Proving The Loss Of An Eye

The workers’ compensation statutes in Virginia (Virginia Code, Title 65.2) includes a schedule of compensation when a worker loses one of the listed body parts as a result of a compensable injury. The, benefit, like most compensation under the statutes, is expressed in terms of a number of weeks. If the injured worker loses the big toe from one of his/her feet, for example, he/she is entitled to 30 weeks of compensation. Code sec. 65.2-503(7). The claimant multiplies his/her compensation rate (“CR” which is 2/3 of his/her average weekly wage [AWW]) by 30 to establish the permanent partial damage (PPD) the worker should receive. Simple, ne c’est pas? I think that this is workers’ comp law at its most elemental, easy to understand and easy to calculate. But what if the injured body part is still in its proper place? How does one calculate partial loss of use?

That was the problem facing my client who had been struck in the eye with a metal shard that had broken off of a tool being used by a co-worker to disassemble a piece of equipment. My client, as chief mechanic, was observing a distance away. The shard flew directly into his eye, lacerating the cornea and penetrating deep into the globe. The wound required surgical repair, but in the process doctors had to remove the internal lens. The eye itself was too damaged for the ophthalmologist to replace it with an artificial intraocular lens. My client left with aphakia, the total loss of the lens in that eye.

The employer never disputed the compensability of the injury. The disagreement arose over how much vision my client lost had lost. The insurance adjustor calculated the loss at 10%, and offered to pay my client for that % of loss. She used Snellen’s chart[1] to calculate the loss, consistent with the VWCC’s practice. Once the eye had healed, my client was fitted with a medically necessary contact lens (MNCL) which, according to Snellen’s chart, gave him 20/30 vision. That corresponds to a 10% loss according to the chart. However, my client no longer had any focused vision in his damaged eye; he could only see light and dark. While the MNCL provided some improvement in his vision, the difficulty in getting the MNCL into and out of his eye and the discomfort it caused where the lens rubbed the scar in the eye led my client to conclude that wearing the MNCL was not worth it.

Some research provided us with a better option. First, while the VWCC does use Snellen’s chart, it does not rely on it exclusively. “Vision impairment is based on deviation from normal visual acuity, ocular motility, and vision fields.” Taylor v. Rockland,52 O.I.C. 250 (1970). Also, “[t]he degree of loss is determined without the use of glasses.” Owen v. Chesapeake Corp., 198 Va. 440, 94 S.E.2d 462 (1956). In a case where the claimant’s previous vision loss could be corrected by glasses, but after the accident, the claimant lost all means of correcting his vision, “compensation is due for the total loss of vision in that eye.” London v. Walsh Construction, 195 Va. 810, 80 S.E.2d 524 (1954); Barnette v. Thorington, 47 O.I.C. 73 (1969). Where the claimant had “no useful vision” in his injured eye resulting from a workplace injury, the VWCC found that there was a total loss of vision.

In a case with similar facts to mine, the claimant had surgery due to a traumatic cataract. During surgery the lens was removed from the eye. Even though the lens was replaced with an artificial lens, which resulted in improved vision, claimant was entitled to an award for total loss of vision. Permanent loss is determined without correction; therefore, the insertion of the artificial lens does not affect the total loss resulting from the removal of the natural lens. Pearson v. Virtexco,67 O.I.C. 146 (1988).

I shared my research with opposing counsel, and he agreed that my client was entitled to an award for 100% loss of vision in his eye.

[1] Dutch Dr. Snellen invented the now-familiar chart where 20/20 vision is considered proper vision. Using Snellen’s chart is routine in cases before the VWCC involving loss of vision, and the VWCC has a link to Snellen’s chart on its website.

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