OPINION
STEPHEN F. PRESLAR, Chief Justice.
This case presents the question of whether uncorrected vision or vision corrected by glasses is the standard for determining the loss of the sight of an eye under the Workers’ Compensation Act. The trial court ruled that uncorrected vision was the standard and granted the workman’s motion for summary judgment. We affirm.
The claimant, Felipe Lucio, Jr., was doing carpentry work when a nail flew into his left eye. The nail penetrated the cornea of the eye, cut the lens and resulted in surgical removal of the lens. The surgery left the claimant legally blind in his left eye, but with the use of a contact lens he has normal distance vision and with glasses he then has normal vision close-up for reading. The Appellant insurer contends that because of this correction a fact question exists as to whether the claimant has lost the use of his eye. It argues that a jury is entitled to consider the impact of an artificial appliance on the visual acuity of a claimant under Tex.Rev.Civ.Stat.Ann. art. 8306, sec. 12, para. 19 (Vernon Supp.1984). Section 12 provides for specific compensation for injury to enumerated members of the body in lieu of other compensation under the Workers’ Compensation Act. Paragraph 19 reads:
For the total and permanent loss of the sight of one (1) eye, sixty-six and two-thirds per cent (66 ⅜%) of the average weekly wages during one hundred (100) weeks.
Section 12 also provides that the permanent loss of use of a member is equivalent to the loss of a member.
We do not have in this case a question of the degree of uncorrected impairment. It is undisputed that following removal of the lens the claimant was “legally blind” in that eye. His vision was 20/400 and anything less than 20/200 is legally blind. With the contact lens and glasses, the claimant has 20/20 vision. The question then is whether a fact question exists in determining “the loss of sight” under Section 12. Clearly the extent of loss of vision [488]*488would ordinarily be a fact question, but that is not in dispute here. It is then a question of law as to whether Section 12 “loss of sight” means uncorrected or corrected by artificial appliances.
We conclude that the answer to the legal question is that the proper standard for loss of sight under the act is the uncorrected vision. We reason that loss having occurred, it continues unless there is recovery. The condition will not improve; it is permanent. Correction by artificial appliance does not effect a recovery. Recovery and correction are not the same. The lens and glasses are not instruments to improve or cure. They are beneficial only when in place and are subject to being lost, broken or becoming ill-fitted or ineffective. On the happening of any such event, the loss returns, if it can be said that it ever went away. Corrective lenses are just that, corrective.
There is no clear Texas case law on the question of whether corrective lenses should be considered in determining loss of sight. The early case of Travelers’ Ins. Co. v. Richmond, 291 S.W. 1085 (Tex.Comm’n.App.1927, holding approved), is cited by the insurer in this case for the proposition that the jury should be allowed to consider the beneficial effects of glasses or contact lens in determining whether or not the claimant has lost the use of his eye. As we read Richmond, the Commission of Appeals reversed the jury finding of “total” disability because the evidence consisted of a finding by one doctor that uncorrected vision was a loss of ninety-nine percent, but glasses would make that loss only nine percent; and another doctor’s finding was that there existed some vision “without glasses” and an appreciably increased degree of vision with glasses. Said the court:
We have, then, a situation wherein in any event “sight” is not totally lost, in the absolute sense, for “total” generally comprehends “all” of the thing, etc., with respect to which the adjective is used.
That unclear basis for overturning the finding is followed by a holding that the loss should not be tested under the total loss provision of Section 12, but should be treated as compensible under a subsequent provision of Section 12 and determined on the basis of incapacity. It was said that in considering incapacity to be as efficient or competent for work after the injury as before, the use of glasses is a fact to be considered along with other relevant facts. The insurer had requested an issue on whether the claimant’s impaired vision was such that it could be corrected or restored to normal by the use of glasses. The court held that the inquiry was a proper subject of evidence, but does not itself present an issue to be submitted in an independent way to the jury. The case was remanded for another trial.
