For the prosecutor, John W. Taylor.
For the defendant, Louis C. Jacobson.
Before Justices Donges, Heher and Colie.
The opinion of the court was delivered by
HEHER, J. The issue here is whether the defendant Vaccaro is totally and permanently disabled in consequence of an industrial accident attributable to his employment with prosecutor, and therefore entitled to the compensation for such provided by R.S. 34:15-12(b). The Compensation Bureau and the Essex Common Pleas both resolved the inquiry in the affirmative, and compensation was awarded at the statutory rate for 400 weeks; and the employer now challenges the judgment by certiorari.
On July 21st, 1942, the employee's left eye was lacerated by a broken wire while he was in the pursuit of his employment, and the injury was such as to require the enucleation of the eyeball on the ensuing September 1st. The wire did not come into contact with the right eye, and concededly there was no direct injury to that member by external force. But
the Deputy Commissioner found that, while there was testimony indicating a 36% astigmatic loss of vision in the employee's right eye prior to the accident, the proofs established to his satisfaction that, as a result of the mishap, the employee suffered hysterical amblyopia of that eye, and consequent industrial blindness, which "would have resulted even if" there had been "no pre-existing loss of vision in that member," and that, moreover, an ensuing neurosis had also permanently disabled him to the extent of 20% of total, and this would more than offset an allowance for the prior loss of vision of the right eye, and the employer is not entitled "to a credit for any pre-existing condition which did not contribute to the end result" of industrial blindness, and therefore the "One Per Cent Fund" Act (N.J.S.A. 34:15-94, et seq.) has no application. Judge Naughright in the Pleas determined that the accident resulted in "a neurosis and a condition of hysterical amblyopia in" the employee's right eye "which produced industrial blindness in that eye."
It is the insistence of the employer that the "defective vision" of the employee's right eye "is wholly unrelated to the accident;" that the employee "has no neurosis or hysterical condition;" and that he "is entitled only to compensation for the loss of his left eye." It is also urged that, on the contrary hypothesis, the employer is liable only for the reduction in the visual acuity of the right eye directly imputable to the accident, i.e., the difference between the pre-existing loss of 36% and the subsequent total loss of 80% of normal vision found by one of the employer's ophthalmologists, and the award for permanent disability, citing the principles expounded in the cases of Richardson v. Essex National Trunk and Bag Co., Inc., 119 N.J.L. 47, and Colarusso v. Bahto, 128 Id. 537, should not exceed 35% of total, or 175 weeks.
There can be no doubt that the visual acuity of the employee's right eye was materially below standard prior to the accident. But we are clear that, if a substantially useful member of the physiologic unit of sight is rendered useless by an industrial accident which also results in the enucleation of the other member, there is total and permanent disability within the intendment of R.S. 34:15-12(v), and compensable
as such, even though the visual acuity of the one was much less than that of the other before the mishap. Prior organic or functional perfection or visual normality is not a condition prerequisite to liability for the statutory compensation for the total and permanent loss of the faculty of sight. The ruling principle is to be found in the case of Combination Rubber Manufacturing Co. v. Obser, 95 N.J.L. 43; affirmed, sub nom. Combination Manufacturing Co. v. Court of Common Pleas, 96 Id. 544. In such circumstances, R.S. 34:15-95, as amended by chapter 133 of the Laws of 1940 (Pamph. L., p. 28), has no application. There is then a loss of "both eyes" as a result of "one accident" within the purview of R.S. 34:15-12(v), supra; and such is ...