Guy M. Sinclair v Shelter Construction Corp, et al

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Willis
Argued at Alexandria, Virginia
GUY M. SINCLAIR OPINION BY
v. 	Record No. 2367-95-4 	JUDGE JAMES W. BENTON, JR.
SEPTEMBER 10, 1996
SHELTER CONSTRUCTION CORPORATION and
NATIONWIDE MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Laurie D. Waters (Jack T. Burgess &
Associates, P.C., on brief), for appellant.
Roger L. Williams (Cathie W. Howard; Williams &
Pierce, on brief), for appellees.
Guy M. Sinclair injured his eye in a work-related incident.
He appeals from the Workers' Compensation Commission's award
granting him permanent partial disability benefits but allowing
his employer, Shelter Construction Corporation, a credit for his
pre-existing, uncorrected visual acuity. 	Sinclair contends that
he should have been awarded one hundred percent, rather than
fifty percent, permanent partial disability. 	Although the
commission did not err in granting a credit, we hold that the
commission misapplied Rule 13 of the Rules of the Virginia
Workers' Compensation Commission when it reduced Sinclair's award
below one hundred percent disability.
I.
The facts are undisputed. 	Sinclair, a carpenter employed by
Shelter Construction, sustained an injury by accident when a
circular saw propelled a piece of wood into his right eye. 	Prior

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to the injury, Sinclair had a visual acuity measurement of 20/80
in his right eye, corrected to 20/20 with eyeglasses. 	As a
result of the injury by accident, Sinclair's right eye developed
a hyphema. 	His vision in that eye deteriorated to 20/300. 	With
eyeglasses, his vision is now corrected to 20/30.
In his claim for benefits pursuant to Code
§ 65.2-503(B)(14), Sinclair alleged a one hundred percent loss of
vision. 	Shelter Construction agreed that Sinclair's post-injury
uncorrected vision acuity was 20/300. 	However, it contends that
because Sinclair's pre-injury measurement of 20/80 amounted to a
fifty percent loss of visual acuity according to Snellen's Chart,
as adopted in Rule 13, he suffered only a fifty percent loss of
visual acuity as a result of the injury. 	The deputy commissioner
ruled that Sinclair suffered a one hundred percent loss of
vision. 	Finding that Sinclair's pre-existing visual deficiency
did not materially affect his overall ability to perform his
work, the deputy commissioner ruled that Shelter Construction was
not entitled to an offset for Sinclair's pre-injury visual acuity
measurement.
On review, the commission found that Shelter Construction
was entitled to an offset for Sinclair's pre-existing 20/80
visual acuity measurement because it exceeded the level of
compensability. 	The commission awarded Sinclair compensation for
a fifty percent loss of vision in his right eye because his
pre-injury acuity was fifty percent on Snellen's Chart.

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II.
"'[C]onclusions of the Commission upon questions of law, or
mixed questions of law and fact, are not binding on [appeal].'"
City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337 S.E.2d
901, 903 (1985) (quoting Brown v. Fox, 189 Va. 509, 517, 54
S.E.2d 109, 113 (1940)). 	For purposes of determining
compensation for permanent loss under Code § 65.2-503, the
following rules apply:
[T]he permanent loss of the use of a member
shall be equivalent to the loss of such
member, and for the permanent partial loss or
loss of use of a member, compensation may be
proportionately awarded. 	Compensation shall
also be awarded proportionately for partial
loss of vision or hearing.
Code § 65.2-503(D). 	The commission has adopted Snellen's Chart
for measuring vision acuity loss. 	See Commission Rule 13. 	We
must decide whether under Rule 13 Sinclair is entitled to fifty
or one hundred percent disability resulting from his compensable
injury.
In Walsh Construction Co. v. London, 195 Va. 810, 80 S.E.2d
524 (1954), the Supreme Court stated that because the Workers'
Compensation Act "is silent as to whether corrected or
uncorrected vision should be the basis for determining the extent
of eye injuries, it should be interpreted and applied in a
practical and common-sense manner so as to accomplish the
purposes of the act." 	Id. at 817, 80 S.E.2d at 528. 	In London,
the employee had a pre-injury visual acuity of 20/200 correctable

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to 20/20. 	As a result of an accident and subsequent infection,
the employee's eye was removed. 	Id. at 812, 80 S.E.2d at 525-26.
Although the employee's uncorrected pre-injury vision loss was
one hundred percent on Snellen's Chart, the Supreme Court awarded
full disability for the loss of the eye. 	The Court reasoned that
the employer was not entitled to a credit for the employee's
pre-existing one hundred percent vision loss because the employee
had "lost the source of his vision and all means of correcting
the eye to normal use." 	Id. at 818, 80 S.E.2d at 528. 	The loss
was so severe that the employee's pre-existing vision loss was
inconsequential.
Before the commission, Sinclair alleged that he did not wear
eyeglasses at work to perform his pre-injury work and that his
pre-existing, uncorrected visual acuity was not disabling.
Shelter Construction did not dispute Sinclair's claim but,
instead, asserted that with the aid of eyeglasses Sinclair could
still perform his work. 	The deputy commissioner found "that
Sinclair . . . was not required to wear corrected lenses in his
job prior to the injury." 	The commission's decision did not
address this aspect of the record. 	Significantly, however, the
commission made no findings contrary to the deputy commissioner's
finding.
The employee's ability to perform without eyeglasses has
some bearing on the resolution of this case because of the
similarity to the circumstance in Owen v. The Chesapeake