In essence, as related to our problem, the holding is that in determining the issue of the workman’s incapacity, the use of glasses is to be considered. The holding that incapacity is the issue under a Section 12 specific injury case is no longer valid. It has been overruled. Great American Indemnity Co. v. Stultz, 56 S.W.2d 200 (Tex.Civ.App.—Eastland 1932, error ref’d). Fidelity Union Casualty Co. v. Munday, 44 S.W.2d 926 (Tex.Comm’n.App.1932). Specific injuries under Section 12 are not based on their effect on the workman’s incapacity or ability to obtain and retain employment. The legislature has provided a system of compensation for incapacity for work resulting from a general injury and designated specified amounts of compensation for injuries to specific members of the body. Bishop v. Insurance Company of North America, 565 S.W.2d 83 (Tex.Civ.App.—Amarillo 1978, writ ref'd n.r.e.). The amount is fixed as to each member with “compensation per se” for loss of that member. Stultz, supra.
The statute embraces “temporary, total loss of the sight of an eye,” and “permanent, partial loss of the sight of the eye,” the same as “temporary, total loss of use of the hand,” or “permanent, partial loss of use of the hand,” or other such member. Stultz, supra.
[489]*489That compensation under Section 12 is not tied to lost earning capacity is further indicated by the holdings that a specific member injury may result in total or partial incapacity, but the compensation is limited to that prescribed for the specific member. Argonaut Insurance Company v. Newman, 361 S.W.2d 871, 874 (Tex.1962); Texas Employers Insurance Association v. Wilson, 522 S.W.2d 192 (Tex.1975). As this Court explained it as early as 1940 in Texas Employers Ins. Ass’n v. Thrash, 136 S.W.2d 905 (Tex.Civ.App.—El Paso 1940, dism.judgm.cor.):
If Plaintiffs injuries were specific it is immaterial the extent to which they cause a diminution of his capacity to labor.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
STEPHEN F. PRESLAR, Chief Justice.
This case presents the question of whether uncorrected vision or vision corrected by glasses is the standard for determining the loss of the sight of an eye under the Workers’ Compensation Act. The trial court ruled that uncorrected vision was the standard and granted the workman’s motion for summary judgment. We affirm.
The claimant, Felipe Lucio, Jr., was doing carpentry work when a nail flew into his left eye. The nail penetrated the cornea of the eye, cut the lens and resulted in surgical removal of the lens. The surgery left the claimant legally blind in his left eye, but with the use of a contact lens he has normal distance vision and with glasses he then has normal vision close-up for reading. The Appellant insurer contends that because of this correction a fact question exists as to whether the claimant has lost the use of his eye. It argues that a jury is entitled to consider the impact of an artificial appliance on the visual acuity of a claimant under Tex.Rev.Civ.Stat.Ann. art. 8306, sec. 12, para. 19 (Vernon Supp.1984). Section 12 provides for specific compensation for injury to enumerated members of the body in lieu of other compensation under the Workers’ Compensation Act. Paragraph 19 reads:
For the total and permanent loss of the sight of one (1) eye, sixty-six and two-thirds per cent (66 ⅜%) of the average weekly wages during one hundred (100) weeks.
Section 12 also provides that the permanent loss of use of a member is equivalent to the loss of a member.
We do not have in this case a question of the degree of uncorrected impairment. It is undisputed that following removal of the lens the claimant was “legally blind” in that eye. His vision was 20/400 and anything less than 20/200 is legally blind. With the contact lens and glasses, the claimant has 20/20 vision. The question then is whether a fact question exists in determining “the loss of sight” under Section 12. Clearly the extent of loss of vision [488]*488would ordinarily be a fact question, but that is not in dispute here. It is then a question of law as to whether Section 12 “loss of sight” means uncorrected or corrected by artificial appliances.
We conclude that the answer to the legal question is that the proper standard for loss of sight under the act is the uncorrected vision. We reason that loss having occurred, it continues unless there is recovery. The condition will not improve; it is permanent. Correction by artificial appliance does not effect a recovery. Recovery and correction are not the same. The lens and glasses are not instruments to improve or cure. They are beneficial only when in place and are subject to being lost, broken or becoming ill-fitted or ineffective. On the happening of any such event, the loss returns, if it can be said that it ever went away. Corrective lenses are just that, corrective.
There is no clear Texas case law on the question of whether corrective lenses should be considered in determining loss of sight. The early case of Travelers’ Ins. Co. v. Richmond, 291 S.W. 1085 (Tex.Comm’n.App.1927, holding approved), is cited by the insurer in this case for the proposition that the jury should be allowed to consider the beneficial effects of glasses or contact lens in determining whether or not the claimant has lost the use of his eye. As we read Richmond, the Commission of Appeals reversed the jury finding of “total” disability because the evidence consisted of a finding by one doctor that uncorrected vision was a loss of ninety-nine percent, but glasses would make that loss only nine percent; and another doctor’s finding was that there existed some vision “without glasses” and an appreciably increased degree of vision with glasses. Said the court:
We have, then, a situation wherein in any event “sight” is not totally lost, in the absolute sense, for “total” generally comprehends “all” of the thing, etc., with respect to which the adjective is used.
