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Tracy v. Hershey Creamery Company11/23/1998
Reporter of Decisions
Argued: September 8, 1998
David D. Tracy appeals from a decision of the Workers' Compensation Board denying his petition for specific loss benefits pursuant to 39-A M.R.S.A. § 212(3)(M) (Supp. 1997). Tracy suffered an injury to one eye in a work-related accident. Because he did not suffer the loss of 80% or more of his vision after medical intervention, the Board concluded that Tracy was not entitled to an award of specific loss benefits. We agree and affirm the decision of the Board.
I. Background
Tracy's injury occurred on May 13, 1994, during his employment with Hershey Creamery Company, when a staple became lodged in his eye. The injury resulted in an immediate 95% vision loss in that eye. Tracy underwent surgery following the injury to correct a corneal laceration and to remove a traumatic cataract. In the process of the surgery, the natural lens of Tracy's eye was removed. Although the first surgery did not improve his vision above the initial 95% vision loss, his vision was improved through a second surgery in July 1994 when an artificial lens was implanted. Laser surgery in the fall of 1994 further improved his vision. Thus, approximately six month after his injury, Tracy's vision was restored to roughly a 60-70% vision loss without the aid of glasses or contact lenses. Tracy then filed a petition for award seeking 162 weeks of specific loss benefits pursuant to 39-A M.R.S.A. § 212(3)(M).
Paragraph 212(3)(M) requires an 80% vision loss to trigger the employer's liability for specific loss benefits. 39-A M.R.S.A. § 212(3)(M). There is no factual dispute that, after the injury but prior to the surgery, Tracy suffered greater than an 80% vision loss, and that after the surgeries, his vision, without glasses or contact lenses, has been restored to less than an 80% vision loss. The Board formulated the issue as follows: " oth parties agree that if the loss of vision is measured prior to correction, Mr. Tracy is entitled to specific loss benefits under 212(3)(M). If the loss of vision is measured after correction, however, Mr. Tracy is not entitled to specific loss benefits." Relying on our decisions interpreting former title 39, the Board concluded that the determination of the percentage of vision loss must be based on Tracy's vision after corrective surgery and, therefore, denied specific loss benefits. See Wasson v. Northeast Motor Co., 253 A.2d 349, 352 (Me. 1969); Cook v. Colby College, 155 Me. 306, 311-12, 154 A.2d 169, 172 (1959). We granted Tracy's petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp. 1997).
II. Specific Loss Benefits
We look first to the history of specific loss benefits. The current version, 39-A M.R.S.A. § 212, provides, in pertinent part:
§ 212. Compensation for total incapacity
1. Total incapacity. While the incapacity for work resulting from the injury is total, the employer shall pay the injured employee a weekly compensation equal to 80% of the employee's after-tax average weekly wage, but not more than the maximum benefit under section 211. Compensation must be paid for the duration of the incapacity. . . . . 3. Specific loss benefits. In cases included in the following schedule, the incapacity is considered to continue for the period specified, and the compensation due is 80% of the after-tax average weekly wage subject to the maximum benefit set in section 211. Compensation under this subsection is available only for the actual loss of the following: . . . . M. Eye, 162 weeks. Eighty percent loss of vision in one eye constitutes the total loss of that eye. . . . . 39-A M.R.S.A. § 212.
"Schedule"
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