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Corporation, 198 Va. 440, 94 S.E.2d 462 (1956). 	The evidence in
this case proves, as in Owen, "that prior to the accident
[Sinclair] was selling to the industry uncorrected vision, and
that after the accident, without the aid of glasses, the vision
in [the injured] eye had been reduced to a fraction which by
Snellen's Chart is equivalent to industrial blindness." 	198 Va.
at 442, 94 S.E.2d at 463. 	Also significant in this case is the
magnitude of the loss that Sinclair suffered in the incident.
Indeed, although the employee in London wore eyeglasses prior to
the accident and had uncorrected vision acuity of "20/200, which
is tantamount to a total loss of vision," 195 Va. at 817, 80
S.E.2d at 528, the Court allowed the employer no credit. 	Despite
proof in London that the employee was industrially blind before
the accident, the Court determined that the employee's
pre-existing visual impairment was minuscule in comparison to the
loss caused by the injury.
In Virginia Fibre Corp. v. Moore, 17 Va. App. 691, 440
S.E.2d 432 (1994), a hearing loss case, this Court addressed
London. 	We stated the following:
[London] does not stand for the principle
that loss to a sense organ should be measured
by pre-injury and post-injury function.
Rather, [London] involved a comparison of
pre-injury and post-injury utility. 	The
"practical and common sense" result reached
by the Supreme Court in [London] was that
where a pre-existing injury to or disability
in a sense organ did not materially affect
the employee's overall ability to use the
organ, no benefit would accrue to the
employer for any pre-injury disability to the
organ. 	The [employee] in [London] received

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full compensation for his eye injury even
though he had poor, but correctable, eyesight
prior to the injury.
17 Va. App. at 692-93, 440 S.E.2d at 433 (quoting, in part,
London, 195 Va. at 818, 80 S.E.2d at 528). 	Thus, we declined to
allow a credit to the employer because the employee's pre-injury
hearing loss was not shown to have affected his ability to use
his hearing. 	In so holding, we ruled that Moore's pre-injury
condition was not one that implicated "the provision in the Code
that relieves an employer from liability for that portion of a
compensable injury that pre-existed the employer-employee
relationship and the injurious work-related exposure." 	Id. at
693, 440 S.E.2d at 434. 	See Code § 65.2-505.
Important also to the resolution of this appeal is our
decision in Creative Dimensions Group, Inc. v. Hill, 16 Va. App.
439, 430 S.E.2d 718 (1993), a case not cited by the commission.
Citing Owen, we acknowledged in Hill "that the degree of vision
loss should be determined without regard to any artificial aid or
corrective device." 	16 Va. App. at 441, 430 S.E.2d at 720.
Indeed, we ruled that "'[t]he Legislature has not required that
eye loss be determined on the basis of corrected vision and we
have no authority to impose such a requirement.'" 	Id. at 445,
430 S.E.2d at 722 (citation omitted). 	The Hill decision relied
upon the following general rule:
"[L]oss of use should be judged on the basis
of uncorrected vision . . . and that
therefore loss of use will not be ruled out
because some correction is achieved. 	Indeed,
an award for total blindness in one eye has

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been upheld although use of an optical lens
had restored a 'substantial function of the
eye.'"
16 Va. App. at 443, 430 S.E.2d at 721 (quoting 2 Arthur Larson,
The Law of Workmen's Compensation, § 58.13(f), at 10-492.140 to
.147 (1992) (footnote omitted)).
The evidence proved that prior to the injury Sinclair's
vision loss measured a reading of 20/80 on Snellen's Chart.
However, his impaired vision did not affect his ability to
perform carpentry work until the accident worsened his vision.
After the accident, Sinclair's vision loss measured a reading of
20/300 on Snellen's Chart. 	That reading exceeds the 20/200
fraction contained on the Snellen's Chart of Rule 13, which
indicates one hundred percent loss of vision. 	Although the
Snellen's Chart shown in Rule 13 contains no readings in excess
of 20/200, the evidence proves that Sinclair's post-injury visual
acuity reading is 20/300 on Snellen's Chart. 	Indeed, the loss of
visual acuity in Sinclair's eye attributable to the accident,
i.e., the difference between his pre-existing Snellen's Chart
reading and his post-injury Snellen's Chart reading is 20/220.
That amount exceeds the fraction reading for industrial blindness
on the Snellen's Chart contained in Rule 13.
Rule 13 states that "[a]ny other deviation from normal
vision caused by the injury shall be considered." 	By considering
Sinclair's post accident vision acuity of 20/300 to be the same
as a reading of 20/200 on the Snellen's Chart, the commission

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failed to consider the actual deviation from normal vision.
Moreover, as in London, Sinclair has been deprived of 20/20
corrected vision as a result of the accident.
We hold, therefore, that by subtracting Sinclair's
pre-existing vision acuity reading (20/80) from his post-injury
vision acuity reading (20/300), the employer is given the benefit
of the provision of Code § 65.2-505 and Sinclair is given the
benefit of the deviation from normal vision as required by Rule
13. 	Accordingly, under a proper application of Rule 13 and Code
§ 65.2-505, Sinclair's loss of visual acuity resulting from the
injury far exceeds the minimum threshold for industrial blindness
and entitles him to one hundred percent permanent partial
disability. 	Therefore, we reverse the decision of the commission
and remand this case to the commission for an award consistent
with this opinion.
Reversed and remanded.