Gaulkin, Foley and Lewis. The opinion of the court was delivered by Foley, J.A.D.
Respondent appeals from a judgment of the County Court, affirming a judgment of the Workmen's Compensation Division awarding petitioner 7 1/2% of partial total permanent disability for injuries to his right eye.
It was stipulated that petitioner's injury resulted from an accident arising out of and in the course of his employment on September 30, 1960, when, in the performance of a welding operation, sparks entered his right eye. The questions here presented concern (1) the nature and extent of the permanent disability, and (2) whether or not the award should be expressed
in terms of loss of function of the eye, rather than in terms of partial total disability.
Petitioner testified that he reported the accident immediately and was referred to the first aid services maintained at respondent's plant. There, treatment was administered consisting of boric acid washings and drops. This treatment was continued daily until October 4, when he was sent by his employer to Dr. Frank J. Errico, an ophthalmologist. At that time petitioner experienced "very sharp pain" in the eye and it had "started to water and started to blur and started to puffing." Dr. Errico made a diagnosis of "foreign body in the right eye with subconjunctival hemorrhage." The doctor removed some of the foreign matter which he said was located in the conjunctiva between the cornea and the semilunar fold, applied medication and placed a patch over the eye. Petitioner next saw Dr. Errico on March 29, 1961. At that time the cornea had become abraded because of the eye patch. He was seen again by Dr. Errico on April 3, 1961 when, according to the doctor, the abraded cornea had healed without scarification. He was last seen by this doctor three days later. Dr. Errico testified that at that time petitioner's right eye was normal with "healthy-looking cornea, and white conjunctiva except for a few black specks" which were the end result of the original foreign bodies.
When asked about his present complaints petitioner testified that the eye "puffs" and "waters"; that due to reading it "blurs"; that in bad weather it feels "funny"; that it feels "small" and he has "pains" in the eye.
It seems to have been agreed by all of the medical experts who testified, that petitioner's vision was not impaired by the accident. However, the doctors were in disagreement as to the nature and location of the damage to the eye, and also as to the extent of permanent disability resulting therefrom. Dr. Errico, who was called by petitioner for the purpose of establishing a factual foundation for a hypothetical question which was propounded to petitioner's ophthalmologist Dr. Frank Burstein, estimated the disability as 2% of the
right eye. Dr. Burstein on the other hand, as the result of examinations made on June 12, 1961 and July 7, 1962, estimated the disability as 30% partial of the right eye. Dr. Burstein's findings differed from those of Dr. Errico essentially in the respect that in the course of his examinations Dr. Burstein said he detected a "deep scar on the cornea" and "many metallic foreign bodies under the nasal bulbar conjunctiva."
Dr. Alvin Seligson, respondent's expert, substantially supported the testimony of Dr. Errico. He testified that when he examined petitioner on May 22, 1961, and again on July 11, 1962, no conjunctivitis was present and the cornea of the right eye was entirely normal. The only abnormalities which he observed were a few inert minute black specks not productive of disability, but for which he allowed 1% to 2% of the right eye merely by reason of their presence.
The case as presented required the determination of factual issues by the compensation judge which involved the credibility of petitioner and the various medical witnesses, and the weight to be accorded their testimony. In this connection, the judge stated:
"Dr. Errico's opinion was predicated on the assumption that the man's condition was fully healed and that only two foreign bodies remained in the conjunctiva. Dr. Seligson's opinion was likewise predicated on the same assumption except that he felt that six foreign bodies remained. Each of these ...