Special Indemnity Fund v. Patterson , 202 Okla. 637 ( 1950 )

ARNOLD, V. C. J.

(dissenting). In this case the Industrial Commission found that claimant sustained a 51.1 per cent loss of vision in the right eye by reason of an old condition. In order for the claimant to be a physically impaired person he must have sustained total industrial loss of vision in this eye. The majority opinion weighs the evidence on the point and holds that he does sustain total loss of vision in this eye. If so, I do not complain of this determination though it is seriously urged by the Special Indemnity Fund that the weight of the evidence sustains the commission’s determination as to the existing disability by reason of the old condition in this eye. It is also seriously urged, and I think correctly so, that there is no medical testimony or other circumstances justifying the determination of the commission that this loss of vision in combination with the loss of vision determined in the other eye by reason of the compensable injury amounted to 29.8 per cent. The order of the commission was necessarily based upon this determined combined disability. The Indemnity Fund Law requires that the number of weeks represented by the old permanent loss or disability shall be deducted. The commission in this case deducted 51.1 weeks because it had determined that the old loss of vision amounted to 51.1 per cent (the loss of an eye standing alone is 100 weeks). It is certain that no determination of combined disability has been made by the commission on the basis of total blindness in one eye and 8% per cent loss of vision in the other. If 100 weeks or total loss of vision in the right eye by reason of the old condition is substracted from the combined disability found by the commission in this case, and the law requires it, the claimant will be materially prejudiced. Then, too, the claimant is entitled to have his award based upon a combination of the disability by reason of the old condition found by us to be loss of an eye and 8% per cent loss of vision in the other eye. Surely this combined disability would be greater than that found by the commission based upon 51.1 per cent loss of vision by reason of the old condition and 8% per cent loss of vision in the other eye. Thus it is demonstrated that justice and the law demands under the majority’s finding that the award in this case be vacated so that the commission may make an award based upon the proof introduced upon a new trial.