Wolski v. Industrial Accident Commission

ADAMS, P. J. Petitioner Wolski, aged 55 years, on December 2, 1943, while employed as a logger by respondents Sterling C. Linebaugh and Tena I. Linebaugh, sustained injury arising out of and occurring in the course of said employment, when a chip of wood struck his right eye and completely destroyed the sight thereof. The employers’ insurance carrier was State Compensation Insurance Fund, and both employer and employee were subject to the Workmen’s Compensation Laws of California. After a hearing the Industrial Accident Commission found the facts as above stated and further found that petitioner’s injury caused permanent disability, the percentage of said disability for petitioner’s age and occupation being 28:[4] per cent of total disability, entitling him to 113 weeks of disability payments of $25 each in the total sum of $2,825.

Petitioner in this proceeding contends that in making its award as aforesaid the commission acted without and in excess of its jurisdiction and that the award is unreasonable and not justified by the evidence, because petitioner since childhood has possessed an impaired and defective left eye (squint eye) which eye alone and without his good right eye was not sufficient to enable him to pursue the occupation of a logger; and that since the injury to his right eye destroyed its vision, petitioner is now practically blind and unable to carry on his occupation as a logger, or in fact any occupation of any importance and that he is entitled to a total permanent disability rating.

The question before us thus is, whether, under section [429475]0 of the Labor Code, petitioner is entitled to compensation as for total permanent disability or for only that portion of his disability which is due to loss of vision in the right eye as though no prior disability or impairment of the left eye had existed.

Section 4750 of the Labor Code provides:

“An employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment.