For the prosecutor, William B. McMichael (Henry Harris, of counsel).
For the respondent, David Roskein (Harry Cohn, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This workmen's compensation case presents two questions -- one factual and one legal. The factual question, concededly a medical one, that requires decision is whether petitioner had established a causal connection between the loss of his left eye and the accident on July 15th, 1938, which admittedly arose out of and in the course of his employment by prosecutor. The legal question is whether or not the loss of a previously defective eye entitles petitioner to the full statutory allowance for the "loss of an eye." The facts are, substantially, as follows:
Joseph McCadden, petitioner below, who states his age to be forty-six, was employed as superintendent or janitor for an apartment house owned by the prosecutor building and loan association. While engaged in his duties of washing down the stairs of said apartment house, petitioner accidently splashed some washing powder into his left eye. He immediately rubbed that eye with his wet hand and then went to his apartment to bathe it with boric acid. The eye, however, became inflamed and grew painful. Three days after the occurrence, petitioner sought the aid of Dr. Keim, a general practitioner, who did minor work on eye cases.
Dr. Keim examined and treated the petitioner for approximately ten days and then referred him to Dr. Ney, an eye specialist, who, after failing to relieve petitioner from his pain, removed, by an operation on August 18th, 1938, petitioner's left eye. It is for the loss of this eye that petitioner seeks compensation.
It appears that some twenty-seven or twenty-eight years prior to the instant accident a nut or bolt had struck petitioner's left eye apparently causing a partial dislocation of the lens and very badly, if not entirely, impairing his vision. The eye became limited to the discernment of objects only, although petitioner otherwise suffered no pain or discomfort. After the accident on July 15th, 1938, however, the use of the left eye became restricted to perception of light only and the pain became so severe that Dr. Ney was forced to and did remove the eye.
Dr. Keim, who was the first doctor to examine the petitioner after the accident on July 15th, 1938, and who treated the petitioner for approximately ten days, was called as a witness by petitioner. He stated that he found petitioner's condition to be acute, rather than of long standing. Dr. Ney, the eye specialist who removed the eye and who treated the petitioner both before and after the operation, also called as a witness by petitioner, testified that in his opinion, the accident of July 15th, 1938, the ensuing acute symptoms, and the subsequent removal of the left eye, were causally related.
Dr. L. Dias, who was called as a witness by the prosecutor, examined the petitioner only once, on August 3d, 1938. He testified to the effect that the injury twenty-seven or twenty-eight years prior to the one in question had caused a partial dislocation, which, by coincidence, became complete at or about the time of the washing powder incident. He admitted, however, that a trauma to an eye which had a partially dislocated lens would probably cause more damage and probably result in the loss of that eye. Although he said that dust, or powder, would not cause such a trauma, he did not say whether or not a wiping or rubbing of the inflamed eye by petitioner might so have caused it.
Dr. Hurff, called as a witness by prosecutor, had examined the petitioner only once -- on July 30th, 1938. He testified that there was no connection between the accident of July 15th, 1938, and the subsequent removal of the eye. On cross-examination, however, he testified that the complete ...