Griffin v. Red & White Supermarket ( 1985 )

WEBB, Judge.

This appeal brings to the Court the question whether an employee may recover under the Workers’ Compensation Act for disability and for serious facial disfigurement, both resulting from loss of vision to an eye, when there has been no enucleation and the eye has been fitted with an artificial shield. The plaintiff concedes that there has been no damage to the facial tissue surrounding the eye and that the only injury is to the eye itself. Therefore we must determine whether she may recover for disability and for disfigurement from a single accident affecting only one member.

This question is controlled by G.S. 97-31, which provides in pertinent part:

Schedule of injuries; rate and period of compensation.

In cases included by the following schedule the compensation in each case shall be paid for disability during the healing period and in addition the disability shall be deemed to continue for the period specified, and shall be in lieu of all other compensation, including disfigurement, to wit:

(16) For the loss of an eye, sixty-six and two-thirds percent (66%°/o) of the average weekly wage during 120 weeks.

(19) Total loss of use of a member or loss of vision of an eye shall be considered as equivalent to the loss of such member or eye.

(21) In case of serious facial or head disfigurement, the Industrial Commission shall award proper and equitable compensation not to exceed ten thousand dollars ($10,000). In case of enucleation where an artificial eye cannot be fitted and used, the Industrial Commission may award compensation as for serious facial disfigurement.

We have found no North Carolina cases dealing with the subject of this appeal. We believe that under the plain words of the statute we must hold that the plaintiff is not entitled to any recovery in addition to the $17,520.00 she received for loss of her eye. G.S. 97-31 provides that compensation for the loss of a member of the body, including loss of vision, shall be paid at certain rates and this shall be in lieu of any loss of disfigurement. G.S. 97-31(21) creates an exception to this for serious facial or head disfigurement. Within this exception the statute says, “[i]n case of enucleation where an artificial eye cannot be fitted and used, the Industrial Commission may award compensation as for serious facial disfigurement.”

The second sentence in G.S. 97-31(21) deals specifically with compensation for eye injuries. The plaintiffs eye has not been enucleated and she does not come within the language of this sentence. We believe this bars her from recovery. If the first sentence of the section covered an eye injury there would be no reason for the second sentence. We believe that G.S. 97-31(21) when properly read means that a person may recover for serious facial and head disfigurement in addition to recovery under other parts of the section. It also means an 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. This is the only way we can read the statute to give effect to each sentence in G.S. 97-31(21).

The plaintiff argues that she is not seeking disfigurement compensation for her eye. She contends that her eye’s appearance results in a loss of facial symmetry which mars and disfigures her entire face. The Industrial Commission found this as a fact. Whatever effect the injury may have on the plaintiffs facial appearance it is the eye that is causing this effect and we have held the plaintiffs eye injury is not compensable under G.S. 97-31 as a disfigurement.

For the reasons stated in this opinion we reverse and remand with an order that the plaintiffs claim be denied.

Reversed and remanded.

Judges Becton and Cozort concur.