COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

Argued at Alexandria, Virginia 

GUY M. SINCLAIR 

 OPINION BY 

v. Record No. 2367-95-4 JUDGE JAMES W. BENTON, JR. 

 SEPTEMBER 10, 1996 

SHELTER CONSTRUCTION CORPORATION and 

 NATIONWIDE MUTUAL INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Laurie D. Waters (Jack T. Burgess & 

Associates, P.C., on brief), for appellant. 

 

 Roger L. Williams (Cathie W. Howard; Williams & 

Pierce, on brief), for appellees. 

 Guy M. Sinclair injured his eye in a work-related incident. 

 He appeals from the Workers' Compensation Commission's award 

granting him permanent partial disability benefits but allowing 

his employer, Shelter Construction Corporation, a credit for his 

pre-existing, uncorrected visual acuity. Sinclair contends that 

he should have been awarded one hundred percent, rather than 

fifty percent, permanent partial disability. Although the 

commission did not err in granting a credit, we hold that the 

commission misapplied Rule 13 of the Rules of the Virginia 

Workers' Compensation Commission when it reduced Sinclair's award 

below one hundred percent disability. 

 I. 

 The facts are undisputed. Sinclair, a carpenter employed by 

Shelter Construction, sustained an injury by accident when a 

circular saw propelled a piece of wood into his right eye. Prior 
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to the injury, Sinclair had a visual acuity measurement of 20/80 

in his right eye, corrected to 20/20 with eyeglasses. As a 

result of the injury by accident, Sinclair's right eye developed 

a hyphema. His vision in that eye deteriorated to 20/300. With 

eyeglasses, his vision is now corrected to 20/30. 

 In his claim for benefits pursuant to Code 

§ 65.2-503(B)(14), Sinclair alleged a one hundred percent loss of 

vision. Shelter Construction agreed that Sinclair's post-injury 

uncorrected vision acuity was 20/300. However, it contends that 

because Sinclair's pre-injury measurement of 20/80 amounted to a 

fifty percent loss of visual acuity according to Snellen's Chart, 

as adopted in Rule 13, he suffered only a fifty percent loss of 

visual acuity as a result of the injury. The deputy commissioner 

ruled that Sinclair suffered a one hundred percent loss of 

vision. Finding that Sinclair's pre-existing visual deficiency 

did not materially affect his overall ability to perform his 

work, the deputy commissioner ruled that Shelter Construction was 

not entitled to an offset for Sinclair's pre-injury visual acuity 

measurement. 

 On review, the commission found that Shelter Construction 

was entitled to an offset for Sinclair's pre-existing 20/80 

visual acuity measurement because it exceeded the level of 

compensability. The commission awarded Sinclair compensation for 

a fifty percent loss of vision in his right eye because his 

pre-injury acuity was fifty percent on Snellen's Chart. 
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 II. 

 "'[C]onclusions of the Commission upon questions of law, or 

mixed questions of law and fact, are not binding on [appeal].'" 

City of Waynesboro v. Harter, 1 Va. App. 265, 269, 337 S.E.2d 

901, 903 (1985) (quoting Brown v. Fox, 189 Va. 509, 517, 54 

S.E.2d 109, 113 (1940)). For purposes of determining 

compensation for permanent loss under Code § 65.2-503, the 

following rules apply: 

 [T]he permanent loss of the use of a member 

shall be equivalent to the loss of such 

member, and for the permanent partial loss or 

loss of use of a member, compensation may be 

proportionately awarded. Compensation shall 

also be awarded proportionately for partial 

loss of vision or hearing. 

Code § 65.2-503(D). The commission has adopted Snellen's Chart 

for measuring vision acuity loss. See Commission Rule 13. We 

must decide whether under Rule 13 Sinclair is entitled to fifty 

or one hundred percent disability resulting from his compensable 

injury. 

 In Walsh Construction Co. v. London, 195 Va. 810, 80 S.E.2d 

524 (1954), the Supreme Court stated that because the Workers' 

Compensation Act "is silent as to whether corrected or 

uncorrected vision should be the basis for determining the extent 

of eye injuries, it should be interpreted and applied in a 

practical and common-sense manner so as to accomplish the 

purposes of the act." Id. at 817, 80 S.E.2d at 528. In London, 

the employee had a pre-injury visual acuity of 20/200 correctable 
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to 20/20. As a result of an accident and subsequent infection, 

the employee's eye was removed. Id. at 812, 80 S.E.2d at 525-26. 

 Although the employee's uncorrected pre-injury vision loss was 

one hundred percent on Snellen's Chart, the Supreme Court awarded 

full disability for the loss of the eye. The Court reasoned that 

the employer was not entitled to a credit for the employee's 

pre-existing one hundred percent vision loss because the employee 

had "lost the source of his vision and all means of correcting 

the eye to normal use." Id. at 818, 80 S.E.2d at 528. The loss 

was so severe that the employee's pre-existing vision loss was 

inconsequential. 

 Before the commission, Sinclair alleged that he did not wear 

eyeglasses at work to perform his pre-injury work and that his 

pre-existing, uncorrected visual acuity was not disabling. 

Shelter Construction did not dispute Sinclair's claim but, 

instead, asserted that with the aid of eyeglasses Sinclair could 

still perform his work. The deputy commissioner found "that 

Sinclair . . . was not required to wear corrected lenses in his 

job prior to the injury." The commission's decision did not 

address this aspect of the record. Significantly, however, the 

commission made no findings contrary to the deputy commissioner's 

finding. 

