Tubaya v. Tam Joines, Inc.

519 A.2d 215, 69 Md. App. 607, 1987 Md. App. LEXIS 225
CourtCourt of Special Appeals of Maryland
DecidedJanuary 8, 1987
DocketNo. 403
StatusPublished
Cited by1 cases

This text of 519 A.2d 215 (Tubaya v. Tam Joines, Inc.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tubaya v. Tam Joines, Inc., 519 A.2d 215, 69 Md. App. 607, 1987 Md. App. LEXIS 225 (Md. Ct. App. 1987).

Opinion

GARRITY, Judge.

Alonzo Tubaya injured his left eye in an industrial accident. As a result, his vision in that eye was sufficiently blurred as to allow him merely to distinguish the bulk of objects rather than their identity. He appeals from a partial summary judgment which limited any factual determination as to the extent of his loss of vision, as a matter of law, to less than 100 percent. We shall examine whether, in light of Md.Ann. Code (1985 Repl. Vol.) art. 101, § 36(3)(c), a fact finder may determine the extent of vision loss as total when sight is so destroyed that there remains no useful vision.

Facts

Mr. Tubaya, while employed by the appellee, Tam Joines, Inc., as a tire mechanic, was struck in his left eye by a metal coat hanger while at work on January 28, 1982. The appellant was immediately taken to the Anne Arundel County General Hospital where he underwent surgery to repair his lacerated cornea. The surgery also required the removal of the eye’s ocular lens and a portion of its iris.

Mr. Tubaya was subsequently treated by Dr. Marcos T. Doxanas for residual cornea scarring of the left eye, with lens and iris involvement, and for secondary glaucoma and exotropia. In July, 1982, Dr. Doxanas determined that medically his patient’s visual acuity of the injured eye was 20/200 Snellen and that his potential for rehabilitation was minimal. The ophthalmologist further opined that the appellant suffered an 80 percent loss of vision together with a loss of depth perception.

In December, 1983, the appellant underwent surgery at Johns Hopkins Hospital for rhegmatogenuous retinal detachment of the left eye, but his post operative visual acuity decreased to 20/300. In April, 1984, however, Dr. Herman Goldberg examined the appellant on behalf of the insurer and concluded that the visual acuity of the eye was 20/100 with an 80 percent loss of vision.

[609]*609At a hearing before the Workmen’s Compensation Commission (Commission) in December, 1984, Mr. Tubaya testified that he could not identify objects, that he could only see white, and that the objects looked “like white little blurs.” He stated, “I can’t see. If I didn’t have my good eye, I wouldn’t be able to do anything. I couldn’t use it____”

The Commission determined that Mr. Tubaya had sustained a permanent partial disability resulting in 80 percent loss of vision of his left eye and he appealed to the Circuit Court for Anne Arundel County. The circuit court, however, entered an order on behalf of the employer-insurer granting its motion for summary judgment to limit the claimant’s recovery to less than 100 percent loss of vision in his left eye. While recommending legislative modification,1 the hearing judge found that the “uncontroverted facts” failed to justify an award for total loss of vision, as such condition has been defined by the cases considering the subject in the context of the applicable statute.

Mr. Tubaya argues, in essence, that if the ability of his left eye to identify objects is destroyed to the extent that there remains no useful vision, it is improper to deny a jury the opportunity to consider evidence that he has suffered a total disability in such eye even though some sight may remain by medical evaluation as to anatomical impairment. The employer-insurer contends, on the other hand, that an eye which retains any vision whatsoever, including that of merely being able to see light, must be deemed, as a matter of law, to be fractionally, not totally, impaired.

Md.Ann.Code (1985 Repl. Vol.), art. 101, § 36(3)(c), provides:

[610]*610Permanent loss of use of hand, arm, foot, leg or eye, shall be considered as the equivalent of the loss of such hand, arm, foot, leg or eye, and for the loss of the fractional part of the vision of either one or both eyes, the injured employee shall be compensated in like proportion to the compensation for total loss of vision, and in arriving at the fractional part of vision loss regard shall not be had for the effect that correcting lens or lenses may have upon the eye or eyes, (emphasis added).

In advancing its theory that the retention of a medically evaluated fractional amount of vision prevents the trier of fact from finding total loss, as a matter of law, the employer-insurer relies on Gillespie v. R & J Construction Co., 275 Md. 454, 341 A.2d 417 (1975). A carpenter by trade, Gillespie was injured when a nail punctured the cornea of his right eye. Although the jury, as well as the Workmen’s Compensation Commission, determined that Gillespie had sustained a permanent partial disability resulting in 100 percent loss of vision to his eye, the circuit court granted a motion for judgment n.o.v. on behalf of the employer. The basis for the judgment was that the evidence failed to support compensation in excess of 90 percent disability. In addition to Gillespie’s ophthalmologist’s evaluation that his patient had sustained but a 90 percent permanent disability, Gillespie described in some detail the difficulties he was experiencing with his right eye:

[H]e could not do the work that he used to do, that he could not get up on a building and walk across joists now, that he could not saw a piece of wood following a straight line or use a power saw to follow a straight line using his right eye only, that he could not read a ruler, that he could not climb ladders because he could not judge distance, etc. Although at one point Gillespie testified that glasses were of no assistance to him, he did concede that they assisted him in reading. As earlier indicated, he said he could see out of the eye but it is always “blurry.”

[611]*611Id. at 456, 341 A.2d 417. In affirming the judgment n.o.v., the Court noted, “There is no total loss of vision here by Gillespie’s own testimony. The highest percent of loss of vision to which reference is made is 90%.” Id. at 458, 341 A.2d 417.

Appellant Tubaya stresses that Gillespie was based on a factual determination and that the court’s holding did not deny a fact finder from considering a disability rating greater than that of an anatomical rating. The appellant contends that, notwithstanding the evaluations by Drs. Doxanas and Goldberg that he suffered a vision loss of 80 percent, he is entitled to consideration by a jury of an award for total loss of vision. In reliance on Gly Construction Co. v. Davis, 60 Md.App. 602, 606, 483 A.2d 1330 (1984), cert. denied, 302 Md. 288, 487 A.2d 292 (1985), the appellant argues that the lower court’s finding was erroneous as “compensation is not paid for an ‘injury,’ but for the resulting ‘disability.’ ” Id. at 607, 483 A.2d 1330.

In Gly, the issue was whether the Workmen’s Compensation Commission or the lower court on appeal was limited to awarding disability at the percentage established by the medical evidence, which was 90 percent.

Gly

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Bluebook (online)
519 A.2d 215, 69 Md. App. 607, 1987 Md. App. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tubaya-v-tam-joines-inc-mdctspecapp-1987.