That unclear basis for overturning the finding is followed by a holding that the loss should not be tested under the total loss provision of Section 12, but should be treated as compensible under a subsequent provision of Section 12 and determined on the basis of incapacity. It was said that in considering incapacity to be as efficient or competent for work after the injury as before, the use of glasses is a fact to be considered along with other relevant facts. The insurer had requested an issue on whether the claimant’s impaired vision was such that it could be corrected or restored to normal by the use of glasses. The court held that the inquiry was a proper subject of evidence, but does not itself present an issue to be submitted in an independent way to the jury. The case was remanded for another trial.
In essence, as related to our problem, the holding is that in determining the issue of the workman’s incapacity, the use of glasses is to be considered. The holding that incapacity is the issue under a Section 12 specific injury case is no longer valid. It has been overruled. Great American Indemnity Co. v. Stultz, 56 S.W.2d 200 (Tex.Civ.App.—Eastland 1932, error ref’d). Fidelity Union Casualty Co. v. Munday, 44 S.W.2d 926 (Tex.Comm’n.App.1932). Specific injuries under Section 12 are not based on their effect on the workman’s incapacity or ability to obtain and retain employment. The legislature has provided a system of compensation for incapacity for work resulting from a general injury and designated specified amounts of compensation for injuries to specific members of the body. Bishop v. Insurance Company of North America, 565 S.W.2d 83 (Tex.Civ.App.—Amarillo 1978, writ ref'd n.r.e.). The amount is fixed as to each member with “compensation per se” for loss of that member. Stultz, supra.
The statute embraces “temporary, total loss of the sight of an eye,” and “permanent, partial loss of the sight of the eye,” the same as “temporary, total loss of use of the hand,” or “permanent, partial loss of use of the hand,” or other such member. Stultz, supra.
[489]*489That compensation under Section 12 is not tied to lost earning capacity is further indicated by the holdings that a specific member injury may result in total or partial incapacity, but the compensation is limited to that prescribed for the specific member. Argonaut Insurance Company v. Newman, 361 S.W.2d 871, 874 (Tex.1962); Texas Employers Insurance Association v. Wilson, 522 S.W.2d 192 (Tex.1975). As this Court explained it as early as 1940 in Texas Employers Ins. Ass’n v. Thrash, 136 S.W.2d 905 (Tex.Civ.App.—El Paso 1940, dism.judgm.cor.):
If Plaintiffs injuries were specific it is immaterial the extent to which they cause a diminution of his capacity to labor. In case of a specific injury the workman is entitled to recover the amount provided by law even though his incapacity to labor has not been injuriously affected; on the other hand, he is limited to the amount fixed by law for a specific injury even though his capacity to labor has been permanently and totally destroyed. Petroleum Casualty Co. v. Seale, Tex.Com.App., 13 S.W.2d 364; Fidelity Union Casualty Co. v. Munday, Tex.Com.App., 44 S.W.2d 926; Texas Employers Ins. Ass’n v. Maledon, Tex.Com.App. 27 S.W.2d 151.
In Travelers Insurance Company v. Seabolt, 361 S.W.2d 204 (Tex.1962), cited by the dissent, the Supreme Court noted there are two concepts of “loss of use,” each supported by a line of cases, and the workman can recover under either which the evidence supports. The evidence is tested under the proposition or statement of law:
A total loss of the use of a member exists whenever by reason of injury, such member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.
This permissive use of either test does not mandate incapacity as a requirement for recovery.
The decisions in other jurisdictions are in conflict on the corrective lens issue, possibly due to the fact that there are variations in state legislation in dealing with the matter. See: Annotations 142 A.L.R. 822 (1943). If incapacity was the measure by which an award is determined under Section 12, then the use of corrective lenses would be a consideration. As we have seen, that is not the case, and when a workman suffers a loss covered under the schedule of specific injuries then he is to be paid the disability compensation provided for that loss.
Having determined that uncorrected vision is the proper standard, the judgment of the trial court is affirmed.