 The employee's ability to perform without eyeglasses has 

some bearing on the resolution of this case because of the 

similarity to the circumstance in Owen v. The Chesapeake 
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Corporation, 198 Va. 440, 94 S.E.2d 462 (1956). The evidence in 

this case proves, as in Owen, "that prior to the accident 

[Sinclair] was selling to the industry uncorrected vision, and 

that after the accident, without the aid of glasses, the vision 

in [the injured] eye had been reduced to a fraction which by 

Snellen's Chart is equivalent to industrial blindness." 198 Va. 

at 442, 94 S.E.2d at 463. Also significant in this case is the 

magnitude of the loss that Sinclair suffered in the incident. 

Indeed, although the employee in London wore eyeglasses prior to 

the accident and had uncorrected vision acuity of "20/200, which 

is tantamount to a total loss of vision," 195 Va. at 817, 80 

S.E.2d at 528, the Court allowed the employer no credit. Despite 

proof in London that the employee was industrially blind before 

the accident, the Court determined that the employee's 

pre-existing visual impairment was minuscule in comparison to the 

loss caused by the injury. 

 In Virginia Fibre Corp. v. Moore, 17 Va. App. 691, 440 

S.E.2d 432 (1994), a hearing loss case, this Court addressed 

London. We stated the following: 

 [London] does not stand for the principle 

that loss to a sense organ should be measured 

by pre-injury and post-injury function. 

Rather, [London] involved a comparison of 

pre-injury and post-injury utility. The 

"practical and common sense" result reached 

by the Supreme Court in [London] was that 

where a pre-existing injury to or disability 

in a sense organ did not materially affect 

the employee's overall ability to use the 

organ, no benefit would accrue to the 

employer for any pre-injury disability to the 

organ. The [employee] in [London] received 
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full compensation for his eye injury even 

though he had poor, but correctable, eyesight 

prior to the injury. 

17 Va. App. at 692-93, 440 S.E.2d at 433 (quoting, in part, 

London, 195 Va. at 818, 80 S.E.2d at 528). Thus, we declined to 

allow a credit to the employer because the employee's pre-injury 

hearing loss was not shown to have affected his ability to use 

his hearing. In so holding, we ruled that Moore's pre-injury 

condition was not one that implicated "the provision in the Code 

that relieves an employer from liability for that portion of a 

compensable injury that pre-existed the employer-employee 

relationship and the injurious work-related exposure." Id. at 

693, 440 S.E.2d at 434. See Code § 65.2-505. 

 Important also to the resolution of this appeal is our 

decision in Creative Dimensions Group, Inc. v. Hill, 16 Va. App. 

439, 430 S.E.2d 718 (1993), a case not cited by the commission. 

Citing Owen, we acknowledged in Hill "that the degree of vision 

loss should be determined without regard to any artificial aid or 

corrective device." 16 Va. App. at 441, 430 S.E.2d at 720. 

Indeed, we ruled that "'[t]he Legislature has not required that 

eye loss be determined on the basis of corrected vision and we 

have no authority to impose such a requirement.'" Id. at 445, 

430 S.E.2d at 722 (citation omitted). The Hill decision relied 

upon the following general rule: 

 "[L]oss of use should be judged on the basis 

of uncorrected vision . . . and that 

therefore loss of use will not be ruled out 

because some correction is achieved. Indeed, 

an award for total blindness in one eye has 
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been upheld although use of an optical lens 

had restored a 'substantial function of the 

eye.'" 

16 Va. App. at 443, 430 S.E.2d at 721 (quoting 2 Arthur Larson, 

The Law of Workmen's Compensation, § 58.13(f), at 10-492.140 to 

.147 (1992) (footnote omitted)). 

 The evidence proved that prior to the injury Sinclair's 

vision loss measured a reading of 20/80 on Snellen's Chart. 

However, his impaired vision did not affect his ability to 

perform carpentry work until the accident worsened his vision. 

After the accident, Sinclair's vision loss measured a reading of 

20/300 on Snellen's Chart. That reading exceeds the 20/200 

fraction contained on the Snellen's Chart of Rule 13, which 

indicates one hundred percent loss of vision. Although the 

Snellen's Chart shown in Rule 13 contains no readings in excess 

of 20/200, the evidence proves that Sinclair's post-injury visual 

acuity reading is 20/300 on Snellen's Chart. Indeed, the loss of 

visual acuity in Sinclair's eye attributable to the accident, 

i.e., the difference between his pre-existing Snellen's Chart 

reading and his post-injury Snellen's Chart reading is 20/220. 

That amount exceeds the fraction reading for industrial blindness 

on the Snellen's Chart contained in Rule 13. 

 Rule 13 states that "[a]ny other deviation from normal 

vision caused by the injury shall be considered." By considering 

Sinclair's post accident vision acuity of 20/300 to be the same 

as a reading of 20/200 on the Snellen's Chart, the commission 
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failed to consider the actual deviation from normal vision. 

Moreover, as in London, Sinclair has been deprived of 20/20 

corrected vision as a result of the accident. 

 We hold, therefore, that by subtracting Sinclair's 

pre-existing vision acuity reading (20/80) from his post-injury 

vision acuity reading (20/300), the employer is given the benefit 

of the provision of Code § 65.2-505 and Sinclair is given the 

benefit of the deviation from normal vision as required by Rule 

13. Accordingly, under a proper application of Rule 13 and Code 

§ 65.2-505, Sinclair's loss of visual acuity resulting from the 

injury far exceeds the minimum threshold for industrial blindness 

and entitles him to one hundred percent permanent partial 

disability. Therefore, we reverse the decision of the commission 

and remand this case to the commission for an award consistent 

with this opinion. 

 Reversed and remanded.