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In the Matter of the Claim of JOSEPH HAMMER, Appellant, v. R.J.M. KNITWEAR et al., Respondents. WORKMEN'S COMPENSATION BOARD, Respondent.

AULISI, J.

Appeal by claimant from a decision of the Workmen's Compensation Board which modified the Referee's decision and found a 20% loss of vision of the right eye. Claimant, while working, was struck in the right eye by a piece of metal which necessitated the surgical removal of the lens of that eye. The sole issue raised by claimant-appellant is that he is entitled to an award for the total loss of use of the right eye. The board twice referred this case for further medical testimony, the last time to an impartial ophthalmologist. On the entire record the board found that claimant could not tolerate a contact lens and that with the use of a conventional lens claimant would have a 20% loss of vision. There is a variety of medical evidence concerning claimant's vision, the corrective measures possible and claimant's tolerance to them. Upon the record before us there is substantial evidence to support the board's determination. The report of the impartial specialist states that there is no medical or mechanical reason why claimant cannot successfully use a contact lens although an individual's tolerance to it is a highly subjective matter. He was of the opinion that with a contact lens claimant's loss of vision could be improved to 20/20 or to a loss of 20% if a conventional lens was used (cf. Matter of Hurley v. E.R. Wolcott, Inc., 27 A.D.2d 788). The board has made a factual determination and we cannot say as a matter of law that the board erred. Decision affirmed, without costs. Herlihy, J.P., Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.

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MATTER OF HAMMER v. R.J.M. KNITWEAR
(Nov 9, 1967)