MacFarland Landscape Service v. Workmen's Compensation Appeal Board

557 A.2d 816, 125 Pa. Commw. 284, 1989 Pa. Commw. LEXIS 241
CourtCommonwealth Court of Pennsylvania
DecidedApril 20, 1989
DocketAppeal No. 2166 C.D. 1988
StatusPublished

This text of 557 A.2d 816 (MacFarland Landscape Service v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacFarland Landscape Service v. Workmen's Compensation Appeal Board, 557 A.2d 816, 125 Pa. Commw. 284, 1989 Pa. Commw. LEXIS 241 (Pa. Ct. App. 1989).

Opinion

Opinion by

Senior Judge Barbieri,

MacFarland Landscape Service (Employer) appeals here an order of the Workmens Compensation Appeal Board (Board) which affirmed a referees decision awarding to Domingo Rosario (Claimant) compensation for a work-related injury causing loss by enucleation of Claimants right eye. We affirm.

Claimant suffered an injury to his right eye on June 1, 1984 and the referees uncontested finding as to the injury is as follows:

2. On June 1, 1984, while in the course and scope of his employment, the Claimant sustained an injury to his right eye when he was struck in the eye by a piece of wood which was thrown by a chipping machine. The chipping machine was being used to grind up tree branches and foliage that had been cleared during the landscape work of his employer....

The contest in this case turns on the question of whether the right eye which was required to be removed because of the injury of June 1, 1984 had enough visual capacity prior to that injury so that the injury caused the compensable loss of useful vision.1 As to the critical circumstances bearing on this principal issue, the referees Finding of Fact No. 5 is as follows:

5. Some years before the accident of June 1, 1984, the Claimant had sustained an injury to his right eye. As a result of that injury there was diminished vision in the right eye. The visual accuity [286]*286[sic] of the Claimants right eye was last tested on June 16, 1982, by Dr. Harry D. Carrozza, a Board Certified Ophthalmologist, who was then Chief of the Ophthalmology Department of Roxborough Memorial Hospital. At that time, the visual accuity [sic] of the Claimants right eye was 5/70, which converts to 20/280. At that time, the right eye contributed materially to the Claimants vision in conjunction with the use of the left eye. Immediately prior to the injury of June 1, 1984, the Claimant could see objects with his right eye, had peripheral vision with the right eye and could see smaller objects at close range with the right eye. As of that time, the right eye contributed materially to the Claimants vision in conjunction with the use of the left eye and he had better vision than he would have had with the left eye alone.

On appeal, the referees findings and decision were affirmed by the Board.

At the outset, it must be remembered that in a case such as this one, where the injury required that the injured eye be removed, or enucleated, such removal presumptively constitutes a compensable loss or loss of use of the eye and the burden to prove that the usefulness of that eye had been lost prior to the injury is an affirmative defense with the burden of proving that contention on the employer. Kubler v. Yeager, 189 Pa. Superior Ct. 339, 150 A.2d 383 (1959); Diaz v. Jones & Laughlin Steel Corp., 170 Pa. Superior Ct. 608, 88 A.2d 801 (1952). In this connection, we note that the referee in this case rejected the testimony of Employers medical witness. Finding of Fact No. 6.

The testimony of Claimants two medical witnesses, accepted by the referee, establishes that the injured eye had to be enucleated because of the danger of infection [287]*287had to be enucleated because of the danger of infection in that eye spreading to the good left eye causing loss of that member also. Deposition of Dr. Nibondh Vacharat, a Board Certified Ophthalmologist, who performed the surgical removal of the eye.

Prior to the injury of June 1, 1984, Claimant had suffered injury to his right eye, but he testified that as of June 1,1984 he had some vision in his right eye, sufficient to see a person four or five feet away from him; could recognize persons and could read a newspaper if brought up close to the eye; and see objects in motion on his right side.

Dr. Harry D. Carrozza, a Board Certified Ophthalmologist, saw the Claimant for a foreign object in his right eye apparently suffered on June 16, 1982. At that time, Dr. Carrozza on testing Claimant’s vision in the right eye found vision of 5/70 on a metric scale, which converts to 20/280, R.R. 90a-96a, amounting to a 15% visual acuity which would significantly assist the Claimant in performing such ordinary activities as walking, picking up chairs, walking past people, shopping at a super market, but would probably not assist with tasks requiring fine vision. When questioned as to the significance of Claimant’s vision in 1982, Dr. Carrozza stated as follows:

In relation to going through doors, gross objects, yes, it would be a significant loss in relation to activities in terms of depth perception, fine details, it wouldn’t be significant. So, I think it’s a yes and no.

Dr. Vacharat, questioned concerning the 1982 vision reported by Dr. Carrozza, testified that Claimant would then have been able to see the third line on the ordinary eye chart at five feet; and that, in his opinion, an eye with such vision was a useful eye.

[288]*288In Kubler, where the claimant was his only witness as against the testimony of the operating surgeon, called by the employer, the Board found that the claimant, prior to the injury that required the removal of the eye, had been able to see light and large objects with that eye. In sustaining the award by the Board, the Superior Court stated:

There was competent and substantial evidence on the record to sustain the findings of the board. The board was not required to rely on the testimony of Dr. Anderson, defendants witness, nor was it obliged to accept the testimony of that witness. It could accept or reject, in whole or in part, the testimony of any witness: Rozauski v. Glen Alden Coal Company, 165 Pa. Superior Ct. 460, 69 A.2d 192.
After examining all the testimony, we are satisfied that the findings of the Workmens Compensation Board are supported by sufficient competent and substantial evidence. The case presents a truly factual issue which has been resolved by the board in favor of the claimant. It was the boards province to pass upon the testimony and determine the credibility to be accorded the witnesses and the weight to be given their testimony.[2] It is the defendants contention that the claimant had impaired vision in his eye prior to its enucleation and for that reason is not entitled to compensation for the loss of the eye. This was an affirma[289]*289tive defense and the defendant had the burden of proving it. Diaz v. Jones & Laughlin Steel Corp., 155 Pa. Superior Ct. 177, 38 A.2d 387. In our opinion he did not meet that burden and a reference to further details will serve no useful purpose. Id. at 344.

In Diaz, where the claimants eye was removed following an injury on May 14, 1941, there had been a prior injury, as in this case and in Kubler, which left the claimant with vision of only 10/200 in the injured eye. As in this case, this vision would be of assistance to the claimant principally to see large objects coming up on his left side, a large object defined as a person or an automobile.

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Related

Kubler v. Yeager
150 A.2d 383 (Superior Court of Pennsylvania, 1959)
Joyce Western Corp. v. Workmen's Compensation Appeal Board
542 A.2d 990 (Supreme Court of Pennsylvania, 1988)
Diaz v. Jones and Laughlin Steel Corp.
88 A.2d 801 (Superior Court of Pennsylvania, 1952)
Universal Cyclops Steel Corp. v. Krawczynski
305 A.2d 757 (Commonwealth Court of Pennsylvania, 1973)
Diaz v. Jones & Laughlin Steel Corp.
38 A.2d 387 (Superior Court of Pennsylvania, 1944)
Rozauski v. Glen Alden Coal Co.
69 A.2d 192 (Superior Court of Pennsylvania, 1949)
Joyce Western Corp. v. Workmen's Compensation Appeal Board (Fichtorn)
519 A.2d 1107 (Commonwealth Court of Pennsylvania, 1987)

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Bluebook (online)
557 A.2d 816, 125 Pa. Commw. 284, 1989 Pa. Commw. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macfarland-landscape-service-v-workmens-compensation-appeal-board-pacommwct-1989.