United States: Now You See Me, Now You Don't: All Things Related To The Compensability Of Eye Injuries And Defense Of Eye Injury Claims

EYE INJURIES: HOW PPD RATINGS ARE AWARDED.

North Carolina Statutes.

Under the North Carolina Workers' Compensation Act, the total loss of a member or loss of vision is a compensable injury.

Per the North Carolina Statutes, suffering total loss of use or total vision loss in one eye is the equivalent of losing the eye completely. Should the occur, the employee will receive 120 weeks of compensation of 66 2/3% of their average weekly wage. N.C.G.S. § 97-31(16).

On the other hand, should the employee suffer partial use of the eye or loss of the eye, his or her compensation will be based on the percentage of the loss of use or loss of vision. To determine the percentage of loss of vision, the North Carolina Industrial Commission sues a Loss of Vision Table. N.C.G.S. § 97-31(19).

If an employee has suffered a prior work-related loss of vision, he or she is only entitled to compensation for the degree of disability that resulted from the later accident, as if the earlier disability or injury never existed. N.C. Gen. Stat. §97-33. This is to prevent double recovery. Pruitt v. Knight Publishing Co., 27 N.C. App. 254, 318 S.E.2d 876 (1975). Thus, a prior loss of vision suffered by an employee does not affect the calculation of total loss of vision to an injury at work. However, the statute does not apply if the employee's prior loss of vision did not arise out of employment. If an employee suffers a natural defect in vision, then the degree of recovery under the Act is not reduced. Schrum v. Catawba Upholstering Co., 214 N.C. 353, 199 S.E. 385, 387 (1938).

Where there is an injury to the eye that does not involve loss of vision, an employee may have a claim for benefits pursuant to N.C.G.S. § 97-31(24), as long as the employee can establish a permanent injury to their eye. Per N.C.G.S. § 97-31(24), when there is a loss of or permanent injury to an important external or internal organ or part of the body for which no compensation is payable under any other subdivision, the Industrial Commission may award proper and equitable compensation of up to $20,000.00.

In Bates v. Weyerhauser Co., Plaintiff suffered multiple injuries when he fell from a catwalk, including a right orbital fracture and right eye bruise and laceration with sutures. As a result of the injury, Plaintiff suffered issues to his eye that did not impact his vision – his right eye was one millimeter deeper than his left eye and there was a scar on his right eyebrow. Based on the photographic evidence, the Commission determined there was no noticeable effect on his appearance due to these issues. However, the Commission concluded, based on his continuing facial and dental symptoms, including pain and numbness on his face, jaw and teeth, as well as the offset between his eyes and brow scarring, Plaintiff suffered some degree of permanent impairment to his face, jaw and teeth. Thus, the Commission awarded a lump sum permanent partial disability award of $10,000.00 for permanent injury to his face and teeth pursuant to N.C.G.S. § 97-31(24). See Bates v. Weyerhauser Co., 2016 WL 7233442 (N.C.Ind.Com.).

In Stanley v. Gore Bros., Plaintiff suffered a head injury when he was struck in the face by a tire rim. At the initial hearing, Plaintiff was awarded $8,000.00 for facial disfigurement and additional compensation for a 23.5% loss of vision in the right eye. At a second hearing, he was awarded an additional 18% permanent partial disability for the right eye. Following a subsequent denial of his claim, Plaintiff requested a hearing for an alleged change in condition. Following the subsequent hearing, the Commission concluded that Plaintiff "was entitle to compensation of (a) $8,000.00 for blurred and double vision; (b) $5,000.00 for loss of sense of smell and taste (an important part of the body); and (c) $2,000.00 for permanent damage to the nerve and muscles in the right side of the face which caused slurred speech." On appeal, Defendants argued Plaintiff's double and barred vision was a result of a condition separate and apart from Plaintiff's loss of visual acuity (for which he had already been compensated) and was without medical support. The Court of Appeals disagreed based on the medical evidence and held the award for Plaintiff's blurred and double vision was proper until N.C.G.S. § 97-31(24) as a result of damage to an important part of the body. See Stanley v. Gore Bros., 82 N.C. App. 511, 347 S.E.2d 49 (1986).

Additionally, per the North Carolina Statutes, an employee may qualify for permanent total disability if the employee suffers loss of both eyes as a result of the injury. N.C.G.S. § 97-29(d)(1).

Any employee who qualifies for permanent total disability, due to the loss of both eyes, is entitled to compensation, including medical compensation, during their lifetime, unless the employer can show, by a preponderance of the evidence, that the employee is capable of returning to suitable employment. This showing, however, does not affect the employee's entitlement to medical compensation. An employee who qualified for permanent total disability due to the loss of both eyes is entitled to lifetime compensation, including medical compensation, regardless of whether or not they have returned to work in any capacity.

Determining Percentage of Loss of Vision.

The North Carolina Industrial Commission uses a loss of vision table, according to the Snellen Notation, to determine the percentage of loss of vision.

The table determines the percentage of loss of vision through the use of the Snellen notation for distance, the Snellen notation for near, and percentage of visual efficiency.

It is important to note that the loss of vision must be determined without the use of any corrective lens.

