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MACFARLAND LANDSCAPE SERVICE v. WORKMEN'S COMPENSATION APPEAL BOARD (ROSARIO) (04/20/89)

decided: April 20, 1989.

MACFARLAND LANDSCAPE SERVICE, AND FEDERAL INSURANCE COMPANY, C/O CHUBB GROUP OF INSURANCE COMPANIES, PETITIONERS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (ROSARIO), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Domingo Rosario v. MacFarland Landscape Service, No. A-92957.

COUNSEL

Kenneth F. DeMarco, with him, Jonathan B. Sprague, Post & Schell, P.C., for petitioners.

S. Robert Levant, for respondent, Domingo Rosario.

Judges Colins and McGinley, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 125 Pa. Commw. Page 285]

MacFarland Landscape Service (Employer) appeals here an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's decision awarding to Domingo Rosario (Claimant) compensation for a work-related injury causing loss by enucleation of Claimant's right eye. We affirm.

Claimant suffered an injury to his right eye on June 1, 1984 and the referee's uncontested finding as to the injury is as follows:

2. On June 1, 1984, while in the course and scope of his employment, the Claimant sustained an injury to his right eye when he was struck in the eye by a piece of wood which was thrown by a chipping machine. The chipping machine was being used to grind up tree branches and foliage that had been cleared during the landscape work of his employer . . . .

The contest in this case turns on the question of whether the right eye which was required to be removed because of the injury of June 1, 1984 had enough visual capacity prior to that injury so that the injury caused the compensable loss of useful vision.*fn1 As to the critical circumstances bearing on this principal issue, the referee's Finding of Fact No. 5 is as follows:

5. Some years before the accident of June 1, 1984, the Claimant had sustained an injury to his right eye. As a result of that injury there was diminished vision in the right eye. The visual accuity

[ 125 Pa. Commw. Page 286]

[sic] of the Claimant's right eye was last tested on June 16, 1982, by Dr. Harry D. Carrozza, a Board Certified Ophthalmologist, who was then Chief of the Ophthalmology Department of Roxborough Memorial Hospital. At that time, the visual accuity [sic] of the Claimant's right eye was 5/70, which converts to 20/280. At that time, the right eye contributed materially to the Claimant's vision in conjunction with the use of the left eye. Immediately prior to the injury of June 1, 1984, the Claimant could see objects with his right eye, had peripheral vision with the right eye and could see smaller objects at close range with the right eye. As of that time, the right ...


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