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NORMAN H. MILLER v. WORKMEN'S COMPENSATION APPEAL BOARD (CERTAINTEED CORPORATION) (08/21/85)

decided: August 21, 1985.

NORMAN H. MILLER, JR., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (CERTAINTEED CORPORATION), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Norman H. Miller, Jr. v. CertainTeed Corporation, No. A-84473.

COUNSEL

Martin K. Brigham, Galfand, Berger, Senesky, Lurie & March, for petitioner.

David L. White, for respondent, CertainTeed Corporation.

Judges MacPhail and Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 91 Pa. Commw. Page 254]

Norman H. Miller, Jr., Claimant, appeals here a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision disallowing compensation for the loss of use of Claimant's left eye under Section 306(c)(7) of The Pennsylvania Workmen's Compensation Act (Act).*fn1

On June 13, 1980, Claimant suffered a compensable injury to his left eye for which compensation was paid during periods of disability. In this proceeding, by Modification Petition, he seeks compensation for loss of use of his left eye in that he has permanently lost the use of that eye for all practical intents and purposes. The injury was caused by a piece of metal

[ 91 Pa. Commw. Page 255]

    lodging in the left eye which required surgery and removal of the lens of the left eye. The referee made the following pertinent findings:

4. That the claimant presently makes use of an aphakic contact lens which effectively replaces the 'natural' lens of the left eye which was surgically removed as a result of such work-related injury.

5. That without the aphakic lens, the claimant has no central visual acuity but is able to perceive changes in light and maintains peripheral vision.

8. The claimant suffers a lack of depth perception and subjective complaints of distortion in central visual acuity when both the uninjured eye and corrected eye are used in conjunction with each other.

9. That Dr. Eskridge, upon whose testimony your Referee depends, feels that the advantage of gross peripheral vision in the claimant's left eye is significant and the limited usefulness of his left eye is preferable over the possibility of extraction and/or removal of the left eye.

10. That claimant's left eye then [sic] uncorrected when used in conjunction with the uninjured eye is useful and provides a significant contribution to claimant's total vision.

Claimant specifically questions the referee's 9th and 10th findings, calling to our attention our holding in George v. Workmen's Compensation Appeal Board, 63 Pa. Commonwealth Ct. 23, 437 A.2d 521 (1981) in which we affirmed that whether vision is lost for all practical intents and purposes is a mixed question of law and fact. Since we believe that the referee misapplied

[ 91 Pa. Commw. Page 256]

    and misconstrued legal conclusions to be drawn from the ...


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