Appeal from the Order of the Workmen's Compensation Appeal Board in case of Robert L. Fidler v. United Cable Corporation, No. A-77947.
Edward F. Silva, with him, Kim R. Plouffe, Feinberg & Silva, for petitioner.
Frank L. Tamulonis, Jr., Zimmerman, Lieberman & Derenzo, for respondent, United Cable Corporation.
Judges Williams, Jr., Barry and Barbieri, sitting as a panel of three. Opinion by Judge Barbieri.
[ 83 Pa. Commw. Page 157]
Robert L. Fidler (Claimant), appeals from a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision disallowing compensation for the permanent loss of Claimant's left eye under Section 306(c)(7) of The Pennsylvania Workmen's Compensation Act (Act)*fn1 and granting credit against possible future compensation payments for certain amounts recovered in a third-party action.
On October 31, 1974, Claimant suffered a compensable injury to his left eye for which compensation was paid during certain disability periods. In this proceeding, he seeks compensation for loss of use of his left eye and, by a separate petition, the employer, United Cable Corporation, petitioned to establish credit against possible future compensation payments for amounts recovered by Claimant in a third-party action. The issues presented to the compensation authorities were (1) whether Claimant has lost the use of his left eye for all practical intents and purposes, (2) whether the employer's insurance carrier's agreement to accept $3,000.00 at the time of the third-party settlement in satisfaction of its subrogation rights to reimbursement for the then total of its payments to Claimant of $9,976.92 should act as a satisfaction of all subrogation rights of the carrier for future as well as those past compensation payments, and (3)
[ 83 Pa. Commw. Page 158]
whether the referee erred as a matter of law in ruling out evidence of negligence on the part of the employer as against Claimant's contention that such negligence would bar subrogation out of the third-party fund. The referee, affirmed by the Board, found that Claimant had not suffered the loss of use of the injured eye; that the $3,000.00 paid over to the carrier at the time of the third-party settlement was on account, and not in satisfaction of, or waiver of, subrogation rights or credits against future compensation, if any; and that full credit must be given the employer and its carrier for payments received by Claimant from the third-party settlement over and above the amount $9,976.92. We will reverse in part, affirm in part and remand.
Addressing first the extent of loss of vision issue on which Claimant had the burden of proof, we note that where the party with the burden of proof, the Claimant in this issue, has not prevailed below, and the Board has affirmed, our review is limited to determining whether constitutional rights were violated, an error of law was committed, or there has been a capricious disregard of competent evidence. Killian v. Workmen's Compensation Appeal Board, 62 Pa. Commonwealth Ct. 29, 434 A.2d 906 (1981). Also, in determining whether or not an award should be entered under Section 306(c)(7) of the Act for loss or loss of use of an eye, the standard for determining whether an award should be entered for such loss where the eye has been injured, but not totally destroyed or removed, is as follows:
The ultimate test, finally arrived at, after much travail, is that of whether the injured eye was lost for all practical intents and purposes, not whether claimant in fact has vision in the injured eye. If so, compensation follows. In facilitation of the application of the ultimate
[ 83 Pa. Commw. Page 159]
test, a further standard has been adopted: Compensation may not be had if, using both eyes, the claimant can see better, in general, than by using the uninjured eye alone; or, as otherwise stated, if the use of the injured eye does not contribute materially to the claimant's vision in ...