]*415addition to all other compensation, for ninety-nine per cent of the period stated against such injuries respectively, to wit:
For the loss of: For the following number of weeks:
Total blindness of one eye 120

In Kelley, the Court considered whether correction of vision by artificial means should be taken into account in determining the compensation for loss of an eye:

[T]he general theory and spirit of the act, except for the specific indemnities set forth in sec. 43-1113, is to the effect that compensation is provided to make good the loss of the earning power or capacity to work on account of the injury. In other words, our compensation act is to the same effect as the laws of those states holding ... that compensation is to be paid on account of disability or impairment of ability to work, or for loss of earning power, and not as indemnity for the loss of a member or physical impairment as such, except the indemnities specified in sec. 43-1113; that then the use of corrective glasses may and should be taken into consideration in determining the extent of the disability..... That does not mean, and we do not hold, that corrective glasses, in the event of the loss of an eye, or other artificial means, shall or may be permitted to be taken' into consideration in fixing the specific indemnities set forth in sec. 43-1113, for in determining those specific indemnities the loss of earning power or capacity to work is not to be considered.

54 Idaho at 245-46, 30 P.2d at 777.

In the present case, the Commission’s determination of the degree of permanent impairment to Burke’s left eye was based on opinions of both Burke’s ophthalmologist and of an ophthalmologist who reviewed Burke’s records for MK’s surety, and on the Guides to the Evaluation of Permanent Impairment of the American Medical Association (the AMA guides).

Burke’s ophthalmologist stated that although the intraocular lens and the use of glasses corrected Burke’s vision to 20/20, the loss of the lens in Burke’s left eye “correlates to 50% loss of central visual efficiency which corresponds to a total loss of 50% visual efficiency.” The ophthalmologist who reviewed Burke’s records for MK’s surety stated that although Burke’s vision is correctable to 20/20, the loss of the lens “is considered to be> an additional visual impairment, in [the AMA guides],” and that “there would be a loss of 50% in central vision.” The AMA guides provide that the loss of a lens “is considered to be an additional visual impairment and if it is present, it is weighted by an additional 50% decrease in the value for remaining corrected central vision.” American Medical Association, Guides to the Evaluation of Permanent Impairment 155 (3d ed. 1988). The accompanying table in the AMA guides indicates that when vision is corrected to 20/20, the loss of central vision because of the loss of a lens is fifty percent. Id.

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Bluebook (online)
885 P.2d 372, 126 Idaho 413, 1994 Ida. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burke-v-eg-gmorrison-knudsen-construction-co-idaho-1994.