M. Connolly v. WCAB (Pyle) (Majority Opinion)
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mark Connolly, Petitioner v. Workers' Compensation Appeal Board (Pyle), Respondent BEFORE: : : : : : : : : No. 2151 C.D. 2007 Submitted: February 15, 2008 HONORABLE BERNARD L. McGINLEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE JOSEPH F. McCLOSKEY, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE FRIEDMAN FILED: May 13, 2008 Mark Connolly (Claimant) petitions for review of the October 24, 2007, order of the Workers Compensation Appeal Board (WCAB), which affirmed the decision of a workers compensation judge (WCJ) granting Claimant s claim petition but denying his request for specific loss benefits. We affirm. On October 11, 2005, Claimant suffered an injury to his right eye in the course of his employment with A. Duie Pyle (Employer). Claimant filed a claim petition seeking compensation for wage loss and loss of sight. Thereafter, Employer sought a suspension of benefits as of October 16, 2005, based on Claimant s return to unrestricted work. (R.R. at 3a-6a.) The parties filed responsive answers, and the petitions were assigned to a WCJ for hearings. In support of his claim petition, Claimant testified that he was injured at work when a piece of rust or metal went into his right eye. Claimant stated that he returned to work five days after the incident and is able to perform his regular duties, including driving a forklift, without any accommodations. However, Claimant testified that he experiences blurriness and has trouble with long-range vision. Claimant stated that he now wears glasses with a placebo lens in the left side when driving at night. (R.R. at 44a-49a, 55a-56a.) Claimant also offered the deposition testimony of Bruce I. Stark, M.D. Dr. Stark, who is board-certified in opthalmology, treated Claimant for the work injury from October 15, 2005, through his discharge from treatment in February 2006. He stated that Claimant s vision in the right eye is 20/30 without correction and 20/20 with correction. Dr. Stark testified that the foreign body in Claimant s eye caused a scar on Claimant s cornea that most likely is permanent. He stated that the scar causes blurriness and detracts from Claimant s vision. However, on cross-examination, Dr. Stark acknowledged that the use of Claimant s right eye improves Claimant s peripheral vision and depth perception.1 (R.R. at 77a, 84a, 101a-03a, 116a-18a.) 1 Dr. Stark testified in part as follows: Q. ¦Actually do you mean that he does have better overall vision and peripheral vision with the use of both eyes? Is that true even without [Claimant] using the corrected lens for his right eye? A. Yes. (R.R. at 118a.) 2 Employer offered the deposition testimony of Mina MassaroGiordano, M.D., who examined Claimant on March 28, 2006. Dr. Massaro- Giordano opined that the scar on Claimant s right cornea is mild and not significant with respect to Claimant s vision. She disagreed with Dr. Stark s opinion that the scarred right eye interferes with Claimant s vision in his left eye, and she believed that Claimant s prognosis is excellent. The WCJ accepted Claimant s testimony as credible. The WCJ found Dr. Stark s testimony credible but equivocal on the issue of specific loss, stating as follows: The work injury has resulted in a central corneal scar of the right eye as testified to by Dr. Stark, Claimant s treating physician. The testimony of Dr. Stark, as the treating physician with a course of dealing with the Claimant (in contrast to the one-time evaluation by the Defense medical expert), is found credible and is accepted. However, on the essential issue presented, namely, whether Claimant has sustained a specific loss of the right eye, Dr. Stark s testimony is found equivocal, and accordingly found inadequate to support an award for a specific loss at this time.[2] In this connection, while Dr. Stark opined that the right eye (used in conjunction with the left eye) detracts from Claimant s vision (Dr. Stark, NT-46-47, referring to blurred vision), he went on to significantly testify: If he had both eyes together, using both eyes together he would have better peripheral vision. He would also have improved depth perception 2 The WCJ noted that Claimant s central corneal scar is not expected to improve and specifically indicated that nothing in his decision should be deemed to foreclose a future claim for a specific loss of use of Claimant s right eye. (WCJ s Findings of Fact, No. 5.) 3 with both eyes open rather than one eye alone. (Id., at 48.) (WCJ s Findings of Fact, No. 4.) The WCJ accepted Dr. Massaro-Giordano s testimony as credible to the extent that it supported Dr. Stark s opinions and noted that her testimony served to support the equivocal nature of Dr. Stark s opinion with regard to specific loss. Based on these findings, the WCJ concluded that Claimant met his burden of establishing a compensable injury to his right eye but did not establish a specific loss.3 Accordingly, the WCJ granted Claimant s claim petition, suspended compensation benefits effective October 16, 2005, and ordered Employer to pay all causally related reasonable and necessary medical expenses. Claimant appealed the denial of specific loss benefits to the WCAB, which affirmed the WCJ s decision. Claimant now appeals to this court.4 3 In order for a claimant to recover for the specific loss of an eye, he or she must demonstrate that the injured eye was lost for all practical intents and purposes. Rakocy v. Workmen s Compensation Appeal Board (M. Gordon & Sons, Inc.), 539 A.2d 505 (Pa. Cmwlth. 1988). The loss of an eye for all practical intents and purposes will be found where the injured eye does not contribute materially to the claimant s vision in conjunction with the use of the uninjured eye. Tesco Tank Center, Inc. v. Workmen s Compensation Appeal Board (Zmarzley), 528 A.2d 1036 (Pa. Cmwlth. 1987), appeal denied, 519 Pa. 670, 548 A.2d 258 (1988). Stated otherwise, compensation for specific loss may not be awarded if the claimant can see better using both eyes than by using the uninjured eye alone. Id. 4 Our scope of review is limited to determining whether an error of law was committed, whether constitutional rights were violated or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704. 4 Claimant argues that the WCJ failed to issue a reasoned decision and otherwise erred by denying specific loss benefits without specifically deciding whether or not the use of Claimant s right eye materially contributes to Claimant s overall vision and/or to Claimant s direct vision.5 We disagree. Claimant bore the burden of establishing that his injured right eye does not contribute materially to his vision in conjunction with the use of his uninjured eye, Rakocy v. Workmen s Compensation Appeal Board (M. Gordon & Sons, Inc.), 539 A.2d 505 (Pa. Cmwlth. 1988), and we agree with the WCJ that Dr. Stark s testimony is insufficient to support such a finding. Moreover, because the WCJ concisely set forth the essential issue presented, summarized Dr. Stark s testimony and explained why he found that testimony equivocal, (WCJ s Findings of Fact, No. 4), we reject Claimant s assertion that the WCJ s findings are inadequate in any respect. Accordingly, we affirm. _____________________________ ROCHELLE S. FRIEDMAN, Judge 5 Claimant also asserts that the WCAB erred by making its own findings of fact based on Dr. Stark s testimony; however, we conclude that Claimant misconstrues the WCAB s summary and characterization of that testimony. 5 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mark Connolly, Petitioner v. Workers' Compensation Appeal Board (Pyle), Respondent : : : : : : : : No. 2151 C.D. 2007 ORDER AND NOW, this 13th day of May, 2008, the order of the Workers Compensation Appeal Board, dated October 24, 2007, is hereby affirmed. _____________________________ ROCHELLE S. FRIEDMAN, Judge
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