accidental injury to the left eye, which had resulted in the permanent total loss of the vision of that eye, except as to 8/200 minus. This rendered the sight of that eye useless for any vocational purpose. The fact of the left eye having been injured was not taken into account by the Commission, and in fact was not known to it at the time of making the award for the loss of the right eye. The only reference to the left eye having been previously injured, which appeared in the papers upon which the Commission acted in making an award for the loss of the right eye, in addition to the statement that both eyes were affected, was the statement of the claimant in response to the question:

"Was your eyesight or hearing defective? A. Sight of left eye was little"

-and the statement in the physician's report in answer to the question:

"What permanent disability resulted from the injury? A. Loss of sight of right eye; left was injured 1901; viz.-15/70."

There was no appearance before the Commission by or on behalf of the claimant. Neither was any oral examination had as to the facts. The Commission, understanding the case to be one of permanent partial disability only, made the award of September, 1914. That the claim was in fact one entitling the claimant to an award for permanent total disability cannot be questioned, nor can it be doubted that such award would have been made, had the Commission been fully informed as to the facts. Upon the rehearing, attended by all the parties interested, the Commission for the first time became advised as to the facts, and thereupon made an award continuing the compensation granted by the prior award from the time of the last payment until such time as the State Industrial Commission should be shown that the claimant had some useful vision of his left eye. The employer and insurance carrier, feeling aggrieved at the action of the Commission, have taken this appeal, basing their claim of right to reversal of the award mainly upon the ground that, no appeal having been taken from the award of September 8, 1914, such award was final and conclusive between the parties.

[1] Whether notice of filing the award or of the decision of the Commission was given to the claimant, and thus his time to appeal therefrom have been limited, was a subject of dispute between the parties. The decision of that question is, however, entirely immaterial upon this appeal. The Commission not only had the right, but was acting strictly within its duty, when it modified an unjust award made under a mistake of fact, even though the claimant's time to appeal had expired when the application for modification was made. Section 74 of the Workmen's Compensation Law (Consol. Laws, c. 67) provides:

"Jurisdiction of Commission to be Continuing. The power and jurisdiction of the Commission over each case shall be continuing, and it may, from time to time, make such modification or

change with respect to former findings or orders relating thereto, as in its opinion may be just."

[2] The loss of the sight of the right eye having occurred in July, 1914, the award was not affected by the amendment of section 15, subdiv. 6, by chapter 615, Laws of 1915, but the claim was governed by the law in force at the time of the decision of this court in Schwab v. Emporium Forestry Co., 167 App. Div. 614, 153 N. Y. Supp. 234, affirmed 216 N. Y. 712, 111 N. E. 1099, in which it was held that an employé who had suffered the loss of a hand by a previous injury, who suffered the loss of a remaining hand by a subsequent injury, was entitled to an award for permanent total disability, instead of an award simply for permanent partial disability on account of the loss of the remaining hand.

The facts also bring the case directly within the decision of this court in the case of Beckmann v. Oelerich, 174 App. Div. 353, 160 N. Y. Supp. 791, in which it was held that the State Industrial Commission may, notwithstanding the time to appeal has passed, grant a rehearing and correct an award, where its prior decision was made without full knowledge of the facts; also that the provisions of section 74 relating to the continuing jurisdiction of the Commission should be liberally construed.

The award of the Commission should be affirmed. All concur.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, THIRD DEPARTMENT.

FRINGS

ข.

PIERCE-ARROW MOTORCAR CO.

IN RE ETNA LIFE INS. CO.*

WORKMEN'S COMPENSATION-"LOSS OF AN EYE"-"LOSS OF USE OF AN EYE."

Where an employee lost the lens of an eye, but could see by use of an artificial lens, if he did not use the good eye at the same time, and could continue his work without loss in wages, there was no "loss of an eye," nor "loss of use of an eye," within Workmen's Compensation Law. Woodward and Henry T. Kellogg, JJ., dissenting.

Proceeding under the Workmen's Compensation Law by Richard Frings to obtain compensation for personal injuries, opposed by the *Decision rendered, March 6, 1918. 169 N. Y. Supp. 309.

Perce-Arrow Motorcar Company, employer, and the Etna Life Insurance company, insurance carrier. Certified question by the State Industrial Commission. Answered against applicant.

Argued before John M. Kellogg, P. J., and Lyon, Woodward, Cochrane, and Henry T. Kellogg, JJ.

William H. Foster, of Syracuse, for appellant.

Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondents.

Robert W. Bonynge, of New York City, for State Industrial Commission.

LYON, J. The question certified by the State Industrial Commission is:

"Did the injury, as sustained by the claimant as found by the Commission herein, constitute, within the meaning of the Workmen's Compensation Law, the permanent loss of the use of an eye?"

The claimant was in the employ of the Pierce-Arrow Motor car Company at Buffalo, N. Y., as an assembler of motorcar vehicles. In July, 1916, while chipping a casting, he was struck in the right eye with a sharp piece of steel, which penetrated the cornea, rupturing the lens, causing traumatic cataract, resulting in acute glaucoma, which necessitated the removal of the lens. The Commission found:

"As a result of said accident the vision of Richard Frings was impaired as follows: The vision of the left or uninjured eye, uncorrected, is 20/20 plus 6; that is to say, normal. The vision of the right or injured eye, with a correcting glass, or lens, worn in front of the eye, equal that of the lens of the eye which was removed, amounts to 20/20 plus 4; that is to say, a correcting glass worn with the right or injured eye gives to that eye normal vision. However, the correcting glass, or lens, can be worn on the injured eye and used only by closing and not using the uninjured eye. As a result of said accident, Richard Frings cannot use both eyes in conjunction. For all practical purposes he can use only one eye at a time, except that, even though he is not using the injured eye, it would protect him from moving objects in crossing the street. On September 21, 1916, Richard Frings returned to work for his employer at an actual daily wage of $3. Prior to the accident, his actual daily wage was $2.70."

