On appeal from the Division of Workmen's Compensation, Department of Labor and Industry.
Petitioner was awarded compensation and respondent appeals. Respondent poses three questions. Did petitioner prove the happening of an accident? If so, did he prove it caused the detached retina and the consequent blindness of his right eye? And if so, was he entitled to an award of 100% loss of vision of the affected eye? The questions, none of which are free from difficulty, will be taken up in that order.
Petitioner was an electrician, employed by respondent since 1942. He testified that on July 30, 1950, assisted by a helper. Thomas Bieksha, he was engaged in removing and replacing temporary wiring, strung over a girder 10 to 15 feet high.
At about 11 A.M. he cut one of the wires, having been informed the wires were "dead," and received a 500 volt shock. However, there is practically no testimony causally relating this shock with the detached retina. Petitioner and Bieksha went to look for the foreman to report the happening, but he was not then present, having left the premises with another injured workman.
Petitioner shook off the effects of the shock and continued with his work. At about 3 P.M. on that day he "yanked" the wires down. They came down "in a spray" and one of the wires struck him in the area of the right eye. The precise point of impact is not clear from the testimony, largely because the witness and counsel used general terms which do not carry uniform and precise meanings. This is no criticism of the witnesses or of counsel -- they spoke as laymen normally speak -- but now that it is sharply disputed where precisely the blow fell, the inadequacy of the expressions becomes apparent.
For example, the petitioner first said the wire struck him "just below the right eye." The deputy director asked the witness "did any part of the wire strike the eye itself," which to the witness may have meant (as it would have meant to me) the naked eye, to which the witness replied "It didn't strike the ball of the eye" (i.e. , the naked eye). "It struck the right eyebrow * * * in this section right here." Obviously the witness was not using the term "eyebrow" as meaning only that area above the eye socket which is covered by hair, for Mr. Pindar himself described the point as "just below the right eyebrow, and it is over the right eyeball."
Apparently the blow was in an area which many people -- and I -- would call the eyelid. Dr. Grant called it "the right upper lid," and Dr. Clark pointed out that when one is struck in this area "you can't be too accurate within millimeters."
The wire was an insulated wire about the thickness of a man's "pinky."
Petitioner testified that at the moment he was struck he was alone. His helper Bieksha was out of the room, putting away some material, but Bieksha testified that when he
returned he found petitioner with his hand over his eye, and petitioner told him he had been struck by a wire.
Bieksha was cross-examined about an allegedly contradictory written statement given to respondent's investigator. Although petitioner's counsel asked that the statement be put in evidence, and respondent's counsel promised to do so, it was not done. Without it the cross-examination is ambiguous and insufficient to discredit Bieksha, whom the deputy heard and believed.
Just before three o'clock, and before the alleged blow from the wire, petitioner did see the foreman. Nevertheless, after this blow he did not look for the foreman, as he had after the shock earlier that day. Indeed he did not tell anyone connected with respondent (except Bieksha) about the blow to his eye until he was in the hospital awaiting the first operation upon his eye, when he told the foreman, Mr. Marsh, who was visiting him.
The petitioner testified that for two weeks following the blow, though he continued to work, he had a "sandy" feeling in his eye. He bathed his eye every evening, but on or about August 15 his eye filled with fluid, and at 2 P.M. he quit work and went to see Dr. Grant, who was away. ...