
    WISE-BUCHANAN COAL CO. v. RISCO et al.
    No. 21902.
    Opinion Filed July 7, 1931.
    
      Hayes, Bichardson, Shartel, Gilliland & Jordan and J. W. Hinton,-for petit-oner.
    G. L. Bynum, for respondents.
   ANDBEWS, J.

This is an original j..io-ceeding- to review an award of the State Industrial Commission in favor of the claimant, respondent herein, against the petitioner herein.

The State Industrial Commission found that the claimant sustained an accidental personal injury arising out of and in the course of his employment with the respondent, on the 5th day of February, 1029; that, while so employed in the occupation of digging coal, something hit the claimant in the right eye, and that as a result thereof the claimant was temporarily totally disabled for three weeks, and sustained a permanent loss of vision of the right eye to the extent of 85 per cent. An award was made which was based on those findings.

The petitioner herein presents three questions for determination, which will be discussed in the order presented.

The first question submitted is:

“Whether or not there is any competent evidence in the record to support the finding of the Commission that the claimant sustained a compensable injury.”

The claimant testified, without objection, that, while in the employ of the petitioner as a coal miner and engaged in that work, he received an injury to his eye on the 5th of February, 1929. He said:

‘ I whs digging — I don’t know what it was, but it hit me on this eye, and I dropped my tools and went down to my room and got some cold water for awhile — for about 45 minutes, and I went back on my place, and the boy told me ‘You better go home, you will get worse’; it was between one and two o’clock then.”

In view of that testimony, we cannot say that there was no competent evidence reasonably tending to support the finding of the Commission as to the accidental personal injury.

The second question is:

“Whether or not there is any competent evidence in the record to sustain the finding of the Commission that claimant suffered any partial permanent disability; and to the extent found by the Commission.”

The claimant testified, without objecticn:

“Q. You got hurt on February 5, 1929, in that mine with a piece of coal or something? A. Yes, sir. Q. That is what was the matter uitli your eye, is that right? A. Yes, sir.”

In view of that testimony, we cannot say that there is no competent evidence reasonably tending to support the finding of the Commission as to permanent loss of vision of the right eye. However, this question, as will be noted, amounts to two questions, and we have examined the record carefully with reference, to the latter portion thereof, which relates to the extent of the loss of vision of the right eye. The record shows that claimant was a man of the age of CO years. He testified that his eye had not been injured prior to the time of the alleged injury. No one saw the alleged injury exetpt the claimant, no witness, other than the claimant, testified as to the injury, and iio witness testified that the claimant had complained of an injury until sometime after the date of the alleged injury. The claimant testified that he selected a specialist to examine his eye and to treat it, and it appears from the record that that treatment was given prior to the time that the claimant claims to have notified the superintendent ent of the petitioner of the injury. He testified that that specialist, Dr. Windham, “took nothing out of the eye.” Yet, when the petitioner asked him for an examination, he testified, “I knew then that I was Mowed up then on account of my eye.” That statement occurs twice in the record, and it cannot be questioned but that he knew the condition of his eye. .The record shows, without question other than the statement of the claimant, that prior to the alleged injury the claimant had sustained an injury to the right eye while employed by the Crowe Coal Company, and that he had a ■serious loss of vision in the right eye prior to the time of the alleged injury. We would be compelled to accept, as sufficient to support the award of the Industrial Commission, the testimony of the claimant that he had not been injured prior to the time of the alleged injury, and that his eye was all right at the time of that injury, if it was not for the fact that,- near the close of the hearing, the claimant admitted the incorrectness of his formdr - testimony. He was recalled for further examination, and testified as follows:

“Q. Hid you get anything tlie matter with your eye in the Crowe Coal Company! A. Yes sir. Q. When was that? A. 1919. Q. Who treated you? A. Hr. Holmes. Q. An eye doctor? A. Yes, sir. Q. Hr. Brcece never treated that eye at all? A. No, sir. Q. How long — what was the matter with your eye at that time? A. Well, when I was working in the room I was driving timber and a piece of bark flew- in my eye, and the same evening I came down to Hr. Holmes, and he got it out and I went back to work in a couple or three days — the third day I went to work. That is all.”
Cross-Examination.
‘‘By Mr. Hinton: Q. You made a mistake awhile ago when you stated you never had been hurt, or had anything the matter with your eye? A. Ho, sir, I didn’t make a mistake. I admit I got hurt one time.”