Compensation at a rate agreed upon between the claimant and the employer was paid to the claimant up to the time of his resuming work, and it may be observed that the disability occurred prior to the passage of the amendment awarding compensation in case of the partial loss of an eye. Chapter 705, Laws 1917. The Commission made the following decision:

"The claim of Richard Frings for the permanent loss of use of an eye is denied, on the ground that he has not sustained the permanent loss of use of an eye, without prejudice, however, to

the claimant renewing his claim when he can show loss of earnings due to the injury to his eye."

The eye specialist who attended the claimant testified:

"Providing anything should happen to the other eye, a man with such vision can and does, and men do, make a good living, necessarily in the same work; that is, the work in which they have been occupied at the time of the injury. As, for example, I had a man down at the dry dock who had a similar injury, but much more serious, seven years ago, who is still on the job at the same old thing, and that is a riveter, making his regular wages, and I have a man who, until his death a short time ago, kept books, who had always been a timekeeper, and who went back to his old occupation. So it is not all evidence that this man can't earn a living at that occupation."

Section 15, subd. 3, of the Workmen's Compensation Law (Consol. Laws, c 67), provides that the permanent loss of the use of an eye shall be considered as the equivalent of the loss of such eye. It was said in Matter of Grammici v. Zinn, 219 N. Y. 322, 325, 114 N. E. 397:

"The expressions 'loss' and 'loss of the use,' as used in the law, should be given their unrestricted and ordinary meaning. In the case at bar, the hand, or the use of it, was not lost, provided it could fulfill, in a degree fair and worth considering, in any employment for which the claimant was physically and mentally fitted or adapted, its normal and natural functions."

To a like effect is Matter of Kanzar v. Acorn Mfg. Co., 219 N. Y. 326, 114 N. E. 398.

Unquestionably, when the lens of the eye was destroyed, the use of the eye, unaided, was lost. It was only by providing an artificial lens outside the eye that the image could be so thrown upon the retina as to restore the sight. The retina was not destroyed, and through the use of an artificial lens the eye, so far as its use alone was concerned, could fulfill the natural function of an eye. The claimant has permanently lost the use of the eye, when so supplemented, to the extent only of using it in conjunction with the other eye, which he cannot do, owing to the lack of co-ordination of images. Should the claimant lose his left eye, he would be able, using the injured eye, aided by a lens, to fully perform his duties. It was said in Matter of Marhoffer v. Marhoffer, 200 N. Y. 543, 546, 116 N. E. 379:

"The theory of the New York law is not indemnity for loss of a member, or physical impairment as such; but compensation for disability to work, made on the basis of average weekly wages."

I think there has not been the loss of an eye within the contemplation of the statute, and that the certified question should be answered in the negative. All concur, except WOODWARD and HENRY T. KELLOGG, JJ., who dissent.

SUPREME COURT OF NEW YORK.
APPELLATE DIVISION, THIRD DEPARTMENT.

BARON

V.

NATIONAL METAL SPINNING & STAMPING CO. et al.*

1. WORKMEN'S COMPENSATION-REVIEW-QUESTIONS LAW.

OF

Where the evidence as to the nature and extent of an injury to claimant's thumb was undisputed, the finding of the commission that the injury should be considered as the loss of the entire thumb was a legal conclusion, subject to review by the court.

2. WORKMEN'S COMPENSATION-COMPENSATION FOR INJURY AMOUNT OF DISABILITY BENEFITS-LOSS OF FINGER.

Under Workmen's Compensation Law (Consol. Laws, c. 67) § 15, subd. 3, providing that the loss of the first phalanx of the thumb or finger shall be considered equal to the loss of one-half of such thumb or finger, and that the loss of more than one phalanx shall be considered as the loss of the entire thumb or finger, an injury to the thumb, requiring the amputation of the distal phalanx, and the removal of a slight chip of the bone of the proximal phalanx was not equivalent to the loss of the whole thumb, as an injury which would be treated as inconsequential when occurring to the distal phalanx cannot be treated as creating disability, and compensative when occurring to the proximal phalanx, and the use of a finger is not lost when it can fulfill its normal and natural functions in a degree fair and worth considering in any employment in which the claimant is physically and mentally fitted or adaptive.

Appeal from State Industrial Commission.

Proceeding under the Workmen's Compensation Law by Mendal Baron to obtain compensation for personal injuries, opposed by the National Metal Spinning & Stamping Company, employer, and the Employers' Liability Assurance Corporation, Limited, insurance carrier. Compensation was awarded, and the employer and the insurance carrier appeal. Reversed, and claim remitted to the Commission.

Argued before KELLOGG, P. J., and LYON, WODWARD, COCHRANE, and KELLOGG, JJ.

Bertrand L. Pettigrew, of New York City, for appellants. Merton E. Lewis, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondent.

Robert W. Bonynge, of New York City, for State Industrial Commission.

LYON J. The question presented by this appeal is whether the claimant was entitled to be awarded compensation for the loss of an entire thumb, or for the loss of only one-half a thumb. In March, 1917, the claimant, while engaged in feeding metal into * Decision rendered, Mar. 6, 1918. 169 N. Y. Supp. 337.

Vol. I-Comp. 56.