Upon determining the percentage of loss of vision, using the above table, compensation will be paid as follows: for the loss of an eye, sixty-six and two-thirds percent (66 2/3%) of the average weekly wages during 120 weeks.

However, if the measurements result in an 85%+ loss of vision in any eye, this will be deemed as "industrial blindness" and will result in a total loss of vision of such eye. N.C. Gen. Stat. §97-31(19).

FACIAL AND BODILY DISFIGUREMENT.

Separate awards are issued for facial and bodily disfigurement.

Per N.C.G.S. § 97-31(21), in the case of serious facial or head disfigurement, the Industrial Commission shall award proper and equitable compensation not to exceed $20,000.00. Additionally, in the case of enucleation, if an artificial eye cannot be fitted and used, the Commission may award compensation for serious facial disfigurement.

Disfigurement is evidenced by an outward observable blemish. It must be so permanent and serious as to hamper the injured employee in his earnings or in securing employment.

In determining an award for disfigurement, the Commission is to take into account "the natural physical handicap resulting from the disfigurement, the age, training, experience, education, occupation, and adaptability of the employee to obtain and retain employment." Stanley v. Hyman-Michaels Co., 222 N.C. 257, 22 S.E.2d 570, 574, 576 (1942).

A serious disfigurement is one "that mars and hence adversely affects the appearance of the injured employee to such extent that it may be reasonably presumed to lessen his opportunities for remunerative employment and so reduce his future earning power... the disfigurement must be of such nature that it may be fairly presumed that the injured employee has suffered a diminution of his future earning power." Davis v. Sanford Const. Co., 247 N.C. 332, 336, 101 S.E.2d 40, 43(1957), Russell v. Lab'y Corp. of Am., 151 N.C. App. 63, 68-69, 564 S.E.2d 634, 638 (2002).

As noted above, enucleation, or removal of the injured eye, is a type of facial disfigurement that occurs where an artificial eye cannot be fitted.

"[A]n enucleation where an artificial eye cannot be fitted and used is a type of facial disfigurement. No other type of eye injury is a compensable disfigurement." Griffin v. Red & White Supermarket, 78 N.C. App. 617, 620, 337 S.E.2d 657, 659 (1985)

In Griffin, Plaintiff sought compensation for disfigurement due to an injury to her eye that caused her to be fitted with an artificial shield, due to her injury. However, it has not caused the removal of her eye. Initially, the Industrial Commission awarded disfigurement benefits. On appeal, the Court of Appeals held that an employee is not able to recover for facial disfigurement in addition to recovery for loss of vision, when there had been no enucleation and the remainder of her face was uninjured. The Court determined that N.C.G.S. § 97-31(21) specifically deals with compensation for eye injuries in the case of enucleation. As Plaintiff's eye had not been enucleated, she was barred from recovery.

Thus, per Griffin, when an injured employee is successfully fitted with a prosthetic eye, they are not entitled to recovery for both the loss of the eye and eye disfigurement. N.C.G.S. § 97-31(21), Griffin v. Red & White Supermarket, 78 N.C. App. 617, 337 S.E.2d 657 (1985).

DEFENSE OF EYE INJURIES.

Occupational Safety and Administration, or OSHA, enforce regulations requiring that employees be provided with the property safety equipment on the job, including eye and face protection. Per OSHA regulations, eye and face protection is required to be provided to employees when it is necessary to protect the employees against hazards and irritants (chemical, environmental, radiological or mechanical).

When an employee fails to follow safety regulations or use required safety measures and equipment, there may be a defense allowing a reduction in compensation if it can be proved that Plaintiff acted willfully in his safety failures.

Per N.C.G.S. § 97-12(3), "When the injury or death is caused by the willful failure of the employee to use a safety appliance or perform a statutory duty or by the willful breach of any rule or regulation adopted by the employer and approved by the Commission and brought to the knowledge of the employee prior to the injury compensation shall be reduced ten percent (10%)." The burden of proof in this instance is on the one claiming an exemption or forfeiture under § 97-12(3).

The crucial question is whether Plaintiff had a willful intention to injure himself. See Rorie v. Holly Farms Poultry Co., 306 N.C. 706, 295 S.E.2d 458 (1982). "A willful act is done intentionally and purposely, rather than accidentally or inadvertently.... The willful intention must be directed toward injury to the actor or to another." Id. at 710, 295 S.E.2d at 461 (citation omitted). Evidence will be required to prove that an employee acted willfully in causing injury to themselves.

Alternatively, a negligent act, even a grossly negligent act, committed by Plaintiff will not bar compensation. See Stubblefield v. Watson Elec. Constr. Co., 277 N.C. 444, 177 S.E.2d 882 (1970).

In Keith Wilkins v. Brian Buckner (I.C. File No. 16-055077), Plaintiff suffered an injury to his left eye when he was using a nail gun and a nail ricocheted off a shoe molding, piercing his left eye. Plaintiff was not wearing safety goggles at the time of the accident. Defendants argued that they were entitled to reduce their liability for compensation to Plaintiff by 10% based on his alleged willful failure to use safety goggles. The Industrial Commission determined that Defendants failed to produce any evidence showing Plaintiff's injuries were the result of anything more than negligence. Thus, as Plaintiff's act was only negligent, rather than willful, Defendants were not entitled to reduce compensation.

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