In view of that testimony, we have ex-¡aminejd the record carefully to ascertain therefrom the condition of the eye at the time of the alleged injury. The record shows that the specialist selected by the claimant filed a report showing that the claimant reported to him “on February 31, 1929, with an ulcer of the central part of cornea of right eye, with a hypopyn in the anterior chamber with a severe secondary iritis. He gave a history of having gotten a foreign body in this eye while working at the mines a few days previous to this dale.” Witnesses testified that' the claimant told them that the trouble with his eye was caused by the flu settling in it. Their testimony was not denied by him. Dr. Bollin-ger testified that he examined the claimant pn July 17, 192i6, for the Crowe Coal Company, and that at that time he had about a 50 per cent, vision in the right eye, and that “he gave me a history at that time of getting his eye injured at the Crowe Coal Company in the right eye and Dr. Breece told me, I believe he told me, the eye had been bad ever since that time.” That testimony was not denied by the claimant.

The presumption, if any, that there was no loss of vision in the right eye at the time of the alleged injury was rebutted by p'.oof of the fact that the claimant had sustained an injury to his right eye prior to the alleged injury. Upon proof of that fact, it became the duty of the claimant to establish by evidence either that there was no permanent loss of vision in his right eye at the time of the alleged injury, or, if there was a permanent loss of vision therein, the amount thereof, and, in the absence of such proof, the State Industrial Commission was not warranted in presuming that the injury theretofore sustained did not result in a permanent partial loss of vision in the right eye.

From the record as a whole, we must conclude that the claimant did not have 100 per cent, vision in his right eye at tlie time of the alleged injury on February 5, 1929. He would not, therefore, be entitled to an award for 85 per cent, loss of vision due to the alleged injury complained of, for according to this record his loss of vision now is only 85 per cent. If upon further consideration the State Industrial Commission finds that the. claimant sustained a permanent loss of vision in the right eye from an accidental personal injury arising out of and in the course of his employment with the petitioner, then it must fix the percentage of loss after having first ascertained the percentage of vision in the eye at the time of the alleged injury. '

In order that there may be no misunderstanding, we state the rule to be that, where one engaged in employment within the terms of the Workmen’s Compensation Act, has a permanently defective vision in the right eye, and while so engaged sustains an injury to the right eye which arises out of and in the course of his employment, and which causes a permanent loss of vision in that eye in excess of the permanent loss of vision therein prior to the injury, the difference between the permanent loss of vision prior to the injury and the permanent loss of. vision after the injury constitutes the amount of permanent loss of vision resulting from the injury, and is the basis of the award to be made to the injured workman therefor. An injured workman may not recover for a permanent loss of vision in an eye where there has been a prior injury to the eye, without proving the percentage of permanent loss of vision existing at the time of the injury complained of, or that there was no permanent loss of vision at that time. The burden is upon the claimant to establish the loss of vision caused by an injury arising o\it of and in the course of the employment, and that burden is not sustained by showing a present permanent loss of vision where tin* record shows a prior injury to the eye that may have caused a permanent loss of vision therein.

The third question is as follows:

“Whether or not the Commission may enter an award for compensation where the evidence is taken before an inspector and no transcript of the testimony is before the Commission at the time the award is made. ”

We are unable to say from this record that the Industrial Commission did not have the evidence before it at the time the award was made, and the presumption is that a transcript of the evidence was before the Industrial Commission at the time of the making of the award. In the absence of proof to the contrary, we must so hold.

The award of the State Industrial Commission as to temporary total disability is affirmed. The award as to permanent partial disability is vacated, and the cause is remanded to the Commission, with directions for further proceedings not inconsistent herewith.

I/ESTER, C. J., CLARK, V. C. J., and RILEY. HEFNER, OULLISON, SWIN-DALL, McNEILL, and KORNEGAY, JJ„ concur.  