Yocom v. Spalding

547 S.W.2d 442, 1977 Ky. LEXIS 397
CourtKentucky Supreme Court
DecidedJanuary 14, 1977
StatusPublished
Cited by9 cases

This text of 547 S.W.2d 442 (Yocom v. Spalding) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yocom v. Spalding, 547 S.W.2d 442, 1977 Ky. LEXIS 397 (Ky. 1977).

Opinion

PALMORE, Justice.

The appellant David Spalding claims workmen’s compensation benefits by reason of an injury to one of his eyes. The board found him totally disabled, 90% from the accident and 10% from a pre-existing congenital condition, and made an award on the basis of the 90% portion against the employer alone, absolving the Special Fund. The employer appealed to the circuit court, which remanded the proceeding to the board with directions to make a new award against the employer “not to exceed eleven percent (11%) of the appropriate scheduled benefit and an award against the Special Fund in an amount not to exceed twenty-five percent (25%) permanent partial disability as a result of the pre-existing condition,” citing KRS 342.120(l)(a). The claimant and the Special Fund thereupon appealed to this court.

At the time of the accident, September 28, 1973, Spalding was 22 years old and lacked a half credit of finishing high school at Springfield, Kentucky. He had left Springfield and found employment in Louisville with the appellee, Stimpson Scale Company, as a “grinder polisher and production worker.” While he was using a hand file to smooth the spokes of a metal ring a small piece of metal got into his left eye. Three days later he was seen by Dr. Daniel W. Burke, an ophthalmologist, who observed “a foreign body and a rust stain secondary to the foreign body deeply embedded in his cornea.” Dr. Burke began at once to remove this foreign material from the eye but deferred completing the job until the next day because he “was getting quite deep into the cornea.” He finished removing the rust on the next day and saw the patient again on each of the next three days and on several occasions thereafter. It was the doctor’s opinion that the wound healed normally but left a scar, “a little pit or little indentation in the clear part of the eye.” Nevertheless, Spalding complained of one thing and then another. At first he continued to have the sensation of a foreign body in the eye, then he complained of glare and headaches, and after the employer had transferred him to its shipping department he found that he had to use a magnifying glass in order to read numbers on the scales and charts. He says that when he tries to read for any length of time without glasses his eyes begin to burn and water.

We come now to the complicating factor in the case. It appears that from birth the claimant’s eyes did not focus properly, which condition, left untended, resulted in his right eye’s becoming what is called a “lazy eye,” in that it became permanently useless except to distinguish light from [444]*444dark. Hence for practical purposes he had only one serviceable eye, the left eye. That eye, the good one, had not been tested recently for visual acuity prior to the injury, though Spalding himself testified that his vision had been perfect and that he had never worn glasses. After the corneal wound had healed Dr. Burke found the visual acuity of the left eye, without glasses, to be 20/40, whereupon he fitted the eye with a corrective contact lens but later switched to ordinary spectacles when it appeared that the patient could not or would not tolerate the contact lens. At the last visit Dr. Burke found the visual acuity of the left eye to be 20/50 without and 20/40 with glasses. Using the glasses Spalding can read newspapers and was able to do the work in Stimpson’s shipping department.

Spalding was laid off on May 31, 1974, when a strike at a supplier’s plant resulted in a shortage of necessary materials in Stimpson’s manufacturing operation. He found other employment with an office supply firm, but was assigned to relatively menial work at a salary of $2.50 per hour as compared with the $3.50 per hour he had been earning at Stimpson.

In assessing percentage of disability Dr. Burke resorted to a chart that classifies physical impairment according to visual loss. He said that the loss of or absence of vision in one eye represents a 30% impairment in over-all visual efficiency and that 20/50 vision in one eye is 25% less than the visual efficiency of a 20/20 eye. According to the chart, and on the premise that Spald-ing had a visual efficiency of 70% before the accident and suffered a 25% loss of vision in the left eye by reason of the injury, he now has a visual efficiency of 59%, or 11% less than he had immediately prior to the accident. This evidently was the basis for the circuit court’s order that the award against Stimpson be limited to 11% partial disability. It is to be noted, however, that Dr. Burke neither sought nor was asked to translate this functional impairment in terms of occupational disability. Hence the trial court’s action in that respect was erroneous.

Dr. Sheldon B. Schiller, another qualified ophthalmologist, examined Spalding on May 3,1974, pursuant to an appointment by the board and was the only other medical witness. Upon initial examination through the reading of letters on a chart from a distance of 20 feet, the vision in Spalding’s left eye appeared to be 20/70, but after the pupil had been dilated it was 20/25, or virtually normal. In explanation, Dr. Schiller testified that there ought not to be a difference, but that the test given after dilation is the more objective, because the patient is looking through a machine and does not know which line he is reading or attempting to read, whereas in the simple reading test from 20 feet he may have “just read a line that he casually felt that he should read before we put the drops in, or by design, he was trying to give me a line that was worse than he could read.” Dr. Schiller observed the small corneal scar in the left eye but regarded it as “insignificant with relation to his vision. There’s no way that spot could cause a loss of vision. It’s like having a mosquito on your windshield . ... This spot would have nothing to do with the field of vision. It’s like putting a speck on your glasses, really, and you may not even find the speck if you put it on your classes. The speck is in the corner and only a few millimeters from your cornea.1 That spot is not going to cause him any loss of vision or going to cause any loss of field.”

Dr. Schiller was of the further opinion that the absence of vision in one eye represents a 25% functional loss to the body as a whole but is not occupationally disabling “unless you find some unusual occupation that would require specifically binocular vision; and a laboring type of job should not offer the least bit of problem.”

So there we have it. Obviously there was no reasonable basis for the board’s finding that Spalding is 100% occupationally disabled. Though it has broad leeway within the province of factfinding [445]*445to translate functional into occupational disability, that authority is not unlimited. By no stretch of the imagination can it be said that this man, who continues to be regularly employed, is totally disabled. Cf. Winn Dixie Louisville, Inc. v. Watson, Ky., 473 S.W.2d 148 (1971). To the extent, therefore, that the order of the circuit court remanded the matter to the board for reassessment of the degree of partial disability it was entirely justified.

On the other hand, we perceive no good reason for requiring the board to reconsider the degree of disability pre-exist-ing the injury. Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Fleming v. Windchy
953 S.W.2d 604 (Kentucky Supreme Court, 1997)
Yocom v. Stone
597 S.W.2d 866 (Court of Appeals of Kentucky, 1980)
Dealers Transport Co. v. Thompson
593 S.W.2d 84 (Court of Appeals of Kentucky, 1979)
Yocom v. Devine
577 S.W.2d 41 (Court of Appeals of Kentucky, 1979)
Rudd v. Kentucky Manufacturing Co.
574 S.W.2d 928 (Court of Appeals of Kentucky, 1978)
Yocom v. Loy
573 S.W.2d 645 (Kentucky Supreme Court, 1978)
R. C. Durr Co. v. Chapman
563 S.W.2d 743 (Court of Appeals of Kentucky, 1978)
Yocom v. Weinberger
559 S.W.2d 168 (Court of Appeals of Kentucky, 1977)
Transport Motor Express, Inc. v. Finn
568 S.W.2d 509 (Court of Appeals of Kentucky, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
547 S.W.2d 442, 1977 Ky. LEXIS 397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yocom-v-spalding-ky-1977.