Pargas Co. v. Hagan

428 S.W.2d 779, 1968 Ky. LEXIS 728
CourtCourt of Appeals of Kentucky
DecidedMay 31, 1968
StatusPublished
Cited by1 cases

This text of 428 S.W.2d 779 (Pargas Co. v. Hagan) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pargas Co. v. Hagan, 428 S.W.2d 779, 1968 Ky. LEXIS 728 (Ky. Ct. App. 1968).

Opinion

STEINFELD, Judge.

The Workmen’s Compensation Board awarded Thomas O. Hagan $37.00 per week for 100 weeks because of the permanent loss of the sight of his left eye. KRS 342.105(20). An appeal was taken to the Daviess Circuit Court (KRS 342.285) which affirmed. The employer and its insurance carrier now seek reversal of that judgment (ICRS 342.290) claiming that the Board erred, as a matter of law, in evaluating the disability of Hagan because it failed to consider the benefit he received through the use of corrective lens and spectacles. We affirm.

On the 29th day of July, 1965 Hagan, a truck driver for Pargas Company, was injured when a pressure relief valve on his truck blew open and sprayed liquid gas into his face causing minor body burns and injuries to his left eye. Cataract operations were required and he lost 90% of the vision of that eye. He claimed benefits provided by the Workmen’s Compensation Act for the loss of the sight of that eye. KRS 342.105(20). Medical testimony disclosed that with the use of corrective lens the vision impairment is no more than 19%. A physician testified that Hagan by wearing contact lens or spectacles could do the same work that he was doing prior to his injury. Hagan admitted that his occupation and duties are the same as before the injury and that he is working approximately the same number of hours and has received a raise in compensation.

[780]*780The Board found that the injury “resulted in industrial blindness in one eye.” Black Starr Coal Corp. v. Reeder, et al, 278 Ky. 532, 128 S.W.2d 905 (1939).

The employer contends that “The Workmen’s Compensation Act is: (1) an industrial act; (and) (2) it is concerned ■with disability, not injury.” It concedes that Hagan “* * * is claiming compensation under the enumerated permanent-partial disability section, being KRS 342.-105(20)”. No claim is made of disfigurement or of disability “to the body as a whole”. KRS 342.110.

Although other jurisdictions have considered the issue now before us (142 A.L.R. 832) here it is a case of first impression. We have never adjudicated a contention that diminution in disability by the use of corrective devices must be considered in determining loss under KRS 342.105. It reads in part as follows :

“For injuries or disabilities from an occupational disease enumerated in the following schedule the employe shall receive, in addition to temporary total disability compensation for the period of actual total disability, not exceeding twenty weeks, a weekly compensation equal to sixty-six and two-thirds percent of his average weekly earnings, * * * for the periods stated herein:”

Then twenty-one subsections follow. Eighteen cover the loss of the extremities of the body and parts thereof. One subsection relates to stiffness of fingers and one to the “loss of hearing”. Subsection (20) reads:

“For the total and permanent loss of the sight of an eye, one hundred weeks, plus an additional twenty weeks in cases where the eyeball is enucleated.”

KRS 342.110 covers injuries causing permanent-partial disability to the body. Appellant relies partly on KRS 342.020 which requires the employer, at its expense, but within certain monetary limits to provide medical treatment. It reads in part:

“(3) Where a compensable injury or occupational disease results in the amputation of an arm, hand, leg or foot, or the loss of hearing, or the enucleation of an eye or the loss of teeth, the employer shall initially furnish in addition to other medical, surgical and hospital treatment enumerated in subsections (1) and (2) of this section, a modern artifical member, and where required, proper braces * * ”.

Appellant argues that the benefit from the lens and spectacles must be considered because of the requirement contained in KRS 342.020 and the provisions of KRS 342.035 that “No compensation shall be payable for the * * * disability of an employe * * * if, and in so far as his disability is aggravated, caused or continued, by an unreasonable failure to submit to or follow any competent, surgical treatment or medical aid or advice.” The employer illustrates that disability is lessened or eliminated in bone fusion cases by the operation. It notes that our cases have held that disability means an injured person’s inability or incapacity to perform work in his occupation and cites Burt v. Clay, 207 Ky. 278, 269 S.W. 322 (1925); Black Starr Coal Corp. v. Reeder, 278 Ky. 532, 128 S.W.2d 905 (1939); Hendricks v. Kentucky & Virginia Leaf Tobacco Co., 312 Ky. 849, 229 S.W.2d 953 (1950); Stumbo & Vance Coal Co. v. Tackett, Ky., 300 S.W.2d 232 (1957); Clark v. Gilley, Ky., 311 S.W.2d 391 (1958); Baier v. Schnell, Ky., 323 S.W.2d 587 (1959) and Shuman v. May, Ky., 327 S.W.2d 14 (1959). These cases do not support this contention because the benefit of the use of corrective devices was not in issue, and disability is irrelevant to KRS 342.105(20).

Cases from other jurisdictions are cited. Conceding that there are no Kentucky cases passing upon the issue now before us both parties candidly admit that the decisions from the foreign jurisdictions are not harmonious. See 99 C.J.S. Workmen’s Compensation § 316b, p. 1136, and 142 A. L.R. 832 as well as the annotations referred to herein. These texts generally [781]*781agree that the “conflict is only partly a real one, being due in many instances to the difference in the controlling statutes.”

Appellee cites Kibbey v. General Ameri-can Transportation Company, Ky., 404 S.

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428 S.W.2d 779, 1968 Ky. LEXIS 728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pargas-co-v-hagan-kyctapp-1968.