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Tracy v. Hershey Creamery Co.
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 247
Docket: 	WCB-97-400
Argued:	September 8, 1998
Decided:	November 23, 1998

Panel:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
	CALKINS, JJ.

DAVID TRACY

 v. 

HERSHEY CREAMERY COMPANY 

and 

MAINE EMPLOYERS' MUTUAL INSURANCE COMPANY

RUDMAN, J.

	[¶1]  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

	[¶2]  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).  
	[¶3]  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: "[B]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

	[¶4]  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. 
	[¶5]  "Schedule" or "specific loss" benefits are not new.  Maine has
expressly provided some form of schedule benefits since the original
enactment of the Workers' Compensation Act in 1915.  P.L. 1915, ch. 295,
§ 14; see e.g., Estabrook v. Stewart Read Co., 129 Me. 178, 186, 151 A. 141,
145 (1930).  Prior to 1987, the former Act provided 100 weeks of total
incapacity benefits "[f]or the loss of an eye, or the reduction of the sight of
an eye, with glasses, to 1/10 of the normal vision. . . ."  See, e.g., 39 M.R.S.A.
§ 56 (Pamph. 1986), repealed by P.L. 1987, ch. 559, Pt. B, § 33.  Prior to
1965, specific loss benefits were intended to compensate employees for loss
of earning capacity.  See Cook, 155 Me. at 311, 154 A.2d at 171 ("The
theory of the scheduled injuries is that the claimant 'has sustained a distinct
loss of earning power in the near or not remote future,'" quoting Clark's
Case, 120 Me. 133, 137, 113 A. 51, 52 (1921)).
	[¶6]  In 1965 the Legislature amended the specific loss statute to
permit the award of schedule benefits "in addition to" incapacity benefits. 
P.L. 1965, ch. 408, § 5.  See, e.g., 39 M.R.S.A. § 56 (Pamph. 1986), repealed
and replaced by P.L. 1987, ch. 559, Pt. B, § 31.  Following the 1965
amendment, schedule "permanent impairment" benefits were no longer
intended as compensation for lost earning capacity, or loss of "industrial
use," but as compensation for lost bodily function.  See, e.g., Delorge v. NKL
Tanning, Inc., 578 A.2d 1173, 1174 (Me. 1990) ("[T]he award for
permanent impairment has no relation to work incapacity or wage
replacement.  Rather it is based on the loss of function of part of the body
due to work-related injury.").  
	[¶7]  In 1992 the Legislature abolished specific loss permanent
impairment benefits based on loss of bodily function.  Maine Workers'
Compensation Act of 1992, P.L. 1991, ch. 885.  Today, the benefits provided
by section 212(1) are expressly intended to compensate employees for loss
of earning capacity.  See Clark v. International Paper Co., 638 A.2d 65, 67
(Me. 1994).  The benefits provided by section 212(2) and (3) are intended
to compensate employees for catastrophic injuries.  See 39-A M.R.S.A. §
221(1).  While the purpose of benefits pursuant to the new Act is primarily
to compensate employees for loss of earnings, the specific loss provisions
also recognize "human factors substantially in addition to the wage loss
concept" that are attendant with the traumatic loss of a body part or vision
resulting from a work-related injury.{1}  It is in this context that we address
the issue presented here.

III.  Discussion

	[¶8]  We first address whether Tracy's temporary vision loss prior to
medical intervention was sufficient to trigger his employer's obligation to
pay specific loss benefits.  The legislative history is instructive.  Pursuant to
the former Act, when specific loss benefits were intended as compensation
for permanent impairment, the determination of vision loss was made at the
point of "maximum medical improvement."  See, e.g., 39 M.R.S.A. § 56
(Pamph. 1986), repealed and replaced by P.L. 1987, ch. 559, Pt. B, § 31. 
Maximum medical improvement was defined as "the date after which
further recovery and further restoration of function can no longer be
reasonably anticipated, based upon reasonable medical probability."  See 39
M.R.S.A. § 2(14) (1989), repealed and replaced by P.L. 1991, ch. 885, § A-7,
A-8, codified at 39-A M.R.S.A. § 102(15) (Supp. 1997).  
	[¶9]  Although the maximum medical improvement language has not
been expressly imported into the new specific loss benefits provisions, the
new provisions contain similar concepts expressed by use of the terms "total
and permanent loss," and "actual loss" throughout subsections 2 and 3 of
section 212.  See also Bureau v. Staffing Network, Inc., 678 A.2d 583, 588
(Me. 1996) (interpreting title 39-A in light of longstanding judicial
interpretations of similar provisions in former title 39).  Accordingly, the
determination as to whether an employee's loss of vision exceeds 80% for
purposes of Paragraph 212(3)(M) should be made when the work-related
condition has reached a reasonable medical endpoint.  Here, Tracy's vision
was restored to less than 80% loss within approximately 6 months of the
injury. 
	[¶10]  We next address Tracy's contention that his ongoing vision loss
even after medical intervention triggers the employer's responsibility to pay
specific loss benefits because the implanted lens is analogous to glasses, and
without that implant his vision loss would approximate 95%.  He argues that 
Paragraph 212(3)(M), unlike the previous statute, does not base the
determination of vision loss on the employee's post-injury vision "with
glasses."  Accordingly, he argues that his vision loss should be evaluated in
the absence of the implanted lens.  
	[¶11]  It is not necessary in this case to determine the significance of
the removal of the phrase "with glasses" in Paragraph 212(3)(M), however,
because we disagree with Tracy's assertion that a surgical implanted lens is
analogous to an external contact lens or "glasses" as that term was
understood in 1919.  See P.L. 1919, ch. 238, § 16.  The term "glasses,"
then and now, refers to externally applied lenses, and not a surgical
correction to the eye.  The fact that a part of the medical intervention
included the insertion of an artificial lens does not place him in the same
circumstances as a person whose vision loss exceeds 80% without the
benefit of glasses.  Because his vision loss after successful medical
intervention, with or without the assistance of external glasses or contact
lenses, does not approach the 80% loss required by section 212, his
entitlement to benefits is not affected by the presence or absence of the
phrase "with glasses' in Paragraph 212(3)(M).{2}
	[¶12]  Moreover, to allow recovery for the "actual" loss of an eye in
circumstances where the employee's vision has been significantly restored
would be directly contrary to the Legislature's intent to allow specific loss
benefits only in instances of a total, catastrophic loss.  Tracy's temporary loss
of vision, corrected in part through surgery, is simply not comparable to the
amputation of a body part.  This conclusion should not be understood to
minimize the trauma that Tracy suffered when the staple entered his eye. 
Many employees, however, suffer extreme and traumatic injuries which
never result in the receipt of specific loss benefits because no body part was
actually lost.
	The entry is:	
Decision of the Workers' Compensation Board
affirmed.
Attorney for employee:

Jeffrey L. Cohen, Esq., (orally)
McTeague, Higbee, MacAdam, Case, Watson & Cohen, P.A.
P O Box 5000
Topsham, ME 04086-5000

Attorney for employer:

Stephen W. Moriarty, Esq., (orally)
Norman, Hanson & DeTroy
P O Box 4600
Portland, ME 04112-4600