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MCCLEMENS v. PENN AUTO PARTS (08/08/56)

August 8, 1956

MCCLEMENS
v.
PENN AUTO PARTS, APPELLANT.



Appeal, No. 3, Feb. T., 1956, from judgment of Court of Common Pleas of Lackawanna County, Jan. T., 1955, No. 894, in case of Carl McClemens v. Penn Auto Parts. Judgment affirmed.

COUNSEL

David J. Conroy, with him James W. Scanlon, for appellant.

Romwald Kenowski and A.C.F. Kenowski, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Wright

[ 181 Pa. Super. Page 544]

OPINION BY WRIGHT, J.

Carl McClemens, claimant in this case, was injured on August 1, 1953, in the course of his employment with Penn Auto Parts, when a piece of steel penetrated his left eye. The Referee found as a fact that claimant "suffered the loss of use of vision of the left eye for all practical uses and purposes", and made an award for the loss of the eye under the permanent injury schedule of the Workmen's Compensation Law.*fn1 The employer appealed to the Workmen's Compensation Board, which affirmed the Referee's findings of fact, conclusions of law, and order. An appeal was then taken to the Court of Common Pleas of Lackawanna County, which tribunal sustained the award and directed the entry of judgment in favor of the claimant. This appeal to the Superior Court followed.

Appellant's contention is that "the award for loss of use of an eye was not supported by sufficient competent evidence." This presents a question of law which may be reviewed on appeal: Monahan v. Seeds & Durham, 336 Pa. 67, 6 A.2d 889. In determining it, we are required to consider the testimony in the light most favorable to the claimant: Nelson v. Borough of Greenville, 181 Pa. Superior Ct. 488, 124 A.2d 675. If the finding of the Board is supported by the evidence it is binding upon us: Messikomer v. Baldwin Locomotive Works, 178 Pa. Superior Ct. 537, 115 A.2d 853.

The only testimony, other than that of the claimant, was that of Dr. Stanley W. Boland, a specialist in opthalmology. Although Dr. Boland's examinations of the eye were made at the request of the insurance carrier,

[ 181 Pa. Super. Page 545]

    he was called as a witness on behalf of the claimant. Dr. Boland testified that the foreign body "passed entirely through the eye and is located outside the globe"; that the visual efficiency of the injured eye, so far as distance vision is concerned, is seventy-five percent, but that the percentage of distance vision was a misleading factor "because the near vision is nil and, I believe, you will have to pay this man for the loss of his eye"; that the injury "involves that part of his eye in which he should have his best vision"; that, while claimant can read numbers with both of his eyes open, he does not "get any aid in the reading of them from his left eye"; and that, in his professional opinion "this man has lost the vision in his left eye for all practical uses and purposes".

Appellant cites, inter alia, Fillip v. Cramp and Sons, 80 Pa. Superior Ct. 68; Novak v. State Workmen's Insurance Fund, 113 Pa. Superior Ct. 555, 173 A. 827; and Roveran v. Franklinshire Worsted Mills, 124 Pa. Superior Ct. 119, 188 A. 78, each of which involved a percentage impairment of the entire vision of an eye. In the case at bar the percentage impairment relates to distance vision only. The near vision, that part of the eye in which Dr. Boland states claimant should have his best sight, has been totally destroyed.

In Diaz v. Jones and Laughlin Steel Corp., 155 Pa. Superior Ct. 177, 38 A.2d 387, President Judge KELLER enunciated the standard in eye cases to be "whether using both eyes he had better general vision than he would have with only the right eye. In other words, could he see better, in general, using the left eye in connection with his good right eye than by using the right eye alone? If he could, he had not lost the use of his ...


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